[Cite as Desensi v. Eppley, 2025-Ohio-2471.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: MARIO DESENSI : Hon. Andrew J. King, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellant : Hon. Kevin W. Popham, J. : -vs- : : Case No. 25 CA 001 JILL EPPLEY : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Juvenile Division, Case No. 22S134
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 11, 2025
APPEARANCES:
For Defendant-Appellee For Plaintiff-Appellant
GERALD D. PISZCZEK BRENT A. CICERO MELISSA PISZCZEK 11005 Pearl Road 412 North Court Street Strongsville, OH 44136 Medina, OH 44256 Popham, J.,
{¶1} Appellant Mario Desensi appeals the December 9, 2024, judgment entry of
the Holmes County Court of Common Pleas, Juvenile Division, overruling his objections
to the magistrate’s decision. Appellee is Jill Eppley. For the reasons below, we affirm.
Facts & Procedural History
{¶2} Appellant and appellee are the parents of three minor children. In
September of 2022, appellee filed a petition for domestic violence civil protection order
(“CPO”) against appellant in Medina County, naming both appellee and the parties’ three
minor children as protected persons. After a full hearing, the magistrate issued a CPO
naming appellee and the children as protected parties. The CPO expires on September
1, 2027. Appellant filed objections and supplemental objections to the CPO, which were
overruled by the trial court, as the trial court found appellee demonstrated, and appellant
admitted, that appellant engaged in a pattern of conduct that caused mental distress to
appellee and the minor children.
{¶3} Shortly after the magistrate in Medina County issued the CPO, Holmes
County Child Support Enforcement Agency (“HCCSEA”) sent the parties a notice on
October 11, 2022, setting a child support hearing for November 15, 2022, and instructing
both appellant and appellee to provide financial documentation to HCCSEA prior to or at
the hearing. The notice also stated, “each party will be allowed to present evidence
proving or disproving allegations of income, wages, or assets.” Appellee provided the
requested financial documentation. One day prior to the hearing, appellant requested a
continuance, stating the certified mail notice “had been hanging on his door for several
days before he took care of it.” HCCSEA went forward with the hearing. Appellant appeared and testified at the administrative hearing, but did not provide the administrative
hearing officer with any financial documentation either before or at the hearing.
{¶4} The certified administrative record provides as follows: Father testified he
lives off his savings; though he did not provide documentation about his current living
expenses, Father estimates them to be approximately $1,000 to $2,000 per month; Father
stated his previous business was “internet marketing” which earned over $1 million for
each of three years, with less (six figures) earned for two other years; Father has his
bachelor’s degree in accounting; Father stated he recently sold an “old house” to pay off
debts; Father stated he will “do something” when his savings money runs out; and Medina
County Auditor records show Father owns a home valued at over $800,000. A notation
by the hearing officer states, “used $150,000/year [for appellant’s income] based on
estimated business earnings which he states has been his source of living expenses
since about 13-14 years ago.”
{¶5} HCCSEA issued an “Administrative Order for Child Support and Medical
Support” (“AO”) on November 16, 2022. Appellee was listed as the child support obligee
and appellant as the child support obligor. Appellant was ordered to pay $2,086.24 per
month for child support and $85.34 per month for cash medical support, for a total of
$2,215.01 per month. Appellee was ordered to secure and maintain health insurance for
the three minor children.
{¶6} Appellant filed a letter of objection to the AO on November 29, 2022.
Appellant argued HCCSEA could not properly impute $150,000 of yearly income to him.
Further, appellant stated, “[he] is searching for employment within the area, and upon
securing employment, a more realistic estimate of his earning potential will be available. Additional developments regarding custody and visitation matters between the parties are
also anticipated.”
{¶7} The trial court scheduled an initial pretrial for January 20, 2023, and ordered
HCCSEA to file a certified copy of the administrative record. HCCSEA certified the record
to the Holmes County Court of Common Pleas, Juvenile Division, on January 3, 2023.
Additionally, the trial court granted appellant’s request for a stay of the AO during the
pendency of the objection.
{¶8} The magistrate held a pretrial on January 20, 2023. A magistrate’s order
issued after the pre-trial stated, “pursuant to the court’s discussion with the attorneys, this
matter shall come back before the Court for a telephone status conference with the
magistrate on April 24, 2023.” Appellant did not object to this order. The parties began
issuing discovery, including interrogatories and requests for production of documents. On
February 21, 2023, appellant filed a complaint for allocation of parental rights and
responsibilities (custody) and parenting time (companionship) in the Holmes County
Juvenile Court. Though this case and the custody/parenting time had separate case
numbers and were not formally consolidated, the court and the parties dealt with the
issues in the cases together since they are interrelated.
{¶9} In April of 2023, the magistrate held a telephone status conference with the
parties. After the status conference, the magistrate issued an order stating, “pursuant to
the court’s discussion with the attorneys, this matter shall come before the Court for a
pretrial hearing by telephone at 10:00 on Thursday, June 8, 2023.” Appellant did not
object to this order. The magistrate held pretrial conferences on June 8, 2023, July 5, 2023, and September 11, 2023. Appellant did not object to the timing of any of these
pretrials.
{¶10} The magistrate held a hearing on December 8, 2023. In an order issued
after the hearing, the magistrate stated, “the attorneys will explore a resolution of Mr.
Desensi’s letter of objection to the HCCSEA’s November 16, 2022, AO. The attorneys
will provide an update to the Court as to the parties’ efforts to resolve child support
objections, before or during the next status conference,” which the magistrate set for
February 8, 2024. Appellant did not object to this order or otherwise indicate the
information the magistrate provided was incorrect.
{¶11} On January 18, 2024, appellee filed a motion to compel, arguing appellant
failed to respond to her discovery requests. At the February 8, 2024, status conference,
the parties reached an agreement that appellant would provide his discovery responses
by February 15, 2024. In an order after the status conference, the magistrate stated, “as
discovery is not yet complete, the parties have not reached a resolution of Mr. Desensi’s
letter of objection to the AO.” The magistrate set the matter for a further status conference
on March 11, 2024. In a magistrate’s order after the March 11, 2024, status conference,
the magistrate stated, the “attorneys informed the Court the parties have a meeting
scheduled for March 18, 2024, to discuss a resolution of pending matters.” The
magistrate set a final pretrial for April 29, 2024.
{¶12} In an entry after the April 29, 2024, final pretrial, the court stated, the
“attorneys informed the court the parties have not reached a resolution of pending matters
and requested the Court set the pending matters for a final hearing/trial.” The court set
the trial for June 24, 2024, and ordered that, at least fourteen days prior to trial, each party serve upon the other party a list of all exhibits expected to be introduced at trial, and a list
of all witnesses intended to be called at trial. On June 26, 2024, the magistrate entered
an order stating, “pursuant to the agreement of the parties, the final hearing/trial for this
matter is continued to Wednesday, July 3, 2024.”
{¶13} At the trial on July 3, 2024, appellee initially made a motion to dismiss
appellant’s objection to the AO because appellant failed to file a witness and exhibit list.
Counsel for appellant stated that while a separate witness and exhibit list was not filed in
this case, “a witness list and exhibit list has been filed in a custody matter that this Court
is also hearing in these matters, [which], although not formally consolidated, have been
heard together.” The magistrate stated since this matter was heard at previous hearings
with the custody matters, and there was a witness list filed in that case number, she would
overrule the motion to dismiss. However, the magistrate cautioned that if appellant was
unable to verify his income or supply supporting documentation, the court would
potentially dismiss the matter upon the court’s own motion, or upon appellee’s renewed
motion to dismiss.
{¶14} Appellant testified at trial. Appellant has a bachelor’s degree in accounting.
Appellant stated he had an “internet marketing” business from 2004 until 2009. From
2004 through 2007, the business made “seven figures,” but “dropped back to six figures”
in 2008 and 2009. Appellant testified he cannot make the same money now as he did in
2009 because “everything has changed since then.” Appellant classifies himself as “an
entrepreneur.” Appellant did Daily Fantasy Sports (“DFS”) for several years, but stated it
was not successful as a business. {¶15} Appellant testified he did not file a tax return for 2023 and is “almost positive”
he did not file a tax return for 2022. Appellant testified he “didn’t really mean to get this
far behind on it, but it’s just – there’s … just losses.” When asked if he planned on filing
his tax returns, appellant stated, “Yeah. I’m going to try to take care of that, you know,
as soon as possible, actually.” Appellant testified that, in the past five years, he had no
income from salaries, wages, overtime, pay, bonuses, commissions, or royalties.
Appellant stated he may have had some income from interest on a bank account, interest
from a T. Rowe Price investment account, and interest from a Vanguard investment
account, but he could not recall. Appellant sold a home approximately a year ago, and
he received the proceeds from the sale.
{¶16} Appellant has not applied for jobs recently because he does not “think it’s
the best use of my time.” Likewise, he does not want to work at a fast-food restaurant
because, “it’d be a large time commitment” and he “never had success as an employee.”
Appellant submitted a Child Support Computation Worksheet showing his income at
$21,736. Appellant stated he does not have the ability to make $150,000 per year.
{¶17} At the conclusion of appellant’s presentation of evidence, appellee renewed
her motion to dismiss, arguing appellant failed to meet his burden of proof to provide
documentation or verification of his income or lack of income. The magistrate questioned
appellant. Appellant stated the DFS site would show he made deposits into his DFS
account in 2019, 2020, 2021, 2022, and 2023. However, appellant stated, “I just didn’t
print any of that out.” Appellant formed a Limited Liability Company (“LLC”) in 2023 called
“Rezx, LLC,” made an initial capital contribution, opened a checking account for the LLC,
and obtained an EIN for the LLC. Appellant’s initial capital contribution to the business checking account was $30,000, which came from his personal bank account. Appellant
did not provide any documentation regarding the LLC.
{¶18} Upon further examination by the magistrate, appellant stated he had
investment account activity in 2019, 2020, and 2021. While appellant believes the
“accounts are still there,” he is “pretty sure” one of the accounts has a zero balance, and
there may be a “couple thousand” in the other accounts, but he was not sure because he
testified, “I haven’t even looked at it.” When the court asked if he had documentation
regarding those accounts, appellant stated, “from over a year ago, I got that all together
for those … accounts.” However, appellant did not submit any documentation either prior
to or at the trial regarding the investment accounts.
{¶19} At the conclusion of the hearing, appellee again renewed her motion to
dismiss. Counsel for appellant stated, “it would be a tremendous amount of
documentation just to show that there’s nominal, if any income,” but stated “if this Court
would like us to verify anything, we would be happy to provide that by order.” The
magistrate took the motion to dismiss under advisement.
{¶20} On September 9, 2024, the magistrate issued a decision and judgment
entry of dismissal. The magistrate found appellant failed to support his objection with
supporting documentation and failed to meet his burden of proof, and thus dismissed
appellant’s objection to the AO pursuant to Civil Rule 41(B)(1) and (2). Specifically, the
magistrate found appellant did not submit any documentation at trial from the DFS
website, Rezx, LLC information, investment accounts, bank accounts, or any tax returns.
Further, that the only documentation appellant submitted during trial was a proposed
Child Support Computation Worksheet purporting to impute minimum wage employment to appellant, despite appellant’s testimony that he does not intend to work a minimum
wage job.
{¶21} The magistrate found that, pursuant to R.C. 3119.05, a parent has a
statutory duty to verify income with documentation. Further, pursuant to applicable
caselaw, failure to comply with R.C. 3119.05(A) precludes a parent from prevailing on an
objection to an administrative child support order. The magistrate noted appellant did not
provide documentation to verify his income for any year and failed to meet his statutory
burden of production regarding his income to support his objection to the AO.
Accordingly, the magistrate dismissed appellant’s objection to the AO, and found the AO
to be a final and enforceable child support order.
{¶22} Appellant filed objections and supplemental objections to the magistrate’s
decision. Appellant argued: the magistrate abused her discretion without first finding
appellant was voluntarily unemployed or voluntarily underemployed; the magistrate
abused her discretion by failing to comply with R.C. 3119.05; the magistrate abused her
discretion by failing to issue an order to appellant to provide documentation or determining
whether the child support agency made an unreasonable assumption; and the magistrate
abused her discretion by delaying a ruling on the objections for one year and nine months.
Appellee filed a response to appellant’s objections.
{¶23} The trial court issued a judgment entry on December 9, 2024, overruling
and denying appellant’s objections, adopting the magistrate’s decision, dismissing
appellant’s objections, and entering the AO as a final and enforceable child support order.
{¶24} Appellant appeals the December 9, 2024, judgment entry of the Holmes
County Court of Common Pleas, Juvenile Division, and assigns the following as error: {¶25} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DISMISSING PLAINTIFF’S OBJECTIONS AND ORDERING THAT THE
ADMINISTRATIVE ORDER IS FINAL AND ENFORCEABLE DESPITE THE
ADMINISTRATIVE ORDER IMPUTING INCOME TO PLAINTIFF WITHOUT FIRST
FINDING THAT HE WAS VOLUNTARILY UNEMPLOYED OR VOLUNTARILY
UNDEREMPLOYED.”
{¶26} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ADMINISTRATIVE ORDER IS FINAL AND ENFORCEABLE, BY FAILING TO COMPLY
WITH OHIO REVISED CODE SECTION 3119.05.”
{¶27} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ADMINISTRATIVE ORDER IS FINAL AND ENFORCEABLE, BY FAILING TO ISSUE AN
ORDER FOR PLAINTIFF TO PROVIDE DOCUMENTATION OR DETERMINING
WHETHER THE CHILD SUPPORT AGENCY MADE AN UNREASONABLE
ASSUMPTION PURSUANT TO OHIO REVISED CODE SECTION 3119.72(A).”
{¶28} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DELAYING A RULING ON THE OBJECTIONS TO THE ADMINISTRATIVE ORDER FOR
ONE YEAR AND NINE MONTHS.”
Standard of Review
{¶29} Generally, a trial court’s decision regarding child support obligations will not
be overturned absent a showing of an abuse of discretion. Booth v. Booth, 44 Ohio St.3d
142 (1989). Similarly, an appellate court’s review of a dismissal under Civil Rule 41(B)(1) for the failure to prosecute is within the sound discretion of the trial court. Quonset Hut,
Inc. v. Ford Motor Co., 80 Ohio St.3d 46 (1997).
{¶30} However, the trial court dismissed appellant’s objections to the AO pursuant
to both Civil Rule 41(B)(1) and Civil Rule 41(B)(2). When a defendant makes a Civil Rule
41(B)(2) motion, the trial judge, as the trier of fact, does not view the evidence in a light
most favorable to the plaintiff, but instead actually determines whether the plaintiff has
proven the necessary facts by the appropriate evidentiary standard. Phillimore v.
Butterbaugh, 2014-Ohio-4641 (5th Dist.). Where the plaintiff’s evidence is insufficient to
sustain plaintiff’s burden in the matter, the trial court may dismiss the case. Id. A trial
court’s ruling on a Civil Rule 41(B)(2) motion will be set aside on appeal only if it is
erroneous as a matter of law or against the manifest weight of the evidence. Id. The
reviewing court neither weighs the evidence, nor judges the credibility of the witnesses,
but determines “whether there is relevant, competent, and credible evidence upon which
the fact finder could base its judgment.” Id., citing Cross Truck Equip. Co. v. The Joseph
A. Jeffries Co., 1982 WL 2911 (5th Dist. Feb. 10, 1982).
I. & II.
{¶31} In his first and second assignments of error, appellant makes related
arguments. First, he argues that both the trial court and the agency committed error in
imputing income to him without first finding that he was voluntarily unemployed or
voluntarily underemployed.
{¶32} While this Court has previously held there is no “magic language” required
for a trial court to find an individual is voluntarily unemployed or underemployed, we have
generally required some indication by the trier of fact that it considered the needs of the children and an indication that there was no valid reason for the appellant to not be
employed to comply with R.C. 3119. Schley v. Gillum, 2012-Ohio-2787 (5th Dist.). In
support of his argument, Appellant points to the lack of the magistrate or trial court’s
consideration of the needs of the children and/or the lack of an indication by either the
magistrate or the trial court that there was no valid reason for appellant not to be
employed. However, it is clear from the language utilized in the magistrate’s decision and
the trial court’s judgment entry that neither of them imputed income to appellant on the
basis that he was voluntarily underemployed or voluntarily unemployed. Rather, they
dismissed appellant’s objections pursuant to Civil Rule 41(B)(1) and (B)(2). Accordingly,
no finding of voluntary unemployed or underemployment was required. Similarly, though
HCCSEA has the ability to impute income to a voluntarily underemployed or unemployed
parent pursuant to Ohio Administrative Code 5101:12-45-10(C), HCCSEA did not impute
income to appellant in this case. Rather, as discussed below, HCCSEA made reasonable
assumptions as is permitted by the Ohio Revised Code and Ohio Administrative Code.
{¶33} Appellant next contends the trial court committed error by failing to comply
with R.C. 3119.05 for several reasons. First, appellant argues the trial court failed to
comply with R.C. 3119.05(I)(3) because a trial court is not permitted to impute income
when a parent has “proven that the parent has made continuous and diligent efforts
without success to find and accept employment, including temporary employment, part-
time employment, or employment at less than the parent’s previous salary or wage.”
However, as detailed above, neither the trial court, magistrate, or HCCSEA imputed
income to appellant. Further, there is no evidence in the record that appellant made
continuous and diligent efforts to find employment at less than his previous wage. Rather, he testified he does not think searching for jobs is the “best use of his time” and he does
not want to work at a minimum wage job such as McDonald’s because “it’d be a large
time commitment” and he “never had success as an employee.” Additionally, appellant
did not produce any documentation as to the income made (or lost) via his DFS or Rezx,
LLC, endeavors. Accordingly, the trial court did not commit error in failing to comply with
R.C. 3119.05(I)(3).
{¶34} Second, appellant contends the trial court and HCCSEA failed to comply
with R.C. 3119.05(H) because both failed to average his income over a reasonable period
of years. However, pursuant to R.C. 3119.05(H), averaging was not required, as the
statute utilizes the word “may.” Further, appellant again attempts to place the burden
upon the agency or trial court to essentially “prove” that, if either the trial court or the
agency did average his income, such average was reasonable. The trial court did not
average appellant’s income, as it dismissed his objections pursuant to Civil Rule 41(B)(1)
and (2). As to HCCSEA, there is no indication in the order or administrative transcript
that any averaging occurred. Rather, as discussed below, HCCSEA made reasonable
assumptions because appellant failed to produce any financial documentation.
{¶35} Third, appellant contends both the trial court and HCCSEA improperly
considered Medina County Auditor’s records, which does not comply with R.C. 3119.05.
We first note that neither the magistrate nor the trial court mentioned any auditor’s records
in their judgment entries. However, the document at issue is a public record that is readily
ascertainable from the internet that a court can take judicial notice of. State ex rel.
Everhart v. McIntosh, 2007-Ohio-4798. Further, there is no indication that either the trial
court or HCCSEA utilized this figure in contravention of R.C. 3119.05. {¶36} Finally, appellant argues the trial court committed error because it did not
actually compute the amount of child support pursuant to R.C. 3119.05(A). In this case,
the trial court dismissed appellant’s objections pursuant to Civil Rule 41(B)(1) and (2) by
finding appellant did not meet his statutory burden of production regarding his income
pursuant to R.C. 3119.05, which precluded him from prevailing on his objection to the AO.
We find no abuse of discretion and/or find the trial court’s determination is not erroneous
as a matter of law or against the manifest weight of the evidence.
{¶37} For purposes of child support, a parent’s income “shall be verified by
electronic means or with suitable documents, including, but not limited to, paystubs,
employer statements, receipts, and expense vouchers related to self-generated income,
tax returns, and all supporting documentation and schedules for the tax returns.” R.C.
3119.05(A). Courts have held that a parent must strictly adhere to this requirement and
prove their income by presenting documentation pursuant to R.C. 3119.05(A). Ornelas
v. Ornelas, 2012-Ohio-4106 (12th Dist.); Montgomery v. Montgomery, 2015-Ohio-2976
(3rd Dist.); Ellis v. Ellis, 2009-Ohio-4964 (7th Dist.); Janecek v. Marshall, 2011-Ohio-2994
(11th Dist.); Ostmann v. Ostmann, 2006-Ohio-3617 (9th Dist.). The statute and case law
require more than testimony for a parent to satisfy his or her burden of proof pursuant to
R.C. 3119.05. Montgomery v. Montgomery, 2015-Ohio-2976 (3rd Dist.); Dulaney v.
Taylor, 2013-Ohio-1147 (10th Dist.); Gue v. Girardi, 2018-Ohio-3788 (8th Dist.).
{¶38} Appellant argues R.C. 3119.05(A) is only applicable in a modification
proceeding. However, by its own terms, R.C. 3119.05(A) applies “when a court computes
the amount of child support required to be paid under a court child support order or a child
support enforcement agency computes the amount of child support to be paid pursuant to an administrative child support order …”. Additionally, several courts have applied the
verification requirement of R.C. 3119.05(A) in non-modification proceedings. Ornelas v.
Ornelas, 2012-Ohio-4106 (12th Dist.); Ostmann v. Ostmann, 2006-Ohio-3617 (9th Dist.).
{¶39} Appellant contends it is incumbent upon the trial court, pursuant to R.C.
3119.05, to verify appellant’s income with suitable documentation. Such a reading of the
statute impermissibly shifts the burden of providing documentation to the court, which is
contrary to the plain language of R.C. 3119.05(A). Ellis v. Ellis, 2009-Ohio-4964 (7th
Dist.) (statute does not place a duty on trial court to verify parents’ incomes, statute clearly
imposes duty on parents to verify income, including self-generated income). It is unclear
how the trial court in this case was supposed to verify appellant’s income via
documentation when appellant provided no documentation for the court to consider.
Appellant additionally argues he requested more time to produce the documentation at
the hearing. However, the record disputes that notion. Counsel for appellant asked the
magistrate to deny the motion to dismiss or, in the alternative, asked “that the trial court
order Mr. Desensi to provide any documents that the Court may find is necessary for its
determination.” Appellant again attempts to impermissibly shift the burden to the court
rather than meet his own burden of production.
{¶40} In this case, appellant did not present any documentation to the trial court
pursuant to R.C. 3119.05(A). Appellant testified he did not complete either a 2022 or
2023 tax return, though he recognized he needed to do that “as soon as possible.” When
asked about providing documentation from his DFS transactions (including income and
losses), appellant testified he could print out that information, but he did not. Similarly,
appellant admitted he opened a business checking account for a new LLC with a capital contribution from his personal bank account. However, he failed to present any
documentation as to the LLC and its earnings or losses. Finally, appellant was not sure
about the status of his investment accounts though he “believed” the accounts had activity
in 2019, 2020, and 2021. He stated he “[hasn’t] even looked at it.” Appellant stated he
did get together some documentation for these accounts approximately a year ago, but
he did not submit any documentation to the court either prior to or at trial. If appellant did
not agree with the number set by HCCSEA, it was his burden to come forward with
documentary evidence to dispute the figure. Appellant failed to do so. Without any
documentary or electronic evidence as required by R.C. 3119.05, which would allow the
trier of fact to conclude HCCSEA wrongly determined appellant’s income for purposes of
child support computation, the trial court properly determined appellant failed to produce
adequate evidence for the court to sustain his objection and that appellant’s evidence
was insufficient to meet his burden pursuant to R.C. 3119. Thus, upon our review of the
record, we find the trial court did not abuse its discretion and/or find the trial court’s
determination is not erroneous as a matter of law or against the manifest weight of the
evidence. Appellant’s first and second assignments of error are overruled.
III.
{¶41} In his third assignment of error, appellant contends the trial court committed
error when it did not follow R.C. 3119.72, which he alleges provides the appropriate
procedure for a court to follow when a parent does not provide the necessary financial
documentation. Appellant argues it was the court’s duty to issue an order for him to
provide documentation if such documentation was required to establish his income. We
disagree. {¶42} R.C. 3119.72 provides that, if a parent fails to comply with a request for
information made by the agency, the agency may do either of the following:
(1) Request the court of appropriate jurisdiction of the county in which the
agency is located to issue an order requiring the parent to provide the
information as requested;
(2) Make any reasonable assumptions necessary with respect to the
information the parent did not provide to ensure a fair and equitable review
of the child support order or establishment of an administrative order …
{¶43} “We give effect to the words the General Assembly has chosen, and we
may neither add to nor delete from the statutory language.” Columbia Gas Trans. Corp.
v. Levin, 2008-Ohio-511. There is nothing contained in the plain language of the statute
that imposes a duty upon either the court to issue an order to provide documentation, or
a duty upon the agency to request such information. It gives the agency the discretion
(“may”) to either request the court order the parent to provide the information or make any
reasonable assumptions with respect to the information the parent did not provide. As
detailed above, pursuant to R.C. 3119.05, it is the parent’s burden to provide
documentary evidence to verify income. Nothing in R.C. 3119.72 shifts this burden to the
court and/or the agency. In this case, the trial court dismissed appellant’s objections
because appellant failed to come forward with any documentary evidence to dispute the
$150,000 figure used by the NCCSEA hearing officer.
{¶44} In this assignment of error, appellant also contends his testimony was that
he “did not have access” to his tax returns, so he could not provide the documentation
the magistrate required. However, appellant’s testimony at trial was not that he did not have access to his tax returns. Rather, it was that he “didn’t really mean to get this far
behind on [filing his taxes]” and he was “going to try to take care of that, you know, as
soon as possible, actually.” Appellant’s testimony does not change the fact that it is his
burden to provide documentary evidence of income, which he did not provide.
{¶45} Finally, in this assignment of error, appellant argues that neither the trial
court nor the agency made reasonable assumptions about appellant’s income because
his testimony was that he is not capable of earning $150,000 per year. We disagree.
Pursuant to R.C. 3119.72(A)(2) and Ohio Administrative Code 5101:12-45.05.1(B)(1) and
(2), the child support enforcement agency is permitted to make “reasonable assumptions”
with respect to the information the parent did not provide to establish an administrative
child support order and proceed with determining the amount of child support.
{¶46} In this case, HCCSEA made reasonable assumptions about appellant’s
“current and past income and personal earnings” in order to establish the income utilized
($150,000) in the child support calculations. These reasonable assumptions were made
based upon appellant’s testimony that his source of living expenses ($1,000-$2,000 per
month) for multiple (13-14) years has been his previous business income, which appellant
stated was over $1 million dollars for each of three years, and “six figures” for the
remaining two years. At the hearing in front of the magistrate, appellant failed to submit
any documentary evidence to dispute the $150,000 figure. As discussed above, if
appellant disagreed with the figure established by HCCSEA, it was his burden to provide
documentation to refute the reasonable assumptions made by HCCSEA. He failed to do
so. Accordingly, the magistrate and trial court did not commit error in dismissing appellant’s objections pursuant to Civil Rule 41(B). Appellant’s third assignment of error
is overruled.
IV.
{¶47} In his fourth assignment of error, appellant contends the trial court abused
its discretion by delaying a ruling on his objections to the AO for one year and nine
months. We first note that the first time appellant brought this to the attention of the trial
court was in his objections to the magistrate’s decision. Appellant did not bring this issue
to the trial court’s attention at any pretrial or status conference prior to the trial. A party
waives and may not raise on appeal any error which arises during the trial court
proceedings if that party fails to bring the error to the court’s attention at a time when the
trial court could avoid or correct that error. Goldfuss v. Davidson, 79 Ohio St.3d 116
(1997).
{¶48} A failure to object at trial waives all but plain error. Id. The plain error
doctrine is applicable in civil cases only where the error “seriously affects the basic
fairness, integrity, or public reputation of the judicial process.” Id. Plain error does not
exist unless it can be said, but for the error, the outcome of the trial court would have
clearly been otherwise. In the Matter of D.M., 2018-Ohio-4737 (5th Dist.).
{¶49} We find no plain error in this case. Appellant cites R.C. 2701.02 in support
of his argument that the trial court should have ruled on his objection to the AO within
thirty days. However, it is well-established that both R.C. 2701.02 and Superintendence
Rule 40(A)(3) (suggesting motions should be ruled on within 120 days), are intended only
to serve as guidelines for the courts of Ohio, and are not intended to create substantive
enforceable rights on the part of the individual litigants in a case. State ex rel. Culgan v. Collier, 2013-Ohio-1762; Gardner v. Bisciotti, 2010-Ohio-5875 (10th Dist.); Lanning v.
Lanning, 1983 WL 5473 (5th Dist. Mar. 7, 1983). Further, this Court has previously held
a trial court’s delay in ruling on a motion “does not necessarily mean that a corresponding
right is created for litigants to force a trial judge to rule upon any motion within one
hundred twenty days, regardless of the posture of the litigation. The need for discovery,
the issues presented, the possibility of settlement, other motions pending in the case, and
even other matters pending before the court could all, inter alia, be sufficient reason for
the trial court within its proper discretion not to rule upon a motion within one hundred
twenty days.” State ex rel. Jamison v. Muskingum Cty., 2009-Ohio-1482 (5th Dist.).
{¶50} In this case, it is clear the need for discovery, the possibility of settlement,
and other matters pending before the trial court were sufficient reason for the trial court
within its proper discretion not to rule upon the objection within one hundred and twenty
days.
{¶51} The magistrate and trial court were active in the case, diligently holding
pretrials and hearings in January, April, June, July, September, and December of 2023,
February, March, and April of 2024. In several of the magistrate’s orders issued after the
pretrials, the magistrate noted the parties were conducting discovery and/or were in
settlement discussions about the objections. Appellant did not object to the timing of any
of these hearing or pretrials. In fact, in numerous of the magistrate’s orders, the
magistrate stated the parties and their counsel agreed to the various dates and deadlines
in the case. After the magistrate issued orders stating the parties agreed to certain
deadlines, or stating the parties were working on discovery and settlement surrounding
appellant’s objection to the AO, appellant did not file anything indicating the assertions by the magistrate were incorrect. We also note that appellee had to file a motion to compel
against appellant for the failure to provide timely discovery.
{¶52} Further, though this case was not officially consolidated with the custody
case, both the trial court and the parties dealt with the issues in this case together with
the issues in the related case – a circumstance appellant himself recognized. This is
evidenced by the fact that, when appellant failed to file a witness list and exhibit list for
the trial in this case, counsel for appellant stated that, while a separate witness and exhibit
list was not filed in this case, “a witness list and exhibit list has been filed in a custody
matter that this Court is also hearing in these matters, [which], although not formally
consolidated, have been heard together.” The custody case was complicated by the fact
that the CPO from Medina County listed appellee and the minor children as “protected
persons” until 2027. Thus, prior to the resolution of the custody case, it was important for
the issue of the CPO to be decided, which procedurally took time. Appellant filed
objections to the issuance of the CPO, appealed the trial court’s decision to the Ninth
District Court of Appeals, which affirmed the trial court in J.E. v. M.D., 2024-Ohio-5978
(9th Dist.), and ultimately to the Supreme Court of Ohio, which did not accept his appeal.
J.E. v. M.D., 2025-Ohio-1283.
{¶53} Upon review, we find appellant cannot show a deviation from a legal rule
occurred, that the alleged error was an “obvious” defect in the trial proceedings, or that
this alleged error affected the outcome of the trial. McFarland v. Gillesipe, 2019-Ohio-
1050 (5th Dist.). Accordingly, the plain error doctrine does not apply. Appellant’s fourth
assignment of error is overruled. {¶54} Based on the foregoing, appellant’s assignments of error are overruled.
The December 9, 2024, judgment entry of the Holmes County Court of Common Pleas,
Juvenile Division, is affirmed.
By Popham, J.,
King, P.J., and
Hoffman, J., concur