MARISSA D. ADAMS, PLAINTIFF-APPELLEE, v. MICHAEL JASON ADAMS, DEFENDANT-APPELLANT.
CASE NO. 14-12-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
November 5, 2012
[Cite as Adams v. Adams, 2012-Ohio-5131.]
PRESTON, J.
Aрpeal from Union County Common Pleas Court Domestic Relations Division Trial Court No. 04 DR 0168 Judgment Reversed and Cause Remanded
Anthony W. Greco for Appellant
Rebecca J. Stumler for Appellee
{1} Defendant/father-appellant, Michael Jason Adams (“Jason“), appeals the Union County Court of Common Pleas’ decision modifying his child support obligation and awarding attorney‘s fees and costs to plaintiff/mother-appellee, Marissa D. Adams. For the reasons that follow, we reverse.
{2} Jason and Marissa were married on June 27, 2003. (Doc. No. 1). The parties had one child together prior to the marriage in 2001. (Id.). On August 23, 2004, Marissa filed a complaint seeking divorce on the basis of extreme cruelty, gross neglect of duty, and incompatibility. (Id.). On September 14, 2004, Jason filed an answer and counterclaim for divorce. (Doc. No. 14).
{3} On January 13, 2005, the trial court filed an agreed judgment entry/divorce decree, dividing the parties’ assets, and incorporаting a shared parenting agreement governing their minor child. (Doc. No. 48). In pertinent part, the shared parenting agreement provided that despite the fact that Jason‘s child support obligation under the Ohio Child Support Guidelines would be $334.90 per month, “[t]he parties have agreed to a deviation in their child support obligation so that neither party shall pay the other any child support.” (Id., attached).
{4} On October 19, 2010, Marissa filed a motion to terminate the shared parenting plan, asking the trial court, in relevant part, to designate her as the
{5} On December 30, 2010, Jason filed a contempt motion against Marissa for allegedly violating the shared parenting plan; a motion for the appointment of a Guardian Ad Litem (“GAL“) for the parties’ minor child; and, a motion for an in-camera interview of the parties’ minor child. (Doc. Nos. 64, 67-68).
{6} On February 28, 2011, the trial court appointed attorney Clifton G. Valentine to serve as GAL for the parties’ minor child. (Doc. No. 86).
{7} On May 3, 2011, Jason filed another contempt motion against Marissa for allegedly violating the shared parenting plan. (Doc. No. 90).
{8} On June 6, 2011, Jason filed a motion to compel Marissa to submit responses to his second set of interrogatories and a second request for production of documents. (Doc. No. 100). On that same date, the GAL submitted his report and recommendation, noting, in pertinent part, that “I do not believe that the parties will be able to demonstrate a substantial change in circumstances which is required to terminate the Shared Parenting Plan and award custody to one party or the other.” (Doc. No. 85, 101).
{10} On June 20, 2011, the parties filed a first amended shared parenting plan, resolving many of the issues in Marissa‘s motion to terminate the original shared parenting plan, with the exceptions of child support, the dependency tax exemption, and health insurance. (Doc. No. 103); (Aug. 24, 2011 Tr. at 6, 10). On July 12, 2011, the trial court adopted the parties’ first amended shared parenting plan. (Doc. No. 111). On that same day, the hearing on Marissa‘s motion to terminate the shared parenting plan and seeking child support was rescheduled to August 24, 2011 upon the parties’ oral motion. (Doc. No. 109).
{11} On August 2, 2011, the parties filed an agreed judgment entry, dismissing with prejudice Jason‘s December 30, 2010 motion for contempt; Jason‘s December 30, 2010 motion to interview the parties’ minor child; Jason‘s May 3, 2011 motion to show cause against Marissa for violating the agreed judgment entry of divorce; Jason‘s June 6, 2011 motion to compel discovery; and, Marissa‘s June 14, 2011 motion to compel discovery. (Doc. No. 113).
{12} On August 23, 2011, Marissa filed a motion for a continuance of the motion hearing, alleging that Jason failed to comply with her discovery requests. (Doc. No. 114). The matter came on for hearing on August 24, 2011, at which
{13} On August 26, 2011, the magistrate ordered the parties to submit proposed findings of fact and conclusions of law respecting: (1) the amount of Jason‘s income for computation of child support; and (2) what testimony or exhibits presented at the hearing support those proposed findings and conclusions. (Doc. No. 115). Upon Jason‘s motion, the magistrate subsequently modified its order to include proposed findings of fact and conclusions of law concerning Marissa‘s income for purposes of the child support calculation. (Doc. Nos. 116-117).
{14} On September 26, 2011, Jason submitted post-hearing briefs concerning the parties’ income for child support calculation purposes and attorney‘s fees. (Doc. Nos. 118-119). On that same day, Marissa filed her post-hearing brief concerning the parties’ income for child support calculation purposes. (Doc. No. 120). On October 11, 2011, Marissa filed a reply brief concerning attorney‘s fees and a rebuttal brief concerning the parties’ income for child support calculation purposes. (Doc. No. 123). That same day, Jason filed his reply brief concerning the parties’ income for child support calculation purposes. (Doc. No. 125).
{16} On November 2, 2011, Jason filed objections to the magistrate‘s decision, asserting, in pertinent part, that no substantial change in circumstances existed to support the modification оf child support; the magistrate erred in computing the parties’ income and naming him the obligor; and, he was not put on notice of Marissa‘s intent to seek attorney‘s fees and costs as required to support such an award. (Doc. No. 130).
{17} On December 2, 2011, the trial court overruled Jason‘s objections, concluding that the deviation in the amount of child support, alone, constituted a substantial change in circumstances sufficient to modify the child support order; Jason did not request findings of fact and conclusions of law concerning why the
{18} On February 1, 2012, Jason filed a notice of appeal. (Doc. No. 138). Jason now appeals raising five assignments of error for our review.
Assignment of Error No. I
The trial court erred and abused its discretion in finding that there was a change in circumstances warranting a modification of child support.
{19} In his first assignment of error, Jason argues that the trial сourt erred by failing to find a change in circumstances beyond the ten percent deviation in child support as required to modify child support when the parties originally agreed to the amount of child support.
{20}
(A) If an obligor or obligee under a child support order requests that the court modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the
amount of support that would be required to be paid under the child support order in accordance with the schedule and the applicable worksheet through the line establishing the actual annual obligation. If that amount as recalculated is more than ten per cent greater than or morе than ten per cent less than the amount of child support required to be paid pursuant to the existing child support order, the deviation from the recalculated amount that would be required to be paid under the schedule and the applicable worksheet shall be considered by the court as a change of circumstance substantial enough to require a modification of the child support amount. * * *
(C) If the cоurt determines that the amount of child support required to be paid under the child support order should be changed due to a substantial change of circumstances that was not contemplated at the time of the issuance of the original child support order or the last modification of the child support order, the court shall modify the amount of child support required to be paid under the child support order tо comply with the schedule and the applicable worksheet through the line establishing the actual annual obligation, unless the court determines that the amount calculated
pursuant to the basic child support schedule and pursuant to the applicable worksheet would be unjust or inappropriate and would not be in the best interest of the child and enters in the journal the figure, determination, and findings specified in seсtion 3119.22 of the Revised Code.
{21} Trial courts are given broad discretion in determining whether to modify existing child support orders. Woloch v. Foster, 98 Ohio App.3d 806, 810 (2d Dist.1994). Therefore, a trial court‘s decision regarding a motion to modify a child support order will not be overturned absent an abuse of discretion. Pauly v. Pauly, 80 Ohio St.3d 386, 390 (1997), citing Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). An abuse of discretion is more than a mere error in judgment; rather, it suggests that a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{22} The magistrate sub judice reсalculated the child support obligation and determined that a ten-percent deviation existed from the original child support order and the recalculated amount. (Oct. 19, 2011 Decision, Doc. No. 127).1 The magistrate further determined that the ten-percent deviation was “a change of circumstance substantial enough to require a modification of the child support
{23} The issue presented in this case is whether the trial court erred by modifying Jason‘s child support obligation based upon the ten-percent deviation in
{24} The father-appellant/obligor in Bonner v. Bonner agreed to pay child support in the amount of $200/week plus a processing fee, which constituted an upward deviation from the child support obligation under the child support
[w]here, as in the present case, a party voluntarily agrees to pay child support in an amount exceeding the statutory child support guideline schedule, a trial court granting a motion for modification must first find both (1) a change in circumstances, and (2) that such a change of circumstances “was not contemplated at the time of the issuance of the child support order.” Id.
We concluded in Bonner that “the circumstances surrounding the ten рer cent deviation were ‘contemplated at the time of the issuance of the child support order‘“; and therefore, the appellant had failed to meet the second element under
{25} This Court has followed Bonner v. Bonner on two other occasions. In Steggeman v. Steggeman, the parties originally agreed to deviate the mother-appellee‘s child support downward from $120.31/month to zero dollars/month in February 1998. 3d Dist. No. 8-06-23, 2007-Ohio-5482, ¶ 2. The mother-appellee‘s child support obligation was subsequently increased to $244.92/month
{26} On aрpeal, we concluded, contrary to the magistrate, that Bonner v. Bonner applied since the parties agreed in the April 2004 shared parenting plan to continue mother-appellee‘s child support obligation at the previously administratively-ordered amount of $463.45/month. Id. at ¶ 13-14. We further disagreed with the trial court‘s conclusion that the mother-appellee demonstrated “a substantial change of circumstances that was not contemplated at the time of the issuance of the * * * last modification of the child support order” as required by
{27} Likewise, the parties in Adams v. Sirmans were originally divorced in Georgia and entered into an agreement providing for joint physical custody of the children and for no exchange of child support. 3d Dist. No. 5-08-02, 2008-Ohio-5400, ¶ 2. After the parties moved to Ohio several years later, the father-appellant filed a motion to terminate the shared parenting agreement. Id. at ¶ 4. The magistrate overruled the motion but ordered the father-appellant to pay child support. Id. at ¶ 5. The trial court adopted the magistrate‘s decision maintaining the shared parenting plan but rejected the magistrate‘s decision to award mother-appellee child support since the magistrate failed to impute income to mother-appellee. Id. Thereafter, the magistrate entered a new decision, and the trial court adopted this subsequent decision. Id. The father-appellant appealed the trial court‘s decision ordering him to pay child support. Id.
{28} In light of the parties’ original agreement that no child support would be exchanged, this Court determined that Bonner v. Bonner applied, requiring
{29} In his October 19, 2011 decision, the magistrate sub judice stated that the parties were divorced by an agreed judgment entry that incorporated the parties’ shared parenting plan. (Oct. 19, 2011Decision, Doc. No. 127). The magistrate then states:
The court found that if Father was the child support obligor, he would pay $523.34 per month and that is [sic] Mother were obligor, she would pay $334.90 per month. The court further found that a deviation of child support to zero was in the best interest of the child. (Id.).
However, the magistrate‘s decision failed to note that the parties’ original, incorporated shared parenting plan provided the following: “[t]he parties have agreed to a deviation in their child support obligation so that neither party shall pay the other any child support.” (Doc. No. 48, attached). It appears that the trial court herein, upon review of the aforementioned language in the magistrate‘s
{30} Since the parties’ entered into an agreement to deviate the child support obligation to zero, our decision in Bonner v. Bonner is applicable. Therefore, prior to modifying the child support obligation, the triаl court was required to find more than a ten-percent deviation under
{31} Jason‘s first assignment of error is, therefore, sustained.
Assignment of Error No. II
The trial court erred and abused its discretion when it failed to make a findings of fact [sic] as to why defendant is designated as the obligor for child support purposes.
Assignment of Error No. III
The trial court erred and abused its discretion by ordereing [sic] defendant to pay child support, by not deviating child support to $0, or, alternatively, by not deviating by an amount which is in the best interest of the minor child.
Assignment of Error No. IV
The trial court erred and abused its discretion by not properly calculating both plaintiff and defendant‘s income by failing to consider plaintiff‘s consistent rental income, by failing to consider discrepancies in plaintiff‘s many reported gross incomes, and by improperly imputing income to defendant for costs paid for defendant‘s residence.
The trial court erred and abused its discretiоn by awarding plaintiff‘s attorney‘s fees and litigation costs.
{32} In his remaining assignments of error, Jason raises issues concerning the trial court‘s failure to make findings designating him an obligor for child support purposes, the trial court‘s calculation of income for child support purposes, and the trial court‘s decision to award Marissa attorney‘s fees and litigation costs.3 These assignments of error are all rendered moot in light of оur conclusion that the trial court erred by modifying Jason‘s child support obligation without making the requisite findings required under
{33} Jason‘s second, third, fourth, and fifth assignments of error are moot and will not be considered.
{34} Having found error prejudicial to the appellant herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
WILLAMOWSKI and ROGERS, J.J., concur.
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