Cauthen v. Cauthen

[Cite as Cauthen v. Cauthen, 2017-Ohio-5846.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
SHINA A. CAUTHEN,
PLAINTIFF-APPELLANT, CASE NO. 9-17-01
v.
JACK CAUTHEN, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 2013 PC 0024
Judgment Affirmed
Date of Decision: July 17, 2017
APPEARANCES:
Robert C. Nemo for Appellant
Jeff Ratliff for Appellee
Case No. 9-17-01
PRESTON, P.J.
{¶1} Plaintiff-appellant, Shina M. Cauthen (“Shina”), appeals the December
2, 2016 judgment entry of the Marion County Court of Common Pleas, Family
Division, granting defendant-appellee, Jack Cauthen (“Jack”), a credit against his
outstanding child-support obligation. For the reasons that follow, we affirm.
{¶2} This case stems from a dissolution granted in California in October of
2004. Under the order that dissolved the parties’ marriage, the parties were to have
joint legal custody of their three children, and Jack was to pay $589 monthly to
Shina in child support. After the dissolution, Shina moved with her children to
Marion, Ohio. In May of 2006, Jack followed Shina to Marion and began living
with her and their children. On April 2, 2007, Shina informed Marion’s Child
Support Enforcement Agency (“CSEA”) that she was not in need of any services
from them. Jack resided with Shina and the children until the middle of 2012, during
which time he cared for the children while Shina worked. After Jack’s departure
from the home, Shina requested services from Marion’s CSEA in August of 2012.
On May 11, 2015, Jack filed a motion to “substantially” reduce the amount of his
-2-
Case No. 9-17-01
child support arrearage. (Doc. No. 40).1
{¶3} The magistrate’s decision in this case was filed June 21, 2016. (Doc.
No. 68). The trial court’s initial judgment entry adopting the magistrate’s decision
was filed July 12, 2016. (Doc. No. 69). On July 14, 2016, Shina filed a motion
asking the trial court to grant her additional time to file objections to the magistrate’s
decision and to vacate its own judgment entry filed July 12, 2016. (Doc. No. 70).
The trial court granted that motion on July 19, 2016. (Doc. No. 71). Shina filed
objections to the magistrate’s decision on July 21, 2016 and September 12, 2016.
(Doc. Nos. 73, 76). The trial court overruled those objections on December 1, 2016.
(Doc. No. 80). The trial court filed its judgment entry granting Jack’s motion to
reduce his child support arrearage on December 2, 2016. (Doc. No. 81). Shina filed
her notice of appeal on January 3, 2017. (Doc. No. 82). She brings one assignment
of error for our review.
Assignment of Error
The Trial Court Erred in Sustaining Appellee’s Motion For
Modification of Arrearage.
1
Jack’s motion to reduce his child support arrearage was filed in the context of a larger and quite lengthy
legal battle, which delayed a final judgment on his motion. The trial court joined CSEA as a party. (Doc.
No. 48). On July 14, 2015, Shina filed a response to Jack’s motion to substantially reduce his child support
arrearage. (Doc. No. 47). The trial court set another pretrial for September 28, 2015. (Doc. No. 50). Jack
filed a motion to reallocate parental rights and responsibilities on August 27, 2015. (Doc. No. 51). The trial
court scheduled another pretrial conference for November 12, 2015 (Doc. No. 58). Only the issue of child
support was before the trial court by the time of the contested hearing on April 22, 2016. (Doc. No. 65).
-3-
Case No. 9-17-01
{¶4} In her sole assignment of error, Shina argues that the trial court erred in
sustaining Jack’s motion to modify his child support arrearage. Specifically, she
argues that R.C. 3119.83 prohibits a child support enforcement agency from
retroactively modifying an obligor’s duty to pay a delinquent child support balance.
Further, she argues that R.C. 3119.84 says that a court may modify a child support
arrearage only to the extent that the arrearage accrues after a petition to modify the
order has been given to each obligee and to the obligor before a final order
concerning the petition modification is entered. She argues that, as neither party
filed a request to modify the child support during the period for which the trial court
granted Jack a credit against his obligation, the trial court’s order crediting Jack
against his obligation for the time he and Shina lived together was improper. Shina
further argues that the parties’ divorce decree states that the reconciliation of the
parties does not cancel or modify the parties’ obligations.
{¶5} We review the propriety of the trial court’s determination as to child
support for an abuse of discretion. Myers v. Myers, 147 Ohio App.3d 85, 88 (3d
Dist.2002). The term “abuse of discretion” refers to a decision that is “arbitrary,
unreasonable, or unconscionable.” Sandusky Properties v. Aveni, 15 Ohio St.3d
273, 275 (1984), citing Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 359
(1981) and State v. Adams, 62 Ohio St.2d 151,157 (1980). An abuse of discretion
-4-
Case No. 9-17-01
results “only when no reasonable man could take the view adopted by the trial
court.” Pembaur v. Leis, 1 Ohio St.3d 89, 92 (1982).
{¶6} Applying the principles above, we conclude that the trial court did not
act unreasonably, arbitrarily, or unconscionably in this case. Shina’s entire
argument, whether made with reference to statutory provisions or to the parties’
separation agreement, is based on the assumption that the trial court’s decision to
credit Jack’s child support arrearage between April 2007 and August 2012
constitutes a retroactive modification of his child support. This premise is flawed.
In Peterson v. Hunt, we dealt with a situation in which an obligee appealed the trial
court’s order granting the obligor a credit against his child support obligation for
time during which his children resided with him. Peterson v. Hunt, 3d Dist. Allen
No. 1-98-25, 1998 WL 720690, *2 (Oct. 15, 1998). We affirmed the trial court’s
decision, explaining that
The purpose of child support is for the support of the child. Where
the custodial parent does not provide that support, and instead, the
child resides with the noncustodial parent who provides full support
in kind, the custodial parent is not entitled to judgement for a support
arrearage for such time as full support was provided by the
noncustodial, rather than the custodial, parent.
-5-
Case No. 9-17-01
Id., citing Gartner v. Gartner, 10th Dist. Franklin No. 83AP-847, 1984 WL 5850,
*2 (July 26, 1984). We further held that applying credits to a child support arrearage
is proper and is not a retroactive modification of a child support obligation. Id.,citing Wornstaff v. Wornstaff, 3d Dist. Union No. 14-91-42, 1992 WL 82631, * 2
(Apr. 23, 1992). We have also followed the line of reasoning in other cases. See,
e.g., Johnson v. Johnson, 3d Dist. Union No. 14-03-32, 2003-Ohio-6710. In
Johnson, we were faced with a set of facts in which two of the parties’ three children
moved from their father’s house to their mother’s house, but mother continued to
pay child support for all three children. Id. at ¶ 4. After the trial court refused to
grant mother a credit against her child support arrearage for the period during which
the children resided with her, we reversed the trial court, finding that mother was
entitled to a credit for the extra child support she paid. Id. at ¶ 14. We noted that
holding to the contrary would give father a windfall by giving him the child support
that mother paid, in addition to the financial benefit that already accrued to him by
virtue of the fact that mother provided in-kind support to the children during the
time they lived with her. Id.
{¶7} Similar facts prevail here. Though Jack did not live with the children
exclusively, it is clear that Jack provided support for the children by taking care of
them during the day for more than five years while Shina worked. Giving Jack a
credit based on his care of the children is not a retroactive modification. Id. at ¶ 13.
-6-
Case No. 9-17-01
It is merely a recalculation of Jack’s arrearage accounting for the fact that in-kind
child support was provided. As in Johnson, to hold otherwise would be to grant
Shina a windfall by giving her all the benefit of Jack’s in-kind support of the
children, as well as $589 per month for 64 months—over $37,000 in total—for time
during which Jack lived with Shina and supported the children. The law counsels
against such an outcome. Id. at ¶ 14. We conclude that the trial court did not act
unreasonably, arbitrarily, or unconscionably in granting Jack a credit against his
outstanding child support arrearage. Id.
{¶8} For the reasons articulated above, Shina’s assignment of error is
overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
-7-