Perez v. Simkins

[Cite as Perez v. Simkins, 2014-Ohio-4006.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DANIEL PEREZ, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 13 MA 146
VS. )
) OPINION
WENDY SIMKINS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division of Mahoning
County, Ohio
Case No. 04JI619
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Daniel Perez – Pro-se
1855 Country Club Avenue
Youngstown, Ohio 44514
For Defendant-Appellant Attorney Matthew C. Giannini
1040 S. Commons Place Suite 200
Youngstown, Ohio 44514
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 8, 2014
[Cite as Perez v. Simkins, 2014-Ohio-4006.]
DONOFRIO, J.
{¶1} Defendant-appellant Wendy Simkins appeals from the decision of the
Mahoning County Common Pleas Court, Juvenile Division, adopting an
administrative recommendation from the Mahoning County Child Support
Enforcement Agency (CSEA) to increase her child support obligation.
{¶2} Simkins and plaintiff-appellee Daniel Perez had a child in 2004. After a
subsequent and contentious custody battle, Perez was awarded custody of the child.
This court affirmed that decision. Simkins v. Perez, 7th Dist. No. 11 MA 80, 2012-
Ohio-1150.
{¶3} Thereafter, on June 26, 2012, the trial court ordered Simkins to pay the
minimum monthly child support order of $50.00. According to Simkins, the trial court
determined that she was not gainfully employed nor was it reasonable to impute
income to her.
{¶4} On May 7, 2013, the CSEA exercised its authority under R.C. 3119.60
through 3119.71 (review of support orders) to review the trial court’s June 26, 2012
child support order and, subsequently, prepared an administrative adjustment
recommendation. The CSEA recommended that Simkins’s child support obligation be
increased from $50.00 per month to $194.31 per month, plus a 2% processing
charge, with an effective date of May 1, 2013. The CSEA also recommended that
Simkins be ordered to pay $38.86 per month as payment on arrearages. The
administrative adjustment recommendation provided notice to Simkins of her right to
request an administrative adjustment hearing, but she did not request one.
{¶5} On July 2, 2013, the CSEA issued a proposed modified order reflecting
the recommendation. Simkins did not lodge an objection to the modified
administrative order. The CSEA filed with the trial court a petition to adopt its
administrative recommendation modifying child support. The trial court adopted the
recommendation in a judgment entry dated July 29, 2013, and file-stamped by the
clerk of courts on August 1, 2013. This appeal followed.
{¶6} Initially, it must be noted that Simkins’s appellate brief does not set forth
an assignment of error as required by App.R. 16(A)(3). App.R. 12(A) directs this court
to determine the merits of appeals based “on the assignments of error set forth in the
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briefs required by Rule 16.”
{¶7} Nonetheless, Simkins essentially argues: (1) that the CSEA exceeded
its statutory authority by conducting an administrative review of child support within
less than thirty-six months after the order was originally issued and (2) that by finding
that Simkins was voluntarily underemployed or unemployed and imputing income to
her it substituted its judgment for a decision that was within the exclusive jurisdiction
of the trial court and had already been determined by it.
Standard of Review
{¶8} In reviewing matters concerning child support, appellate courts look at
whether the trial court abused its discretion. Booth v. Booth, 44 Ohio St. 3d 142, 144,
541 N.E.2d 1028 (1989). Abuse of discretion connotes more than an error of law or
judgment; 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).
Waiver
{¶9} Initially, it should be noted that Simkins has waived any error with
respect to the trial court’s modification of her child support obligation. She did not
request an administrative hearing in response to the CSEA’s administrative
adjustment recommendation and, later, did not object to the proposed modified order
reflecting that recommendation. Simkins’s May 9, 2013 copy of the CSEA’s
administrative adjustment recommendation provided her with notice of her first
opportunity to object to the proposed modification. A section of that notice entitled
“Your Right to an Administrative Adjustment Hearing” provided, in relevant part:
Your support order is an administrative child support order;
therefore, your request for an administrative adjustment hearing must
be received within thirty (30) calendar days plus three (3) business days
of the date on which this notice was mailed. You will be notified of the
date of the administrative adjustment hearing by regular mail. The
CSEA can permit one request for postponement from you of the
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administrative adjustment hearing if the CSEA determines that you
have a valid reason which prevents you from attending the
administrative adjustment hearing. Your request for a postponement
must be received by the CSEA at least seven (7) days before the
scheduled administrative adjustment hearing date. You may bring Iegal
counsel or a representative to the hearing.
To request an administrative adjustment hearing on this
recommendation, you must complete the final page of this form and
submit it to the Mahoning County CSEA.
{¶10} The notice ends with the following sentence in bold typeface, “If you do
not request an administrative adjustment hearing or a court hearing within the time
frames listed above, a new support order for both child and medical support will be
issued that incorporates these findings and recommendations.” Simkins did not
request an administrative hearing.
{¶11} A copy of the CSEA’s July 2, 2013 proposed modified order reflecting
the recommendation which was filed with the trial court and mailed to Simkins
provided her with her second opportunity to object to the proposed modification. The
last section of that proposed order provided Simkins notice that:
In accordance with ORC section 3119.61, the Child Support
Obligor and Child Support Obligee may object to the modified support
order by initiating an action under ORC section 2151.231 in the juvenile
court or other court with jurisdiction under ORC section 2101.022 or
2301.03 of the county in which the mother, father, child, or guardian or
custodian of the child resides.
Simkins never initiated an action or filed an objection. By failing to request a
hearing in response to the CSEA’s administrative adjustment recommendation or to
lodge an objection to the proposed modified order, Simkins has waived any alleged
error in that regard. See Craig v. Craig, 10th Dist. No. 11AP-178, 2012-Ohio-1073,
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¶¶10-14; In re Rummel, 194 Ohio App. 3d 22, 2011-Ohio-2748, 954 N.E.2d 207 (10th
Dist.), ¶ 14 (res judicata prevented father from contesting modification when he failed
to request an administrative hearing or object to the recommendation of CSEA).
Here, because Simkins did not object or request an administrative hearing, this court
cannot say the trial court acted erroneously in journalizing the CSEA’s findings and
recommendations.
Thirty-six-month Rule
{¶12} However, even if this court were to consider Simkins’s substantive
arguments, they would still fail. Once the trial court has issued a child support order,
Simkins argues that the CSEA is without authority to initiate its own independent
administrative review of the order for a period of thirty-six months. Ohio Adm.Code
5101:12-60-05.3, entitled “The administrative review” and cited by Simkins in support
of her argument, does generally provide that the CSEA is not required to conduct an
administrative review if it has been less than thirty-six months from the date of the
most recent child support order. However, there are numerous exceptions to the
general rule, one of which is applicable to this case.
{¶13} Either party to a child support order can request the CSEA to conduct
an administrative review. In this case, Perez states that he requested an
administrative review in March 2013. Ohio Adm.Code 5101:12-60-05.3 provides that
either party to a child support order may request an administrative review sooner
than thirty-six months when, in a situation such as the one presented by this case,
“[t]he existing child support order established a minimum or a reduced child support
obligation based on the guidelines due to the unemployment or underemployment of
one of the parties and that party is no longer unemployed or underemployed.”
{¶14} Here, according to Simkins herself, the trial court’s original, minimum
$50.00 per month child support order was due to her unemployment or
underemployment. Thus, if Perez was able to “provide to the CSEA evidence or
information supporting an allegation of the change in the employment status,” then
the CSEA had authority to initiate an administrative review. There is nothing in the
record in this regard because Simkins did not request an administrative hearing or
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lodge an objection to the proposed modification. Thus, this court is left to presume
the regularity of the proceedings below.
Simkins’s Underemployed/Unemployed Status
{¶15} Simkins next argues that the CSEA’s upward modification of her child
support obligation effectively usurped the exclusive jurisdiction of the trial court to
determine whether she was voluntarily underemployed or unemployed as justification
for imputing income to her.
{¶16} R.C. 3119.01(C)(11)(a) lists factors a trial court is to consider when
imputing income. Ohio Adm.Code 5101:12-60-05.1(E)(1) requires a CSEA to
consider the same criteria when imputing income to a parent when it conducts an
administrative review of support. Wallace v. Wallace, 195 Ohio App. 3d 314, 2011-
Ohio-4487, 959 N.E.2d 1075, 1078 (9th Dist.), ¶ 10. Thus, there is explicit authority
for a CSEA to impute income when it conducts an administrative review.
{¶17} In sum, Simkins failed to preserve and waived any error by the trial
court in its decision to adopt the recommendation of the CSEA increasing her child
support obligation because she did not request an administrative adjustment hearing
or file an objection to the proposed modified order. Nonetheless, the CSEA had
authority to initiate an administrative review of the original order at the request of
Perez and to impute income to her.
{¶18} The judgment of the trial court is affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.