Sandel v. Choma , 2013 Ohio 5410 ( 2013 )

[Cite as Sandel v. Choma, 2013-Ohio-5410.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
LORI S. SANDEL C.A. No. 26895
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DAVID CHOMA COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 1998-06-1433
DECISION AND JOURNAL ENTRY
Dated: December 11, 2013
HENSAL, Judge.
{¶1} Appellant, David Choma, appeals from the judgment of the Summit County Court
of Common Pleas, Domestic Relations Division. For the reasons set forth below, this Court
affirms.
I.
{¶2} Mr. Choma and Lori S. Sandel were divorced in 1998. They have two minor
children from the marriage. This Court previously stated the applicable facts in Sandel v.
Choma, 9th Dist. Summit No. 25995, 2012-Ohio-3781:
As part of the divorce decree, the parties entered into a shared parenting
agreement that provided that Mr. Choma would pay $522.29 per month for each
child in child support. Over the years, the parties’ incomes increased at different
rates, and Mr. Choma’s child support obligation was modified twice. In 2003, the
trial court modified his obligation to $375 per month for each child. Later the
same year, the parties agreed to another modification that reduced Mr. Choma’s
child support obligation to $209.88 per month for each child, including poundage.
In February 2009, Mr. Choma moved to terminate his child support obligation and
for an order requiring Ms. Sandel to pay child support instead. The trial court
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terminated his obligation to pay child support, but upon finding that the parties
had essentially equal incomes, did not order Ms. Sandel to pay.
On August 10, 2009, Mr. Choma filed the motion that is at issue in this appeal,
requesting that the trial court order Ms. Sandel to pay child support in light of her
increased income. Hearing on the matter was continued until May 2010 and,
when a second day of testimony was required, the magistrate scheduled a hearing
one month later. The magistrate issued a decision on March 30, 2011,
recommending an amendment of the shared parenting plan effective April 1,
2011, and an award of child support from Ms. Sandel effective on the same date.
The trial court entered judgment on the magistrate’s decision in accordance with
Civ.R. 53(D)(4)(e)(i). Mr. Choma objected to the magistrate's decision, arguing
that although the amendment to the shared parenting plan was effective April 1,
2011, the effective date of the child support award should have been the date he
filed the motion to modify. The trial court overruled his objection, and Mr.
Choma appealed.
Id. at ¶ 2-3. This Court reversed and remanded the matter for the trial court to explain its reasons
for not ordering that the child support be retroactively modified to the date Mr. Choma filed his
motion. Id. at ¶ 7.
{¶3} On remand, the trial court held a hearing and entered a judgment that again
determined the effective date of the child support modification to be April 1, 2011. Mr. Choma
filed a timely appeal and raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT MODIFYING CHILD SUPPORT
EFFECTIVE AUGUST 10, 2009, THE DATE OF THE FILING OF THE
MOTION FOR MODIFICATION.
{¶4} Mr. Choma argues that the trial court erred when it ordered Ms. Sandel’s child
support obligation to commence on the date that the parenting time was changed in 2011 rather
than the filing date of his 2009 motion. He maintains that there were no special circumstances to
justify the use of the 2011 date and that the trial court should have found that the 2009 date of the
motion’s filing was the effective date of the revised child support order. This Court disagrees.
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{¶5} A trial court’s calculation of child support is reviewed for an abuse of discretion.
Cameron v. Cameron, 9th Dist. Medina No. 10CA0064-M, 2011-Ohio-3884, ¶ 6, citing Dunbar
v. Dunbar, 68 Ohio St. 3d 369, 371 (1994). An abuse of discretion “implies that the trial court’s
attitude [was] unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). This Court may not substitute its judgment for that of the trial court when
applying the abuse of discretion standard. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621
(1993).
{¶6} Unless there are “special circumstances” to warrant the use of a different date, the
trial court should use the date that a motion to modify child support is filed as the effective date
of the new support award. Sandel, 2012-Ohio-3781 at ¶ 5, quoting State ex rel. Draiss v. Draiss,
70 Ohio App.3d 418, 421 (9th Dist.1990). As this Court has explained, this rule is utilized to
protect the parties from the often significant delay between the filing of the motion and a
decision thereon. Id. “When a trial court selects a different effective date for a child support
modification, that date must have a ‘reasonable basis’ and bear some significance in the
underlying litigation.” Id. at ¶ 6, quoting In re P.J.H., 196 Ohio App.3d 122, 2011-Ohio-5970, ¶
19 (2d Dist.2011). While the trial court has the discretion to utilize a date other than the date
when the motion was filed, it must state an adequate basis for doing so. Id.{¶7} Mr. Choma filed a multi-branched motion on August 10, 2009, seeking, in part,
“an [o]rder requiring * * * [Ms.] Sandel * * * to pay child support * * * [as] [t]here has been a
change in circumstances * * *.” He requested that the revised child support order be retroactive
to the date of Ms. Sandel’s change in income. Simultaneous with the filing of his motion, he
filed an affidavit in which he averred that Ms. Sandel’s income changed and that there was a
change in the parties’ parenting time as the children were spending more than 50 percent of their
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time under his care. At the time Mr. Choma filed his motion, neither parent was paying child
support. Mr. Choma’s obligation to pay was terminated February 18, 2009, and, due to equal
parenting time and equivalent incomes, Ms. Sandel was not ordered to pay child support. Mr.
Choma did not request a temporary order of child support while his motion was pending.
{¶8} A remand hearing was held at which both Mr. Choma and Ms. Sandel testified
and presented evidence. The trial court again found that April 1, 2011, was the effective date for
the child support modification. The court concluded that, at the time Mr. Choma filed his
motion, Ms. Sandel had yet to experience an increase in income as she did not sign her
employment contract until nine days later. It also noted that, when Mr. Choma was the obligor,
his child support obligation was subject to a downward deviation. However, the most important
factor that the trial court relied upon when it decided not to use the date of the filing of the
motion as the effective date of Ms. Sandel’s child support obligation, was “the fact that the
modification of child support naming [Ms. Sandel] as obligor stems from changes made to the
custodial portion of the Shared Parenting Plan which substantially decreased the amount of time
the children were with [Ms. Sandel].”
{¶9} Based upon the affidavit filed with Mr. Choma’s motion to modify and a review
of the remand hearing transcript, it is apparent that Mr. Choma sought to increase the amount of
Ms. Sandel’s child support obligation due to two factors that he argued demonstrated a change in
circumstances: (1) her increase in income and (2) her alleged decrease in parenting time. With
regard to Ms. Sandel’s change in income, she testified that, on August 19, 2009, she signed an
employment contract with a local school district for the 2009/2010 school year. When she
received her first pay pursuant to that contract, it reflected that she was paid a salary effective
August 1, 2009. Her salary for the 2009/2010 school year was $92,762.38 and her salary for the
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2010/2011 school year was $97,709.81. These amounts were an increase from her previous
income of $75,000 per year.
{¶10} However, the testimony at the remand hearing demonstrated that, up until April 1,
2011, the only change in parenting time was when Ms. Sandel would drop the children off at Mr.
Choma’s home so that he could supervise them before and after school. Ms. Sandel testified that
this accounted for 20 or 30 minutes in the morning and that Mr. Choma was only home with the
children for approximately 30 minutes before she picked them up in the afternoon. Ms. Sandel
further testified that “everything changed” on April 1, 2011, when the shared parenting plan was
modified to provide for a substantial decrease in her parenting time.
{¶11} Based on this Court’s review of the record, we cannot conclude that the trial court
abused its discretion in finding that the effective date of the child support modification was April
1, 2011, when the parenting time was modified rather than in 2009 when Mr. Choma’s motion
was filed. The trial court’s use of the date in which Ms. Sandel’s parenting time was
substantially decreased is a “reasonable basis” that “bear[s] some significance” given the
testimony and evidence adduced at trial that April 1, 2011, was the date when significant
changes were made to the shared parenting plan. Sandel, 2012-Ohio-3781 at ¶ 6, quoting In re
P.J.H., 2011-Ohio-5970 at ¶ 19. There is ample evidence in the record to demonstrate that the
amount of parenting time was a major factor that both the trial court and the parties previously
used when determining the amount of child support. Thus, the trial court did not abuse its
discretion in finding that the April 1, 2011, parenting time modification constituted a “special
circumstance” that justified not using the date of the motion’s filing as the effective date of Ms.
Sandel’s child support obligation. Mr. Choma’s assignment of error is overruled.
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III.
{¶12} Mr. Choma’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.
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
MOORE, P. J.
BELFANCE, J.
CONCUR.
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APPEARANCES:
JOHN M. DOHNER, Attorney at Law, for Appellant.
MORA LOWRY, Attorney at Law, for Appellee.