Nichols v. NicholsNichols v. Nichols
Bergman & Yiangou, and Andrew J. Niese, for appellee.
Sean O. Boyle, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
DORRIAN, J.
{¶ 1} Defendant-appellant, Kevin E. Nichols (“father“), appeals from a December 5, 2012 order approving a shared-parenting decree entered by the Franklin County Court of Common Pleas, Division of Domestic Relations, that included a provision requiring him to pay child support retroactive to June 15, 2011. The court entered the order in response to a
Facts and Procedural History
{¶ 2} The parties were married on December 23, 2000, and two children were born as issue of the marriage. On September 15, 2010, the court granted a dissolution
{¶ 3} On June 15, 2011, mother filed a motion to “modify” child support (although child support had not previously been ordered), asserting that there had been a substantial change of circumstances since the termination of the marriage. Mother claimed that father had initially provided approximately $650 monthly for the care of the minor children but that he no longer wаs providing any monetary support for the children. She further claimed that father had represented to her that his income from a new job was substantially higher than his income at the time of the original shared-parenting plan.
{¶ 4} On November 7, 2011, father moved the court to designate him the residential parent of the children and to order mother to pay child support. Father claimed that, beginning in June 2011, mother had changed his parenting time from one in which the parent‘s “exchange[d] the children on a 50/50 basis” (Nov. 7, 2011 Motion, 2) to parenting time consistent with the guidelines contained in
{¶ 5} On June 29, 2012, the parties filed a second amended shared-parenting plan1 signed by both parties. The June 29, 2012 plan did not reflect a change concerning legal custody of the children—both parents continued in their status as residential parents and legal custodians. But the new shared-parenting plan expressly provided that father would pay monthly child support in the total amount of $1,020 and that
{¶ 6} Also on June 29, 2012, the trial court entered findings supporting a downward deviation from the amount of father‘s child support obligation as calculated using the
The child support guideline amount of $1,386.43 plus proсessing charge of $27.73 for a total of $1,414.26 per month for the minor children is unjust inappropriate and not in the best interest of the minor children.
[Pursuant to]
Ohio Revised Code Section 3113.23 the court may consider the relevant factors when deviating from child support guidelines: The parties have agreed to this Shared Parenting Plan in which the parties will spеnd nearly equal time with the minor children.Therefore Father shall pay child support of $1,000.00 plus $20.00 processing charge for a total of $1,020.00 per month for the minor children.
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Said child support shall be retroactive from the date of filing which is June 15, 2012.
During any time on or after the effective date of this order that private health insurance is in effect [emphasis sic], the following orders shall apply:
1. Effective as of date of child support order, Fathеr shall pay a deviated amount of child support of $1,000.00, plus
processing charge of $20.00, for a total of $1,020.00 per month for the minor children[.]
(Emphasis added.) (June 29, 2012 Findings, 1-3.)
{¶ 7} This entry includes two seemingly contradictory provisions concerning the effective date of father‘s obligation to pay $1,020 monthly child support. The entry first provides thаt the father‘s child support obligation is “retroactive from the date of filing which is June 15, 2012.” Thereafter, the same entry provides that father shall pay $1,020 in monthly child support “effective as of the date of the child support order.”
{¶ 8} On August 7, 2012, mother filed the
The Second Amended Plan for Shared Parenting stated on page 3 under paragraph 5 the child support shall be retroactive from the date of filing, which is June 15, 2012 and it should have stated child support shall be retroactive from date of filing, which is June 15, 2011. Plaintiff requests that the Court make an Order that the typographical error be corrected to reflect the child support shall be retroactive from date of filing, which is June 15, 2011.
{¶ 9} On November 13, 2012, the court held an evidentiary hearing on mother‘s
IT IS THEREFORE ORDERED ADJUDGED and DECREED that Parties Shared Parenting Plan is approved and incorporated as part of this decree and the effective date of said child support order shall be retroactive from the date of filing, which is June 15, 2011, as if fully rewritten and made an order of the court.
(Emphasis added.)
{¶ 10} Father timely appealed and asserts a single assignment of error, as follows:
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF‘S
RULE 60(A) MOTION AMENDING THE AMENDED SHARED PARENTING PLAN AND AGREED ENTRY OF THE PARTIES.
{¶ 11} We sustain father‘s assignment of error for the reasons discussed below.
Legal Analysis
{¶ 12}
{¶ 13}
(A)(1) A court that issues a shared parenting order in accordance with section
3109.04 of the Revised Code shall order an amount of child support to be paid under the child support order that is calculated in accordance with thе schedule and with the worksheet set forth in section3119.022 of the Revised Code, through the line establishing the actual annual obligation, except that, if that amount would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child because of the extraordinary circumstances of the parents or because of any other factors or criteria set forth in section3119.23 of the Revised Code, the court may deviate from that amount.(2) The court shall consider extraordinary circumstances and other factors or criteria if it deviates from the amount dеscribed in division (A)(1) of this section and shall enter in the journal the amount described in division (A)(1) of this section its determination that the amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting its determination.
(B) For the purposes of this section, “extraordinary circumstаnces of the parents” includes all of the following:
(1) The amount of time the children spend with each parent;
(2) The ability of each parent to maintain adequate housing for the children;
(3) Each parent‘s expenses, including child care expenses, school tuition, medical expenses, dental expenses, and any other expenses the court considers relevant;
(4) Any other circumstances the court considers relevant.
{¶ 14} In its June 29, 2012 child support entry, the trial court stated that “[t]he parties have agreed to this Shared Parenting Plan in which the parties will spend nearly equal time with the minor children” and that, therefore, father would pay a total of $1,020 per month in child support. (Emphasis added.)
{¶ 15} The Supreme Court of Ohio has recognized that:
The law favors settlements. However, the difficult issue of child support may result in agreements that are suspect. In custody battles, choices are made, and compromises as to child support may be reached for the sake of peace or as a result of unequal bargaining power or economic pressures. The cоmpromises may be in the best interests of the parents but not of the child. Thus, the legislature has assigned the court to act as the child‘s watchdog in the matter of support.
DePalmo v. DePalmo, 78 Ohio St.3d 535, 540 (1997).
{¶ 16} Under DePalmo, a trial court does not avoid its obligation to independently consider child support awards simply because the parties have agreed on a child support amount. The Third District Court of Appeals has considered a case similar to the one before us in that the parties agreed to reduce a father‘s child support
{¶ 17} However, in the case before us, it appears that the parties did not reach agreement as to whether father‘s child support obligation would be applied retroаctively. In the evidentiary hearing held on mother‘s
[Father]: * * * I had no idea what the filing date was that‘s why I looked at the date on the actual document and I used the document as my guidance when I signed it. In my world, every contract that you sign that‘s what you go off of and you look at the last latest contract and that‘s what I thought I was signing.
[The court]: You didn‘t ask your attorney what the date of filing is? I mean it‘s right there in the file.
[Father]: It was right there on that actual document, Ma‘am. That‘s why we looked at it and that‘s what we were looking at was the date on the document.
[The court]: Who prepared the document, counsel?
[Mother‘s counsel]: I did, Your Honor.
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[Mother]: * * * [W]hen we made that agreement I was under the understanding that it [i.e., child supрort] was going back for the year that it had been continued.
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[The court]: * * * [Father‘s] saying he only—he only signed it because he had the 2012 date. That why he signed it. I wasn‘t’ there. I don‘t know. You both look like decent and credible people to me.
(Tr. 11-12; 14-15.)
{¶ 18} We conclude that mother and father in this case each had а different understanding of the shared-parenting agreement relative to the effective date of the child support order. That is, the shared-parenting “agreement” did not reflect an actual meeting of the minds of the parties. We acknowledge that, from the point of view of mother and her counsel, the use of June 15, 2012 in the June 29, 2012 second amended shared-parenting plan, rather than June 15, 2011 (which was the date of filing of mother‘s motion for a child support order) was a clerical error. But use of the June 15, 2012 date was not a clerical error in the view of the father. Rather, father testified that he relied on the June 15, 2012 date in agreeing to the plan, and the court expressly found him to be credible.
{¶ 19} The second amended shared-parenting plan and the court‘s entries incorporating the terms of that plan contain ambiguous language as to the effective date of father‘s child support obligation. In granting the
{¶ 20} Our reversal of the nunc pro tunc order should not, however, be construed as a limitation on the trial court‘s authority, in its discretion, to order father to retroactively pay child support from June 15, 2011—the date mother filed her motion seeking a child support order. Where a trial court modifies a child support order it may make the modification order effective from the date the motion for modification was filed. Murphy v. Murphy, 13 Ohio App.3d 388, 389 (10th Dist.1984)Id. “Whether to make a modification of support retroactive to the date of the motion is a question left to the sound discretion of the triаl court.” Lightle v. Lightle, 2d Dist. No. 2012 CA 8, 2012-Ohio-3284, ¶ 8. While it may
{¶ 21} We hold today only that the court improperly resolved the dispute by invoking the authority of
Conclusion
{¶ 22} For the foregoing reasons, appellant‘s assignment of error is sustained. We therefore reverse the December 5, 2012 nunc pro tunc judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and remand this cause for further proceedings in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.
BROWN, J., concurs.
CONNOR, J., dissents.
CONNOR, J. dissenting.
{¶ 23} Being unable to agree with the majority, I resрectfully dissent. The insertion of the date June 15, 2012 was clearly a clerical error and the court obviously meant “retroactive from the date of filing June 15, 2011,” the date of the original filing of the mother‘s motion for child support. Therefore, the use of
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