Goines v. Bowers , 2020 Ohio 5161 ( 2020 )

[Cite as Goines v. Bowers, 2020-Ohio-5161.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CARLA GOINES, : APPEAL NO. C-190397
TRIAL NO. P05-3106 Z
Plaintiff-Appellee, :
O P I N I O N.
vs. :
CARL BOWERS, :
Defendant-Appellant. :
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 4, 2020
Carla Goines, pro se,
Carl Bowers, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
C ROUSE , Judge.
{¶1} Defendant-appellant Carl Bowers appeals from the juvenile court’s
modification of a child-support order. For the reasons set forth below, we affirm the
trial court’s judgment.
{¶2} On August 7, 2008, the juvenile court entered a child-support order
against Bowers through a default judgment. The order determined that Bowers was
the father of the child, and required him to pay $251.89 per month in child support
plus $50.38 per month in arrearages. On October 5, 2018, Bowers filed a “Motion to
Establish Paternity.” The motion requested genetic testing to determine the
paternity of the child and asked for arrearages to be “reviewed by a judge.” Although
Bowers later abandoned his request for genetic testing, the magistrate nonetheless
considered a modification of child support. On April 15, 2019, the magistrate
modified the support order to $80 per month plus $10 per month in arrearages.
Bowers objected, requesting the total amount of arrearages to be retroactively
calculated under the new support obligations. The juvenile court denied the
objections and approved the magistrate’s decision. Bowers subsequently filed this
appeal.
{¶3} In his sole assignment of error, Bowers contends that the juvenile
court erred in ordering the full sum of arrearages.
{¶4} Notwithstanding the time constraints of Civ.R. 60(B), a person may
file a motion for relief from any court order determining that the person is the father
of a child or from a child-support order under which the person is the obligor. R.C.
3119.961(A); State ex rel. Loyd v. Lovelady, 108 Ohio St. 3d 86, 2006-Ohio-161, 840
N.E.2d 1062 (determining that R.C. Chapter 3119 is constitutional). If a genetic test
finds that there is a zero percent probability that the person is the father of the child,
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then the juvenile court may cancel any arrearages owed. R.C. 3119.964(B).
However, if the person willfully fails to submit himself to genetic testing, then the
juvenile court must “issue an order determining the motion for relief against the
party failing to submit * * * to the genetic testing.” R.C. 3119.963(B).
{¶5} On October 5, 2018, Bowers filed a “Motion to Establish Paternity,”
which can be properly characterized as a motion for relief under R.C. 3119.961(A).
On December 18, 2018, the magistrate continued the matter, in part, to allow Bowers
an opportunity to arrange and pay for genetic testing. By February 2019, Bowers had
abandoned his request for genetic testing. Because Bowers willfully failed to submit
to genetic testing, the magistrate had no grounds to cancel arrearages.
{¶6} Although Bowers failed to submit to genetic testing as required by R.C.
3119.963, the magistrate nonetheless considered a modification of child support.
Following a hearing, the magistrate modified the original support order to the
statutory minimum support of $80 per month plus $10 per month in arrearages. See
R.C. 3119.06(A). The juvenile court adopted the magistrate’s decision.
{¶7} Bowers now requests a retroactive modification of arrearages based on
his present support obligations, as opposed to his original support obligations.
Bowers asserts that the original calculation of arrearages was based on falsified
income documents submitted by Goines.
{¶8} Generally, due and unpaid child-support payments may not be
modified. McPherson v. McPherson, 153 Ohio St. 82, 90 N.E.2d 675 (1950); R.C.
3119.83. This court has recognized an exception where “special circumstances” are
demonstrated. Torbeck v. Torbeck, 1st Dist. Hamilton No. C-010022, 2001 WL
1251219, *3 (Sept. 28, 2001). “Special circumstances” include instances of fraud or
wrongdoing, such as when an obligor conceals income or fails to report income
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OHIO FIRST DISTRICT COURT OF APPEALS
changes. See, e.g., Torbeck at *3 (obligor submitted a child-support-calculation
worksheet that contained a gross misstatement of his income, and he failed to notify
the juvenile court of increases in his income); In re J.S., 2d Dist. Montgomery No.
24597, 2012-Ohio-421 (obligor failed to notify the child-support agency of his
employment change as required by the child-support order); Osborne v. Osborne, 81
Ohio App. 3d 666, 611 N.E.2d 1003 (4th Dist.1992) (obligor misrepresented his gross
income at the time of dissolution).
{¶9} In this case, the record does not demonstrate any fraud or wrongdoing.
The complaint listed Bowers’s employment as “unknown” and did not provide
estimated wages or income. A review of the child-support order does not indicate
that the juvenile court relied on any additional evidence from Goines in calculating
Bowers’s support obligations. In fact, Goines failed to appear at the default-
judgment proceedings, and therefore, could not have made any additional
representations to the court regarding Bowers’s income. Because Bowers cannot
show proof of fraud or wrongdoing, the juvenile court had no authority to
retroactively modify his arrearages. Accordingly, Bowers’s sole assignment of error
is overruled, and the judgment of the juvenile court is affirmed.
Judgment affirmed.
M YERS , P.J., and B ERGERON , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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