Brown v. Allala ( 2013 )

[Cite as Brown v. Allala, 2013-Ohio-3507.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
LARISSA D. BROWN C.A. No. 26689
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PATRICK N. ALLALA COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. DR 2007-08-2575
DECISION AND JOURNAL ENTRY
Dated: August 14, 2013
BELFANCE, Judge.
{¶1} Appellant Larissa Brown appeals from the judgment of the Summit County Court
of Common Pleas, Domestic Relations Division. For the reasons set forth below, we reverse and
remand the matter for proceedings consistent with this opinion.
I.
{¶2} Ms. Brown and Patrick Allala are the parents of Z.B., born September 8, 2006.
Ms. Brown and Mr. Allala have never been married. Mr. Allala is a non-U.S. citizen who
originally came to this country under a student visa. Beginning in 2007, Mr. Allala was ordered
to pay $335.00 per month plus processing fees in child support. In 2008, Ms. Brown moved to
modify child support and establish a parent/child relationship. Ultimately, Ms. Brown was
designated the residential parent of Z.B. in 2009. Beginning in May 2009, Mr. Allala’s child
support was increased to $536.75 per month plus processing fees.
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{¶3} In November 2011, the Summit County Child Support Enforcement Agency
(“CSEA”) conducted an administrative review of the child support award and recommended that
child support be modified to $580.27 per month. Mr. Allala requested a modification hearing.
CSEA conducted an administrative hearing pursuant to R.C. 3119.63. The hearing officer found
that Mr. Allala was a non-U.S. citizen who was working for Akron Children’s Hospital under a
H1B sponsorship work visa; however, his employment was terminated when the work visa
expired. Mr. Allala was unable to secure other employment because he could not get
sponsorship for a work visa. The hearing officer discussed Mr. Allala’s efforts to secure
employment and/or a visa.
{¶4} After hearing the testimony, the hearing officer recommended that child support
be reduced to zero for the time period Mr. Allala remained unemployed. Accordingly, CSEA
filed a recommendation in the trial court that support be modified to zero. To that filing, CSEA
attached a completed child support worksheet reflecting the information that resulted in the
initial pre-hearing $580.27 per month child support award recommendation. Ms. Brown filed
objections to CSEA’s recommendations in the court of common pleas and a hearing was held
before a magistrate. The magistrate concluded that, given Mr. Allala’s then-present inability to
find work, he was unable to contribute financially to Z.B.’s care. The magistrate issued a
decision finding that, effective December 1, 2011, Mr. Allala’s child support obligation was
suspended through November 30, 2012, or until Mr. Allala obtained employment, whichever
occurred first. Effective December 1, 2012, or when Mr. Allala obtained employment, Mr.
Allala was again obligated to pay $536.75 per month in child support plus processing fees. No
child support worksheet was attached to the magistrate’s decision. The trial court adopted the
magistrate’s decision that same day and entered judgment. Ms. Brown filed objections to the
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magistrate’s decision. The trial court overruled Ms. Brown’s objections and ordered that Mr.
Allala’s child support obligation be terminated “until such time as [Mr. Allala] either obtains
employment in the United States or is no longer residing in the United States.” The trial court
did not attach a child support worksheet to its entry. Ms. Brown has appealed, raising five
assignments of error for our review.
II.
{¶5} Generally, “[w]hen reviewing an appeal from the trial court’s ruling on objections
to a magistrate’s decision, this Court must determine whether the trial court abused its discretion
in reaching its decision.” Daniels v. O’Dell, 9th Dist. Summit No. 24873, 2010–Ohio–1341, ¶
10. “In so doing, we consider the trial court’s action with reference to the nature of the
underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049–M, 2009–Ohio–
3139, ¶ 18. “It is well established that 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).
III.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY FAILING TO ATTACH A CHILD SUPPORT
COMPUTATION WORKSHEET TO THE COURT’S DECISION
SUSPENDING FATHER’S CHILD SUPPORT AND THE COURT’S ORDER
TERMINATING FATHER’S SUPPORT WHEN SUPPORT HAD
PREVIOUSLY BEEN ESTABLISHED[.]
{¶6} Ms. Brown asserts in her third assignment of error that the trial court erred in
failing to attach a child support worksheet to its decision. Because there is nothing in the record
that suggests the trial court adopted any child support worksheet or completed one of its own in
determining an appropriate child support award, we agree the trial court erred.
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{¶7} In the instant matter, CSEA initiated an administrative hearing pursuant to R.C.
3119.63 after Mr. Allala requested review of CSEA’s determination that his child support should
be increased to $580.27. Following the hearing, CSEA recommended that child support be
modified to $0 per month until Mr. Allala could obtain employment. Ms. Brown then filed
objections in the court of common pleas and a request for a court hearing. See R.C. 3119.63(E),
3119.64. At that hearing, it was the court’s responsibility to “determine whether the revised
amount of child support [wa]s the appropriate amount and whether the amount of child support
being paid under the court child support order should be revised.” R.C. 3119.66; R.C. 3119.70.
It is unclear from the entries whether the required determinations were made. See Li v. Yang, 8th
Dist. Cuyahoga No. 96741, 2012-Ohio-2491, ¶ 35. Notably, neither the magistrate nor the trial
court reference a child support worksheet or the basic child support schedule. The only relevant
child support worksheet in the record is that submitted by CSEA in association with its
recommendation to modify support, and that worksheet uses income figures for Mr. Allala from
a point in time when he was still employed. Neither the magistrate nor the trial court adopted the
CSEA child support worksheet. Instead, the trial court concluded that it was permitted pursuant
to R.C. 3119.06 to issue an order essentially exempting Mr. Allala from paying support while he
was unemployed. While the trial court indicated that it was terminating support, given its
reliance on R.C. 3119.06 and the language within that statute, the trial court was in actuality
modifying the child support award to zero. See R.C. 3119.06 (referring to actions issuing or
modifying a child support order or proceedings determining the amount of child support to be
paid but not terminations of child support); see also R.C. 3119.88 (stating the reasons for
terminating a child support order).
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{¶8} R.C. 3119.02 provides that
In any action in which a court child support order is issued or modified, in any
other proceeding in which the court determines the amount of child support that
will be ordered to be paid pursuant to a child support order, or when a child
support enforcement agency determines the amount of child support that will be
paid pursuant to an administrative child support order, 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 3119.02 to 3119.24 of the Revised Code. The court or
agency shall specify the support obligation as a monthly amount due and shall
order the support obligation to be paid in periodic increments as it determines to
be in the best interest of the children. In performing its duties under this section,
the court or agency is not required to accept any calculations in a worksheet
prepared by any party to the action or proceeding.
{¶9} R.C. 3119.01(C)(2) defines “‘[c]ourt child support order’ [as] any order issued by
a court for the support of a child pursuant to * * * 3119.70 of the Revised Code * * *.” There is
a rebuttable presumption that the amount calculated pursuant to the child support schedule and
applicable worksheet is the correct amount due. See R.C. 3119.03. Deviations from the
calculations obtained using the schedule and worksheet must comport with the requirements of
R.C. 3119.22. See R.C. 3119.22; see also Lawrence v. McCraw, 9th Dist. Medina No.
10CA0079-M, 2011-Ohio-6334, ¶ 8.
{¶10} Under similar procedural circumstances, i.e. a court review of CSEA’s
recommendations concerning child support, this Court has concluded that, pursuant to Marker v.
Grimm, 65 Ohio St.3d 139 (1992), a completed child support worksheet must be part of the
record and a trial court’s failure to comply with that requirement constitutes reversible error. See
Ilius v. Lewis, 9th Dist. Medina No. 2571-M, 1997 WL 104657, *1 (Mar. 5, 1997); see also
Lawrence at ¶ 8-9 (applying the holding in Marker to the current statutory framework). While
there is a child support worksheet in the record, there is nothing that suggests the trial court
adopted that worksheet or utilized it in rendering its decision. See Long v. Long, 3d Dist. Hardin
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No. 6-04-17, 2005-Ohio-4052, ¶ 11. Moreover, the worksheet that is in the record uses income
figures for Mr. Allala based on a time period when Mr. Allala was still employed. It is clear that
the trial court concluded that Mr. Allala was no longer employed and would not likely be
employed for some time. However, absent a worksheet, this Court is unable to properly evaluate
the trial court’s decision. Based upon the trial court’s entry, we are unable even to determine if
the trial court concluded that Mr. Allala had any gross income. See R.C. 3119.01(C)(7) (defining
gross income to include items aside from salaries and wages). The trial court’s entry does not
allow this Court to sufficiently review its decision. Accordingly, this Court sustains Ms.
Brown’s third assignment of error and remands the matter so that the trial court can complete a
child support worksheet and undertake the appropriate statutory analysis thereafter.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
TO ISSUE A MANDATORY MINIMUM ORDER OF SUPPORT AND BASED
SUCH DETERMINATION ON FACTS NOT FOUND BY THE TRIER OF
FACT[.]
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY TERMINATING AN ALIEN FATHER’S
CHILD SUPPORT OBLIGATION UNTIL HE OBTAINS EMPLOYMENT OR
NO LONGER LIVES IN THE UNITED STATES[.]
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED WHEN IT FAILED TO FIND FATHER WAS
VOLUNTARILY UNEMPLOYED AND FAILED TO IMPUTE WAGES TO
FATHER FOR THE PURPOSES OF CALCULATING CHILD SUPPORT[.]
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT OVERRULED MOTHER’S
OBJECTIONS TO THE MAGISTRATE’S DECISION, YET ISSUED A
JUDGMENT ENTRY CONTRARY TO THE MAGISTRATE’S DECISION,
MADE ADDITIONAL FINDINGS WHEN ONLY THE MAGISTRATE HAS
THE OPPORTUNITY TO HEAR THE EVIDENCE IN THE CASE AND
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RELIED UPON FATHER’S SELF-SERVING LAY TESTIMONY IN THE
TRANSCRIPTS ON ISSUES REQUIRING AN EXPERT OPINION[.]
{¶11} Based upon our resolution of Ms. Brown’s third assignment of error, we conclude
her remaining assignments of error have been rendered moot, and we decline to address them at
this time. See App.R. 12(A)(1)(c).
IV.
{¶12} In light of the foregoing, we sustain Ms. Brown’s third assignment of error and
remand this matter to the Summit County Court of Common Pleas for proceedings consistent
with this opinion. Ms. Brown’s remaining assignments of error are moot and we decline to
address them at this time.
Judgment reversed
and cause remanded.
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.
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.
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Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
LYNDA HARVEY WILLIAMS, and AVIVA L. WILCHER, Attorneys at Law, for Appellant.
PATRICK N. ALLALA, pro se, Appellee.