T.R.H. v. A.D.H. , 2021 Ohio 3036 ( 2021 )

[Cite as T.R.H. v. A.D.H., 2021-Ohio-3036.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
T.R.H., :
Petitioner-Appellee, :
No. 110213
v. :
A.D.H., :
Petitioner-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART AND REMANDED
RELEASED AND JOURNALIZED: September 2, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-10-333822
Appearances:
Robert J. Vecchio Co., L.P.A., and Robert J. Vecchio, for
appellee.
Zashin & Rich Co., L.P.A., and Amy M. Keating; Demer &
Marniella, L.P.A., and James A. Marniella; Nancy H.
Donnelly, for appellant.
ANITA LASTER MAYS, P.J.:
Petitioner-appellant A.D.H. (“Husband”) appeals the trial court’s
decision of finding him in contempt of a court order and requiring him to pay
petitioner-appellee T.R.H.’s (“Wife”) attorney fees. In addition to asking this court
to vacate the trial’s court decision, Husband also requests this court to remand to
the trial court to recalculate child support and child support arrearage. We affirm
the trial court’s decision, but remand for the limited purpose to determine the date
of modification.
I. Facts and Procedural Posture
Husband and Wife finalized their dissolution of marriage on
December 9, 2010. By an agreed upon judgment entry issued on March 21, 2012,
the parties resolved various issues that arose between the parties during 2011 and
2012 regarding Husband’s failure to pay child support and adopted the 2010 Shared
Parenting Plan (“SPP”).
Throughout the years, Husband and Wife exchanged various emails
pertaining to alleged unpaid expenses for the two minor children. However, on
March 22, 2019, Wife filed three motions. The trial court identified the motions as:
(1) motion to show cause for property, (2) motion to show cause for nonpayment of
medical expenses, and (3) motion for attorney fees. Wife alleged that Husband
failed to pay one-half of the private school tuition, activity fees, and medical and
dental expenses for their minor children.
On July 11, 2019, in response, Husband filed a motion to show cause,
a motion to modify support, and a motion for attorney fees. Husband argued that
Wife failed to provide annual W-2’s and notice of a change in income as required by
the March 2012 order. Husband also requested a reduction in his child support
obligations based on the disparity of the income between Husband and Wife.
On December 10, 2019, Wife filed another motion to show cause for
nonpayment of child support and that Husband failed to provide income
information required by the March 2012 order. On January 14, 2020, Husband filed
a motion in response to Wife’s motion, arguing that Wife failed to produce tax
records for 2013 through 2017.
The motions were heard by a magistrate on February 4 and 5, 2020,
who issued a decision on April 28, 2020. On May 7, 2020, and June 25, 2020,
Husband filed preliminary and supplemental objections to the magistrate’s
decisions. On December 11, 2020, the trial court adopted but modified the
magistrate’s decision, granting Wife’s motions to show cause and nonpayment of
medical expenses. Husband was ordered to pay $44,568.04. The trial court also
found Husband in contempt of court for failing to comply with the terms of the prior
court order, where he was instructed to pay one-half of the private school tuition for
the children. The trial court sentenced Husband to 20 days in jail for contempt that
could be purged by paying Wife $5,000 within 60 days of the judgment entry.
On March 22, 2019, Wife’s motion for attorney fees was granted and
Husband was ordered to pay $8,125 of Wife’s attorney fees. On July 11, 2019, the
court granted Husband’s motion to modify support and ordered him to pay $348.76
per month, per child. Husband’s other motions were denied. Husband filed this
appeal, assigning seven errors for our review:
I. The trial court abused its discretion by finding that Husband
violated the shared parenting agreement [or S.P.P.] between
the parties;
II. The trial court erred and abused its discretion by finding
Husband in contempt of court;
III. The trial court erred by holding that Wife’s motion to show
cause was not barred by the doctrine of laches;
IV. The trial court abused its discretion by denying Husband’s
motion to show cause identifying Wife’s failure to report
income as required by a prior court order;
V. The trial court abused its discretion by ordering Husband to pay
attorney fees to Wife;
VI. The trial court abused its discretion by modifying child support
without regard to Husband’s income; and,
VII. The trial court abused its discretion by denying a deviation from
the support guidelines based upon the relative income of the
parties.
II. Violation of S.P.P. and Contempt of Court
A. Standard of Review
The trial court found that Husband violated the S.P.P. between
Husband and Wife, and found him in contempt of court. “‘The purpose of contempt
proceedings is to secure the dignity of the courts and the uninterrupted and
unimpeded administration of justice.’” K.M.M. v. A.J.T., 8th Dist. Cuyahoga
No. 109815, 2021-Ohio-2452, ¶ 22, quoting Windham Bank v. Tomaszczyk, 27 Ohio
St.2d 55, 271 N.E.2d 815 (1971), paragraph two of the syllabus. “‘Therefore, since
the primary interest involved in a contempt proceeding is the authority and proper
functioning of the court, great reliance should be placed upon the discretion of the
trial judge.’” Id., quoting Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio
St.3d 14, 16, 520 N.E.2d 1362 (1988).
“A court has authority to enforce its orders through contempt
sanctions.” Vail v. String, 8th Dist. Cuyahoga No. 107112, 2019-Ohio-984, ¶ 42.
“Contempt is ‘a disregard of, or disobedience to, an order or command of judicial
authority.’” Id., quoting Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 96910, 2012-
Ohio-808, ¶ 26. “Disobedience of a lawful court order is punishable as contempt.”
Id. See R.C. 2705.02(A). “To support a finding of contempt, the moving party must
establish by clear and convincing evidence: (1) the existence of a valid court order,
(2) that the offending party had knowledge of the order, and (3) that the offending
party violated the order.” Id., citing In re K.B., 8th Dist. Cuyahoga No. 97991, 2012-
Ohio-5507, ¶ 11.
“Clear and convincing evidence is that measure or degree of proof that
produces in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.” Id., citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus; Phelps v. Saffian, 8th Dist. Cuyahoga
No. 106475, 2018-Ohio-4329, ¶ 53; In re Contempt of Tracy Digney, 2015-Ohio-
4278, 45 N.E.3d 650, ¶ 8 (8th Dist.).
“Accordingly, an appellate court will not disturb the trial court’s
decision in contempt proceedings absent an abuse of discretion.” K.M.M. at ¶ 23,
citing State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75, 573 N.E.2d 62 (1991).
“An abuse of discretion implies the court’s attitude is unreasonable, arbitrary, or
unconscionable.” Id., quoting In re E.M.D., 8th Dist. Cuyahoga No. 108164, 2019-
Ohio-4680, ¶ 6.
B. Law and Analysis
In Husband’s first two assignments of error, he argues that the trial
court abused its discretion by finding that he violated the S.P.P., which resulted in
the trial court finding Husband in contempt of court. The S.P.P. contained a
provision that Husband was responsible for pay one-half of minor child’s tuition to
private school. Husband acknowledged the provision, but testified that he did not
know why the tuition was included in the agreement because he could not afford it.
(Tr. 138.)
In this instant appeal, Husband argues that he was unable to pay, and
inability to pay is a defense to a charge of contempt. See, e.g., Zifer v. Huffman,
2018-Ohio-322, 104 N.E.3d 913, ¶ 30 (5th Dist.). “However, the burden of proving
such inability to pay is held by the contemnor.” Seoud v. Bessil, 7th Dist. Mahoning
No. 15 MA 0090, 2016-Ohio-8415, ¶ 22. Husband “cannot shield himself from a
finding of contempt by making mere allegations he is unable to pay, without any
supporting evidentiary material.” Huffman at ¶ 30. Husband “‘must go beyond a
mere assertion of inability and satisfy his burden of production on the point by
introducing evidence in support of his claim.’” Bessil at ¶ 22, quoting Liming v.
Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 21.
Husband contends that the emails between Husband and Wife are
evidence that he was unaware he was expected to pay his share of the private school
tuition. He argues that Wife would merely communicate the cost of tuition, but
never demanded money. Husband also asserts that he could not afford the tuition
because, in one year, the tuition bill exceeded his gross income. However, Husband
did not file a motion to modify the S.P.P. Additionally, Husband did not produce
any income information to Wife prior to the hearings, in accordance with the S.P.P.,
although Husband contends that Wife knew he was unable to afford the tuition bill.
Husband also testified, at the hearing, that he was aware that he
agreed to pay one-half of his daughter’s tuition bill for each year that she attended
private school, and that he did not pay the tuition from 2011-2019. (Tr. 32.) He also
testified that he knew that he was ordered by the court to pay one-half of the tuition
bill, and also that he violated the court order. (Tr. 33.) Husband also acknowledged
that he received emails from Wife asking for one-half of the tuition. (Tr. 36.)
Because of Husband’s testimony and acknowledgment, the trial
court held:
While [Husband] did indeed testify later that he didn’t know why the
Laurel School tuition provision was included in the Shared Parenting
Agreement, as he asserts in his objection, this testimony does not
negate the fact that he also testified to the fact that he did indeed
violate that provision. Moreover, as discussed above in regard to
[Husband’s] inability defense, the fact that [Husband] now regrets
agreeing to a provision (or cannot remember why that provision was
included) in the parties’ Shared Parenting Plan, while represented by
counsel, does not now relieve him of that obligation.
Judgment entry No. 115405031, p. 7-8 (Dec. 11, 2020).
Husband, “[a]t a minimum, * * * should present evidence he had
made a good-faith effort to comply with the court’s order.” Huffman, 2018-Ohio-
322, 104 N.E.3d 913, at ¶ 30. Husband did not present such evidence. Husband’s
testimony demonstrates that he was aware of the court order and chose to ignore it,
thereby violating the S.P.P. “Disobedience of a court order is the definition of
contempt of court.” Witzmann v. Adam, 2d Dist. Montgomery No. 23352, 2011-
Ohio-379, ¶ 45, citing Denovchek, 36 Ohio St.3d 14, 15, 520 N.E.2d 1362.
Therefore, we determine that the trial court did not abuse its
discretion and Husband’s first and second assignments of error are overruled.
III. Doctrine of Laches
A. Standard of Review
“Because laches is a component of equity, we review claimed error in
the application of the doctrine for an abuse of discretion.” Sobin v. Lim, 2012-Ohio-
5544, 984 N.E.2d 335, ¶ 17 (8th Dist.), citing Payne v. Cartee, 111 Ohio App.3d 580,
590, 676 N.E.2d 946 (4th Dist.1996).
An abuse of discretion implies the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
B. Law and Analysis
In Husband’s third assignment of error, he argues that the trial court
erred by holding that Wife’s show cause motion was not barred by the doctrine of
laches. The trial court stated:
[Husband’s] fifth objection asserts that the Magistrate erred in not
applying the doctrine of laches to bar [Wife’s] claim for private school
tuition. * * * Finally, even if [Husband] is correct that [Wife’s]
motivation for filing her Motion to Show Cause is improper, he has
failed to prove the other necessary elements to avail himself of the
equitable defense of laches. He has not shown an unreasonable delay
in asserting the claim, he has failed to show that [Wife] had any actual
or constructive knowledge of any injury, and he has failed to show that
he was prejudiced in any way. The Court finds no error in the
Magistrate’s analysis of [Husband’s laches defense, and [Husband’s]
fifth objection is therefore overruled.
Judgment entry No. 115405031, p. 8, 11 (Dec. 11, 2020).
“Laches is an equitable doctrine that bars the delayed assertion of
claims when the delay has caused circumstances to change so much that it is no
longer just to grant the plaintiff’s claim.” Lim, 2012-Ohio-5544, 984 N.E.2d 335, at
¶ 17 (8th Dist.). “The elements of a laches defense are ‘(1) unreasonable delay or
lapse of time in asserting a right, (2) absence of an excuse for the delay, (3)
knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the
other party.’” Id., quoting Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d
106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 81.
Husband contends that Wife’s failure to seek tuition from him over
the years caused him to believe that he was not responsible for payment of tuition.
He also argues that Wife was aware he was unable to pay the tuition bill because of
a lack of money. He also claims that Wife continued to enroll the child in private
school without any support from him. Husband argues that the doctrine of laches
applies because Wife waited for eight years to file her motion.
Husband argues that he was prejudiced by Wife’s inaction because he
was prevented from seeking judicial intervention before the tuition expense
incurred. However, at the magistrate’s hearing, Husband agreed that he could have
filed a motion with the court to modify the child support and tuition payments. (Tr.
45.) He also stated that he had access to legal counsel and that he understood he
had the right to file the motion to modify. Id. Because of Husband’s testimony, he
has not demonstrated that he was prejudiced by Wife’s actions.
Our decision in State ex rel. Cuyahoga Child Support Enforcement
Agency v. Sanders, 8th Dist. Cuyahoga No. 72428, 1998 Ohio App. LEXIS 1416(Apr. 2, 1998), stated:
A parent who has been ordered by the court to make child support
payments is aware not only of the natural and statutory obligations to
support minor children but also of the extent of that obligation as
fixed by the court. His failure to heed his obligations does not excuse
him from those duties nor does it provide him with a basis for claiming
prejudice when he is called to account.
Therefore, the trial court did not abuse its discretion by not applying
the doctrine of laches, and Husband’s third assignment of error is overruled.
IV. Denial of Show-Cause Motion
A. Standard of Review
“Our standard of reviewing a court’s decision on a show-cause motion
is the abuse of discretion standard.” AultCare Corp. v. Roach, 5th Dist. Stark
No. 2008-CA-00051, 2009-Ohio-948, ¶ 7, citing State ex rel. Delco Moraine Div.
[Gen. Motors Corp.] v. Indus. Comm. of Ohio, 48 Ohio St.3d 43, 549 N.E.2d 162(1990). An abuse of discretion implies the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.
B. Law and Analysis
In Husband’s fourth assignment of error, he argues that the trial court
abused its discretion by denying his motion to show cause, where he identified
Wife’s failure to report her income as required by a prior court order. The trial court
stated:
[Husband’s] seventh objection is that the Magistrate erred in denying
[Husband’s] Motion to Show Cause based on [Wife’s] failing to report
her income as required by the March 21, 2012, Agreed Judgment
Entry. [Husband] argues that the Magistrate erred in applying the
doctrine of “unclean hands” in denying his Motion to Show Cause, by
pointing out that both parties failed to exchange evidence of their
income yearly and thus technically violated the March 21, 2012 Agreed
Judgment Entry. [Husband] ignores the fact that the Magistrate
explicitly stated in his decision that [Husband] is correct that unclean
hands is not a defense to a motion to show cause. The Magistrate’s
finding here is not based upon unclean hands, but that both parties
equally purged their contempt prior to trial by exchanging income
information for all relevant years. Thus, the Magistrate declined to
hold either party in contempt. It is within the discretion of the Court
to decline to punish for contempt, even when there is evidence of guilt.
[Husband] has not shown that he was damaged in any way by [Wife’s]
failing to disclose her income as required. As such, the Magistrate did
not err in declining to punish either party for their contempt.
[Husband’s] seventh objection is therefore overruled.
Judgment entry No. 115405031, p. 12 (Dec. 11, 2020).
Both Husband and Wife failed to report their income in agreement
with the S.P.P. and testified that they simply forgot. (Tr. 44.). However, prior to
trial, Husband and Wife exchanged their income information. Because Wife
performed the action of exchanging her income information prior to trial, she cured
her contempt of court. See, e.g., Merritt v. Merritt, 10th Dist. Franklin No. 91AP-
1372, 1992 Ohio App. LEXIS 2529 (May 12, 1992). (“A defendant cannot be held in
contempt if he has purged himself prior to being found in contempt * * *.”).
Therefore, Husband’s fourth assignment of error is overruled.
V. Attorney Fees
A. Standard of Review
“We review the trial court’s decision to award attorney fees for a clear
abuse of discretion.” Bain v. Levinstein, 8th Dist. Cuyahoga No. 94313, 2010-Ohio-
5596, ¶ 15, citing Szymczak v. Szymczak, 136 Ohio App.3d 706, 737 N.E.2d 980 (8th
Dist.2000). An abuse of discretion implies the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.
B. Law and Analysis
In Husband’s fifth assignment of error, he argues that the trial court
abused its discretion by ordering him to pay Wife’s attorney fees. Specifically,
Husband contends that because the trial court erred in finding him in contempt, the
award of attorney fees was improper. Wife’s attorney fees were over $24,000.
However, the trial court awarded her $8,125, to reflect only the time spent working
on Wife’s motion to show cause.
The trial court stated:
As already addressed above, the Court finds that the Magistrate did
not err in finding [Husband] in contempt for his failure to pay tuition
fees. Therefore, the Magistrate properly determined that [Wife]
should be entitled to attorney fees related to her prosecution of that
motion. [Husband’s] sixth objection is therefore overruled.
Judgment entry No. 115405031, p. 11 (Dec. 11, 2020).
R.C. 3105.73(B) states:
In any post-decree motion or proceeding that arises out of an action
for divorce, dissolution, legal separation, or annulment of marriage or
an appeal of that motion or proceeding, the court may award all or
part of reasonable attorney’s fees and litigation expenses to either
party if the court finds the award equitable. In determining whether
an award is equitable, the court may consider the parties’ income, the
conduct of the parties, and any other relevant factors the court deems
appropriate, but it may not consider the parties’ assets.
R.C. 3109.05(C) states:
If any person required to pay child support under an order made
under division (A) of this section on or after April 15, 1985, or
modified on or after December 1, 1986, is found in contempt of court
for failure to make support payments under the order, the court that
makes the finding, in addition to any other penalty or remedy
imposed, shall assess all court costs arising out of the contempt
proceeding against the person and require the person to pay any
reasonable attorney’s fees of any adverse party, as determined by the
court, that arose in relation to the act of contempt and, on or after July
1, 1992, shall assess interest on any unpaid amount of child support
pursuant to section 3123.17 of the Revised Code.
The trial court, in accordance with R.C. 3105.73(B) and 3109.05(C),
ordered Husband to pay Wife’s attorney fees because he was found in contempt of
court. See Briggs v. Moelich, 8th Dist. Cuyahoga No. 97001, 2012-Ohio-1049, ¶ 33,
quoting Peach v. Peach, 8th Dist. Cuyahoga Nos. 82414 and 82500, 2003-Ohio-
5645, ¶ 37. (“‘[T]rial courts have discretion to award reasonable attorney’s fees
against a party found guilty of civil contempt, even in the absence of a statute
specifically authorizing the award.’”); In re I.L.J., 8th Dist. Cuyahoga No. 109564,
2020-Ohio-5434, ¶ 19 (“* * * when a party is found in contempt for failure to make
support payments, * * * the court shall require the party to pay any reasonable
attorney fees of any adverse party, as determined by the court, that arose in relation
to the act of contempt.”).
Husband argues that the disparity of the incomes between Husband
and Wife should preclude him from paying Wife’s attorney fees. However, the trial
court is not required to consider Wife’s ability to pay. The trial court only awarded
attorney fees for the time spent litigating the motion to show cause. “‘A trial court
may award attorney fees as part of the costs in a contempt action.’” Sagan v. Tobin,
8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602, ¶ 52, quoting Villa v. Villa, 8th
Dist. Cuyahoga No. 72709, 1998 Ohio App. LEXIS 2171 (May 14, 1998).
Therefore, Husband’s fifth assignment of error is overruled.
VI. Motion to Modify Child Support
A. Standard of Review
“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.” J.E.M. v. D.N.M., 8th Dist. Cuyahoga No. 109532, 2021-
Ohio-67, ¶ 22, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
“More specifically, we review a trial court’s child support modification order for an
abuse of discretion.” Id., citing Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-
4542, 3 N.E.3d 144, ¶ 9. “An ‘abuse of discretion’ occurs where the court’s decision
is unreasonable, arbitrary, or unconscionable.” Id., citing Blakemore, 5 Ohio St.3d
at 219, 450 N.E.2d 1140 (1983). “The trial court has considerable discretion in child
support matters; absent an abuse of discretion, we will not disturb a child support
order.” Id., citing Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997).
B. Law and Analysis
In Husband’s sixth assignment of error, he argues that the trial court
abused its discretion by modifying child support without regard to his income.
Husband claims that the magistrate’s decision to make the child support
modifications retroactive to July 11, 2019, based on a salary that Husband did not
receive until November 1, 2019, was not supported by the evidence. By mistake, the
trial court agreed that the modification shall be effective on April 27, 2020, the date
of the magistrate’s decision, instead of the date Husband filed the motion. Husband
also argued that a further modification is in order due to a job layoff on March 23,
2020, due to COVID. The court advised Husband that he would need to file a new
motion to modify but that a future modification based on the COVID layoff will be
retroactive to May 7, 2020, the date Husband advised the trial court of the layoff.
Husband also argues that the trial court incorrectly ordered two
different effective dates for the child support modification: July 11, 2019, and
April 27, 2020. Wife concedes that the trial court may have made a clerical error.
Husband filed his motion to modify child support on July 11, 2019.
Husband argues that he filed his motion based on the change of circumstances
resulting from Wife’s job that she started in 2014. However, Husband is only
entitled to a modification retroactive to the date he filed the motion. “Absent some
special circumstances which justify a different date, a party seeking modification of
a support order is entitled to have the modification relate back to the date the motion
to modify was filed.” Davis v. Dawson, 8th Dist. Cuyahoga No. 87670, 2006-Ohio-
4260, ¶ 8, citing Murphy v. Murphy, 13 Ohio App.3d 388, 389 469 N.E.2d 564 (10th
Dist.1984), and State ex rel. Draiss v. Draiss, 70 Ohio App.3d 418, 420-421, 591
N.E.2d 354 (9th Dist.1990). “If the trial court decides in its discretion that the order
should not be retroactive to the date of the motion, it must state its reasons.” Id.,citing Oatey v. Oatey, 8th Dist. Cuyahoga Nos. 67809 and 67973, 1996 Ohio App.
LEXIS 1685 (Apr. 25, 1996).
Other than a change in Wife’s employment, Husband does not argue
a special circumstance that would justify a different date for the modification. The
trial court, in its discretion, decided that the Wife’s employment was not a special
circumstance, and Husband has not demonstrated that the trial court’s decision was
unreasonable, arbitrary, or unconscionable.
Therefore, Husband’s sixth assignment of error is overruled, but
remanded to the trial court to incorporate, nunc pro tunc, the correct date to
accurately reflect the date of the child support modification.
In Husband’s seventh assignment of error, he argues that the trial
court abused its discretion by denying a deviation from the support guidelines based
upon the relative income of the parties. Husband was found to be in contempt of
court for failing to pay child support in accordance with the S.P.P. Husband did not
file a motion to modify support until 2019, although the S.P.P. was agreed upon in
2010.
Husband specifically argues that over the past nine years there was a
significant disparity of income between Husband and Wife. Husband contends that
he is unemployed and collecting unemployment so the child support order must be
recalculated. After reviewing the R.C. 3119.23 factors relied on by the magistrate
and the supporting evidence, the trial court stated:
The Magistrate is correct that the child support guidelines take into
account the disparity in income by dividing the child support figures
along the percentage of income share, with [Wife] ultimately being
responsible for the larger share of the cost of raising the children.
[Husband] has provided no argument which would support a finding
that his child support obligation is unjust, inappropriate or not in the
best interests of the remaining minor child of the parties.
Judgment entry No. 115405031, p. 15 (Dec. 11, 2020).
The trial court modified Husband’s future child support payments to
$348.76 per month, per child, totaling $8,370.24 a year. The trial court’s award
demonstrates that Husband’s and Wife’s income were considered.
Husband is also arguing that he wants the court to retroactively
modify the child support to 2014. However, “[a] court may not retroactively modify
child support or arrearages, absent fraud.” Slowbe v. Slowbe, 8th Dist. Cuyahoga
No. 83079, 2004-Ohio-2411, ¶ 48. “Except as provided in section 3119.84 of the
Revised Code, a court or child support enforcement agency may not retroactively
modify an obligor’s duty to pay a delinquent support payment.” Id., citing R.C.
3119.83.
Therefore, Husband’s seventh assignment of error is overruled.
Judgment affirmed. Case is remanded for the limited purpose of
having the trial court incorporate, nunc pro tunc, the correct date to accurately
reflect the date of the child support modification.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR