Petrikas v. Petrikas

[Cite as Petrikas v. Petrikas, 2021-Ohio-3577.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ALBERT PETRIKAS : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 20CA38
:
ROBYN PETRIKAS :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court
of Common Pleas, Domestic Relations
Division, Case No. 18DS163
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 4, 2021
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
RYAN SHEPLER ROGER WEAVER
Kernen & Shepler, LLC 25 E. Waterloo St.
158 East Main St. Canal Winchester, OH 43110
P.O. Box 388
Logan, OH 43138-0388 For CSEA:
PATRICK WELSH
239 W. Main St.
Lancaster, OH 43130
Fairfield County, Case No. 20CA38 2
Delaney, J.
{¶1} Plaintiff-appellant Albert Petrikas (“Father”) appeals from the November 30,
2020 Judgment Entry on Objections to Magistrate Decision of the Fairfield County Court
of Common Pleas, Domestic Relations Division. Defendant-appellee Robyn Petrikas
(“Mother”) did not appear in this appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} Father and Mother were married in 2010. One child was born of the
marriage [Son, DOB 2/14/11], and the parties also had another child together born prior
to the marriage [Daughter, DOB 8/31/07].
The original child support deviation in the Decree of Dissolution
{¶3} The parties terminated the marriage by dissolution on October 9, 2018, and
entered a shared parenting plan. Mother was residential parent. Although the parties
intended the plan to reflect a 50/50 parenting schedule, Father had the children every
Monday and Tuesday from 3:00 p.m. until 7:00 p.m. and every other weekend, from 3:00
p.m. Friday through Monday morning. Father and Mother both testified that overnight
visits were difficult due to Father’s work schedule because he had to be at work very early
in the morning.
{¶4} At the time of the dissolution, Mother was employed by the Columbus City
Schools as a teacher and Father worked at UPS. Mother’s annual salary was around
$80,000 and Father’s was around $70,000. In light of the shared-parenting schedule, the
parties agreed to a child support deviation: Father paid $75 per month in support.
Fairfield County, Case No. 20CA38 3
{¶5} The Decree of Dissolution indicated Father would exercise extended
parenting time beyond what is contemplated by the Ohio Child Support Guidelines
pursuant to R.C. 3113.215(B)(3)(d).
{¶6} The parties acknowledged the child support was a downward deviation from
the Child Support Guidelines but agreed the deviation was in the children’s best interest
in light of Father’s additional parenting time.
Mother requests administrative review and more support is ordered
{¶7} On or around September 4, 2019, Mother requested an administrative
review of the child support order by submitting the following form, a “JFS 01849,”stating
in pertinent part:
It has been less than 36 months since the date of the most
recent child support order. I have marked the appropriate
circumstance that has changed and submitted the required
documentation with this request.
* * * *.
2. I am * * * unemployed or laid off beyond the parent’s control
for thirty consecutive days. This does not include seasonal
employment. Documentation required and attached.
* * * *.
(Emphasis in original.)
The documentation attached by Mother included, e.g, correspondence regarding her
resignation from Columbus City Schools on September 3, 2019. Mother resigned rather
than face termination due to criminal charges of child endangering and disorderly
Fairfield County, Case No. 20CA38 4
conduct. A letter from Licking County Municipal Court stated Mother was charged with
child endangering and disorderly conduct but was in good standing in the court’s
diversion program; upon successful completion of the program, the charges would be
“dismissed and expunged off her record” on May 22, 2020.
{¶8} Mother also documented a short-term disability from September 2, 2019
through December 16, 2019.
{¶9} On October 22, 2019, the Fairfield County Child Support Enforcement
Agency (CSEA) issued an Administrative Adjustment Recommendation that
recommended child support should be $970.54 per month payable from Father to Mother.
{¶10} Father objected to the recommendation of CSEA on the bases that he had
shared parenting and did not agree with Mother’s income figure.
Evidentiary hearing and magistrate’s decision
{¶11} An evidentiary hearing was held before the magistrate on July 23, 2020.
{¶12} By journalized Magistrate’s Decision dated July 31, 2020, the magistrate
found Mother was unemployed in September 2019 when she requested the administrative
review and had been unemployed for over thirty days when submitting her request.
{¶13} The magistrate further found Mother resigned from her position with the
Columbus City Schools rather than face termination. The magistrate noted, “Her
unemployment being as a result of her own criminal behavior, she is voluntarily
unemployed. Her teacher’s contract for school year 2019-2020 was to pay her
$80,227.00. That is her imputed income for child support purposes.” Magistrate Decision,
2.
Fairfield County, Case No. 20CA38 5
{¶14} The magistrate found Father’s yearly income is $74,635.52; he has health
insurance for the children through his employment, and has a monthly VA benefit of
$142.29. The magistrate found the children spend Friday, Saturday, and Sunday nights
with Father on alternating weekends, or 78 nights per year.
{¶15} The magistrate made an overnight parenting-time adjustment, finding
Father does not have court-ordered parenting time which is equal to or exceeds 90
overnights.
{¶16} The magistrate ordered child support to be paid by Father in the amount of
$464.77 per month, per child, for a total of $929.54 per month plus 2% processing fee.
{¶17} Father objected to the Magistrate’s Decision.
The trial court overrules Father’s objections
{¶18} The trial court overruled Father’s objections and affirmed the findings of the
magistrate, with one exception, via judgment entry dated November 30, 2020.
Untimely review
{¶19} First, Father argued the magistrate should not have approved an
administrative modification because 1) Mother sought review prior to 36 months after the
establishment of the child support obligation, and 2) Mother failed to meet the criteria
necessary for review prior to 36 months. The trial court disagreed, noting that the “JFS
01849” form is worded differently than the administrative regulation and it is “not clear”
from item Number 2 on the form that 30 days of consecutive unemployment must occur
before seeking review. Mother’s documentation detailing the resignation established
Mother “clearly expected to be unemployed in excess of thirty days.” Entry, 2.
Fairfield County, Case No. 20CA38 6
{¶20} The trial court disagreed with the magistrate’s finding that Mother was
unemployed for 30 consecutive days when she made her request for administrative
review. However, the trial court found Mother had been unemployed in excess of 30 days
when CSEA’s Administrative Adjustment Recommendation was issued; Mother would
have been terminated if she didn’t resign, thus her unemployment was “beyond her
control;” and it would be unfair to deny Mother’s request for review on procedural grounds
when she relied upon CSEA’s administrative actions in undertaking the review.
Additionally, the trial court noted Mother was unemployed for more than 30 consecutive
days by November 1, 2019, the effective date of the child-support modification.
Father requested original deviation: $75/month
{¶21} Second, Father argued the magistrate should have applied the same
deviation that was in place at the time of the Decree of Dissolution. The trial court found
that deviation was premised upon the children spending roughly equal awake hours with
each parent while school was in session. However, the deviation of $75/month was no
longer appropriate because the children were with Mother more of the time due to the
Covid pandemic and online schooling. The trial court therefore found that the reason for
the original deviation had changed and that deviation was no longer appropriate.
Rent and Father’s overnights
{¶22} Finally, Father argued the magistrate 1) failed to account for rent money
Mother receives from her own father (Maternal Grandfather) as income and 2) mistakenly
found that Father does not exercise more than 90 overnights with the children per year.
The trial court found that Mother and Maternal Grandparents live together in a rented
home and share rent and utility expenses; the rental money Maternal Grandfather gives
Fairfield County, Case No. 20CA38 7
Mother is therefore not Mother’s income but is paid toward rent. Upon review of the
hearing transcript, the trial court found that Father spends 78 overnights per calendar
year with the children, thus the magistrate therefore did not err in finding Father did not
exercise more than 90 nights of parenting time per calendar year.
{¶23} The trial court affirmed the decision of the magistrate while making one
factual correction: the magistrate erred in finding Mother had been unemployed for over
30 consecutive days when she submitted the request for administrative review.
Nevertheless, as described supra, this finding was not fatal to the administrative review.
{¶24} Father now appeals from the trial court’s Judgment Entry on Objections to
Magistrate’s Decision.
{¶25} Father raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶26} “I. THE TRIAL COURT ERRED BY PERMITTING AN ADMINISTRATIVE
REVIEW, AND MODIFYING APPELLANT’S CHILD SUPPORT, WHERE THE
APPELLEE HAD NOT BEEN UNEMPLOYED FOR MORE THAN THIRTY DAYS PRIOR
TO FILING THE REQUEST FOR REVIEW, AND WHERE THE EMPLOYMENT OR
LAYOFF WAS NOT BEYOND HER CONTROL.”
{¶27} “II. THE TRIAL COURT ERRED IN FINDING A CHANGE IN
CIRCUMSTANCES SUFFICIENT TO ELIMINATE A PARENTING TIME DEVIATION IN
SUPPORT, WHERE THE ALLEGED CHANGE IN CIRCUMSTANCES WAS CAUSED
BY THE MISCONDUCT OF APPELLEE.”
Fairfield County, Case No. 20CA38 8
ANALYSIS
I., II.
{¶28} Father’s assignments of error are related and will be considered together.
In his first assignment of error, Father argues the trial court should not have permitted an
administrative review or modified his child support obligation when Mother was not
unemployed for 30 consecutive days before seeking review and her unemployment was
not beyond her control. In his second assignment of error, he argues the change in
circumstances underlying the modification was caused by Mother’s misconduct, an
improper basis for eliminating a parenting-time deviation. We disagree.
Modification of child support via CSEA: R.C. 3119.60 and Ohio Adm. Code 5101:12–
60–05.1
{¶29} In Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989), the Ohio
Supreme Court determined that abuse of discretion is the appropriate standard of review
in matters concerning child support. In order to find an abuse of discretion, we must
determine that the trial court's decision was unreasonable, arbitrary, or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). Furthermore, as an appellate court, we are not the trier of
fact. Our role is to determine whether there is relevant, competent, and credible evidence
upon which the factfinder could base his or her judgment. Tennant v. Martin–Auer, 188
Ohio App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013, ¶ 16 (5th Dist.), citing Cross Truck
v. Jeffries (Feb. 10, 1982), Stark App. No. CA–5758, 1982 WL 2911.
{¶30} The Ohio Revised Code provides for multiple ways in which a child support
obligation may be modified. A party may request a review and modification of child
support through CSEA. See R.C. 3119.60, 3119.61 and 3119.76. A party may request an
Fairfield County, Case No. 20CA38 9
administrative review of child support every 36 months from the most recent child support
order. Ohio Adm.Code 5101:12-60-05.1(D). A child support enforcement agency has the
authority to investigate, obtain information, recalculate, and issue administrative orders
modifying support, and the trial court retains jurisdiction to modify child support under
statutes and the Rules of Civil Procedure. Taube v. Boyle, 5th Dist. Delaware No. 19 CAF
02 0012, 2019-Ohio-3305, ¶ 8, citing Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d
1272, ¶ 14 (4th Dist.), internal citations omitted. “The General Assembly has adopted a
scheme, supplemented by administrative rule, that governs when and how a child support
enforcement agency may review and adjust a court-issued child support order.” Id., citing
Burton v. Harris, 2013-Ohio-1058, 987 N.E.2d 745, ¶ 12 (10th Dist.).
{¶31} Based on R.C. 3119.60 and Ohio Adm. Code 5101:12–60–05.1, therefore,
the CSEA, either sua sponte periodically or on the request of the obligor or obligee, can
initiate an administrative review of a child-support order. The CSEA establishes the date
on which the review will formally begin, notifies the parties of the review and its
commencement date, and requests the parties provide the agency with certain financial,
health-insurance, and other information necessary to properly review the child-support
order. R.C. 3119.60; Ohio Adm. Code 5101:12–60–05.3. On the date designated by the
agency, it will calculate a revised amount of child support to be paid under the court child-
support order. R.C. 3119.63(A); Ohio Adm. Code 5101:12–60–05.4(A). The child support
enforcement agency then gives the obligor and obligee notice of the revised amount of
child support and their right to request an administrative and court hearing on the revised
amount. R.C. 3119.63(B) and (E); Ohio Adm. Code 5101:12–60–05.4(C).
Fairfield County, Case No. 20CA38 10
{¶32} Following the receipt of such a request, R.C. 3119.64 requires the court to
conduct a hearing in accordance with R.C. 3119.66. R.C. 3119.66, in turn, requires the
court to “conduct a hearing to determine whether the revised amount of child support is
the appropriate amount and whether the amount of child support being paid under the
court child support order should be revised.” The court must provide the parties notice of
the hearing and, if necessary, require the parties to provide copies of various records,
including W–2 statements, pay stubs, and proof of health insurance. See R.C. 3119.67
and 3119.68.
{¶33} Finally, pursuant to R.C. 3119.70, if a court conducts a hearing pursuant to
R.C. 3119.66 and determines that the revised child support amount is appropriate, the
court must issue a revised court child support order requiring the obligor to pay the revised
amount. But, if the court finds that the revised child support amount is not appropriate,
then the court must “determine the appropriate child support amount and, if necessary,
issue a revised court child support order requiring the obligor to pay the child support
amount determined by the court.” R.C. 3119.70(B); see also Staugler v. Staugler, 160
Ohio App.3d 690, 2005–Ohio–1917, 828 N.E.2d 673, ¶ 12–14 (3d Dist.).
{¶34} The issue before the trial court upon a request for a hearing from the
administrative review, therefore, is whether the revised amount is “appropriate.” In the
instant case, the trial court affirmed the magistrate’s findings, agreeing with CSEA and
the magistrate that modification of the child support amount was appropriate.
{¶35} Mother initiated a review based upon Ohio Adm.Code 5101:12-60-05.1,
which states in pertinent part:
* * * *.
Fairfield County, Case No. 20CA38 11
(D) Any party may initiate an administrative review every
thirty-six months from the date of the most recent support order by:
(1) Completing and submitting the JFS 01849, “Request for
an Administrative Review of the Child Support Order” (effective or
revised effective date as identified in rule 5101:12-60-99 of the
Administrative Code), to the CSEA.
* * * *.
(E) Any party may initiate an administrative review by
submitting the JFS 01849 to the CSEA sooner than thirty-six months
when any of the following circumstances applies:
* * * *.
(2) Either parent has become unemployed or been laid off, the
unemployment or lay off is beyond the parent's control, and the
unemployment or lay off has continued uninterrupted for thirty
consecutive days. The requesting party must provide to the CSEA
evidence of the unemployment or lay off, including evidence that the
unemployment or lay off is beyond the parent's control. * * * *.
* * * *.
{¶36} Father argues Mother prematurely initiated administrative review pursuant
to Ohio Adm.Code 5101:12-60-05.1(E)(2) because the unemployment had not continued
for 30 uninterrupted consecutive days before she sought the review. Mother signed the
JFS Form 01849 on September 4, 2019, the day after she resigned from the Columbus
City Schools. At that point she was also on disability ending in December 2019.
Fairfield County, Case No. 20CA38 12
{¶37} The trial court found the wording of JFS Form 01849 is confusing and is not
clear that the 30 days of consecutive unemployment must take place before the form is
submitted. We agree that Item 2 on the form, “I am * * * unemployed or laid off beyond
the parent’s control for thirty consecutive days,” (emphasis added) permits the
interpretation of an anticipated 30 days of unemployment as opposed to a completed 30
days of unemployment. We therefore disagree with Father that the trial court abused its
discretion in failing to reverse the administrative modification based upon the premature
request.
{¶38} We also note that despite Mother’s allegedly premature request for review,
CSEA undertook the review and issued the Administrative Adjustment Recommendation
that recommended child support should be $970.54 payable from Father to Mother.
Father then objected to the CSEA Recommendation on the basis that he disagreed with
Mother’s “income figure,” not with the timing of the request for review.
{¶39} Father also argues the trial court erred in finding Mother’s unemployment
was beyond her control, another factor cited in the request for administrative review. The
magistrate agreed with Father that Mother was voluntarily unemployed and imputed her
income at $80,227.00. Father argues the trial court implicitly reversed this finding in the
following portion of the Entry:
Further, [the email correspondence attached to Mother’s JFS
01849] clearly indicates that Mother was to be terminated if she did
not resign from her position, so it is appropriate to determine that the
end of her employment was beyond her control on the date of her
resignation. Further, this is a Court of equity, and it would be unfair
Fairfield County, Case No. 20CA38 13
in this case to deny [Mother’s] request for a child support review, said
request now made in excess of fourteen months ago, when [Mother]
justifiably relied on the CSEA’s administrative actions to review the
child support order following the submission of her Request for
Administrative Review of the Child Support Order (JFS Form 01849).
Judgment Entry on Objections to Magistrate’s Decision, 4.
{¶40} A parent’s voluntary unemployment or underemployment affects the
computation of that parent’s income. Pursuant to R.C. 3119.01(C)(9)(b), “income”
means, “[f]or a parent who is unemployed or underemployed, the sum of the gross income
of the parent and any potential income of the parent.” Whether a parent is “voluntarily
underemployed” and the amount of potential income to be imputed to a child support
obligor are matters to be determined by the trial court based upon the facts and
circumstances of each case. Carpenter v. Carpenter, 5th Dist. Tuscarawas No. 2019 AP
04 0013, 2019-Ohio-4709, ¶ 39. “In deciding if an individual is voluntarily under-employed
or unemployed, the court must determine not only whether the change was voluntary, but
also whether it was made with due regard to obligor's income-producing abilities and his
or her duty to provide for the continuing needs of the child.” G.P. v. L.M., 5th Dist. Morrow
No. 16CA0005, 2016-Ohio-7955.
{¶41} The decision to impute income to a parent is within the trial court's sound
discretion. Id. The parent claiming that his or her former spouse is voluntarily under-
employed has the burden of proof. Carpenter, supra, at ¶ 40, citing In re B.S., 9th Dist.
Summit No. 24605, 2009-Ohio-4660.
Fairfield County, Case No. 20CA38 14
{¶42} The magistrate and the trial court recognized Mother’s unemployment is not
as simple as termination due to the criminal charges. Mother resigned from the Columbus
City Schools because she was criminally charged with child endangering and disorderly
conduct and would have been terminated. The circumstances of those charges are not
in the record before us. It is undisputed, however, that Mother was successfully enrolled
in a diversion program and was on target to have the charges dismissed altogether on
May 22, 2020. Mother was also on disability arising from treatment for mental illness.
When her term of disability ended and she was released to work, she submitted resumes
to four different educational employers and intended to re-apply to Columbus City
Schools. The timing of these efforts occurred in March 2020, however, contemporaneous
with the onset of the pandemic, lockdown, and online schooling.
{¶43} The circumstances of the pandemic affected Mother’s employment options
in two ways. First, her background is in education and she sought jobs in education, but
those employers initiated hiring freezes. Second, she had two minor children at home
with behavioral issues, navigating online schooling with no options for child care.
Although Mother and the children live in a rented home with Maternal Grandparents, the
grandparents are not suitable child care providers during the pandemic. Maternal
Grandfather is in poor health, and Maternal Grandmother works, so they are unable to
help the children with remote schooling.
{¶44} Father even admittedly recognized the additional responsibilities on Mother
because he voluntarily undertook to give her $60 per week for extra expenses because
she was with the children around the clock. He made the agreed-upon child support
payments of $75 per month, and he testified he also gave Mother $60 per week “once the
Fairfield County, Case No. 20CA38 15
kids were out of school for the Covid virus.” The last payment of that nature was in May
2020.
{¶45} By the time of the evidentiary hearing in July 2020, the children were on
summer break. They spent six nights per month with Father (alternate Fridays through
Mondays) and the remaining with Mother. The trial court affirmed the magistrate’s
decision that a modification of child support was appropriate and that rationale underlying
the original deviation no longer existed because the children spent limited time with
Father. Six nights a month no longer approximated the parties’ earlier agreement.
{¶46} In his second assignment of error, Father argues the trial court should not
have effectively eliminated a parenting-time deviation in support (i.e, the original deviation
of $75/month) because the issue of parenting time was not before the Court. This circular
argument is inconsistent with Father’s insistence that the magistrate should have
maintained the original deviation in the amount of $75/month—a deviation premised upon
roughly 50/50 parenting time. Father again relies upon Mother’s criminal charges and
termination, arguing “absolutely no evidence was presented as to the reason that the
children were at home.”
{¶47} We disagree with Father’s characterization. Mother’s uncontested
testimony was that she was home with the children during the school year because her
own employment opportunities were drastically curtailed and she did not have adequate
child care during the pandemic to assist with online schooling for children with behavioral
issues. Father apparently recognized this dilemma because he undertook to give Mother
$60 per week “once the kids were not—were, like, out of school for the Covid virus.” T.
Fairfield County, Case No. 20CA38 16
49. At the time of the hearing, in July, during summer break, the children were at home
with Mother because they were only with Father six nights a month.
{¶48} Moreover, Father’s second assignment of error implicitly argues the trial
court abused its discretion in finding a change of circumstances justifying modification of
child support. A “substantial change in circumstances” is a requisite finding pursuant to
R.C. 3119.79(C), but R.C. 3119.79 does not apply to this case. Hannah v. Hannah, 2016-
Ohio-1538, 63 N.E.3d 703, ¶ 17 (8th Dist.). R.C. 3119.79 addresses the court's
recalculation of the amount of a child support obligation upon the request of a party to the
court. Id. “In other words, it applies to a party's motion to modify child support obligations.”
Id., citing Rocky v. Rockey, 4th Dist. Highland No. 08CA4, 2008-Ohio-6525, 2008 WL
5197123, ¶ 28, citing Butler v. Butler, 4th Dist. Scioto No. 02CA2833, 2002-Ohio-5877,
2002 WL 31414339, ¶ 21. Statutory sections R.C. 3119.60 through 3119.65, on the other
hand, relate to an administrative review of the child support obligation. Id.{¶49} Here, upon Mother’s request, CSEA conducted an administrative review of
the child support order pursuant to R.C. 3119.60 through R.C. 3119.65. Then the trial
court, through the magistrate, conducted a hearing pursuant to R.C. 3119.66 upon
Father's request for judicial review. The court did not conduct a hearing pursuant to R.C.
3119.79 upon a motion for modification of child support. Accordingly, the court was not
required to find a “substantial change of circumstances” under R.C. 3119.79. Hannah,
supra, 2016-Ohio-1538 at ¶ 18. Rather, the court was required to determine the
“appropriate amount” under R.C. 3119.66. Id., citing Rockey at ¶ 29.
{¶50} The court's responsibility is to determine an “appropriate” level of child
support under these circumstances and need not find that a change in circumstances
Fairfield County, Case No. 20CA38 17
warrants modification. Brown v. Allala, 9th Dist. Summit No. 27086, 2014-Ohio-4917, ¶
15, citing Rockey, supra, 2008–Ohio–6525, ¶ 29.
{¶51} Upon our review of the record and Father’s arguments, we do not find the
trial court abused its discretion in determining that a revised child support amount is
appropriate and in issuing a revised court child support order requiring Father to pay the
revised amount. R.C. 3119.70(B). It is well-established that the trier of fact is in a far
better position to observe the witnesses' demeanor and weigh their credibility. See, e.g.,
Taralla v. Taralla, 5th Dist. Tuscarawas No.2005 AP 02 0018, 2005–Ohio–6767, ¶ 31,
citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trial court, as the
ultimate fact finder and issue resolver, is free to believe all, part, or none of the testimony
of each witness. Carpenter v. Carpenter, 5th Dist. Tuscarawas No. 2019 AP 04 0013,
2019-Ohio-4709, ¶ 45, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096(4th Dist. 1992). The circumstances underlying the parties’ original deviation changed in
significant ways, exacerbated by the pandemic, and the child support modification was
appropriate.
{¶52} Upon our review of the record, we find the trial court did not abuse its
discretion. Father’s two assignments of error are therefore overruled.
Fairfield County, Case No. 20CA38 18
CONCLUSION
{¶53} Father’s two assignments of error are overruled and the judgment of the
Fairfield County Court of Common Pleas, Domestic Relations Division is affirmed.
By: Delaney, J.
Wise, John, J., concurs
Hoffman, P.J., concurs and dissents separately.
Fairfield County, Case No. 20CA38 19
Hoffman, P.J., concurring in part, and dissenting in part
{¶54} I concur in the majority’s analysis in rejecting Appellant’s argument
Appellee’s request for administrative review by CSEA was premature. However, I
respectfully dissent from the majority’s and trial court’s analysis regarding whether
Appellee’s unemployment was beyond her control and whether the change in parenting
time no longer approximated the parties’ earlier agreement.
{¶55} The magistrate found Appellee voluntarily unemployed and imputed income
to her in the amount of $80,227.00. Appellee did not file an objection to that
determination. Nevertheless, the trial court found Appellee’s unemployment was “beyond
her control.” The majority’s discussion of this issue implicitly suggests it finds the trial
court’s decision correct. I disagree.
{¶56} Appellee’s resignation was the result of her being charged with criminal
offenses. The fact Appellee successfully enrolled in a diversion program, which may
culminate in the charges being dismissed, tacitly suggests an admission to the charges,
not her innocence of them.
{¶57} As to the purported change in parenting time, the majority notes at the time
of the original Decree of Dissolution, “Although the parties intended the [shared parenting]
plan to reflect a 50/50 parenting schedule, Father had the children every Monday and
Tuesday from 3:00 p.m. until 7:00 p.m. and every other weekend, from 3:00 p.m. Friday
through Monday morning.” (Maj. Op. at ¶3). Under that agreed plan, Appellant had the
children 78 nights per year. At the time of the hearing, the magistrate found the children
were spending 78 nights per year with Appellant -- the same as in the original agreement.
Fairfield County, Case No. 20CA38 20
The majority, nonetheless, finds six nights a month no longer approximated the parties’
earlier agreement.1
{¶58} The significance of the lack of change in parenting time is the parties had
agreed to a downward deviation in child support at the time of the original decree based
upon the same number of overall night visits with Appellant as existed at the time of the
hearing.2 Such ought not provide a justification for change as it was clearly in the
contemplation of the parties at the time of the original Decree of Dissolution.
{¶59} I conclude it was error for the trial court to use either of these reasons to
modify the original child support order.
{¶60} I further disagree the trial court was not required to find a “substantial
change of circumstances” under R.C. 3119.79. While I concede R.C. 3119.66 states the
trial court is to determine the “appropriate amount” of child support upon an administrative
review by the CSEA, such circumvents the requirement to show a substantial change in
circumstance. Because I find the trial court incorrectly concluded Appellee’s
unemployment was beyond her control and the overnight parenting time remained
unchanged from the original Decree of Dissolution, I would reverse the trial court’s
decision.
1
Some months would be more than six nights depending on when the weekends fell in correspondence
to the start or end of any particular month.
2
While Appellee’s time was increased with the children due to the Covid-19 pandemic, Appellee did not
have any added child care expenses during such time as she was unemployed.