Calicoat v. CalicoatCalicoat v. Calicoat
Rendered on the 24th day of May, 2019.
POLLY A. CALICOAT, 20681 Elkhart Street, Harper Woods, Michigan 48225 Plaintiff-Appellee, Pro Se
KEITH B. CALICOAT, 266 Skyview Drive, Vandalia, Ohio 45377 Defendant-Appellant, Pro Se
TUCKER, J.
I. Facts and Procedural History
{¶ 2} Polly and Keith Calicoat were granted a Decree of Legal Separation in 1998. The parties had two minor children at that time. Ms. Calicoat was named the residential parent and legal custodian of the children. Mr. Calicoat was ordered to pay child support of $307 per child per month.
{¶ 3} In October 1999, Mr. Calicoat, acting pro se, filed a
{¶ 4} In October 2004, Mr. Calicoat filed a motion to reduce his child support obligation. The magistrate denied the motion by decision filed January 31, 2005. No objections were filed, and no appeal was taken.
{¶ 5} Mr. Calicoat again filed a motion to reduce child support in April 2005. On May 11, 2005, the parties entered into an agreed order which waived Mr. Calicoat‘s child
{¶ 6} On July 6, 2005, the parties entered into another agreed order which reduced Mr. Calicoat‘s child support obligation to $189 per month per child. The order further provided that, because health insurance was not available, Ms. Calicoat would be responsible for the first $100 in uninsured medical/dental/optical expenses and that the parties would divide any remaining expenses in accordance with their percentage of income as set forth on line 16 of the child support computation worksheet.
{¶ 7} On April 10, 2006, Mr. Calicoat filed a motion to modify custody and terminate child support. The magistrate overruled the motion, and no objections were filed.
{¶ 8} On March 26, 2012, the trial court issued a notice to the parties that the parties’ son would be emancipated as of June 8, 2012. The notice also informed the parties that SEA documents showed Mr. Calicoat owed a child support arrearage of $1,292.36. The notice further provided that if either party wished to contest the SEA records they should return the attached request for hearing. Neither party requested a hearing.
{¶ 9} On July 16, 2012, the trial court entered an order emancipating the parties’ son, who was 19 and had graduated high school. The order also required Mr. Calicoat to continue to pay $189 per month in child support for one child and to pay $189 per month for his child support arrearage. The order contained
Starting on the first day of the month in which private health insurance is being provided * * * [Mr. Calicoat] shall pay $249 per month for current child support plus 2% processing charge, for a total of $253.98. The Guidelines Worksheet is attached and made a part hereof.
Starting on the first day of the month in which private health insurance is no longer being provided * * * the Child Support Obligor shall pay $206.00 per month for current child support, and $75 per month for cash medical support plus 2% processing charge, for a total of $286.62.
{¶ 11} The SEA‘s recommendation was filed with the court on July 27, 2012. It contained language indicating that it was issued to the parties. On August 27, 2012, the trial court entered an order adopting the recommendation. The trial court noted that the recommendation had been issued to the parties and that neither party had made any request for further review. Based upon the SEA‘s recommendation, the trial court entered an order modifying child support by increasing Mr. Calicoat‘s current child support obligation to $206 per month. The trial court found that there was no evidence presented that the remaining child for whom child support was ordered was covered by medical insurance at that time. Thus, in accord with the recommendation, the court also ordered
{¶ 12} On March 13, 2014, a notice of emancipation for the second child was issued, indicating that the child would be considered emancipated as of June 8, 2014. The notice also stated that the SEA records showed an unaudited child support arrearage of approximately $3,085. Six days later, Mr. Calicoat filed a request for a mistake of fact hearing, claiming that the emancipation date was incorrect and that the records of the SEA were incorrect, because they showed a support arrearage which he claimed did not exist. A hearing was set for April 30, 2014, and notice of the hearing was mailed to the parties.
{¶ 13} The magistrate conducted a hearing on April 30, 2014. Neither party appeared but a representative from the SEA was present.1 The magistrate issued a decision on May 5, 2014, denying Mr. Calicoat‘s challenge to the emancipation date. The magistrate also noted that the SEA‘s records did not account for the changes in support made by the May 11, 2005 agreed order reducing Mr. Calicoat‘s child support obligation by $100 per month. Thus, the magistrate stated that the “child support
{¶ 14} On July 5, 2017, Mr. Calicoat filed a motion to correct an error in his child support obligation; he claimed that he had no arrearage and that he was entitled to a refund due to an approximately $600 overpayment of support. A hearing was conducted on August 15, 2017. On September 29, 2017, the magistrate filed a decision in which it acknowledged, and corrected, an error set forth in the May 5, 2014 decision. Specifically, the magistrate agreed with Mr. Calicoat‘s claim that the 2014 decision improperly stated that the child support obligation would return to $307 effective January 1, 2006. The magistrate also agreed with Mr. Calicoat that the child support obligation should have returned to the sum of $189 in accord with the 2005 agreed orders. The magistrate adjusted child support accordingly but noted that, even with the correction, Mr. Calicoat had a remaining arrearage of $1,154.02.
{¶ 15} Mr. Calicoat filed objections in which he argued that the magistrate‘s arrearage finding was incorrect. He also argued that the cash medical support payments effective August 1, 2012 should not have been put in place because the children were covered by medical insurance at that time. On January 24, 2018, the trial court affirmed the magistrate‘s decision as to the correction of the child support obligation, but afforded Mr. Calicoat the opportunity to provide evidence of his claim that the children had been covered by health insurance at the times relevant to his motion.
{¶ 17} A hearing on Mr. Calicoat‘s motion to vacate was conducted on January 23, 2018. On February 21, 2018, the magistrate filed a decision denying the motion; it found that the motion was not timely and that Mr. Calicoat had not presented any probative evidence to support his request for relief. Mr. Calicoat filed objections, which were overruled by the trial court.2
{¶ 18} On June 25, 2018, Mr. Calicoat filed a document entitled “Motion to Vacate Order per Civil Rules 60b & 60d or Modify.” In the motion, Mr. Calicoat stated that the trial court should vacate or modify the trial court‘s order of August 27, 2012, which adopted the SEA administrative review and adjustment to child support. In support, he argued that he was not “notified that this hearing was going to modify any support, nor did [he] receive a copy of the order.” Dkt. No. 6. He further argued that the SEA erred by recommending the payment of cash medical support when there was no evidence regarding whether the children had health insurance coverage.
{¶ 19} The trial court overruled the motion as untimely. The trial court further found that the issue raised by Mr. Calicoat was the same as his argument raised in motion
{¶ 20} Mr. Calicoat appeals.
II. Analysis
{¶ 21} Mr. Calicoat has failed to assert an assignment of error in his appellate brief.3 After reviewing his brief, we understand his argument to hinge upon his belief that the trial court should have vacated the August 27, 2012 order. Thus, we assign the following as Mr. Calicoat‘s sole assignment of error:
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE MOTION TO VACATE JUDGMENT.
{¶ 22} In his brief, Mr. Calicoat contends that he is entitled to relief under the provisions of
{¶ 23}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶ 24} In order to prevail on a
{¶ 25} The decision to sustain or overrule a motion for relief from judgment is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). In order to find an abuse of discretion, the reviewing court must conclude that the trial court
{¶ 26} We first note that Mr. Calicoat‘s motion to vacate merely made a generalized citation to
{¶ 27} In reviewing Mr. Calicoat‘s argument, it is clear that his claim actually fell under
{¶ 28} Further, the record belies Mr. Calicoat‘s claim that he did not receive notice of the 2012 administrative review or the subsequent modification. The record indicates that the SEA issued a copy of its administrative recommendation to the parties along with a notice that he could contest the recommendation by returning an attached form. The record also demonstrates that the trial court sent a copy of the ensuing modification of
{¶ 29} We turn next to Mr. Calicoat‘s alleged meritorious defense and note that it too fails. Specifically, he contends that the trial court‘s 2012 order was erroneous because it improperly required him to pay cash medical support. In support, he claims that the children were insured. However, there is no competent evidence in this record to support a finding that the children were insured at any time relevant to this appeal.
{¶ 31} Accordingly, Mr. Calicoat‘s sole assignment of error is overruled.
III. Conclusion
{¶ 32} Mr. Calicoat‘s assignment of error being overruled, the judgment of the trial court is affirmed.
FROELICH, J. and HALL, J., concur.
Copies sent to:
Polly A. Calicoat
Keith B. Calicoat
Hon. Timothy D. Wood