[Cite as J.E.M. v. D.N.M.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

J.E.M., :

Plaintiff-Appellant, : No. 109532 v. :

D.N.M., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 14, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-15-357384

Appearances:

Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A. Cruz, for appellant.

Law Office of Carol A. Szczepanik, L.L.C., and Carol A. Szczepanik, for appellee.

MICHELLE J. SHEEHAN, J.:

Appellant father, J.E.M., appeals from a decision of the trial court

granting appellee mother, D.N.M.’s motion to modify her child support obligation.

On appeal, father raises the following two assignments of error for our review: The trial court erred as a matter of law and abused its discretion in its application of the amended Ohio Revised Code Section Chapter 3119, effective March 28, 2019.

The trial court erred as a matter of law and abused its discretion by denying the appellant’s motion to dismiss.

After a review of the record and applicable law, we conclude the trial

court did not abuse its discretion in granting mother’s motion to modify and

reducing her child support obligation.

Background

The parties were married in 2014 and divorced in January 2017. They

have a child, born in 2014. Under the divorce decree, father was designated the

custodial parent and mother’s child support obligation was deviated to zero due to

her circumstances, which included her low income level and that she was expecting

a second child (from a different relationship) at the time.

The record reflects that in 2018, the Cuyahoga County Job and Family

Services, Office of Child Support Services (“the agency” hereafter) reviewed the child

support matter. Based on its finding of father’s annual income of $66,259 and

mother’s annual income of $37,107, the agency determined the appropriate amount

of mother’s child support to be $557.52 (when the child’s health insurance is being

provided). Mother did not request a hearing regarding the agency’s

recommendations; according to her testimony before the trial court, she was

unaware of the agency’s review of her child support. On December 14, 2018, the trial court adopted the agency’s findings

and recommendations for a modification of mother’s child support, ordering her to

pay child of $557.52 per month. On December 31, 2018, mother filed a motion to

modify her child support ordered on December 14, 2018. She stated in the affidavit

attached to her motion that “I never received an affidavit [form] to fill out my current

bills or expenses. I was admitted in the hospital with my youngest son on 12/13/18

for a week and missed the opportunity to respond sooner.” She also stated that she

was a single mother living paycheck to paycheck and the ordered payment would

cause substantial hardship to her and her younger child.

A hearing before the magistrate was held on June 14, 2019, and

July 17, 2019. Father argued that mother failed to allege a change in circumstances

to justify a modification of the amount set forth in the trial court’s December 14,

2018 order. Father argued mother failed to file an objection to the agency’s finding

and recommendations issued on November 1, 2018, within 30 days and the instant

motion was an improper attempt to challenge the agency’s findings and

recommendations.

Mother testified that she did not know the agency was conducting a

review of her child support and, because her other child was in the hospital for an

illness at the time, she did not know about the modification of her child support until

she received the court’s December 14, 2018 order. She testified that had she known

about the availability of a hearing regarding the agency’s recommendations, she

would have filled out the necessary paperwork for such a hearing. She also testified that the agency failed to accurately calculate her income. Mother acknowledged

there was no change in her employment or income between December 14, 2018, and

December 31, 2018.

Although the applicable statute providing for the child support

calculation worksheets was amended on March 28, 2019, several months before the

commencement of the hearing on June 14, 2019, there was no discussion on the

amendment of the statute at the hearing.

Both mother and father filed written closing arguments. In her

closing argument, mother disputed the agency’s determination of father’s and

mother’s income. She submitted her own worksheet (based on father’s income of

$71,826 and her income of $29,535) to show that her monthly child support

obligation should be no more than $246.74.

In his closing argument, father disputed mother’s claim regarding her

income. Father also argued that mother failed to object to the agency’s findings and

recommendations and her motion to modify should be treated as an untimely

attempt to object to the agency’s findings and recommendations. Father also

claimed the affidavit attached to mother’s motion to modify was not in compliance

with the requirements of Loc.R. 19 of Cuyahoga County Court of Common Pleas,

Domestic Relations Division.

Father submitted three child support worksheets for the court’s

consideration. The first and second worksheets were based on the child support

guidelines in effect prior to March 28, 2019. These two worksheets were based on father’s income of $60,040 and mother’s income of $45,000 (based on father’s

claim regarding mother’s 2018 income) and $66,000 (based on father’s claim

regarding mother’s 2019 income), respectively. The first worksheet (based on

mother’s income of $45,000) showed mother’s support obligation to be $622.58;

the second worksheet (based on mother’s income of $66,000) showed mother’s

support obligation to be $824.50.

The third worksheet submitted by father was based on the child

support guidelines that took effect after March 28, 2019. Based on father’s income

of $60,040 and mother’s income of $66,000, the third worksheet arrived at $524.86

for mother’s support obligation.

The Magistrate’s Decision

On January 3, 2020, the magistrate issued a detailed and lengthy

decision. The magistrate first noted that at the time of the agency’s

recommendations issued on November 1, 2018, the existing version of R.C. 3119.63

(“Review of court support order; modification”) did not grant authority for the

agency to consider any existing deviations, while the current (post-March 28, 2019)

version of R.C. 3119.63 provides statutory authority for the agency to apply an

existing deviation.1

1Section (B) of R.C. 3119.63, added by H.B. 366, states:

If the court child support order under review contains a deviation granted under sections 3119.06, 3119.22, 3119.23, 3119.231, and 3119.24 of the Revised Code, apply the deviation from the existing order to the revised amount of child support, provided that the agency can determine the The magistrate then cited R.C. 3119.79 for judicial remedies available

to the parties for modification of child support.2 The statute set forth the “ten-

percent rule,” providing that if a party requests a child support be modified, the

court shall recalculate the amount of support in accordance with the schedule and

applicable worksheet and, if a variance of more than 10 percent exists after

completing the child support worksheet, the variation shall be considered as a

change of circumstances substantial enough to modify the existing child support.

Regarding father’s argument that mother’s motion to modify child

support was in effect a request to reconsider the court’s December 14, 2018 child

support order, the magistrate observed that mother filed a motion to modify the

child support, as opposed to a motion for relief from judgment, and “[a]s such, her

monetary or percentage value of the deviation with respect to the court child support order. If the agency cannot determine the monetary or percentage value of the deviation, the agency shall not apply the deviation to the revised amount of child support. 2 The current version of R.C. 3119.79(A), which is substantially similar to its former

version, provides the following:

(A) If an obligor or obligee under a child support order requests that the court modify the amount of child 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. 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 circumstance substantial enough to require a modification of the child support amount. (Emphasis added.) motion does not ask this court to reconsider the agency’s recommendations.” The

magistrate, however, noted that the agency should have considered father’s accurate

wages and his overtime pay, and should have determined mother’s income based on

her actual wages earned in 2018.

Noting that mother’s motion was filed before March 28, 2019, but the

matter was not heard until after the effective date of the new law, the magistrate

calculated mother’s child support under two worksheets: the first worksheet, based

on the former law, was completed for mother’s child support obligation from

December 31, 2018, to March 27, 2019; the second worksheet, based on the new law,

was completed for her child support obligation commencing March 28, 2019.

The first worksheet showed mother’s child support to be $484 (based

on father’s income of $80,807 and mother’s income of $33,725). Because this sum

reflected a differential larger than ten percent, the magistrate determined that there

was a substantial change of circumstances to justify a modification of the existing

support order pursuant to R.C. 3119.79. Consequently, the magistrate denied

father’s motion to dismiss.

The magistrate’s second worksheet for mother’s support obligation,

effective March 28, 2019, used a base pay of $66,040 for father plus his three-year

average of overtime pay, and it used mother’s wage income of $37,107 for 2019; the

worksheet also adjusted father’s child care expenses based on the father’s testimony

regarding the change of childcare expenses beginning in August 2019. This

worksheet, based on the new law, took into account a deviation for parenting time exceeding 90 overnights and it arrived at mother’s child support payment of $372.

Because that amount was more than 10% less than the existing amount of $484, the

magistrate determined there was a substantial change of circumstances justifying a

modification of the prior support amount of $484.

Father filed objections to the magistrate’s decision. First, father

asserted it was an abuse of discretion for the magistrate to deny his motion to

dismiss mother’s motion to modify child support. He argued there was no change

in the parties’ income or expenses between the trial court’s order on December 14,

2108 order and mother’s motion to modify on December 31, 2018. Father claims it

was also an abuse of discretion for the magistrate to reduce mother’s support

obligation retroactive to December 31, 2018, because the magistrate considered his

additional income in the worksheet computation but the additional income was

received after mother’s motion to modify was filed. Father in addition argued that

the magistrate’s worksheet considered a change in father’s childcare expenses but

the change would not commence until August 2019.

In addition, father argued the magistrate should not have applied the

amended law to mother’s support obligation after March 28, 2019, the effective date

of the amended law, because her motion to modify was filed three months before

that date.

The trial court overruled father’s objections and adopted the

magistrate’s decision. The court rejected father’s claim that the magistrate

erroneously applied the amended R.C. Chapter 3119 retroactively, noting that the magistrate properly calculated mother’s support obligation before March 29, 2019

under the former version of R.C. Chapter 3119 and applied the amended law to her

obligation after its effective date. Father now appeals, raising two assignments of

error for our review.

Standard of Review

A trial court’s decision regarding child support obligations falls within

the discretion of the trial court and will not be disturbed absent a showing of an

abuse of discretion. Booth v. Booth,

,

(1989).

More specifically, we review a trial court’s child support modification order for an

abuse of discretion. Morrow v. Becker,

,

,

. An “abuse of discretion” occurs where the court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983). The trial court has considerable discretion in child

support matters; absent an abuse of discretion, we will not disturb a child support

order. Pauly v. Pauly,

,

(1997).

Whether the Trial Court Improperly Applied the Amended R.C. Chapter 3119 Retroactively

Effective March 28, 2019, R.C. Chapter 3119, which governs child

support, was amended by 2018 Am.Sub.H.B. 366. The bill amended, enacted, or

repealed 30 sections of the chapter. See A.S. v. J.W.,

, 2019-Ohio-

2473,

, ¶ 2, fn. 1. Under the first assignment of error, father argues the

trial court improperly applied the amended R.C. Chapter 3119 retroactively. To address father’s contention, we begin with a review of the limited case law involving

the issue of retroactive application of the child support statutes.

Kassicieh v. Mascotti, 10th Dist. Franklin Nos. 05AP-684 and 06AP-

1224,

, concerned the application of R.C. 3119.04 (“Determination

of support obligation where combined gross income is less than $6,600 or greater

than $150,000”), which went into effect in March 22, 2001, after the parties’ divorce

action was filed but before appellant parent filed motions for modification of

parental rights and obligations. The magistrate applied the newly enacted

R.C. 3119.04. Appellant argued the trial court should not have applied the statute

because the original motion for child support was filed before the new law came into

effect.

The Tenth District, reviewing the issue under plain error, noted the

courts have applied R.C. 3119.04 to actions initially filed prior to March 22, 2001,

but in which motions to modify support amounts were filed after the effective date

of the statute, citing Guertin v. Guertin, 10th Dist. Franklin No. 06AP-1101,

(applying R.C. 3119.04, effective March 22, 2001, to calculate child

support where original divorce action was filed in 1997 and the mother sought

administrative review of the child support amount in 2002), and Lyons v.

Bachelder, 5th Dist. Morrow No. 2004-CA-0018,

(applying

R.C. 3119.04 where the parties were divorced in 1996 and the motion to modify

support was filed in 2002). The applicability of these cases to the instant appeal is limited. They

do not stand for the proposition that the date of the motion to modify child support

controls whether a newly enacted or amended statute should apply. Rather, they

illustrate that the date of the original divorce case does not control the application

of a new or amended statute that becomes effective subsequently. Furthermore, in

these cases, the new law was already in existence when the motion to modify was

filed. The instant case differs from these cases in that the pertinent statutes in R.C.

Chapter 3119 were amended after the motion was filed but before the trial court

heard the matter and determined the child support. As such, these cases provide

little guidance.3

Instead, we find the following cases instructive. In Posadny v.

Posadny, 2d Dist. Montgomery No. 19636,

, R.C. Chapter 3119 was

3 For the same reason, Short v. Short,

,

(11th Dist.),

cited by father to support his claim that the prior version of R.C. Chapter 3119 should be applied in this case, is not pertinent. In Short, the appellate court, noting that appellant parent filed the motion to modify child support and the trial court issued the child support orders prior to March 28, 2019, concluded the prior version of R.C. Chapter 3119 should be applied because the amended version of R.C. Chapter 3119 was not in existence at the time the trial court calculated the child support. In contrast, here, the amended R.C. Chapter 3119 was in existence at the time the trial court determined mother’s child support. Father also cites Harbour v. Ridgeway, 10th Dist. Franklin No. 04AP-350,

. There, appellee mother filed a parentage action in 1996. The case concerned the application of R.C. 3113.215, which prescribed a method of support calculation where the parents’ combined income exceeded $150,000. The statute was repealed and replaced with R.C. 3119.04 in March 2001. Appellant father argued the trial court should have utilized R.C. 3119.04, the statute in existence at the time of the final hearing in 2002, rather than R.C. 3113.215, the statute in effect at the time of the filing of the parentage action. The appellate court disagreed, holding that R.C. 3119.04 “applies prospectively, only to parentage actions filed after its effective date, March 22, 2001.” Id. at ¶ 17. We read Harbour as limited to parentage action. Furthermore, Harbour is distinguishable because the case does not concern a motion to modify child support. enacted on March 22, 2001, after the magistrate’s decision resolving appellant

father’s child support obligation but before the trial court issued its final decree of

divorce. On appeal, the appellate court decided that the newly enacted R.C.

Chapter 3119 should have applied to father’s child support. On remand, the court

reduced the father’s child support pursuant to the provisions of R.C. Chapter 3119

for his support obligation and the reduced obligation was effective on March 22,

2001, the effective date of the new law.

Appellant father again appealed, claiming the reduced child support

should be effective on November 1, 2000, the date of his original child support order,

rather than March 22, 2001. The appellate court rejected this claim. It reasoned

that the provisions of the new law allowing appellant’s support obligation to be

reduced did not exist prior to March 22, 2001. The court noted that there was

nothing in the statute to suggest that the Ohio legislature intended its provisions to

apply to “child support obligations incurred” prior to its March 22, 2001, effective

date, and, “‘[a]bsent a clear pronouncement by the General Assembly that a statute

is to be applied retrospectively, a statute may be applied prospectively only.’”

, quoting State v. LaSalle,

,

,

.

The court in Graham v. Graham,

,

(3d Dist.), decided the child support matter similarly. The case concerned the

application of R.C. 3119.021 (“Basic child support schedule”), which was amended

by H.B. 366, effective March 19, 2019. Appellant mother filed a motion to modify child support in 2018, a hearing was held later that year, and a magistrate issued a

decision in January 2019 based on the existing statute. The amended law went into

effect before the trial court issued its final decision. Based on the amended statute,

the trial court adjusted the child support amount owed by the father after March 28,

2019. On appeal, appellant mother argued the trial court erred by using the

amended worksheet that went into effect on March 28, 2019, to calculate child

support after that date.

The appellate court affirmed the trial court’s decision. It noted that

“[t]o avoid having the statute apply retroactively, the trial court only applied the

statutory calculation from the effective date of the statute.” Id. at ¶ 14. It

emphasized that the trial court “did not apply the amended statute retroactively, but

only prospectively.” Id. at ¶ 16.

Based on our review of the case law authority, therefore, we find no

merit to father’s claim that because mother’s motion to modify was filed before

March 28, 2019, the effective date of amended R.C. Chapter 3119, it cannot be

applied to mother’s support obligation even after that effective date. We note that

“‘a court which obtains jurisdiction over and enters orders with regard to the custody

and support of children retains continuing and exclusive jurisdiction over such

matters.’” State ex rel. Clermont Cty. Dept. of Human Servs. v. Walsson,

,

(12th Dist. 1995), quoting Harlow by Wheeler v.

Stevens, 12th Dist. Preble No. CA94-03-004,

(Aug. 29,

1994). Here, the applicable child support provisions were amended after the motion to modify support was filed but before the trial court considered the matter. Because

a portion of the ongoing child support obligation was incurred before the new

provisions went into effect, the trial court properly recognized that the amended

statute does not evince the legislature’s intent for retrospective application and

accordingly applied the amended provisions only to mother’s child support

obligations incurred after March 28, 2019, but not to her obligations incurred before

that date.

Father cites Schulte v. Schulte,

,

,

, to support his claim. Schulte concerns the application of R.C. 3105.171,

which governs the division of marital property. Appellant wife filed her complaint

for divorce more than two and one-half years before the enactment of the statute.

She argued the statute should be applied retroactively to divorce cases filed before

the effective date of the statute. The court, citing R.C. 1.48 for the presumption that

a statute is to be applied prospectively unless the General Assembly expressly makes

the statute retroactive, held that R.C. 3105.171 applies retrospectively only to those

divorce cases filed after its effective date. Id. at 45. Schulte concerns the division of

marital property at the time of the divorce, and the new law was not in existence

when the court divided the marital property. In contrast, child support are ongoing

obligations and, as in this case, some of the obligations were incurred before the

amended law went into effect and some after. Accordingly, Shulte has little

application in this case. The trial court here did not apply the statute retroactively to mother’s

child support obligation incurred before the effective date of amended R.C. Chapter

3119. The amended statutory provisions only impacted her child support obligations

after the effective date. The first assignment of error lacks merit.

Father’s Motion to Dismiss

Under the second assignment of error, father argues the trial court

erred and abused its discretion by denying his motion to dismiss mother’s motion

to modify child support. He claims mother’s motion to modify child support was an

improper attempt to challenge the agency’s findings and recommendations.

“Although the usual rule is that the courts prefer the finality of

judgments, child support cases are an exception to the rule of finality.” Phelps v.

Saffian, 8th Dist. Cuyahoga No. 103549,

. “R.C. 3119.71 gives

the court continuing jurisdiction to modify a child support order.”

R.C. 3119.79(A) permits either the obligor or the obligee under a child support order to request a modification of the amount of child support due to a “substantial” change of circumstances. When an existing child support order has been entered using the R.C. 3119.02 mandatory child support guidelines, the court is required to recalculate the amount of child support owing under the guidelines. If the recalculated amount of child support exceeds the existing order by ten percent or is ten percent less than the existing order, the court shall consider the ten percent difference as a substantial change in circumstances warranting modification

Id. at ¶ 12, citing R.C. 3110.79. See also Snyder v. Snyder, 8th Dist. Cuyahoga No.

95421,

, ¶ 43. “‘[T]he clear language of the statute provides that the mere fact that

support calculated in accordance with the guidelines differs by more than 10% from

the support currently ordered, by itself, is sufficient to trigger a recalculation.’”

Mossing-Landers v. Landers,

,

, ¶ 51 (2d Dist.),

quoting Smith v. Smith, 2d Dist. Montgomery No. 16183,

,

, *2 (July 25, 1997). See also Frey v. Frey, 3d Dist. Hancock

No. 5-15-11,

(the requisite change in circumstances exists

wherever the newly calculated child support amount deviates from the existing

order by at least ten percent).

Here, the magistrate found a modification of mother’s existing child

support order was warranted pursuant to the ten-percent rule. On appeal, father

does not claim that mother’s child support amounts under the applicable

worksheets were erroneously calculated or the trial court misapplied the statutory

ten percent rule set forth in R.C. 3119.79. Rather, under the second assignment of

error, father argues the trial court erred in denying his motion to dismiss on two

grounds. First, he asserts that his motion to dismiss should have been granted

because mother failed to attach to her motion an affidavit setting forth specific facts

regarding the change in circumstances with her motion to modify as required by

Loc.R. 19.4

4 Loc.R. 19(B) of Cuyahoga County Common Pleas Court, Domestic Relations Division, provides as follows: We note that father did not raise the issue of mother’s compliance

with Loc.R. 19 in his objections to the magistrate’s decision; therefore, he waived

this issue for purposes of appeal pursuant to Civ.R. 53(D)(3)(b)(iv). Najjar v.

Najjar, 8th Dist. Cuyahoga No. 91789,

, ¶ 14; Wilson v. Wilson, 8th

Dist. Cuyahoga No. 86817,

(“Civ.R. 53 imposes an

affirmative duty on the parties to make timely, specific objections in writing to the

trial court, identifying any error of fact or law in the magistrate’s decision. * * * An

appellate court need not consider an error that could have been objected to, but was

not brought to the attention of the trial court.”).

Even if we were to review the issue, we find father’s claim is without

merit. Local rules are created with the purpose of “promoting the fair

administration of justice” and to “assist practicing attorneys by providing guidelines

for orderly case administration.” Cavalry Invests. v. Dzilinski, 8th Dist. Cuyahoga

No. 88769,

. As such, trial courts are given latitude in

A motion, supported by a sworn affidavit that sets forth the specific facts constituting the alleged change of circumstance, must state the following: (1) The date of journalization of the judgment entry that sets forth the existing child support order. (2) The amount of the existing order, the parent(s) designated as the health insurance obligor for the parties’ minor child(ren), the parent(s) designated to claim the child(ren) as a tax dependent(s); and each parent’s percentage share of responsibility for the child(ren)’s uninsured health care expenses. (3) The nature of the change of circumstance. (4) The specific change or modification requested. following their own local rules and the enforcement of these rules is within the sound

discretion of the court. In re T.W., 8th Dist. Cuyahoga Nos. 88360 and 88424,

. Here, mother, proceeding pro se at the time she filed the

motion to modify, attached an affidavit to the motion. While the affidavit admittedly

did not comply with the specific requirements of Loc.R. 19, the trial court acted

within its discretion in not dismissing mother’s pro se motion due its noncompliance

with its own local rule.

Second, father claims under the second assignment of error that

mother’s motion to modify her child support amount was an improper attempt to

challenge the agency’s findings and recommendations and, as such, should be

barred by res judicata.

Under the doctrine of res judicata, “[a] valid, final judgment rendered

upon the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action.” Grava

v. Parkman Twp.,

,

(1995), syllabus. It is

important to note that, however, because a domestic relations court has continuing

jurisdiction over matters of child support, the doctrine of res judicata should be

applied “with the strictest of caution in order to prevent a chilling effect on Ohio’s

legal mechanisms for periodic adjustments to child support orders.” Kiehborth v.

Kiehborth,

,

,

(5th Dist.).

Under the circumstances of this case, where mother testified she was not aware of

the agency’s review of her child support obligation or the availability a hearing of the agency’s recommendations due to the hospitalization of her other child, we do not

find the trial court abused its discretion in allowing the mother to file a motion to

modify child support and the parents to submit evidence regarding their income and

expenses, and determining accordingly the proper child support amount.5 The

second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, domestic relations division, to carry this judgment into

execution.

5 Father cites In re Rummel,

,

,

(10th Dist.), to support his claim. In Rummel, the child had been emancipated and the case concerned the support arrearage liquidation rate only. A year after the trial court adopted the agency’s recommendation regarding the liquidation rate, the child’s father filed a motion to modify, claiming the rate exceeded the amount permitted by the Consumer Credit Protection Act. The appellate court agreed with the trial court that res judicata prevented the father from raising a new issue to contest the liquidation rate. Furthermore, res judicata was not dispositive of the appeal because the appellate court found the father’s claim pursuant to the federal statute meritless notwithstanding res judicata. Rummel is distinguishable. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________ MICHELLE J. SHEEHAN, JUDGE

LARRY A. JONES, SR., P.J., and EILEEN A. GALLAGHER, J., CONCUR