In re A.H. , 2021 Ohio 4055 ( 2021 )

[Cite as In re A.H., 2021-Ohio-4055.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
IN THE MATTER OF: CASE NO. 2019-G-0222
A.H., A.H.2., AND A.H.3.,
Civil Appeal from the
DEPENDENT CHILDREN Court of Common Pleas,
Juvenile Division
Trial Court No. 2014 JF 000364
OPINION
Decided: November 15, 2021
Judgment: Affirmed
Katie E. Christman and Laura M. Wellen, Thrasher, Dinsmore & Dolan, LPA, 100
Seventh Avenue, Suite 150, Chardon, OH 44024 (For Appellant, Kenneth Herrera).
James R. Flaiz, Geauga County Prosecutor, and Melissa J. Lee, Assistant Prosecutor,
Courthouse Annex, 231 Main Street, 3rd Floor, Chardon, OH 44024 (For Appellee,
Geauga County Child Support Enforcement Agency).
Molly Mullaly, pro se, 15989 Mill Street, Middlefield, OH 44062 (Appellee).
MATT LYNCH, J.
{¶1} Appellant, Kenneth B. Herrera, appeals the judgment of the Geauga County
Court of Common Pleas, Juvenile Division, modifying the amount of support he was
obligated to pay to appellee, Molly Ann Mullaly, by adopting the recommendation of
appellee, Geauga County Child Support Enforcement Division. For the following reasons,
we affirm the judgment of the court below.
{¶2} On July 9, 2015, the parties entered into an Agreed Judgment Entry (Child
Support and Medical Support) and Shared Parenting with respect to two minor children.
As to child support, the juvenile court ordered Herrera, as obligor, to pay $500.00 per
month for both children. This figure represented a downward deviation from the annual
child support obligation of $8,450.02 [or $704.17 per month] as determined by the
applicable support worksheet. In support of the deviation, the court made the following
finding: “Pursuant to R.C. 3119.22, the actual annual obligation would be unjust and
inappropriate and would not be in the best interest of the minor child(ren) for the following
reason(s): Father has extended and considerably more possession time with the parties[’]
minor children.”
{¶3} On January 28, 2019, Herrera filed a Motion to Modify Shared Parenting
Plan and a Motion to Modify Child Support, occasioned by the birth of the parties’ third
child.
{¶4} On February 6, 2019, the Child Support Enforcement Division filed a
Recommendation, in which it recommended that Herrera’s support obligation be modified
to $298.48 per month per child [or $895.44 for all three children].
{¶5} On March 29, April 23, and June 5, 2019, hearings were held on the Motions
to Modify Shared Parenting Plan and Child Support.
{¶6} On June 17, 2019, the juvenile court ruled that it had “heard father’s motion
to modify the shared parenting plan” and that the third child “is hereby added to the shared
parenting plan.” The court further ruled that it had “heard father’s motion for child support”
but that “[t]he motion for child support will be addressed in a separate entry.”
{¶7} On July 23, 2019, the juvenile court modified the child support order by
adopting the recommendation of the Child Support Enforcement Division that Herrera pay
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$298.48 per month per child.
{¶8} On August 22, 2019, Herrera filed a Notice of Appeal. On appeal, he raises
the following assignments of error:
{¶9} “[1.] The trial court erred when it deprived Mr. Herrera of his due process
rights by not conducting an evidentiary hearing on his motion to modify child support.”
{¶10} “[2.] The trial court erred by not carrying forward the deviation for parenting
time that had been previously agreed to by the parties.”
{¶11} “[3.] Alternatively, the trial court erred by not complying with the new child
support statutes in ordering the amount of child support recommended by the Geauga
County Child Support Enforcement Division and not granting the deviation for parenting
time required by R.C. 3119.051, the discretionary deviation under R.C. 3119.231, and by
failing to state its reasons for not granting any deviation.”
{¶12} In the first assignment of error, Herrera argues that the juvenile court
deprived him of his due process rights by not conducting an evidentiary hearing on his
Motion to Modify Child Support.
{¶13} “An essential principle of due process is that a deprivation of life, liberty, or
property ‘be preceded by notice and opportunity for hearing appropriate to the nature of
the case.’” Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84
L.Ed.2d 494 (1985), quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
313, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Boddie v. Connecticut, 401 U.S. 371, 379, 91
S.Ct. 780, 28 L.Ed.2d 113 (1971) (the “root requirement” of due process is “that an
individual be given an opportunity for a hearing before he is deprived of any significant
property interest”). “The formality and procedural requisites for the hearing can vary,
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depending upon the importance of the interests involved and the nature of the subsequent
proceedings.” Boddie at 378; State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298,
2013-Ohio-3686, 995 N.E.2d 204, ¶ 15 (“the due process requirement of a full and fair
hearing means that the decisionmaker must, in some meaningful manner, consider and
appraise all the evidence to justify the decision” while “[t]he method of review is
secondary”).
{¶14} “The due process rights to notice and hearing prior to a civil judgment are
subject to waiver.” D. H. Overmyer Co., Inc., of Ohio v. Frick Co., 405 U.S. 174, 185, 92
S.Ct. 775, 31 L.Ed.2d 124 (1972); Boddie at 378-379 (“the hearing required by due
process is subject to waiver”).
{¶15} “In general, the decision to conduct an evidentiary hearing is a matter within
the discretion of the trial court.” Kalbaugh v. Kalbaugh, 9th Dist. Summit Nos. 29184,
29185, 29219, and 29328, 2020-Ohio-3873, ¶ 24 (cases cited). Moreover, the failure to
hold an evidentiary hearing may be deemed harmless error when the complaining party
is not prejudiced. Brown v. Brown, 2014-Ohio-2402, 14 N.E.3d 404, ¶ 51 (8th Dist.) (the
“failure to conduct the hearing [before modifying a support obligation] does not constitute
reversible error, unless the appellant demonstrates prejudice”).
{¶16} Herrera argues that the trial court failed to conduct an evidentiary hearing
on his Motion to Modify Child Support and thus deprived him of “any opportunity for
evidence to be presented.” Specifically, “[w]hile there was some reference to the amount
of parenting time provided to Mr. Herrera under the shared parenting plan, Mr. Herrera
was not given an opportunity to be heard at all on this issue.” Moreover, “[b]y not
conducting an evidentiary hearing, the court essentially delegated its duty to determine
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child support to the [Child Support Enforcement Division].” Appellant’s brief at 6.
{¶17} We find no deprivation of due process. It is certainly no violation of due
process not to hold an evidentiary hearing when there are no factual issues to be
determined and Herrera has not identified any such issue. Additionally, Herrera never
demanded an evidentiary hearing of the juvenile court or otherwise objected to the court’s
procedure in addressing the Motion to Modify Support. Assuming, arguendo, that there
was some deprivation of the opportunity to be heard, Herrera has not demonstrated
prejudice as a result thereof.
{¶18} We will first address Herrera’s claim that the juvenile court improperly
delegated the determination of child support to the Child Support Enforcement Division.
“In any action in which a court child support order is issued or 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 3119.02 to 3119.24 of the Revised Code.” (Emphasis added.) Former R.C.
3119.02.1 Moreover: “In any action or 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 at any time a child support enforcement agency determines the amount of child support
that will be paid pursuant to an administrative child support order, 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
1. Under current R.C. 3119.02: “In any action in which a court child support order is issued or modified * *
*, the court or agency shall calculate the amount of the parents’ child support and cash medical support
in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of
Chapter 3119. of the Revised Code.” (Emphasis added.)
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actual annual obligation, is rebuttably presumed to be the correct amount of child support
due.” R.C. 3119.03.
{¶19} We do not find the case cited by Herrera for the proposition that a court may
not delegate its duty to determine the amount of support payable to an enforcement
agency to be persuasive. In In re Hallmon, 5th Dist. Guernsey No. 07 CA 45, 2008-Ohio-
5454, the court relied on R.C. 3119.79(A) which provides that “the court shall recalculate
the amount of support that would be required to be paid under the child support order” to
determine whether a difference of ten per cent exists. Id. at ¶ 10, citing R.C. 3119.79(A).
The modification in the present case was not occasioned by a change in circumstances
representing a difference of ten per cent in the amount of support owed, but by the birth
of a new child for whom no support order at all was in place. Additionally, the lower court’s
delegation to the child support enforcement agency in Hallmon “effectively precluded
Appellant from presenting evidence in support of the modification which is to be
considered by the trial court in its recalculation of support.” Id. at ¶ 11. In the present
case, as will be shown below, Herrera was not precluded from presenting evidence in
support of the support modification.
{¶20} Herrera’s Motion to Modify Child Support was the subject of three hearings.
The first, held on March 29, was scheduled as a pretrial. The other two, held on April 23
and June 5, 2019, were simply denominated as hearings. Only the third hearing, the
June 5 hearing, has been transcribed.
{¶21} At the June 5 hearing, counsel for Herrera argued in support of both the
Motion to Modify Child Support and the Motion to Modify Shared Parenting Plan based
on the birth of a third child to the parties.
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I’ve presented * * * a parenting plan that is literally a photocopy of
their prior parenting plan adding their third child and making an
allocation as to the tax dependency as to that third child. * * * To the
best of my knowledge, the parenting time is working out for them,
and really, my client’s underlying motion to modify the shared
parenting plan was simply to add that third child.
As to the child support motion, Your Honor, as we talked about the
last time we were here, I will defer to the Court to which way is
the most appropriate to run the child support. In my mind, we
can either carry forward the deviation from the prior support order or
we can use the new guidelines which has some sort of built-in
deviations that address some of the same factors that arise from the
deviation from the old child support order.
(Emphasis added.) Notably, appellant’s counsel stated that she had previously, i.e., “last
time,” presumably at the April 23 hearing, indicated that she would defer to the court on
the issue of child support. Although Herrera has failed to have the April 23 hearing
transcribed, counsel’s statement would appear to have absolved the juvenile court from
any obligation to receive evidence regarding the calculation of support at the June 5
hearing.
{¶22} Also, at the June 5 hearing, the parties stipulated to the modifications to the
shared parenting plan, but not to a new support order. With respect to support, the Child
Support Enforcement Division determined the appellant’s support obligation to be about
$895 per month2, without the downward deviation that existed under the old order to
adjust for Herrera’s extended parenting time under the plan. Herrera’s counsel did not
take exception to the Child Support Enforcement Division’s calculation of support but,
rather, argued for the application of the deviation under the prior support order. She
stated:
2. The figure of $845 is given in the transcript.
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[I]f I just carry forward the old deviation, that results in a child support
figure of $550 per month. My statement to both my client and Mom,
who is unrepresented, is that they can leave it to you, leave it to
CSEA, pick a number out of the air that works for their family.
{¶23} The juvenile judge asked counsel directly: “what do you think?” Counsel
replied that Herrera is “comfortable with paying $6[00] or $650 a month.”
{¶24} A fair appraisal of the June 5 hearing demonstrates that Herrera did not
raise any issue for the court’s consideration requiring an evidentiary hearing and did not
otherwise request such a hearing on the Motion to Modify Support. The only
consideration sought in the determination of a new support order was a downward
deviation for Herrera’s extended parenting time which was already reflected in the shared
parenting plan. Apart from the deviation, counsel willingly deferred to the court’s
judgment as to how child support should be “run.”
{¶25} At the conclusion of the hearing, the juvenile court judge stated that he
would “add the third child to the shared parenting plan” and “deal with child support
separately.” Herrera raised no objection and no further hearings were scheduled. In a
written Entry dated June 17, the court ordered the parties’ third child added to the shared
parenting plan. In the same Entry, the court stated that it had “heard father’s motion for
child support” and that it would “be addressed in a separate entry.” Again, Herrera raised
no objection although it was over a month before the separate Entry was issued on July
23, 2019. The court’s statements clearly indicated that a ruling on the Motion to Modify
Support would be forthcoming without further hearing. Herrera’s acquiescence effectively
waived his right to demand an evidentiary hearing.
{¶26} On appeal, Herrera makes the argument that he was not afforded the
opportunity to be heard on the issue of parenting time. Nothing in the foregoing review
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of the proceedings substantiates this otherwise unsupported claim. Nor was the amount
of Herrera’s parenting time a factual issue in dispute. The amount of his parenting time
is fixed by the shared parenting plan and there is no indication that the actual parenting
time is at variance with the plan. The only issue was whether this parenting time entitled
Herrera to a downward deviation and, if so, by how much. This is how Herrera’s own
counsel framed the issue. As such, the propriety of a deviation became a legal question
which did not require an evidentiary hearing.
{¶27} The first assignment of error is without merit.
{¶28} In the second assignment of error, Herrera claims the juvenile court erred
by not incorporating the downward deviation from the prior support order into the new
support order.
{¶29} A trial court’s decision regarding whether to order a deviation from the child
support guidelines is reviewed for an abuse of discretion. In re Palmer, 11th Dist. Lake
No. 2011-L-149, 2012-Ohio-2441, ¶ 27; Booth v. Booth, 44 Ohio St.3d 142, 144, 541
N.E.2d 1028 (1989) (“[u]pon a review of the statute governing child support * * * as well
as the Child Support Guidelines * * *, we believe that common sense and fundamental
fairness compel the application of the ‘abuse of discretion’ standard in reviewing matters
concerning child support”).
{¶30} “The court may order an amount of child support that deviates from the
amount of child support that would otherwise result from the use of the basic child support
schedule and the applicable worksheet if, after considering the factors and criteria set
forth in section 3119.23 of the Revised Code, the court determines that the amount
calculated pursuant to the basic child support schedule and the applicable worksheet
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would be unjust or inappropriate and therefore not in the best interest of the child.” R.C.
3119.22. The factors that a “court may consider” include but are not limited to: “[e]xtended
parenting time”; “[t]he relative financial resources” of each parent; and “[t]he standard of
living and circumstances of each parent.” R.C. 3119.23(C), (E), and (K).
{¶31} The Ohio Supreme Court has held that there is no “automatic credit in child
support obligations under a shared parenting order.” Pauly v. Pauly, 80 Ohio St.3d 386,
686 N.E.2d 1108 (1997), syllabus. “However, a trial court may deviate from the amount
of child support calculated * * * if the court finds that the amount of child support would be
unjust or inappropriate to the children or either parent and would not be in the best interest
of the child.” Id. “The party requesting a deviation from the basic child support schedule
has the evidentiary burden of demonstrating that the award as calculated is unjust or
inappropriate and would not be in the best interest of the child.” Chittock v. Chittock, 11th
Dist. Ashtabula No. 97-A-0042, 1998 WL 258411, *6; Michael v. Michael, 9th Dist. Wayne
No. 20AP0010, 2021-Ohio-992, ¶ 36 (“[t]he party seeking a deviation bears the burden
of overcoming the rebuttable presumption established by R.C. 3119.03”). This court has
observed that there is “no authority for requiring a trial court to deviate from the child
support guidelines merely because a deviation would be permissible, or even desirable.”
(Citations omitted.) Kosovich v. Kosovich, 11th Dist. Lake No. 2004-L-075, 2005-Ohio-
4774, ¶ 17.
{¶32} On appeal, Herrera argues: “Under the prior and current shared parenting
plan, Mr. Herrera enjoys 160 overnights with his children. The parties agreed to modify
the prior shared parenting plan simply to add the third child to it, not to alter any of the
agreed-upon parenting time. * * * As the original rationale for the deviation still exists, to
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wit: extended parenting time, there is no reason for the trial court to disregard the prior
agreement of the parties, particularly when neither of the parties advocated this position.”
Appellant’s brief at 6-7.
{¶33} Herrera’s argument focuses on a single factor, extended parenting time,
and the parties’ prior agreement to a downward deviation. The suggestion that Mullaly
tacitly agreed to the deviation carries no weight. Unlike the changes to the shared
parenting plan, Mullaly did not agree to stipulate to a downward deviation. When asked
for her “thoughts” as to the amount of support to be ordered, Mullaly complained of
childcare expenses since moving out of her mother’s home. Most significantly, Herrera
made no argument as to why a downward deviation would be in the best interest of the
children. Michael at ¶ 38.
{¶34} Other factors and circumstances in this case support the juvenile court’s
decision not to order a downward deviation such that it cannot be deemed an abuse of
discretion. Mullaly’s income is half of Herrera’s income. Mullaly previously resided with
her mother but, for a variety of reasons, had to establish a new residence for herself and
her children. Thus, she has additional expenses (including a third child) that she did not
have at the time of the prior agreement.
{¶35} In responding to Herrera’s position, the following explanation for reversing
a trial court’s decision to grant a deviation is instructive:
Although extended parenting time is one factor that the trial court
must consider in evaluating whether guideline support is unjust,
inappropriate, and not in the children’s best interest, we conclude
that the trial court’s reasoning was flawed. Instead of considering
extended parenting time in conjunction with the other enumerated
factors, the trial court focused upon the parties’ prior agreement to
deviate, in essence finding that because the parties had a prior
agreement to deviate that was purportedly based upon equalized
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parenting time, it should hold the parties to their agreement.
However, in focusing on the parties’ prior agreement and prior
circumstances, the trial court failed to consider the parties’ present
circumstances in conjunction with the statutory factors.
Irish v. Irish, 9th Dist. Lorain Nos. 09CA009577 and 09CA009578, 2010-Ohio-403, ¶ 16.
{¶36} The second assignment of error is without merit.
{¶37} In the third assignment of error, Herrera argues the juvenile court erred by
not applying recent enactments/amendments to the child support statutes in determining
whether he was entitled to deviation. Herrera cites two statutes in particular. Pursuant
to R.C. 3119.051(A): “a court or child support enforcement agency calculating the amount
to be paid under a child support order shall reduce by ten per cent the amount of the
annual individual support obligation for the parent or parents when a court has issued or
is issuing a court-ordered parenting time order that equals or exceeds ninety overnights
per year.” Pursuant to R.C. 3119.231(A), “the court shall consider whether to grant a
deviation pursuant to section 3119.22 of the Revised Code” when court-ordered parenting
time exceeds ninety overnights per year “in addition to any adjustments provided under
division (A) of section 3119.051 of the Revised Code.” If the court does not grant an
additional deviation under R.C. 3119.22, “it shall specify in the order the facts that are the
basis for the court’s decision.” R.C. 3119.231(B).
{¶38} The amendments to R.C. Chapter 3119 were enacted by 2018 Am.Sub.H.B.
366 and became effective on March 28, 2019. A.S. v. J.W., 157 Ohio St.3d 47, 2019-
Ohio-2473, 131 N.E.3d 44, ¶ 2, fn. 1 (“the bill amended, enacted, or repealed roughly 30
sections of this chapter”). Thus, the statutory changes became effective after Herrera
filed his Motion to Modify on January 28, 2019, and after the Child Support Enforcement
Division recalculated his support obligation and filed its Recommendation on February 6,
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2019, but before the juvenile court’s ruling on the Motion on July 23, 2019.
{¶39} On appeal, Herrera argues that, “if the new child support laws are applied
to this matter, the court erred by not complying with R.C. 3119.051 and R.C. 3119.231 in
that it failed to grant a deviation for greater than 90 overnights, failed to consider an
additional deviation for the extended parenting time, and failed to specify its reasons for
not granting any deviation.” Appellant’s brief at 10. Herrera does not, however, present
any argument as to why the statutory changes should apply.3 Mullaly argues on appeal,
without citation to authority, that the juvenile court “had discretion on whether to use the
old guidelines or the new guidelines that became effective March 28, 2019.” Appellee’s
brief at 8. We note, as a general rule, that the governing law is not a matter left to the
discretion of the court. Conneaut v. Buck, 11th Dist. Ashtabula No. 2014-A-0053, 2015-
Ohio-2593, ¶ 22; Rohde v. Farmer, 23 Ohio St.2d 82, 89, 262 N.E.2d 685 (1970) (“where
a specific action, ruling or order of the court is required as a matter of law, involving no
discretion, that test of ‘abuse of discretion’ should have no application”).
{¶40} Relevant to the issue of whether the newly enacted statutory provisions
apply in the present case are the following rules of statutory construction: “A statute is
presumed to be prospective in its operation unless expressly made retrospective.” R.C.
1.48. “If there is no clear indication of retroactive application, then the statute may only
apply to cases which arise subsequent to its enactment.” Kiser v. Coleman, 28 Ohio St.3d
259, 262, 503 N.E.2d 753 (1986). Also relevant is R.C. 1.58(A), which applies to the
amendment of existing statutes and provides that an amendment “does not * * * [a]ffect
3. In discussing the changes to the law at the June 5 hearing, counsel for Herrera stated: “As you are
aware, Your Honor, that bit of the law is a little untested right now, so what to apply to over 147 overnights,
I don’t know.”
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the prior operation of the statute or any prior action taken thereunder.”
{¶41} In the present case, the juvenile court’s continuing jurisdiction to modify the
existing support order was invoked by Herrera prior to the amendment of the support
statutes. Under the principles of statutory construction cited above, as well as a
substantial line of existing case law, the newly enacted provisions (as well as the
amended existing provisions) do not apply to Herrera’s Motion to Modify since it was filed
prior to the effective date of the new laws. “Generally, courts must apply the statute in
effect when the motion to modify support is filed.” Rodriguez v. Rodriguez, 9th Dist. Lorain
No. 00CA007699, 2001 WL 458674, *2, fn. 1 (cases cited); Nolan v. Nolan, 6th Dist.
Huron No. H-90-23, 1991 WL 53769, *2 (“R.C. 3113.215 was not in effect on the date the
motion for increased child support was filed by appellant” and, “[t]herefore, the trial court
was not governed by R.C. 3113.215 in this case”); Carter v. Carter, 9th Dist. Summit No.
21156, 2003-Ohio-240, ¶ 21, fn. 4 (“[t]his Court * * * must apply R.C. 3113.215 [repealed
effective March 22, 2001] in light of the fact that Appellee filed the motion for change of
custody on February 8, 2001”); Cesa v. Cesa, 5th Dist. Coshocton No. 01 CA 12, 2001
WL 1528911, *5, citing Leffel v. Leffel, 2d Dist. Clark No. 2000-CA-78, 2001 WL 669423,
*4, fn. 3; cf. In re M., 1st Dist. Hamilton No. C-170008, 2017-Ohio-1431, ¶ 15 (“[t]he motion
for permanent custody was filed on February 10, 2015, so we apply the versions of the
statutes in effect at that time”); Wiegel v. Burcham, 94 Ohio App. 423, 425-426, 115
N.E.2d 847 (2d Dist.1952) (“an amendment [requiring the court in a bastardy proceeding
to adjudge the amount which the reputed father shall pay to the mother for support and
maintenance of the child] shall not affect pending proceedings, and when the amendment
relates to the remedy, such amendment shall not affect proceedings existing at the time
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of the amendment unless expressly provided in the act”).
{¶42} We note the existence of authority addressing directly the changes effected
by H.B. 366. In J.E.M. v. D.N.M., 8th Dist. Cuyahoga No. 109532, 2021-Ohio-67, the
Eighth District affirmed a trial court decision that applied the provisions of H.B. 366 in
ruling on a motion to modify filed before their effective date, at least in part. In that case,
the mother filed a motion to modify support on December 31, 2018. Id. at ¶ 5. The
magistrate hearing the motion rendered a decision after the revisions to the statute. In
Solomonic fashion, “the magistrate calculated mother’s child support under two
worksheets: the first worksheet, based on the former law, was completed for the mother’s
child support obligation from December 31, 2018, to March 27, 2019; the second
worksheet, based on the new law, was completed for her child support obligation
commencing March 28, 2019.” Id. at ¶ 16. The trial court adopted the magistrate’s dual
support order, fixing one support obligation for the period prior to the effective date of H.B.
366 and another obligation for the period after its effective date. Id. at ¶ 21.
{¶43} The court of appeals approved the result, affirming that “[t]he trial court here
did not apply the statute retroactively to mother’s child support obligation incurred before
the effective date of amended R.C. Chapter 3119.” Id. at ¶ 33. The court explained:
Based on our review of the case law authority * * *, we find no merit
to father’s claim that because mother’s motion to modify was filed
before March 28, 2019, the effective date of amended R.C. Chapter
3119, it cannot be applied to mother’s support obligation even after
the effective date. We note that “‘a court which obtains jurisdiction
over and enters orders with regard to the custody and support of
children retains continuing and exclusive jurisdiction over such
matter.’” State ex rel. Clermont Cty. Dept. of Human Servs. v.
Walsson, 108 Ohio App.3d 125, 128, 670 N.E.2d 287 (12th
Dist.1995), quoting Harlow by Wheeler v. Stevens, 12th Dist. Preble
No. CA94-03-004, 1994 Ohio App. LEXIS 3778 (Aug. 29, 1994).
Here, the applicable child support provisions were amended after the
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motion to modify support was filed but before the trial court
considered the matter. Because a portion of the ongoing child
support obligation was incurred before the new provisions went into
effect, the trial court properly recognized that the amended statute
does not evince the legislature’s intent for retrospective application
and accordingly applied the amended provisions only to mother’s
child support obligations incurred after March 28, 2019, but not to her
obligations incurred before that date.
Id. at ¶ 31.
{¶44} The “case law” referred to is Posadny v. Posadny, 2d Dist. Montgomery No.
19636, 2003-Ohio-783, and Graham v. Graham, 2020-Ohio-1435, 153 N.E.3d 843 (3d
Dist.). In Posadny, the court of appeals merely held that newly enacted provisions of R.C.
Chapter 3119 could not apply to support orders prior to the effective date of the provisions.
Id. at ¶ 8. The situation in Graham was more closely akin to J.E.M. In Graham, the
motion to modify support was filed and ruled upon by a magistrate before the March 28,
2019 effective date of H.B. 366. Id. at ¶ 4. The trial court adopted the magistrate’s
decision after the effective date and modified it, as in J.E.M., so that two support orders
were put in place, one applicable prior to the effective date of the statute and the other
applicable after that date. Id. at ¶ 5 and 12.
{¶45} We do not find the situation in J.E.M. and Graham applicable here and
express no opinion as to the propriety of the support orders affirmed in those cases.
Unlike J.E.M. and Graham, the juvenile court entered a single order based on the law that
existed at the time the Motion to Modify Support was filed. Certainly, the court’s conduct
was consistent with the statutory and case law cited above. While J.E.M. and Graham
support the proposition that a trial court may enter variable support orders to avoid the
retroactive application of newly enacted or amended statutes, they do not support the
conclusion that a court errs by not entering such an order.
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{¶46} The third assignment of error is without merit.
{¶47} For the foregoing reasons, the judgment of the Geauga County Court of
Common Pleas, Juvenile Division, is affirmed. Costs to be taxed against the appellant.
CYNTHIA WESTCOTT RICE, J., concurs,
THOMAS R. WRIGHT, J., dissents.
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Case No. 2019-G-0222