In re J.B.G.

[Cite as In re J.B.G., 2017-Ohio-8017.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: ) CASE NO. 16 JE 0020
)
J.B.G. )
) OPINION
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Juvenile Division, of Jefferson
County, Ohio
Case No. 2005 DN 7
JUDGMENT: Affirmed.
APPEARANCES:
For Appellee: Melissa N. Rawson, Pro se
101 Trails End Road
Toronto, Ohio 43964
No Brief Filed
For Appellant: Stacey A. Moore, Pro se
#A695-822
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950-0540
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: September 29, 2017
[Cite as In re J.B.G., 2017-Ohio-8017.]
WAITE, J.
{¶1} Appellant Stacey Moore appeals from the decision of the Jefferson
County Common Pleas Court, Juvenile Division, refusing to modify his child support
back to the date on which he was incarcerated instead of the date on which he filed
his request. Based on the foregoing reasons, Appellant’s assignments of error are
without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} Appellant is the biological father of the child (J.B.G. dob: 5/23/1997).
Appellant moved to Missouri before the child was born. The child is under the care of
Appellee (who is the child’s biological aunt) and her husband, and has resided with
them since 2002. Appellant returned to the area in 2010 and requested visitation
with the minor child. Appellee sought child support. Appellant was ordered to pay
child support in the amount of $230.45 per month in a judgment entry dated
December 29, 2010.
{¶3} In November of 2013, Appellant pleaded guilty to rape and gross sexual
imposition involving a minor and was sentenced to ten years in prison. Appellant
contends that in February of 2014 he contacted the Jefferson County Child Support
Enforcement Agency (“JCCSEA”) seeking an administrative review of his child
support, although the record before this Court reveals no letters, filings or other
indication that such a request was made by Appellant, until an administrative
adjustment recommendation filed by JCCSEA on October 28, 2015. An
administrative review of Appellant’s child support obligation was conducted in
October of 2015 due to Appellant’s filing of a motion for review on August 1, 2015.
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The review was conducted to determine whether Appellant’s child support obligation
should be reduced or suspended while he was incarcerated. A magistrate’s decision
was issued on October 29, 2015, modifying the support award to $50 per month,
effective August 1, 2015. Appellant wrote a letter to the court on November 16,
2015, objecting to the magistrate’s decision and contending that he earned only $21
per month in prison. Appellant sent a second letter on December 1, 2015, now
claiming he earned only $20 per month. In a judgment entry dated December 3,
2015, the trial court sustained Appellant’s objection to the magistrate’s decision and
set Appellant’s child support obligation at $0 per month, effective August 1, 2015.
{¶4} On May 31, 2016, the JCCSEA filed a notice of JCCSEA investigation
findings and conclusions. It notified the trial court and Appellant that the child
support obligation should be terminated pursuant to R.C. 3119.89 because the child
would be nineteen years of age and have graduated from high school in May of
2016. The report also noted that Appellant had an outstanding child support
arrearage of $4,663.34.
{¶5} On July 5, 2016, the JCCSEA filed a notice with the trial court that
neither party had requested an administrative hearing on the termination of the child
support obligation. JCCSEA requested the May 31st notice be included in a revised
order of support. In a magistrate’s decision dated July 6, 2016, the child support
obligation was terminated effective May 23, 2016. The decision also stated that
Appellant had a support arrearage of $4,663.34.
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{¶6} Appellant filed objections to the magistrate’s decision on July 18, 2016,
contending that the arrearage should be reduced to reflect his incarceration and lack
of income as of February of 2014, when he first made his request for support to be
suspended or terminated. On August 1, 2016, the trial court overruled Appellant’s
objections and adopted the magistrate’s decision. Appellant filed this pro se appeal
on August 29, 2016.
ASSIGNMENT OF ERROR NO. 1
COURT COMMITTED ERROR WHEN IT DID NOT COMPLETE A
CHILD SUPPORT WORKSHEET AS REQUIRED PURSUANT TO
OHIO REVISED CODE SECTION 3119.79.
{¶7} In his first assignment of error Appellant contends the trial court erred in
not completing a child support calculation worksheet. Essentially, he argues that the
trial court failed to recognize that Appellant’s reduction in income due to his
incarceration constituted a change in circumstances that should date back to the
beginning of his incarceration instead of the date on which he filed his request for
modification.
{¶8} Absent an abuse of discretion, a trial court’s determination regarding a
child support obligation will not be disturbed on appeal. Pauly v. Pauly, 80 Ohio
St.3d 386, 390, 686 N.E.2d 1108 (1997). Abuse of discretion connotes more than an
error of law; it implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
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{¶9} Moreover, a trial court’s ruling on the existence or nonexistence of “a
substantial change in circumstances that was not contemplated at the time of the
issuance of the original child support order or the last modification of the child support
order[,]” for purposes of R.C. 3119.79(C), is reviewed under an abuse of discretion
standard. Humiston v. Humiston, 9th Dist. No. 04CA0076-M, 2005-Ohio-4363, ¶ 13-
23.
{¶10} R.C. 3119.02 requires a court to calculate child support using the
statutory worksheet. R.C. 3119.03 creates a rebuttable presumption that a child
support calculation, made pursuant to the basic child support schedule and
applicable worksheet, is the correct amount of child support to be paid.
{¶11} The child support modification statute provides, in pertinent part:
(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
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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. * * *
(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 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.
R.C. 3119.79.
{¶12} Here, the trial court modified Appellant’s child support obligation after
receiving notice of his incarceration on August 1, 2015. A child support worksheet
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had been filed on October 28, 2015 wherein the JCCSEA recommended Appellant’s
support obligation be reduced to zero during the period of his incarceration. In a
decision dated October 29, 2015, the magistrate concluded the support order should
be $50 per month. After Appellant filed objections to that decision, the trial court
issued an entry setting the support order at $0 per month during the period of
Appellant’s incarceration, effective August 1, 2015. This order was never appealed.
{¶13} On February 24, 2016, the trial court issued an entry informing the
parties that the minor child would be emancipated as of May of 2016, and that the
parties should inform the court in writing of any changes in employment or income
within seven days. No response was filed within that time period. JCCSEA then
recommended its report on the termination of support due to the child’s emancipation
be included in the termination order of support. The magistrate issued a decision on
July 6, 2016, informing the parties that the child would be emancipated as of May 23,
2016, and that Appellant had an arrearage of $4,663.34. Despite the fact that he
failed to timely appeal the recalculation order, on July 18, 2016 Appellant filed pro se
objections to the magistrate’s decision, arguing that the support obligation of $0 per
month should have been ordered retroactive to the beginning of his incarceration in
November of 2013, rather than set on the date of his petition seeking the
recalculation: August 1, 2015. The trial court overruled Appellant’s objection, citing
this Court’s holding in Rhodes v. Rhodes, 7th Dist. No. 00 BA 34, 2001 WL 1199877
(Sep.25, 2001): “An obligor is not entitled to be relieved of his duty to support his
children due to his commission of a crime and subsequent incarceration. Such
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entitlement would allow the obligor to obtain release from prison and owe no
arrearage obligation to the child or the residential parent who had to shoulder the
support burden on their own.” Id. at *3.
{¶14} Appellant argues in his appellate brief that a change of circumstances
occurred entitling him to a modification of his support order. Appellant does not take
issue with the trial court’s calculation of $0 per month, only with the order’s effective
date.
{¶15} A trial court may modify an obligor’s child support obligation after notice
of a petition seeking to modify the support order has been given to the obligee and
obligor. R.C. 3119.84. The trial court need not make its modification of child support
retroactive to the date the petition was filed, but that date may serve as a starting
point for determining when the new obligation should become effective. Pacurar v.
Pacurar, 132 Ohio App. 3d 787, 726 N.E.2d 552 (7th Dist.1999).
{¶16} Appellant argues that the effective date of his modification to $0 should
have been the date on which his incarceration began in November of 2013, but
provides no authority in support of this contention other than to reiterate that he has
been earning only $20 a month since his prison term began, and that “[t]his same set
of circumstances existed from the very day of appellant’s incarceration.” (Appellant’s
Brf., pp. 5-6.) This may, in fact, be true. It does not provide any basis for making the
effective date of his child support order retroactive to the time of Appellant’s
choosing, particularly when Appellant’s own conduct has caused the circumstances
on which a reduction is requested. Appellant is incarcerated for crimes he
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committed. He argues that he did not “contemplate being incarcerated” at the time
child support was originally ordered. Id. at p. 5. However, it is through Appellant’s
own conduct that he finds himself incarcerated. The trial court had discretion to set
the effective date of the modification. Appellant never appealed the trial court’s order
setting the date of August 1, 2015. Only now, when receiving an emancipation order,
does Appellant object to the August of 2015 effective date. Without a timely petition
to modify, the trial court had the discretion to overrule Appellant’s objection.
{¶17} Appellant alternatively argues that the effective date of the modification
should be February of 2014, when he alleges he originally contacted JCCSEA
seeking an administrative hearing of his child support obligation. The record is
devoid of any filing by Appellant seeking such a recalculation. A motion to modify
child support order was filed, not by Appellant, but by JCCSEA on October 28, 2015.
The magistrate’s decision imposing a child support obligation of $50 monthly,
effective August of 2015 was issued on October 29, 2015. Appellant wrote a letter to
the court dated November 16, 2015 which was construed as an objection to the
magistrate’s decision. In this letter, he contended that he had attempted to contact
JCCSEA in the past. However, he never addresses his objections to the August of
2015 effective date. Appellant sent a second letter to the trial court on December 1,
2015, in which he inquired about the minor child’s name change and reiterates that
his prison income is $20 monthly. Again, Appellant never raised the issue of the
August, 2015 effective date of the child support order. The trial court issued a
judgment entry on December 3, 2015 in which it reduced Appellant’s child support
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obligation to $0 per month with the same August 1, 2015 effective date. It was only
after the magistrate terminated the support order due to emancipation of the minor
child and stated that Appellant had an arrearage of $4,663.34 on July 6, 2016 did
Appellant raise an objection regarding the August 1, 2015 effective date of his
support order.
{¶18} It appears the court gave Appellant the benefit of the doubt in initially
setting the effective date of August 1, 2015 for his support order, two months prior to
the filing of his motion by JCCSEA. Appellant’s contention that his incarceration
could not have been contemplated and he should have been completely free from
any support ignores the fact that Appellant is incarcerated due to his own conduct.
The trial court had the discretion to set the effective date of the child support
modification. By ordering the modification retroactive to August 1, 2015, the trial
court did not abuse its discretion. Appellant’s first assignment of error is without merit
and is overruled.
ASSIGNMENT OF ERROR NO. 2
COURT COMMITTED ERROR WHEN IT DID NOT CONSIDER ALL
FACTORS TO DETERMINE IMPUTED INCOME AS REQUIRED
PURSUANT TO OHIO REVISED CODE SECTION 3119.01.
{¶19} Although it is difficult to ascertain exactly what Appellant attempts to
argue, here, he appears to contend that the trial court erred in calculating his imputed
income as defined in R.C. 3119.01(C)(11)(a). Appellant reiterates that he has made
only $20 per month since his incarceration began. Although not directly stated,
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Appellant appears to again take issue with the effective date of the child support
obligation, as the amount is currently set at $0 per month effective August 1, 2015.
Again, he seems to urge that this date be modified to November of 2013 when
Appellant began serving his ten-year prison sentence.
{¶20} R.C. 3119.05 governs the computation of income when a parent is
incarcerated and reads, in pertinent part:
(I) Unless it would be unjust or inappropriate and therefore not in the
best interests of the child, a court or agency shall not determine a
parent to be voluntarily unemployed or underemployed and shall not
impute income to that parent if either of the following conditions exist:
***
(2) The parent is incarcerated or institutionalized for a period of twelve
months or more with no other available assets, unless the parent is
incarcerated for an offense relating to the abuse or neglect of a child
who is the subject of the support order or an offense under Title XXIX of
the Revised Code when the obligee or a child who is the subject of the
support order is a victim of the offense.
{¶21} Appellant seems to argue that since he was bound by the prior monthly
child support obligation from the time period when he began serving his sentence in
November of 2013 until the effective date of the modified child support order of
August 1, 2015, the trial court somehow engaged in an unfair calculation of imputed
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income. As noted above, Appellant is confusing the calculation of income for child
support modification purposes with the effective date of the order. At the time the
trial court instituted the prior child support obligation, Appellant was not incarcerated.
The worksheet utilized in calculating his income for purposes of that order is in the
record. The trial court did not impute any income to Appellant when it issued its order
modifying Appellant’s child support obligation to $0. The trial court conducted this
recalculation after the motion for modification was filed by JCCSEA. Although the
magistrate’s decision originally set the modified child support obligation at $50 per
month, after evaluating Appellant’s “objection” the trial court recalculated Appellant’s
child support to $0 and set the effective date at a point a full two months prior to the
filing for this modification by JCCSEA. The trial court did not err in calculating
Appellant’s income for purposes of the child support modification. Appellant’s second
assignment of error is without merit and is overruled.
{¶22} Based on the foregoing, the trial court did not err or abuse its discretion
in its modification of Appellant’s child support obligation. The modification was
adjusted to $0 per month during the term of his incarceration, no income was imputed
to Appellant for that time, and the effective date of the order is two months prior to the
filing of the motion to modify. Appellant’s assignments of error are without merit and
are overruled. The judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.