[Cite as Trombley v. Trombley,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

MELISSA TROMBLEY C.A. No. 17CA0012-M

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE WALTER P. TROMBLEY COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellee CASE No. 06DR0471

DECISION AND JOURNAL ENTRY

Dated: May 14, 2018

SCHAFER, Presiding Judge.

{¶1} Plaintiff-Appellant, Melissa Trombley (“Mother”) appeals the judgment of the

Medina County Court of Common Pleas Domestic Relations Division modifying the child

support obligation of Defendant-Appellee, Walter Trombley (“Father”). For the reasons that

follow, we affirm.

I.

{¶2} Mother and Father married in 1997 and divorced in 2007. There were two

children born of the marriage, A.T. and G.T. According to their separation agreement, which

was ultimately made a part of the divorce decree, the parties agreed that Father would pay

Mother $3,000.00 in child support. The parties agreed to deviation from the Ohio child support

guidelines “due to the financial needs of the children and the distance between the parties.” At

the time, Father was living in England and Mother was living in Medina, Ohio. Father’s annual 2

income at that time was $170,000.00 and Mother’s sole annual income was $12,000.00 in

spousal support.

{¶3} On September 1, 2015, Father filed a “Five Branch Motion” requesting, inter alia,

that (1) the domestic relations court modify the current child support order due to a change in

circumstances; and (2) the domestic relations court modify the health insurance provision and the

uncovered medical costs provision of the parties’ legal separation incorporated into the divorce

decree. Following a hearing, a magistrate found that a substantial change in circumstances

existed warranting a modification of child support. Nonetheless, the magistrate found a number

of factors justified an upward deviation from the amount calculated on the statutory child support

worksheet. Ultimately, the magistrate determined that Father’s child support obligation should

be $2,400.00 per month.

{¶4} The magistrate also determined that it was in A.T. and G.T.’s best interest to

modify the allocation of unreimbursed medical expenses so that Father was responsible for 100%

of the first $267.00 per year in reasonable and ordinary uninsured and unreimbursed medical,

dental, optical, and prescription drug expenses for A.T. and G.T. After Father paid the first

$267.00, Mother and Father would share the cost of any reasonable and ordinary uninsured and

unreimbursed medical, dental, optical, and prescription drug expenses, with Mother paying 20%

and Father paying 80%.

{¶5} After an independent review and analysis, the domestic relations court adopted

the magistrate’s decision that same day. Mother filed timely objections. However, the domestic

relations court subsequently overruled those objections. 3

{¶6} Mother filed this timely appeal, raising four assignments of error for our review.

For the ease of analysis, we elect to consider Mother’s second and third assignments of error

together.

II.

Assignment of Error I

The trial court erred in its recalculation of child support when it averaged Mother’s last three years of income but declined to average the father’s last three years of income and adjusted the Father’s income by deducting for local taxes when he paid no local taxes.

{¶7} In her first assignment of error, Mother contends that the trial court erred when it

calculated Father’s income using only Father’s most recent year’s income but calculated

Mother’s income by averaging the last three years of her income. Mother further contends that

the trial court erred by deducting local income taxes from Father’s income even though Father

does not pay local income taxes.

{¶8} In this case, Father filed a motion to modify child support on the basis that a

change in circumstances had occurred. Pursuant to R.C. 3119.79, a prior child support

obligation may not be modified absent a showing of a substantial change in circumstances. If an

obligor requests such a modification, “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.” R.C.

3119.79(A). When calculating the amount of child support required to be paid under a court

child support order, a trial court may, when appropriate, calculate gross income by averaging a

party’s income over a reasonable period of years. R.C. 3119.05(H).

{¶9} In determining the parties’ current income in this case, the magistrate found that

Father’s “current base pay plus his most recent bonus is the most accurate measure of his 4

income.” The magistrate declined to use a three-year average salary calculation because in the

preceding two years, Father “received a severance package * * *, earned a higher rate of pay * *

*, and subsequently received signing and relocation bonuses form his current employer.” On the

contrary, the magistrate found that “[g]iven the variation in [Mother’s] annual net income” it was

“appropriate to take a three-year average of her gross income and business expenses.” The trial

court adopted the magistrate’s findings in a journal entry filed that same day. Thereafter, Mother

filed an objection to the magistrate’s decision.

{¶10} However, a review of the record shows that Mother did not object to the manner

in which the magistrate calculated either Father’s or Mother’s income. Pursuant to Civ.R.

53(D)(3)(b)(ii), “[a]n objection to a magistrate’s decision shall be specific and state with

particularity all grounds for objection.” This Court has previously determined that an

appellant forfeits appellate review of any issues not stated in her objections to the magistrate’s

decision. See Adams v. Adams, 9th Dist. Wayne No. 13CA0022,

(“This

Court has held that when a party fails to properly object to a magistrate’s decision in accordance

with Civ. R. 53(D)(3), the party has forfeited the right to assign those issues as error on

appeal.”); John Soliday Fin. Group, L.L.C. v. Robart, 9th Dist. Summit No. 24407, 2009-Ohio-

2459, ¶ 15 (“Because [appellant] did not specifically object to the findings in

the magistrate’s decision set forth in the * * * assignments of error, those claims have

been forfeited and may not be raised on appeal.”). “While a [party] who forfeits such an

argument still may argue plain error on appeal, this [C]ourt will not sua sponte undertake a plain-

error analysis if the [party] fails to do so.” (Alterations sic.) Bass-Fineberg Leasing, Inc. v.

Modern Auto Sales, Inc., 9th Dist. Medina No. 13CA0098-M,

. As Mother

did not specifically object to the manner in which the magistrate calculated Mother and Father’s 5

income and has not argued plain error, she has failed to preserve the issue for appellate review

and we decline to address it. See Henry v. Henry, 9th Dist. Summit No. 27696,

.

{¶11} Therefore, Mother’s first assignment of error is overruled.

Assignment of Error II

The father did not prove a substantial change of circumstances beyond the statutory ten percent deviation justifying a modification of child support. The trial court abused its discretion in modifying the child support when the modification was not in the best interest of the children.

Assignment of Error III

The trial court’s decision to modify child support by twenty percent is erroneous, not supported by credible evidence, and is arbitrary.

{¶12} In her second assignment of error, Mother contends that the trial court abused its

discretion in modifying child support since Father did not prove a substantial change of

circumstances beyond the statutory ten percent justifying modification. Mother further argues

that the modification was not in the best interests of A.T. and G.T. In her second assignment of

error, Mother contends that the domestic relations court decision to modify Father’s child

support obligation by 20% was arbitrary and not supported by credible evidence.

{¶13} “This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion.” Sifferlin v. Sifferlin, 9th Dist. Summit No. 27169, 2014-

Ohio-5645, ¶ 8. “‘In so doing, we consider the trial court’s action with reference to the nature of

the underlying matter.’”

quoting Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-

M,

, ¶ 18. The propriety of a trial court’s determination regarding child support

is reviewed for an abuse of discretion. Booth v. Booth,

(1989). An abuse

of discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.” 6

Blakemore v. Blakemore,

(1983). Moreover, when applying an abuse of

discretion standard, this Court may not substitute its own judgment for that of the trial court.

Pons v. Ohio State Med. Bd.,

(1993).

A. Substantial Change in Circumstances

{¶14} Father argued in his motion and at the hearing that a modification of the child

support order was warranted due to a substantial change in circumstances. Pursuant to R.C.

3119.79,

(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 circumstances substantial enough to require a modification of the child support amount.

***

(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 applicable worksheet through the line establishing the actual annual obligation, unless the court determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet would be unjust or inappropriate and would not be in the best interest of the child and enters in the journal the figure, determination, and findings specified in [R.C. 3119.22].

Additionally, this Court has held “in a case where the parties have previously agreed to a

deviation in the amount of child support, the moving party must prove more than the existence of

a ten percent deviation to demonstrate the required substantial change of circumstances.” 7

Sifferlin,

, citing Adams v. Adams, 3d Dist. Union No. 14-12-03, 2012-

Ohio-5131, ¶ 30. In such a case, the moving party must also “prove that [the] change of

circumstance was not contemplated by the parties when they agreed to the prior deviation.”

{¶15} In this case, the magistrate found that a substantial change in circumstances had

occurred since the prior child support litigation that was not contemplated at that time. In

overruling Mother’s objection to the magistrate decision, the domestic relations court

independently reviewed the record and determined that a substantial change in circumstances had

occurred. In making this determination, the domestic relations court made the following

findings. First, the court recognized that the then existing child support order was ten years old

and dated back to the parties’ 2006 legal separation. At the time, the parties agreed to deviate

Father’s child support obligation upward to $3,000.00 from the $1,830.92 calculated by the child

support statutory guidelines. The court recognized that one of the primary reasons for the

upward deviation was that Father’s annual gross income was $170,000.00 compared to Mother’s

annual gross income of $0.00. The court also recognized that when child support was last

litigated in this matter in 2010, the court had found that no substantial change in circumstances

had occurred and that a substantial disparity in income still existed.

{¶16} The domestic relations court then determined, based on the evidence presented at

the hearing, that although Father’s annual gross income had not substantially changed, Mother’s

had substantially increased since the original 2006 child support order. According to the new

child support statutory guidelines worksheet, Father’s child support obligation would be

calculated at $1,810.78, equating to a 40% difference from the existing child support order.

Mother does not dispute that pursuant to R.C. 3119.79(A), this calculation is considered as a 8

change in circumstances substantial enough to require a modification of the child support

amount.

{¶17} However, recognizing that the parties had previously agreed to a child support

deviation, the domestic relations court further determined that Father had proved a substantial

change in circumstances beyond the 10% required by statute. See Sifferlin,

, citing Adams,

. In making this determination, the court recognized

that although Father’s financial circumstances had not substantially changed, his personal

circumstances had. Specifically, Father had remarried and has two additional children. As a

result, Father would no longer receive the benefit of claiming the dependent tax exemption for

the children. Additionally, although Mother’s personal circumstances had not substantially

changed, her annual income had increased 650% over the previous six years. A review of the

record shows that the domestic relations court’s findings are based on competent credible

evidence.

{¶18} Accordingly, we cannot say that the court abused its discretion when it

determined that Father had proved that a substantial change in circumstances had occurred

beyond the 10% required by statute and not contemplated by the parties at the time they agreed

to the prior deviation.

B. Best Interests of A.T. and G.T.

{¶19} Mother also contends that the domestic relations court erred by decreasing the

previously agreed upon upward deviation. Pursuant to R.C. 3119.03, the presumption that that

the child support calculated pursuant to the basic child support schedule and applicable

worksheet is rebuttable. By statute, if the actual annual obligation “would be unjust or

inappropriate to the children or either parent and would not be in the best interest of the child 9

because of the extraordinary circumstance of the parents or because of any other factors or

criteria set forth in [R.C. 3119.23], the court may deviate from that amount.” R.C. 3119.24(A).

A court may consider any of the following factors in determining whether to grant a deviation

pursuant to R.C. 3119.23:

(A) Special and unusual needs of the children;

(B) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination;

(C) Other court-ordered payments;

(D) Extended parenting time or extraordinary costs associated with parenting time, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet, through the line establishing the actual annual obligation, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of parenting time granted by court order;

(E) The obligor obtaining additional employment after a child support order is issued in order to support a second family;

(F) The financial resources and the earning ability of the child;

(G) Disparity in income between parties or households;

(H) Benefits that either parent receives from remarriage or sharing living expenses with another person;

(I) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents;

(J) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing;

(K) The relative financial resources, other assets and resources, and needs of each parent;

(L) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married; 10

(M) The physical and emotional condition and needs of the child;

(N) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen;

(O) The responsibility of each parent for the support of others;

(P) Any other relevant factor.

{¶20} Based on the finding of a substantial change in circumstances, the magistrate

recalculated Father’s child support obligation to be $1,810.78 per month, plus a 2% processing

fee. See R.C. 3119.04(B). However, pursuant to R.C. 3119.22 and 3119.23, the magistrate

deviated Father’s monthly child support obligation upward to $2,400.00. Specifically, the

magistrate determined that R.C. 3119.23 subsections (G), (H), (K), (L), and (N) continued to

justify an upward deviation. However, the magistrate also determined that the extent of the

upward deviation was mitigated by subsection (O) and that subsections (G) and (K) no longer

justified as great an upward deviation as they did previously. This deviation resulted in a 32%

increase over the new child support statutory guidelines, but a 20% decrease from the previous

child support order.

{¶21} Although Mother objected, the domestic relations court reviewed the record and

determined, that the magistrate’s decision was supported by “sufficient, competent, and credible

evidence” and that the magistrate did not err by modifying Father’s child support obligation and

deviating upward from the statutory guidelines worksheet.

{¶22} On appeal, Mother contends that the trial court erred in reducing Father’s child

support obligation because (1) there was a “huge disparity in income” between Mother and

Father; (2) Father’s wife was voluntarily unemployed; (3) specifically referencing subsection (I),

Father pays no local taxes but Mother does; (4) specifically referencing subsection (J), Mother 11

pays the “lion share” of A.T. and G.T.’s necessities; (5) specifically referencing subsection (O)

Father has the ability to support two additional children and continue to pay the previously

agreed upon upward deviation; (6) the court erroneously found the Mother earns twenty percent

of the parties’ combined income; and (7) Father chose to remarry, chose to have two additional

children, and chose to take a job making less money.

{¶23} Although a review of the record shows that Mother’s contentions with regard to

Father’s non-payment of local taxes and the finding that Mother earns twenty percent of the

parties’ combined income are correct, that same review shows that Mother failed to object to the

magistrate’s decision regarding those factual findings. See Civ.R. 53(D)(3)(b)(ii) (“[a]n

objection to a magistrate’s decision shall be specific and state with particularity all grounds for

objection.”) Additionally, Mother did not raise the magistrate’s failure to consider Mother’s

payment of the “lion share” of A.T. and G.T.’s necessities in reference to R.C. 3119.23(J) in her

objection to the magistrate’s decision. See

Therefore, as Mother does not argue plain error

and did not specifically object to those findings, or lack thereof, she has failed to preserve those

issue for appellate review and we decline to address them. See Henry,

;

Adams,

.

{¶24} Mother also contends that the “huge disparity in income” and Father’s wife’s

voluntary unemployment continue to justify an upward deviation. Both the magistrate and the

domestic relations court agreed, determining that R.C. 3119.23(G), (K), and (L) continued to

justify an upward deviation based on the following factual findings. The magistrate specifically

recognized that Father continued to make substantially more than Mother’s household.

Additionally, since the divorce, Father has managed to save a substantial amount of money in

investment accounts, build a new six-bedroom home, pay off the purchase of a luxury vehicle, 12

and purchase a brand new minivan for his wife. Father completely supports his wife, who was

not employed outside the home by choice. The magistrate also found that Mother must work

outside the home in order to pay her mortgage and other household expenses, has a nominal

amount of money saved in college funds for her children, and leases a 2014 Subaru Forrester.

The magistrate further found that there is a large disparity in income between the households and

that A.T. and G.T. are accustomed to a greater standard of living at Father’s house than Mother

can afford on her own income.

{¶25} The magistrate also found that R.C. 3119.23(N) continued to weigh in favor of an

upward deviation. In so finding, the magistrate specifically recognized that Mother testified that

A.T. and G.T.’s expenses had increased as they aged. The children are involved in several

activities, such as track, rugby, choir, horseback riding, and band. These activities involve

expenses such as pay-to-play fees, cleats, shoes, miscellaneous sports equipment, and music

lessons. The magistrate concluded that the opportunity to participate in these activities would

have been available to A.T. and G.T. if the marriage had continued and that they should continue

to be available given the parties’ current incomes.

{¶26} Nonetheless, the magistrate did find that the extent of the upward deviation was

mitigated by R.C. 3119.23 (O) since Father now solely supports two additional minor children.

Although Mother seems to place great weight on the fact that Father “chose” to remarry and have

two additional children, the statute specifically allows the magistrate and court to consider “[t]he

responsibility of each parent for the support of others.”

{¶27} The magistrate and court also determined that R.C. 3119.23 (G) and (K) no longer

justify as great of an upward deviation as they did at the time of the previous hearing on the

modification of child support and that while the children’s financial needs persisted, the 13

allocation of those needs should shift slightly to accurately reflect the available income in each

household. Indeed, a review of the record shows that at the time of the parties’ separation and

divorce, Mother earned 0% of the parties’ combined income, however, pursuant to the current

child support statutory guidelines worksheet, Mother now earns 18.13% of the parties’ combined

income.

{¶28} Therefore, we cannot say that the domestic relations court abused its discretion

when it upwardly deviated Father’s child support obligation from $1,810.78 per month to

$2,400.00, resulting in a 32% increase over the new child support statutory guidelines, but a 20%

decrease from the previous child support order.

{¶29} Accordingly, Mother’s second and third assignments of error are overruled.

Assignment of Error IV

The trial court’s modification of the allocation of unreimbursed health care expenses is arbitrary, against the manifest weight of the evidence, and an abuse of discretion.

{¶30} In her fourth assignment of error, Mother contends that the domestic relations

court’s modification of the allocation of unreimbursed health expenses was arbitrary, against the

manifest weight of the evidence, and an abuse of discretion. We disagree.

{¶31} Pursuant to R.C. 3119.32(D), a child support order shall contain “[a] requirement

that the obligor, the obligee, or both of them under a formula established by the court, with

respect to a court child support order, * * * pay co-payment or deductible costs required under

private health insurance policy, contract, or plan that covers the children.” The propriety of a

trial court’s determination regarding child support is reviewed for an abuse of discretion. Booth,

. Additionally, “[t]his Court generally reviews a trial court’s action with

respect to a magistrate’s decision for an abuse of discretion.” Sifferlin,

. 14

“‘In so doing, we consider the trial court’s action with reference to the nature of the underlying

matter.’”

quoting Tabatabai,

at ¶ 18. An abuse of discretion “implies that

the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore,

. Moreover, when applying an abuse of discretion standard, this Court may not substitute its

own judgment for that of the trial court. Pons,

.

{¶32} The magistrate determined that the modification of child support also warranted a

modification in the allocation of unreimbursed medical expenses since “[t]ypically, the

unreimbursed medical expenses are allocated proportionally to each party’s share of their

combined income.” The magistrate noted, however, that Father’s employer provides each

employee with a health care savings account and contributes the first $800.00 to the account.

The magistrate found that the health care savings account was used to pay for medical expenses

incurred by six people: Father, Father’s wife, A.T., G.T., and Father’s two children from his

current marriage. Accordingly, the magistrate determined that Father would be 100%

responsible for the first $267 (approximately 1/3 of the $800.00) of the unreimbursed medical,

dental, optical, and prescription drug expenses per calendar year attributable to the two minor

children from his first marriage. Additionally, the parties would share the cost of any reasonable

and ordinary uninsured and unreimbursed medical, dental, optical, and prescription drug

expenses for the minor children from the marriage at issue in this case, with Mother paying 20%

and Father paying 80%.

{¶33} Although Mother objected, the domestic relations court determined that there was

a “direct nexus between the modification of child support and the reallocation of unreimbursed

medical expenses – i.e., 20% reduction to Father across the board”. Thus, the court found that

Mother’s objection was predicated entirely upon her objection relating to child support. Since 15

the court overruled her objection relating to child support, the court found that the magistrate did

not err by reallocating the unreimbursed medical expenses. The court also stated that the

magistrate correctly noted that “while the children’s needs persist, the allocation of those needs

should shift slightly to accurately reflect the available income in each household.”

{¶34} On appeal, Mother contends that the court’s findings are not supported by

competent credible evidence and that the trial court arbitrarily chose the amount of $267.00.

However, a review of the record contradicts Mother’s contentions. Father testified that his

employer contributes the first $800 to his health savings account and that his employer provided

health insurance covers six people, including A.T. and G.T. Accordingly, A.T. and G.T. account

for 1/3 of the people covered by Father’s health savings account. $267.00 is approximately 1/3

of $800. Additionally, a review of the statutory child support worksheet shows that Mother

earns 18.13% of Mother and Father’s combined income and that Mother did not object when the

magistrate rounded Mother’s percentage of the parties’ combined income to 20%.

{¶35} Therefore we cannot say that the domestic relations court abused its discretion by

determining that Father was responsible for the first $267.00 of A.T. and G.T.’s unreimbursed

medical expenses and that Mother and Father would share the remaining unreimbursed medical

expenses, with Mother paying 20% and Father 80%. See J.S. v. T.S., 5th Dist. Knox No.

16CA18,

(finding a trial court’s division of uninsured health care costs to

be reasonable and not an abuse of discretion where the division of the uninsured health care costs

were in proportion to the parties’ income percentages of their combined income as calculated by

the statutory child support computation worksheet).

{¶36} Therefore, Mother’s fourth assignment of error is overruled. 16

III.

{¶37} Mother’s assignments of error are overruled. Therefore, the judgment of the

Medina County Court of Common Pleas Domestic Relations Division is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, J. CALLAHAN, J. CONCUR. 17

APPEARANCES:

DAVID C. SHELDON, Attorney at Law, for Appellant.

DAVID L. McARTOR, Attorney at Law, for Appellee.