Degrell v. Degrell

[Cite as Degrell v. Degrell, 2020-Ohio-4760.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KELENE M. DEGRELL JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2020CA00006
ROBERT A. DEGRELL
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2019CU00003
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 30, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DOUGLAS C. BOND ROBERT A. DEGRELL – Pro Se
Bond Law, Ltd. 429 Parkview Street, N.E., #3
600 Courtyard Centre Massillon, Ohio 44646
116 Cleveland Avenue, N.W.
Canton, Ohio 44702
Stark County, Case No. 2020CA00006 2
Hoffman, P.J.
{¶1} Defendant-appellant Robert A. Degrell (“Father”) appeals the December 10,
2019 Judgment Entry entered by the Stark County Court of Common Pleas, Family Court
Division, which overruled his objections to the magistrate’s October 18, 2019 decision,
and approved and adopted said decision as order of the court. Plaintiff-appellee is Kelene
M. Degrell (“Mother”).
STATEMENT OF THE CASE AND FACTS
{¶2} The parties’ marriage was terminated by dissolution on December 16, 2014,
in the Superior Court of California, County of Los Angeles. The judgment incorporated
the parties’ settlement agreement (“the Agreement”), which Mother and Father executed
on August 25, 2014. The Agreement provided Mother would have sole custody of the
parties’ two minor children with Father having parenting time, and Father would pay child
support in the amount of $1,254.00/month, effective September 1, 2014, as well as
$1,875.00/month to offset Mother’s childcare expenses, including tuition. Mother’s
childcare expenses at the time totaled $2,500.00/month.
{¶3} Pursuant to the language of the Agreement, the parties individually
acknowledged they had been informed of their rights concerning child support, entered
into the Agreement without coercion or duress, and recognized the Agreement was in the
best interests of the children.
{¶4} Father was a licensed attorney in the state of California at the time the
parties entered into the Agreement. An incident occurred between Mother and Father,
which resulted in criminal charges being filed against Father. In March, 2017, Father was
convicted and sentenced to jail. Father lost his employment and his license to practice
Stark County, Case No. 2020CA00006 3
law as a result. Also, as a result of the incident, Mother moved with the children to Canton,
Ohio, in May/June, 2017.
{¶5} On February 14, 2018, Father requested modification of his child support
obligation from the Los Angeles County Department of Child Support Services
(“LACDCSS”). LACDCSS found it did not have jurisdiction to modify the order. On
February 13, 2019, Father filed a Request for Order in the Superior Court of California,
seeking modification of his child support obligation. The California Superior Court
conducted a hearing on March 19, 2019. Via Order filed March 28, 2019, the California
Superior Court denied Father’s request for modification of child support, finding Father
failed to establish a sufficient change of circumstances to justify such modification. The
Superior Court further found Ohio was the proper jurisdiction to determine matters of child
support and modification. Father did not appeal this decision. Father filed another motion
in the California Superior Court, requesting the Agreement be set aside. After conducting
a hearing on June 10, 2019, the California Superior Court denied Father’s request. Father
also did not appeal this decision.
{¶6} On February 20, 2019, Mother filed a Motion and Notice to Register a
Foreign Decree in the Stark County Court of Common Pleas, Domestic Relations
Division. Via Order and Notice pursuant to R.C. 3127.35 filed February 20, 2019, the trial
court registered the Judgment Entry issued by the California Superior Court on December
16, 2014, and as modified on July 17, 2018, in the Stark County Court of Common Pleas,
Domestic Relations Division. Father was served notice of the registration on February
22, 2019.
Stark County, Case No. 2020CA00006 4
{¶7} On August 22, 2019, Father filed a motion for change of child support.
Mother filed a Motion to Determine Arrears on August 29, 2019. After Father failed to
appear at the scheduled mediation, the magistrate conducted a hearing on October 8,
2019. Mother presented arrearage information from the Los Angeles Child Support
Services Department (“CSSD”) which showed Father had an arrearage of $112,202.31,
through August, 2019, as well as arrearage information from the Stark County Child
Support Enforcement Agency (“CSEA”) which showed Father had an arrearage of
$115,719.62, through October, 2019. Father argued he should not have to reimburse
Mother for childcare expenses because he believed Mother did not incur any childcare
expenses after she relocated to Ohio; therefore, those amounts should not have been
included in the CSSD audit total. Father explained the parties agreed he would pay 75%
of the actual childcare expenses Mother incurred, Mother failed to provide an accounting
of her childcare expenditures as she was required to do, and Mother failed to notify Father
and the court of any changes in the childcare amounts as she was required to do. Father
did not present any evidence to establish these provisions were part of the Agreement.
{¶8} Via Decision filed October 18, 2019, the magistrate found Father’s child
support arrearages to be $115,719.62, as of October 7, 2019. The magistrate indicated
it was “not inclined to go back in time and retroactively modify the parties’ agreement
regarding child care costs in order to reduce Father’s arrearages, particularly in light of
the fact that Father could have motioned the California court when he lost his employment
in order to seek a reduction rather than waiting years later.” Magistrate’s Decision at 3.
The magistrate further found the parties agreed Father was to pay $1,875/month without
delineating a percentage to either party. The magistrate noted the Agreement did not
Stark County, Case No. 2020CA00006 5
require Mother to provide an accounting of her childcare expenses or report any changes
in those amounts to Father or the court. The magistrate added Father entered into the
Agreement voluntarily and without duress or coercion.
{¶9} On October 18, 2019, Father filed a Motion to Set Aside the 10/10/19
Decision of the Magistrate, or in the alternative: Defendant’s Objections to the
Magistrate’s Decision of 10/10/19. Via Judgment Entry filed December 10, 2019, the trial
court overruled Father’s objections, and approved and adopted the magistrate’s decision
as order of the court. The trial court ordered the trial previously scheduled for December
11, 2019, would proceed on that date. The parties appeared before the trial court on the
scheduled trial date and advised the court they had reached an agreement as to all
orders. In accordance with the parties’ agreement, the trial court modified Father’s child
support obligation to $480.50/month for both children, retroactive to September 1, 2019.
The trial court memorialized the parties’ agreement via Agreed Entry filed December 12,
2019.
{¶10} Father filed a Notice of Appeal from the December 10, 2019 judgment entry
on January 8, 2020. A second Notice of Appeal was filed on January 31, 2020. This
Court sua sponte dismissed the appeal as untimely filed based upon the date of the
second Notice of Appeal. Father filed a motion to reconsider, which this Court granted
via Judgment Entry filed March 31, 2020.
{¶11} On January 27, 2020, Father filed Defendant’s Appeal from the Magistrate’s
Decision of 10/28/2019 and Denial of Objection by Judge Nist dated 12/3/2019. After
receiving leave from this Court, Mother filed her Brief on May 27, 2020. Mother also filed
a motion to dismiss Father’s appeal. Mother argued the appeal should be dismissed
Stark County, Case No. 2020CA00006 6
because Father failed to comply with Local R. 5(A) as the record on appeal was
incomplete and also failed to comply with App. R. 16 as his brief was noncompliant. On
May 29, 2020, Father filed a request for leave to file an amended brief as well as a request
for leave to file a transcript of the trial court’s December 3, 2019 hearing on his objections
to the magistrate’s decision. Via Judgment Entry filed June 30, 2020, this Court denied
Father’s request for leave to file the December 3, 2019 transcript as Father made the
request after the briefs had been filed. In a separate judgment entry also filed June 30,
2020, this Court denied Father’s request for leave to file an amended brief.
ANALYSIS
{¶12} In his Brief to this Court, Father failed to include “[a] statement of the
assignments of error presented for review, with reference to the place in the record where
each error is reflected” as required by App. R. 16(A)(3). Rather, in the Argument section
of his Brief, Father set forth the following:
A. RETROACTIVE MODIFICATION OF CHILD SUPPORT AND CHILD
CARE
B. REIMBURSEMENT OF CHILD CARE EXPENDITURES NOT MADE
{¶13} We shall address Father’s assertions together.
{¶14} The gravamen of Father’s arguments is the trial court abused its discretion
in failing to make the order modifying child support retroactive to February 14, 2018, the
date on which he requested modification from LACDCSS, or, at the latest, February 13,
2019, the date on which he filed his request for modification in the Superior Court of
Stark County, Case No. 2020CA00006 7
California, and in ordering him to reimburse Mother for childcare expenditures she did not
make.
{¶15} Before we address Father’s arguments, we must first examine the state of
the record before us. As noted in our Statement of the Case and Facts, on May 29, 2020,
Father requested leave to file a transcript of the trial court’s December 3, 2019 hearing
on his objections to the magistrate’s decision. This Court denied the request via Judgment
Entry filed June 30, 2020. Father, nonetheless, filed the transcript of the December 3,
2019 hearing without leave of court. We find the transcript is not properly before this
Court and we will not consider the transcript as part of the record before us.
{¶16} Father is appealing the trial court’s December 10, 2019 Judgment Entry,
which denied his objections to the magistrate’s October 28, 2019 decision, and approved
and adopted said decision as order of the court. In its December 10, 2019 Judgment
Entry, the trial court specifically stated it had “reviewed the decision of the magistrate, the
transcript of the proceedings, all relevant documents, plus the statements presented at
the objection hearing.” (Emphasis added.) In the absence of this transcript, we are
unable to review any additional evidence the trial court considered in overruling Father’s
objections to the magistrate’s decision.
{¶17} When portions of the transcript necessary for resolution of assigned errors
are omitted from the record, the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower
court's proceedings, and affirm. Knapp v. Edwards Lab., 61 Ohio St.2d 197, 400 N.E.2d
384 (1980). Because Father has failed to provide this Court with a transcript, we must
presume the regularity of the proceedings below and affirm. It is the duty of an appellant
Stark County, Case No. 2020CA00006 8
to ensure the record, or whatever portions thereof are necessary for the determination of
the appeal, are filed with the court in which he seeks review. Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 56 (1988).
{¶18} Despite the lack of the transcript of the December 3, 2019 hearing, we find,
based upon the record properly before us, the trial court did not abuse its discretion in
overruling Father’s objections to the magistrate’s decision.
{¶19} Father asserts the exorbitant arrearage balance would not exist but for the
California Superior Court’s denial of his February 13, 2019 motion based upon its
incorrect determination Ohio was the proper jurisdiction to address matters of child
support and modification. Father submits, because the California Superior Court’s ruling
was erroneous, the trial court should have made the modification of his child support
obligation retroactive to February 14, 2018, the date on which he requested modification
from LACDCSS, or, at the latest, February 13, 2019, the date on which he filed his request
for modification in the Superior Court of California.
{¶20} The record reveals Father did not appeal the California Superior Court’s
decision. Father did not request a modification of his child support obligation from the
trial court until August 22, 2019. After the trial court overruled Father’s objections to the
magistrate’s decision, the parties reached an agreement as to all orders, including an
agreement to a modification of Father’s child support obligation to $480.50/month for both
children, retroactive to September 1, 2019.
{¶21} In Ohio, the general rule is “ ‘[a]bsent special circumstances, an order of a
trial court modifying child support should be retroactive to the date such modification was
first requested; the effective date of modification must coincide with some significant
Stark County, Case No. 2020CA00006 9
event in the litigation, and an arbitrary date may not be employed.’ ” Mauerman v.
Mauerman, 11th Dist. Trumbull No. 2002-T-0049, 2003-Ohio-3876, ¶18,
quoting Sutherell v. Sutherell, 11th Dist. Lake No. 97-L-296, 1999 WL 417990, *4 (June
11, 1999). “The general rule is based on equitable principles in recognition of ‘the
substantial time it frequently takes to dispose of motions to modify child support
obligations’. ” Zamos v. Zamos, 11th Dist. Portage No. 2002-P-0085, 2004-Ohio-2310,
¶13, quoting Hamilton v. Hamilton, 107 Ohio App.3d 132, 139-140 (1995).
{¶22} Because Father agreed the modification be retroactive to September 1,
2019, and because September 1, 2019, is sufficiently close in time to August 22, 2019,
the date on which Father first filed his motion requesting modification of child support in
Ohio, we find the trial court did not abuse its discretion in selecting that date.
{¶23} Father also challenges the magistrate’s decision finding Mother was entitled
to retroactive reimbursement in the form of arrearages of $1,875/month for childcare
expenses. Father contends Mother neither incurred nor paid such amounts. Father adds,
to continue to make him pay $1,875/month based upon the Agreement executed in 2014,
results in Mother being unjustly enriched. We disagree.
{¶24} Father’s responsibility to reimburse Mother for childcare expenses was a
separate obligation under the parties’ original dissolution agreement. Father must seek
modification of that provision of the Agreement in the appropriate forum.
Stark County, Case No. 2020CA00006 10
{¶25} Based upon the foregoing, we overrule Father’s assignments of error.
{¶26} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur