Frey v. Frey , 2009 Ohio 5275 ( 2009 )

[Cite as Frey v. Frey, 2009-Ohio-5275.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
RICK FREY,
PLAINTIFF-APPELLANT, CASE NO. 5-09-11
v.
KIMBERLY FREY, nka NIGH, OPINION
DEFENDANT-APPELLEE.
Appeal from Hancock County Common Pleas Court
Domestic Relations Division
Trial Court No. 2001 DR 287
Judgment Reversed
Date of Decision: October 5, 2009
APPEARANCES:
Kevin P. Collins for Appellant
William E. Clark for Appellee
Case No. 5-09-11
SHAW, J.
{¶1} Plaintiff-Appellant Rick Frey (“Rick”) appeals from the March 17,
2009 Judgment Entry of the Court of Common Pleas of Hancock County, Ohio,
Domestic Relations Division.
{¶2} Rick and Kimberly Frey nka Nigh (“Kimberly”) are the parents of
three children: Ashley Frey (DOB: June 7, 1996), Austin Frey (DOB: Nov. 1,
1997), and Chelsea Frey (DOB: Apr. 5, 1998), (hereinafter Ashley, Austin, and
Chelsea Frey collectively referred to as “the children”). In May 2002, Rick and
Kimberly divorced.
{¶3} The original divorce decree provided that Rick would be the
residential parent of the children. The original divorce decree also did not provide
for the payment of child support by either party. After the entry of the original
divorce decree, Kimberly moved to reallocate parental rights in January 2003.
The magistrate denied Kimberly’s motion.
{¶4} In May 2004, Kimberly again moved to modify parenting time, the
designation of residential parent, and moved for a review of child support. In May
2005, the magistrate granted Kimberly’s motion to modify parenting time, finding
that modification of the parenting time schedule was in the best interests of the
children and ordering that Kimberly's weekly overnight visits be switched from
Wednesday night to Thursday night; that Kimberly care for the children on
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Saturday's while Rick worked; that Rick ensure that both he and Kimberly are on
the children's school contact list; and, that Kimberly pay no child support to Rick
based on the parties’ incomes. In determining child support, the magistrate
identified Father as the residential parent on the child support calculation
worksheet and concluded that Mother should not be required to pay him child
support.
{¶5} Thereafter, Kimberly filed a motion for clarification and
reconsideration, alleging that the magistrate failed to address her request that Rick
pay her child support and requesting reconsideration of the magistrate's order
requiring her to care for the children on the Saturdays while Rick worked.
Subsequently, the trial court granted the part of Kimberly’s motion requesting
clarification of the child support issue and remanded to the magistrate, but denied
the portion of her motion requesting reconsideration of the relevant Saturday
parenting time.
{¶6} In June 2005, the magistrate issued a supplemental order, in which it
designated Kimberly as the residential parent and obligee on the child support
worksheet for purposes of calculating child support, which yielded a guideline
child support figure of $1,013.68 per month owed by Rick. In doing so, the
magistrate noted that the figures used in its May 2005 calculation worksheet and
its June 2005 calculation worksheet were identical and that the only difference was
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the designation of Father as the nonresidential parent and obligor on the June 2005
calculation worksheet instead of Mother.
{¶7} The magistrate then deviated from the guideline support amount
pursuant to R.C. 3119.22 and R.C. 3119.23, finding that Kimberly's income was
“not sufficient to cover what she expends on the children”; that Kimberly’s new
husband provided financial assistance; that the children would be with Kimberly
“a majority of the time when school is out of session and a significant portion of
the time when school is in session”; that “[g]iven the significant amount of time
each parent spends with the children, a guideline support figure would not be
appropriate”; and, that requiring Rick to pay guideline support “would be
burdensome and contrary to the best interests of the children.” Consequently, the
magistrate ordered Rick to pay Kimberly one-hundred dollars a month, per child,
plus processing fees.
{¶8} In September 2005, Rick filed written objections to the magistrate’s
May 2005 order and June 2005 supplemental order. In May 2006, the trial court
overruled Rick’s objections to the magistrate's May 2005 order and June 2005
supplemental order. In July 2006, the trial court adopted the magistrate’s May
2005 order and June 2005 supplemental order requiring Rick to pay Kimberly
child support.
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{¶9} Rick then appealed the July 2006 decision to this Court arguing that
the trial court erred in ordering him to pay child support. Frey v. Frey, 3rd Dist.
No. 5-06-36, 2007-Ohio-2991. Specifically, Rick argued that because he was
designated as residential parent, the children resided primarily with him, and the
divorce decree did not provide a shared parenting plan, that he should be not be
required to pay child support. Additionally, Rick raised the issues of whether the
parties were actually subject to a residential parent agreement or a shared
parenting agreement, and if he was the residential parent, could he be ordered to
pay child support.
{¶10} This Court concluded that Rick was the residential parent, as no
shared parenting order was in place and a shared parenting order had never been
requested. This Court also concluded that the trial court erred by designating
Kimberly as the residential parent on the child support calculation worksheet and
by then ordering Rick to pay child support without finding that it was in the best
interest of the children. This Court then remanded the matter to the trial court
“with instruction to determine if ordering Father to pay Mother child support is in
the best interest of the children and, if so, to designate Father as the residential
parent in calculating the pertinent child support worksheet.” Frey v. Frey, 2007-
Ohio-2991, at ¶37.
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{¶11} After the remand, on May 12, 2008, the magistrate issued a decision
in which the magistrate found that ordering Rick to pay child support was in the
best interest of the children. It does not appear that any additional evidence was
taken prior to the issuance of the magistrate’s decision. Rick filed objections to
the magistrate’s decision on May 21, 2008. On March 17, 2009, the trial court
adopted the magistrate’s decision.
{¶12} Rick now appeals, asserting three assignments of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF
PLAINTIFF-APPELLANT BY MODIFYING CHILD
SUPPORT WITHOUT EVIDENCE SUFFICIENT TO
ESTABLISH A CHANGE IN CIRCUMSTANCES.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED TO THE PREJUDICE OF
PLAINTIFF-APPELLANT BY FINDING THE CHILDREN’S
BEST INTERESTS WERE SERVED BY ORDERING
PLAINTIFF-APPELLANT, THE RESIDENTIAL PARENT,
TO PAY CHILD SUPPORT TO THE NONRESIDENTIAL
PARENT.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED TO THE PREJUDICE OF
PLAINTIFF-APPELLANT BY EMPLOYING THE WRONG
STANDARD FOR REVIEWING THE MAGISTRATE’S
DECISION.
{¶13} In his first assignment of error, Rick argues that the trial court erred
by modifying the child support order without evidence establishing a change in
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circumstances. As an initial matter, we note that child support modification is
governed by R.C. 3119.79, which provides as follows:
(A) If an obligor or obligee under a child support order
requests that the court modify the amount of support required
to be paid pursuant to the child support order, the court shall
recalculate the amount of support that would be required to be
paid under the child support order in accordance with the
schedule and the applicable worksheet through the line
establishing the actual annual obligation. If that amount as
recalculated is more than ten per cent greater than or more than
ten per cent less than the amount of child support required to be
paid pursuant to the existing child support order, the deviation
from the recalculated amount that would be required to be paid
under the schedule and the applicable worksheet shall be
considered by the court as a change of circumstance substantial
enough to require a modification of the child support amount.
(B) In determining the recalculated support amount that
would be required to be paid under the child support order for
purposes of determining whether that recalculated amount is
more than ten per cent greater than or more than ten per cent
less than the amount of child support required to be paid
pursuant to the existing child support order, the court shall
consider, in addition to all other factors required by law to be
considered, the cost of health insurance the obligor, the obligee,
or both the obligor and the obligee have been ordered to obtain
for the children specified in the order. Additionally, if an obligor
or obligee under a child support order requests that the court
modify the support amount required to be paid pursuant to the
child support order and if the court determines that the amount
of support does not adequately meet the medical needs of the
child, the inadequate coverage shall be considered by the court
as a change of circumstance that is substantial enough to require
a modification of the amount of the child support order.
(C) If the court determines that the amount of child support
required to be paid under the child support order should be
changed due to a substantial change of circumstances that was
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not contemplated at the time of the issuance of the original child
support order or the last modification of the child support
order, the court shall modify the amount of child support
required to be paid under the child support order to comply
with the schedule and the applicable worksheet through the line
establishing the actual annual obligation, unless the court
determines that the amount calculated pursuant to the basic
child support schedule and pursuant to the applicable worksheet
would be unjust or inappropriate and would not be in the best
interest of the child and enters in the journal the figure,
determination, and findings specified in section 3119.22 of the
Revised Code.
{¶14} Accordingly, a court may only modify an existing child support order
if there is a change of circumstances that is substantial enough to require a
modification in the child support amount. R.C. 3119.79. See also, Ayers v. Haas,
3rd Dist. No. 15-07-13, 2008-Ohio-2405. If, upon recalculation, the new child
support amount deviates from the existing order by at least ten percent, that
deviation will be considered a change in circumstances warranting a modification
of the child support amount. Bentley v. Bentley, 3rd Dist. No. 9-04-09, 2004-Ohio-
5100, ¶ 8. It has long been the law in Ohio that “changes in the circumstances of
the parties that may be considered must be material and not purposely brought
about by the complaining party, and must be considered on the basis that the
judgment sought to be modified was justified and proper when made.” Nash v.
Nash (1945), 77 Ohio App. 155, 32 O.O. 409, 65 N.E.2d 728, paragraph two of the
syllabus.
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{¶15} In the present case, the trial court made no determination on whether
there had been a change of circumstances, sufficient to warrant a modification in
the child support order. It does not appear, from the record before this Court, that
either the magistrate or the trial court ever addressed the issue of whether a change
in circumstances not contemplated at the time of the original divorce decree
occurred.
{¶16} Moreover, upon our independent review of the record, we cannot
find that a change in circumstances occurred, from those circumstances
contemplated at the time of the original divorce decree that would support the
present modification. It does not appear that the amount of time the children spent
with either parent changed significantly from the time of the original divorce
decree. Although Kimberly’s weekly evening parenting time changed from
Wednesday to Thursday, the amount of that time did not change. Also, Kimberly
began watching the children on Saturdays when Rick worked. This was clearly
contemplated at the time of the original divorce decree and Rick’s work schedule
did not change substantially. Moreover, Kimberly’s work schedule did not change
from the time of the original decree to the time of the proposed modification.
Kimberly did not have steady employment at either point in time.
{¶17} Additionally, upon reviewing the record, we cannot find anything
else in the record that would support a finding of a substantial change in
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circumstances. Accordingly, Rick’s first assignment of error is sustained. Because
our resolution of the first assignment of error is dispositive of this appeal, we find
the remaining two assignments of error are rendered moot.
{¶18} Based on the foregoing, the March 17, 2009 Judgment Entry of the
Court of Common Pleas of Hancock County, Ohio, Domestic Relations Division
is reversed.
Judgment Reversed
WILLAMOWSKI and ROGERS, J.J., concur.
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