{¶ 3} Subsequently, Appellee began to receive worker's compensation benefits, the first check received being in May of 1999, which covered the period of December 16, 1998 through March 2006. Appellee continued to receive worker's compensation benefits through the time in which the present action was filеd, totaling over $157,000. Appellee apparently informed the Child Support Enforcement Agency ("CSEA") of his receipt of *3 benefits as CSEA began withholding his monthly $51.00 child support obligation from his worker's compensation benefits. Nevertheless, none of the parties, Appellee, Appellant, or CSEA requested that the support obligation be reviewed in light of Appellee's new source of income. Rather, CSEA continued to withhold the previously set amount of $51.00 per month from Appellee's worker's compensation benefits until Appellant initiated the current action.
{¶ 4} Appellant then requested an administrative review of Appellee's child support in April of 2005and an administrative hearing was held where both Appellant and CSEA agreed that Appellee's child support obligation should be increased to $296.64 per month. On August 5, 2005, Appellee filed a request for court hearing on the matter, stating that he felt the calculation of the support amount was in error because his "income has not change (sic) for [the] last six years."
{¶ 5} As a result of Appellee's request, a hearing for "consideration of modification of a support obligation" was held and by entry dated October 21, 2005, the Juvenile Court adopted the modification recommendation and modified Appellee's support obligation to $296.64 per month, noting that "both parties cоnsented to the proposed amount within the statutory time limits." The order further provided that "the parties shall notify the *4
Meigs County Child Support Enforcement Agency in WRITING upon any change in their employment status, address, or upon obtaining ownership of any asset with a value of $500.00 or more." The newly calculated child support order was made rеtroactive to August 1, 2005, in accordance with R.C.
{¶ 6} Appellant does not dispute the trial court's retroactive modification of Appellee's current support obligation to the date the motion fоr modification was filed; however, she does dispute some of the language of both the administrative review and the court's order related to the amount of the prior support order that was in effect. Specifically, Appellant contends that the $51.00 support obligation was temporary and should have been increased to the previously established rate of $62.13 per week once Appellee began receiving income in the form of worker's compensation benefits.
{¶ 7} Appellant also contends that Appellee received other "earned income"2 separate and apart from his worker's compensation benefits. Thus, Appellant filed a motion asking the trial court to determine the arrearage between the period of November 1998 and August 1, 2005, as she contends *5 that Appellee should have been paying the higher "employed" rate of child support. It is from the trial court's denial of her motion that Appellant now brings her appeal, assigning the following error for our review:
{¶ 8} "I. THE TRIAL COURT ABUSED ITS' (SIC) DISCRETION IN THE APPLICATION OF THE LAW REGARDING RETROACTIVE APPLICATION OF ADJUSTMENTS TO NON-DELINQUENT CHILD SUPPORT."
{¶ 9} Appellant contends that the issue presented for review to this Court involves the question of whether a trial court can retroactively increase a non-delinquent child support obligation to the date that employment or an income source is obtained. Although Appellant attempts to distinguish her request for relief from a typical "modification" of child support by referring to her request in the original motion filed in the Juvenile Court as a "determination of child support arrearage" and on appeal as a "retroactive application of adjustment" of child support, or a "retroactive increase" of child support3, we are not persuaded. In our view, Appellant's request is only a request for a retroactive modification of child support.
{¶ 10} As Appellant correctly sets forth in her brief, the standard of review for cases involving a modification of child support is an abuse of *6
discretion. Hamilton v. Hamilton (1995),
{¶ 11} It is well established in Ohio that child support cannot be modified retroactively. McPherson v. McPherson (1950),
{¶ 12} Thus, the general rule is that child support modifications may only be made retroаctive to the date that the obligor was given notice that a petition to modify has been filed. Tobens v. Brill (1993),
{¶ 13} In Osborne, this Court, in finding that the appellant had committed a fraud upon the cоurt by misrepresenting his gross income at the time the dissolution decree was entered, retroactively modified the appellant's child support obligation to the date of the dissolution decree. Id. In so holding, we reasoned that "if we were to hold that the trial court could retroactively order this support figure only to the date оf appellee's motion, appellant would still retain the benefits of the fraud he perpetrated upon appellee and the court between the dates of the dissolution decree and appellee's motion." Thus, we limited our holding to the circumstances of the *8 case, reasoning moreover that the trial сourt "was utilizing its inherent powers to remedy a fraud rather than merely asserting its modification jurisdiction." Id. Accordingly, although this Court has made exceptions to the general rule prohibiting retroactive modifications of child support prior to the date of the filing of the motion for modification, we have required a showing of extreme cirсumstances such as fraud in order to do so.
{¶ 14} Here, Appellant expressly states in her brief to this Court that she "is not alleging that the Appellee committed fraud in an attempt to lower his child support obligation." She further states that she "is not requesting that the support be retroactive based upon fraud, but rather based on the fact that the Appellant began receiving income shortly after the January 20, 1999 order was entered by the Court." Because Appellant specifically disclaims any fraud or wrongdoing on the part of Appellee, we cannot conclude that a modification under these circumstances would be consistent with our reasoning inOsborne, supra, which wе specifically limited to extreme circumstances such as fraud.
{¶ 15} As previously stated, Appellant requests that Appellee's child support obligation be made retroactive based on the fact that Appellant began receiving income shortly after the January 20, 1999 order was entered. However, as Appellant notes in her brief, Appellee apparently notified *9 CSEA of his new source of income and CSEA issued withholding orders to BWC for the $51.00 per month child support obligation. In fact, Appellant candidly admits in her brief that despite this notification, "MCSEA failed to follow the January 20, 1999 order of the Court that stated that once the Appellee was re-employed, his child support rate would increase back to the "employed rate."6 Under these facts, we cannot conclude that extreme circumstances exist that would warrant a retroactive modification of child support prior to the date of the filing of the motion for modification.
{¶ 16} Appellant further creatively аrgues that a distinction exists between retroactive modifications of delinquent versus non-deliquent child support obligations. In support of this argument, Appellant relies on Hakhamaneshi v. Shabani, Columbiana App. No.
"In cases where the obligor is unemployed and collecting unemployment at the time child support was calculated and where he later obtains substantial employment, the court may be permitted to enforce the notice that requires *10 the obligor to report changes in employment status by making a child support increase retroactive to the date that he was reemployed."7
{¶ 17} In Hakhamaneshi, the appellant was unemployed at the time of his divorce and stipulated that a reduced child support obligation would remain in effect until there was a material change in the circumstances of the parties. Hakhamaneshi, supra. Subsequently, the appellant gained employment resulting in an increase in his income from $17,000 per year to $60,000 per year; however, thе appellant failed to report his re-employment to CSEA, which, in turn, prohibited CSEA and the court from conducting a review. Id. The appellee in that case argued that the appellant's failure to report his employment status constituted evidence of fraud or deceit justifying a retroactive modification to the date thе appellant gained re-employment. Id.
{¶ 18} Ultimately, the Hakhamaneshi court retroactively increased the appellant's non-delinquent child support obligation to the date that he obtained employment, reasoning that
*11"the stipulation and decree combined with appellant's statutory obligation to reveal his change in employment status from unemployed to employed and the court's power to enforce this obligation justify our pronouncement that a statutorily implicit exception to the ban on retroactive increases in child support is warranted in the case at bar."
{¶ 19} We believe that Hakhamaneshi is factually distinguishable from the case presently before us. In Hakhamaneshi, 1) there was allegation of fraud of the part of the appellant; and 2) the appellant failed to report his re-employment to CSEA as he stipulated he would do. Here, there is no allegation that Appellee attempted to defraud anyone, and in fact, there is evidence that Appellee informed CSEA once he began to reсeive worker's compensation benefits. Thus, although the reasoningof Hakhamaneshi seems to imply that a distinction exists between retroactive modifications of delinquent versus non-delinquent child support obligations, the court still seemed to hinge its decision on the existence of some sort of wrongdoing (failing to report re-employment as stipulatеd) on the part of the appellant.
{¶ 20} The same is true in other cases that have retroactively modified non-delinquent child support beyond the date the motion for modification was filed. See, Leffel v. Leffel (Oct. 24, 1997), Clark App. No. 97CA20,
{¶ 21} Thus, in light of the fact that Appellant disclaims any act constituting fraud on the part of Appellee, and because Appellee did, in fact, notify CSEA when he began to receive worker's compensation benefits, we can find no "special circumstance" herein to justify a retroactive modification. Thus, the trial court did not abuse its discretion in denying Appellant's motion below. Accordingly, we affirm the decision of the trial court.
JUDGMENT AFFIRMED. *13
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. and Kline, J.: Concur in Judgment and Opinion.