Vanek v. Hereda

[Cite as Vanek v. Hereda, 2019-Ohio-4290.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARY VANEK, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
MATTHEW HEREDA, : Case No. 2019CA00039
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Domestic
Relations Division, Case No. 2014
DR 00129
JUDGMENT: Affirmed in Part; Reversed in Part
Remanded
DATE OF JUDGMENT: October 17, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DAVID L. ENGLER ROSEMARY G. RUBIN
181 Elm Road, N.E. The Victorian Professional Building
Warren, Ohio 44483 1435 Market Avenue, North
Canton, Ohio 44714
Stark County, Case No. 2019CA00039 2
Baldwin, J.
{¶1} Mary Vanek appeals from the decision of the Stark County Court of
Common Pleas granting Appellee child support. Appellee is Matthew Hereda.
STATEMENT OF FACTS AND THE CASE
{¶2} The trial court issued a divorce decree on July 23, 2015 dissolving the
marriage of the parties and incorporating the Shared Parenting Plan and Separation
Agreement adopted by the parties. The parenting plan provided equal parenting time and
"due to the allocation of time that each spends with the children and the incomes of each
party, that child support shall be set at zero ($0.00). Guideline support is not in the best
interest of the children and would be unjust and unreasonable." (Shared Parenting Plan,
p. 4, Section 2). The Separation Agreement incorporated the zero child support order and
the decree of divorce approved both documents and expressly made the terms of the
Separation Agreement and Shared Parenting Plan an order of the Court.
{¶3} In August 2017 Appellant moved to Aurora, Ohio and it appears that was a
catalyst for the Appellant’s desire to amend the Shared Parenting Plan to include, among
other changes, an order that the children attend school in Aurora, Ohio. The distance
between Appellant in Aurora and Appellee in North Canton also complicated visitation by
requiring the parties to spend more of their parenting time transporting the children.
{¶4} Appellant filed a motion to modify the Shared Parenting Plan on March 12,
2018 and followed with an amendment of that motion on March 26, 2018. Appellee
responded with a motion to dismiss Appellant's motion or, in the alternative, to make
Appellee the residential parent for purposes of attending school. Appellee submitted a
proposed Amended Shared Parenting Plan on August 1, 2018 which contained a
Stark County, Case No. 2019CA00039 3
requirement that Appellant pay child support. A hearing was held on August 8, 2018 and
the record suggests that the parties agreed on all points except child support. That
agreement was read into the record, but a transcript of that hearing was not requested.
At the conclusion of the August 8th hearing, the trial court ordered that an entry containing
the terms of settlement be provided within fourteen days, but the parties were unable to
agree to terms until October 31, 2018.
{¶5} On August 13, 2018, Appellee filed an amended motion to modify the
shared parenting plan to establish child support and modify other financial obligations.
Appellant filed a Request for Child Support on September 21, 2018 and submitted an
amended shared parenting plan on October 29, 2018, but that plan lacked Appellee's
agreement. The trial court scheduled a hearing for the pending matters to occur October
31, 2018.
{¶6} The Magistrate presided over a two day hearing beginning October 31,
2018 and concluding December 17, 2018 with the sole issue being the competing
requests for child support. Prior to taking any testimony or evidence, the Magistrate noted
that the agreed entry that had been requested by the trial court after the August 8, 2018
hearing had not been filed. Without having terms of that agreement before the Court, the
Magistrate was unwilling to proceed with the hearing, concerned that calculating child
support may be impossible without the terms of the agreed upon shared parenting plan.
After some delay, the parties reached an agreement, the Amended Shared Parenting
Plan was submitted to the Court, and the hearing proceeded.
{¶7} The Magistrate did note that Appellant's motion for child support was not
accompanied by a financial affidavit and she indicated that she intended to dismiss the
Stark County, Case No. 2019CA00039 4
motion for that reason. On December 3, 2018, after the first day of testimony on October
31 and before the second day of testimony on December 17, Appellant filed a motion to
modify child support in which she requests that the trial court order Appellee to pay her
child support. Appellee did not object and the motion was considered by the Magistrate.
{¶8} Appellant and Appellee testified and submitted exhibits and there was no
material conflict in the evidence. Appellant's move to Aurora increased the distance
between the parties’ homes and likewise increased the travel time necessary to transport
the children. Appellant's income was $97,552.00 and Appellee's income was $72,195.00.
The difference in the income had increased by $1,357.00 in Appellant's favor. Appellant
also provided evidence of increased child care costs as it was necessary for her to pay
for child care under the Amended Parenting plan.
{¶9} The Magistrate issued her decision on December 20, 2018, finding a
change in circumstances sufficient to warrant a modification of child support. The
Magistrate recommended an award of child support to Appellee of $1275.79 per month,
but applied a 50% downward deviation to account for the equal parenting time. The
Magistrate overruled Appellant’s motion for child support.
{¶10} Appellant filed objections contending, among other things that the
Magistrate failed to make a determination that there had been any change of
circumstance or any causation for a new child support order, despite the fact that
Appellant was pursuing child support and continued to request it, even within the
objections.
{¶11} The trial court issued a judgment entry regarding the objections finding “[t]he
Magistrate included an inaccurate statement in her findings of fact #3 relating to Mother's
Stark County, Case No. 2019CA00039 5
relocation. That Fact shall be stricken from the original decision. Based upon the
remaining facts presented in testimony, the Court completed an independent analysis of
the Magistrate's Decision" The order in this judgment entry states:
THE COURT, AFTER HAVING MADE AN INDEPENDENT ANALYSIS OF THE
FACTS AND APPLICABLE LAW, HEREBY APPROVES AND ADOPTS THE
MAGISTRATE(sic) DECISION, AFTER CORRECTED FOR THE ABOVE
FINDING, AND ORDERS IT ENTERED AS A MATTER OF LAW.
THE MAGISTRATE SHALL CORRECT HER DECISION AND SUBMIT IT TO THE
COURT.
{¶12} The Magistrate amended her decision and submitted it to the trial court. On
the final page of that decision this language appears: "The court having mad(sic) an
independent analysis of the issues and the applicable law hereby approves and adopts
the Magistrate's decision and orders it to be entered as a matter of record."
{¶13} Appellant filed a timely notice of appeal and submitted three assignments
of error:
{¶14} “I. THE COURT ERRED IN NOT ABIDING BY THE MANDATE OF ORC
3119.79 THAT A CHANGE OF CIRCUMSTANCE WAS NECESSARY BEFORE
RECALCULATING CHILD SUPPORT.”
{¶15} “II. THE COURT ERRED IN APPLYING A NEW TEST FOR CHANGE OF
CIRCUMSTANCES BASED WRONGFULLY ON QUALITY OF PARENTING TIME.”
{¶16} “III. THE COURT ERRED IN NOT CONSIDERING MOTHER'S
INCREASED DAY CARE COSTS IN DETERMINING HER INCOME SINCE, WITHOUT
DAYCARE, SHE WOULD NOT BE ABLE TO EARN HER SALARY.”
Stark County, Case No. 2019CA00039 6
STANDARD OF REVIEW
{¶17} In Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989), the Ohio
Supreme Court determined an abuse of discretion standard is the appropriate standard
of review in matters concerning child support. In order to find an abuse of that discretion,
we must determine 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 fact finder could base its judgment. Cross Truck v.
Jeffries, 5th Dist. Stark App. No. CA-5758, 1982 WL 2911 (February 10, 1982).
Accordingly, a judgment supported by some competent, credible evidence will not be
reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley
Construction, 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
ANALYSIS
{¶18} Appellant's First and Second Assignments of Error contend the trial court
erred by finding that the facts supported a finding that a change of circumstances occurred
that warranted an award of child support to Appellee. Appellant specifically argues that
the trial court misapplied R.C. 3119.79(A) and that it erroneously relied upon a change in
the quality of parenting time as sufficient to support a finding that a change in
circumstances occurred satisfying the requirements of R.C 3119.79(C). Because these
assignment are so closely related, we will address them simultaneously.
Stark County, Case No. 2019CA00039 7
{¶19} The relevant language of R.C 3119.79(A) obligates the trial court to
recalculate the amount of child support in accordance with the schedule and the
worksheet and:
[i]f 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 circumstance substantial enough to require a modification of the child
support amount.
{¶20} Appellant's reference to the figures on the worksheets completed when the
support order was first established and the worksheet filed in the current proceeding is
incorrect. The inquiry is limited to whether the increase or decrease in the amount of child
support calculated in the present worksheet differs from the prior order by ten percent,
and does not consider the figure in the prior worksheet.
{¶21} In the case at bar, the parties had agreed to a deviation in child support in
the initial order, reducing the amount due to zero. In Hill v. Hill, 5th Dist. Coshocton No.
2011 CA 0016, 2012-Ohio-1903, ¶¶ 19-20, we recognized that a child support order which
requires zero support to be paid is an “existing child support order.” The Ohio Supreme
Court, in DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 538, 679 N.E.2d 266, held that
where a support order already exists, the test for determining whether child support shall
be modified is the ten percent threshold set forth in R.C. 3113.215(B)(4) (now R.C.
Stark County, Case No. 2019CA00039 8
3119.79(A)). Pursuant to DePalmo, the ten percent test is to be applied to the amount of
the current order. Fox v. Fox, 3rd Dist., Hancock App.No. 5–03–42, 2004–Ohio–3344, ¶
15. “Obviously, when the amount of child support is zero, but the support guidelines
establish that the parent owes support, then the ten percent difference is clearly met.”
Ayers v. Haas, Van Wert App.No. 15–07–13, 2008–Ohio–2405, ¶ 25, quoting DePalmo
at 540, 679 N.E.2d 266. We find that the ten percent difference is clearly met in this case
as the order that existed prior to the filing of Appellee's request required zero support as
a result of an agreed deviation and the court found, in the current case, that the amount
of support due Appellee was $15,309.51 per year.
{¶22} The trial court also found a change in circumstances existed as a result of
Appellant's move to Aurora, Ohio "which impacts the quality of parenting time,
extracurricular activities and amount of travel now required to transport the children to
and from school and to each parent's residence." Appellant argues that the trial court
was improperly focusing on the quality of the parenting time as the basis for finding a
change in circumstances, but the trial court's findings are not so limited. The court found
that the parenting time was essentially unchanged with regard to the amount of time, but
that the parties did spend more time driving as a result of Appellant's relocation.
{¶23} " [A] substantial change of circumstances typically exists where the minor
child's needs or the allocation of parenting time has changed.” Adams at ¶ 17, citing
Melick v. Melick, 9th Dist. Summit No. 26488, 2013–Ohio–1418, ¶ 14–17 (additional
citations omitted). as quoted in Montgomery v. Montgomery, 3rd Dist. Union No. 14-14-
22, 2015-Ohio-2976, ¶ 2. Neither of those circumstances exist in this case as the needs
of the children have not changed and the ultimate allocation of time remains equal. The
Stark County, Case No. 2019CA00039 9
parties testified to the system they adopted to insure the timely transfer of custody while
insuring the children attended school in Aurora, but this Court is not convinced this
arrangement comprises a substantial change that satisfies the requirements of R.C.
3119.79(C). However, because we have found that the ten percent threshold in R.C.
3119.79(A) has been met, we hold that this issue is now moot as a substantial change is
evident on the record. While we acknowledge the trial court may have found a substantial
change occurred for a different reason, we will not reverse the trial court's "otherwise
correct judgment merely because the trial court utilized different or erroneous reasons as
the basis for its determination." Reid v. Plainsboro Partners, III, 10th Dist. Franklin No.
09AP-442, 2010-Ohio-4373, ¶ 20 (Citations omitted.)
{¶24} Appellant’s first and second assignments of error are overruled.
{¶25} Appellant contends that the trial court erred by not including her stated child
care expenses on line nineteen of the childcare worksheet in her third assignment of error.
Appellee contends that the inclusion of those expenses is unnecessary because the
parties have agreed that they shall be responsible for their own child care expenses
prospectively and that the magistrate was recognizing the Appellant's financial
advantage. The only reference to child care in the Magistrate's decision is contained in
the section addressing the deviation from the calculated amount. The trial court did not
provide any explanation for a failure to include the child care costs in the worksheet.
{¶26} Appellant provided an explanation and an itemization of her day care costs
at the hearing of this matter. She explained that though she works from the home, she
cannot effectively work and care for the children. She provided an itemization of the
Stark County, Case No. 2019CA00039 10
charges and cancelled checks showing payment to her step-daughters for day care
service. Appellee did not dispute the amounts or necessity of the expense.
{¶27} The Supreme Court of Ohio has held that requirement to use the worksheet
and the basic support schedule is "mandatory in nature and must be followed literally and
technically in all material respects." Marker v. Grimm, 65 Ohio St.3d 139, 143, 601 N.E.2d
496, 499 (1992). While a party is not entitled to have all claimed daycare expenses
included, the Appellant did "establish the amount of the expense, that the expenses were
work, job-training, or education related, and that the expenses were reasonable and
necessary. Haldy v. Hoeffel, 3rd Dist. Henry No. 7-17-02, 2017-Ohio-8786, ¶ 37. The
trial court did not enter any amount for the child care expenses on line 19 of the
worksheet. While the trial court might exercise discretion regarding what amount should
be included in that space, the record lacks any evidence of the trial court's rational for
disregarding its obligation to follow the requirements of the code literally and technically
in all respects. While the trial court does explain why the child care expenses are not
considered as part of its calculation of a deviation from the amount of child support
required by the worksheet and schedule, we hold that is insufficient compliance with the
mandatory requirement that child care expenses are to be included in the worksheet and
an abuse of discretion.
{¶28} We sustain Appellant's Third Assignment of Error.
Stark County, Case No. 2019CA00039 11
{¶29} The decision of the Stark County Court of Common Pleas, Family Court
Division is affirmed in part and reversed in part. The decision finding a change of
circumstances warranting the award of child support is affirmed; the part of the decision
calculating the amount of child support to be awarded is reversed and the matter is
remanded to the trial court for further proceedings consistent with this court's opinion.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.