In re S.H.
Rendered on the 11th day of December, 2009.
MARCY A. VONDERWELL-HULL, Atty. Reg. No. 0078311, P. O. Box 8744, 14 West Fourth Street, Dayton, Ohio 45401
Attorney for Plaintiff-Appellant
CANDACE THOMAS and SAMUEL HARDING, 3806 Lakebend Drive, Apt. B-2, Dayton, Ohio 45404
Defendants-Appellees
FROELICH, J.
{¶ 1} The Montgomery County Child Support Enforcement Agency (“MCCSEA“) appeals from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which ordered, in part, that Samuel Harding‘s child support obligation for his daughter be reduced to $75 per month plus an additional $25 per month if private medical insurance were not being provided and
{¶ 2} MCCSEA claims that the juvenile court lacked personal jurisdiction over it, that the court erred in failing to complete a new child support computation worksheet, that the court erred in deviating from the presumed support obligation, and that the cоurt‘s finding of a change in circumstances was against the manifest weight of the evidence. Harding has not filed a responsive brief. For the following reasons, the judgment will be reversed and the matter will be remanded for further proceedings.
I
{¶ 3} In June 2007, Harding and Candace Thomas, the parents of S.H., participated in an administrative hearing held by MCCSEA tо establish child support obligations. The hearing officer found that both parents were currently unemployed and were capable of working, and she imputed income to both parents in the amount of $14,248 based on full-time employment at the then-minimum wage. The hearing officer ordered Harding to pay Thomas $218.45 per month, plus a рrocessing charge, for a total of $222.82 per month. Neither parent objected to the administrative order, and a juvenile court magistrate adopted the order on August 21, 2007. The juvenile court judge adopted the magistrate‘s order on the following day, and informed the parties that they had 14 days to object to that decision. No objections were filed.
{¶ 4} On September 10, 2008, MCCSEA moved for the court to hold Harding in contempt for failure to pay child support. The agency stated that, as of July 2008, Harding had a balance of $2,910.32, including the processing fee, and
{¶ 5} Harding, Thomas, and counsel for MCCSEA were present at the November 5, 2008, hearing. Harding was referred to the Public Defender‘s Officer, and the matter was continued until January 21, 2009. When Harding failed to appear on January 21, 2009, the hearing before the magistrate was rescheduled for February 19, 2009, and a capias was issued fоr Harding‘s arrest. Harding was brought before the juvenile court on February 17, 2009.
{¶ 6} At the February 17, 2009, hearing, the juvenile court provided Harding with two options: (1) the court could set a bond and send him to jail pending the February 19 hearing, or (2) the court could go forward with the contempt hearing at that time, Harding could admit that he owed the money and that he failеd to pay it, and the court would impose a jail sentence, suspend it, and order him to make payments. The court further stated that Harding would be required to waive his right to an attorney if they proceeded on that day.
{¶ 7} Harding elected to proceed before the judge at that time, and he waived his constitutional rights to counsеl, to have the State prove beyond a reasonable doubt that he did not pay child support, to cross-examine the State‘s
{¶ 8} Harding informed the court that he was residing at Nova Housе and that he had 70 days of a 90-day period remaining. The court then engaged in the following discussion with the parties regarding Harding‘s payments.
{¶ 9} THE COURT: “Ms. Bronson, do you have a recommendation what the Court should set in terms of a payment on this? Should the Court maintain it or change it?
{¶ 10} MS. BRONSON: “Your Honor, maintaining it I think at this point given the circumstances is all that we would rеquest.
{¶ 11} THE COURT: “Well, I think that‘s too much because of the current problems. The Court is going to – sir, you‘re obviously not currently employed, are you?
{¶ 12} MR. HARDING: “Employed?
{¶ 13} THE COURT: “Yes.
{¶ 14} MR. HARDING: “No. That‘s why I‘m – I‘m trying to get my life back together, man, at the Nova.
{¶ 15} THE COURT: “When was the last time you were employed?
{¶ 16} MR. HARDING: “Since ‘06, when I was in school.
{¶ 17} THE COURT: “All right. I‘m going to set the child support amount – I‘m going to reduce it. It is clear that he can‘t pay the $218.45 per month child support order currently in existence. I‘m going to set it at $100 per month.
{¶ 18} “Sir, I‘m reducing your child support obligation at this point to $100 a month. I‘m going to set the arrearage repay at $25 a month – I‘m reducing that also – and have those effective as of today, the reductions.
{¶ 19} ***
{¶ 20} MS. BRONSON: “*** Just one clarification: Given the recent – well, relatively recent change of the law, do we need to put some of this money for the cash medical designation or – I know it complicates things.
{¶ 21} THE COURT: “It does complicate things. Well, since you do this on a regular basis, what would be your recommendation regarding the cash medical portion?
{¶ 22} MS. BRONSON: “Well, unfortunately, there‘s no way to really set that without running the worksheet, and since mom is not here, I don‘t know. This child is on complete benefits, cash, medical, the whole shebang.
{¶ 23} THE COURT: “Without having completed a worksheet, which we‘re not going to do, is it your recommendation we don‘t put an amount in for the
{¶ 24} MS. BRONSON: “Well, Your Honor, I can‘t recommend that we don‘t put any money for cash medical, so if the only option is to reduce the underlying order, I guess that‘s what I would suggest.
{¶ 25} THE COURT: “All right. Let‘s then at this point order that the payment be $75 a month as it relates to child support, $25 for medical care insuranсe issues, and then $25 a month for the arrearage repay.
{¶ 26} “Anything further, Ms. Bronson?
{¶ 27} MS. BRONSON: “No, Your Honor. Thank you.”
{¶ 28} On March 13, 2009, the juvenile court issued an order, finding that (1) Harding is not bankrupt, employed, self-employed, or receiving worker‘s compensation or unemployment compensation, and he has no other income; (2) S.H.‘s mother has no income, is receiving child support for аnother child in the amount of $1,668.80, has no work-related day care expenses, and is not ordered to pay child support; (3) there is no health insurance available to either party at reasonable cost; and (4) a “deviation from the State guidelines is granted to the father.” The court ordered Harding to seek work and to pay $75 toward child support, $25 toward cash medical support, and $25 toward the arrearage, plus the 2% processing fee.
{¶ 29} MCCSEA appeals from the juvenile court‘s order, raising four assignments of error.
II
{¶ 31} “THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT VIOLATED THE MONTGOMERY COUNTY CHILD SUPPORT ENFORCEMENT AGENCY‘S DUE PROCESS RIGHTS BY CONDUCTING A SUPPORT HEARING WITHOUT PERSONAL JURISDICTION OVER THE MONTGOMERY COUNTY CHILD SUPPORT ENFORCEMENT AGENCY OR PLAINTIFF-APPELLEE CANDACE THOMAS.”
{¶ 32} In its first assignment of error, MCCSEA contends that the trial court lacked personal jurisdiction over the agency when it entered the modified child support order, because the agency was not served with notice that the juvenile court would address Harding‘s child support obligation at the hearing. The agency emphasizes that Harding and MCCSEA were before the court on a capias pickup, not for a hearing to modify child support.
{¶ 33} “A court has jurisdiction to rule on a controversy between parties if it has obtained personal jurisdiction over the parties and possesses subject matter jurisdiction over the parties’ claims. The subject matter jurisdiction of a court is a court‘s ‘power to hear and decide a case upon its merits[.]’ A court‘s subject matter jurisdiction is invoked by the filing оf a complaint. Once a court of competent jurisdiction acquires jurisdiction over an action, its authority continues until a final judgment on the merits of the dispute before it has been issued. The defense of lack of subject matter jurisdiction can never be waived. Objections based upon lack of subject matter jurisdiction mаy be raised at any stage of the proceedings, and may even be raised for the first time on appeal.
{¶ 35}
{¶ 36} In general, the juvenile court‘s continuing jurisdiction to modify child support orders must be invoked by the filing of a motiоn and proper service on the parties. In re Alexander-Segar, Montgomery App. No. 22080, 2008-Ohio-1580, at ¶9-11;
{¶ 37} Here, MCCSEA and Harding were before the juvenile cоurt due to MCCSEA‘s motion for Harding to show cause why he should not be held in
{¶ 38} If the agency believed that a separate hearing and/or a written motion to modify by Harding was required in order for thе court to consider reducing Harding‘s support order, the agency should have objected to the juvenile court‘s consideration of the underlying support order. Not only did MCCSEA not object to the proceedings, it was actively involved in the process of determining the eventual court order. Based on the record, MCCSEA voluntarily submittеd to the juvenile court‘s exercise of personal jurisdiction over the agency with respect to each of those issues, and it has waived any personal jurisdiction challenge.
{¶ 39} The first assignment of error is overruled.
II
{¶ 40} MCCSEA‘s second and third assignments of error will be addressed together. They state:
{¶ 41} “THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
{¶ 42} “THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT DEVIATED FROM THE CHILD SUPPORT SCHEDULE.”
{¶ 43} In its second assignment of error, MCCSEA asserts that the juvenile court was required to complete a child support worksheet, and that its failure to do so constituted reversible error. MCCSEA‘s third assignment of error argues that the court deviated from the statutorily presumed amount of support, as set forth in
{¶ 44} “[A] trial court‘s decision regarding child support obligations falls within the discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.” Pauly v. Pauly, 80 Ohio St.3d 386, 390, 1997-Ohio-105. An abuse of discretion means more than a mere error of law or an error in judgment. It implies an arbitrary, unreasonable, unconscionable attitude on the part of the trial court. State v. Adams (1980), 62 Ohio St.2d 151.
{¶ 45} “In any action in which a court child support order is issued оr modified ***, the court or agency shall calculate the amount of the obligor‘s child support obligation in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of sections
{¶ 46} Generally, the amount of child support that would be payable under a child support order, as calculated pursuant to the basic child support schedule and applicable worksheet through the line establishing the actual annual obligation, is rebuttably presumed to be the correct amount of child support due.
{¶ 47} In reducing Harding‘s child support order to $100 per month – and, later, to $75 per month with an additional $25 toward medical care – plus $25 per
{¶ 48} We appreciate the court‘s desire, especially with a busy docket, to resolve Harding‘s contempt, to establish a fair support order, and to return Harding to NOVA where he was “trying to get [his] life back together,” but the law is explicit that the worksheet must “actually be completed” and the reasons for any deviations be included in findings of fact in the order. In short, the juvenile court abused its discretion when if failed to follow the prescribed statutory procedures. See Hirzel v. Ooten, Meigs App. Nos. 06CA10, 07CA13, 2008-Ohio-7006.
{¶ 49} The second and third assignments of error are sustained.
{¶ 50} MCCSEA‘s fourth assignment of error states:
{¶ 51} “THE TRIAL COURT ERRED AS A MATTER OF FACT AND WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN IT FOUND THAT THERE EXISTED A CHANGE IN CIRCUMSTANCE SUBSTANTIAL ENOUGH TO REQUIRE A MODIFICATION OF THE EXISTING CHILD SUPPORT ORDER.”
{¶ 52} In light of our disposition of the second and third assignments of error, the fourth assignment of error is moot.
V
{¶ 53} The judgment of the trial court will be reversed and the matter will be remanded for further proceedings.
GRADY, J. and WOLFF, J., concur.
(Hon. William H. Wolff, Jr., retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Marcy A. Vonderwell-Hull
Candace Thomas
Samuel Harding
Hon. Anthony Capizzi