Salmons v. Eubank ( 2017 )

[Cite as Salmons v. Eubank, 2017-Ohio-8985.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
DANIEL J. SALMONS C.A. No. 28327
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KIMBERLY A. EUBANK COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2010 08 2394
DECISION AND JOURNAL ENTRY
Dated: December 13, 2017
HENSAL, Presiding Judge.
{¶1} Kimberly Eubank appeals a judgment of the Summit County Court of Common
Pleas, Domestic Relations Division, that sustained one of Daniel Salmons’ objections to the
decision of a magistrate and declined to modify the child support award in its decree of divorce.
For the following reasons, this Court affirms.
I.
{¶2} Mr. Salmons and Ms. Eubanks married in 2001 and divorced in 2012. According
to their separation agreement, which was made part of the decree, the parties agreed that neither
would pay the other child support. They indicated that their reasons for the deviation were the
amount of time each parent would have with the children, each parent’s contribution to the
expenses of the children, and “[t]he percentage of each party’s income to the combined incomes
of the parties.”
2
{¶3} In September 2013, Mother moved to modify the child support order, claiming
that Father earned substantially more than she. Her motion proceeded to a hearing before a
magistrate, who found that, under the child support guidelines, Father should be paying $1,021 a
month in child support. Noting that the calculated amount was more than a ten percent change
from the existing order, the magistrate recommended modifying the support order and suggested
that Father pay $750 a month.
{¶4} Father objected to the magistrate’s decision. Upon review, the trial court
determined that, because the existing child support was zero, Mother had to show more than a
ten percent change to establish that there had been a substantial change in circumstances.
Instead, it concluded that she had to show that there had been a change in circumstances that was
not contemplated by the parties when they agreed to the prior deviation. It found that, although
Father’s financial situation had improved since the decree, Mother’s had as well.1 It concluded
that the record did not support that there was any change in circumstances that was not
contemplated by the parties at the time they previously decided to deviate the child support
amount. It, therefore, sustained one of Father’s objections and dismissed the others as moot.
Mother has appealed, assigning as error that the trial court abused its discretion when it
determined that there had not been a significant change in circumstances.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND COMMITTED AN ABUSE OF
DISCRETION IN DETERMINING THAT APPELLANT FAILED TO SHOW
THE EXISTENCE OF A SIGNIFICANT CHANGE OF CIRCUMSTANCES
1
Mother’s income at the time of the divorce was $15,184. At the time of her motion for
modify child support, the trial court found that Mother was underemployed. It imputed $29,500
in income to her, which Mother has not contested on appeal.
3
NOT CONTEMPLATED BY THE PARTIES REGARDING HER REQUEST
FOR MODIFICATION OF CHILD SUPPORT.
{¶5} Mother argues that the trial court abused its discretion when it declined to modify
the child support award. In general, “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). This includes the decision
whether to modify an existing child support order. Hill v. Hill, 9th Dist. Summit No. 27915,
2016-Ohio-910, ¶ 10. An abuse of discretion is more than an error of judgment; it connotes a
decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). If the issue on appeal, however, “is whether the trial court correctly
applied the child support statute, this Court employs a de novo standard of review.” Michaels v.
Saunders, 9th Dist. Lorain No. 14CA010604, 2015-Ohio-3172, ¶ 15. In addition, “an appellate
court reviews the factual findings to support that award under a manifest-weight-of-the-evidence
standard.” Havrilla v. Havrilla, 9th Dist. Summit No. 27064, 2014-Ohio-2747, ¶ 13, quoting
Wallace v. Wallace, 195 Ohio App. 3d 314, 2011-Ohio-4487, ¶ 10 (9th Dist.).
{¶6} Mother has not contested that, to demonstrate a substantial change of
circumstances under Revised Code Section 3119.79(A), she had to prove that the alleged change
was not contemplated by her and Father when they agreed to the prior deviation in the child
support award. See Sifferlin v. Sifferlin, 9th Dist. Summit No. 27169, 2014-Ohio-5645, ¶ 14. In
their agreement, Mother and Father stated three factors that they considered in deciding to
modify the child support award. Regarding the first two factors, Mother does not argue that the
parties’ parenting time has changed from the time of the decree or that both parties no longer
contribute as equally to the expenses of the children.
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{¶7} Regarding the third factor, Mother argues that a modification of the child support
award is warranted because Father’s income is $20,000 more than it was at the time of the
decree. She argues that such an increase of income was not contemplated at the time of the
divorce. According to the record, however, the parties did not agree to deviate to zero child
support because of the amount of their respective incomes. The factor pertaining to their
incomes was “[t]he percentage of each party’s income to the combined income of the parties.”
Mother has not alleged that there has been any change with respect to that relationship, let alone
establish that there has been a substantial change in the percentage that each parent contributes to
their combined incomes. She, therefore, has not demonstrated that the trial court improperly
determined that there had not been a substantial change in circumstances under Revised Code
3119.79(C) or that the court exercised improper discretion when it declined to modify the child
support award. Mother’s assignment of error is overruled.
III.
{¶8} Ms. Eubank’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
5
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
DAVID H. FERGUSON, Attorney at Law, for Appellant.
MORA LOWRY, Attorney at Law, for Appellee.
KENNETH L. GIBSON, Attorney at Law, for Appellee.