[Cite as Sifferlin v. Sifferlin, 2014-Ohio-5645.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
AIMEE M. SIFFERLIN C.A. No. 27169
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE BRIAN F. SIFFERLIN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. 2010-05-1437
DECISION AND JOURNAL ENTRY
Dated: December 23, 2014
CARR, Judge.
{¶1} Appellant Aimee Sifferlin, nka Lucas, appeals the judgment of the Summit
County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} Aimee (“Mother”) and Brian Sifferlin (“Father”) jointly petitioned for dissolution
of marriage. The parties appended to their petition a separation agreement which indicated their
“desire to settle all matters arising out of their marital relationship.” The separation agreement
incorporated a shared parenting plan in which Father would have companionship with the three
children (C., B., and E.) solely on alternate weekends (and other times as the parties might
mutually agree). Despite the fact that Mother would have companionship with the children
during the vast majority of the time, the parties agreed to deviate from the child support
worksheet and agreed that neither party would pay child support to the other. Pursuant to the
child support worksheet, in the absence of any deviation, Father would have been obligated to 2
pay support in the amount of $995.08 per month. The domestic relations court issued a decree of
dissolution, attaching and incorporating the terms of the parties’ separation agreement.
{¶3} Fourteen months later, Mother filed a “motion to establish child support.” The
matter was scheduled for hearing before the magistrate who found that, despite the parenting
time provisions in the shared parenting plan, the children were spending the majority of the time
with Father. The magistrate further found that Father was assuming financial responsibility for
certain costs that the parties had previously agreed to divide equally. Based on those findings,
the magistrate denied Mother’s motion to establish child support. The domestic relations court
adopted the magistrate’s decision the same day. Mother filed timely objections. The trial court
sustained the objections and remanded the matter to the magistrate for further hearing and
recalculation of child support pursuant to R.C. 3119.79(A).
{¶4} Mother filed a supplemental memorandum in support of her motion to establish
child support, arguing that Father’s income had increased in 2012 and that there had been a
substantial change in circumstances since the date of dissolution of the parties’ marriage. Father
filed a motion for reallocation of parental rights and responsibilities, arguing that the three
children have been primarily in his care by mutual agreement of the parties notwithstanding the
parties’ agreement in the shared parenting plan that Father was to have parenting time with the
children merely every other weekend.
{¶5} The magistrate held another hearing on Mother’s motion to establish child
support, which Mother characterized as a motion to modify child support pursuant to R.C.
3119.79. The magistrate denied the motion. The domestic relations court adopted the
magistrate’s decision the same day. Mother filed timely objections, which the trial court
overruled. The domestic relations court found that, although there was a greater than ten percent 3
difference between the amount of child support Father would have been obligated to pay
pursuant to the original child support worksheet and the recalculated child support amount, there
was no change in circumstances not contemplated by the parties that would warrant modifying
the parties’ prior agreement that neither parent would pay child support to the other.
Accordingly, the trial court ordered that the child support order would remain at $0. Mother has
appealed and raises three assignments of error, which this Court consolidates for purposes of
review.
II.
ASSIGNMENT OF ERROR I
THE COURT ERRED AND ABUSED ITS DISCRETION IN ITS FINDINGS WITH REFERENCE TO [FATHER’S] INCOME FOR CHILD SUPPORT CALCULATION PURPOSES AND IN THE CHILD SUPPORT COMPUTATION WORKSHEET ATTACHED TO THE MAGISTRATE’S DECISION DATED AUGUST 22, 2013.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN ITS FINDINGS AND ORDER THAT [FATHER’S] CHANGE IN CIRCUMSTANCES WAS NOT SUBSTANTIAL AND THAT THE CHANGE OF CIRCUMSTANCES WAS CONTEMPLATED BY THE PARTIES.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY ITS ORDER OVERRULING [MOTHER’S] OBJECTIONS TO THE MAGISTRATE’S DECISION DATED AUGUST 22, 2013.
{¶6} Mother argues that the trial court erred by denying her motion to modify child
support. This Court disagrees.
{¶7} As an initial matter, this Court notes that the parties agreed, not that there would
be no child support order, but rather that neither party would be obligated to pay any child
support, effectively establishing child support in the amount of zero dollars. We have repeatedly 4
held that “a child support order which requires zero support to be paid is an existing child
support order.” (Quotations omitted.) Fields v. Fields, 9th Dist. Medina No. 04CA0018-M,
2005-Ohio-471, ¶ 11, quoting Rodriguez v. Rodriguez, 9th Dist. Lorain No. 00CA007699, 2001
WL 458674 (May 2, 2001), quoting Rose v. Rose, 9th Dist. Wayne No. 99CA0009, 2000 WL
840504 (June 28, 2000). Accordingly, such an order is subject to modification. Fields at ¶ 11.
{¶8} This Court generally reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-
5232, ¶ 9. “In so doing, we consider the trial court’s action with reference to the nature of the
underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-
3139, ¶ 18. A trial court’s determination regarding matters of child support is reviewed for an
abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989); Swank v. Swank, 9th Dist.
Summit No. 21207, 2003-Ohio-720, ¶ 9. An abuse of discretion is more than an error of
judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its
ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of
discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v.
Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶9} Mother argued during the hearing on her motion that a modification of the child
support order was warranted pursuant to R.C. 3119.79, which provides:
(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 percent greater than or more than ten percent 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 5
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 the 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 section 3119.22 of the Revised Code.
{¶10} This Court has recognized that “[a] party moving for the modification of child
support must prove ‘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.’” Humiston v. Humiston, 9th Dist. Medina No. 04CA0076-M, 2005-Ohio-4363, ¶ 15,
quoting R.C. 3119.79(C).
{¶11} The instant case is analogous to the underlying facts in Adams v. Adams, 3d Dist.
Union No. 14-12-03, 2012-Ohio-5131, wherein the parents agreed in a shared parenting plan to
deviate from the amount of child support indicated by the child support schedule and worksheet
so that neither party would pay any child support to the other. Thereafter, the mother sought a
modification of the child support order, which the trial court granted on the ground that the new
child support calculation based on the schedule and worksheet constituted a greater than ten
percent difference from the previous order of zero dollars. Considering only R.C. 3119.79(A),
the trial court concluded that the ten percent deviation was the only change in circumstances
necessary to substantiate a modified child support order. The appellate court reversed and
remanded, holding that where the parties had agreed to deviate from the amount of child support 6
that would be warranted pursuant to the child support schedule and worksheet, the trial court
must “find more than a ten-percent deviation under R.C. 3119.79(A).” Id. at ¶ 30. Specifically,
“the trial court [is] also required to find a substantial change in circumstances that was not
contemplated at the time of the issuance of the child support order under R.C. 3119.79(C).” Id.
{¶12} The Third District had earlier required the same considerations in cases where the
parties had previously agreed to child support in excess of the statutory guideline schedule
amount. Bonner v. Bonner, 3d Dist. Union No. 14-05-26, 2005-Ohio-6173. The Adams court
applied the reasoning in Bonner, focusing on the significance of the parties’ agreement to
deviate, not the direction of the deviation.
{¶13} This Court finds such reasoning persuasive. In fact, we have previously
recognized the significance of parents’ prior agreement to deviate from the amount of child
support indicated by the statutory guideline schedule. In Jindra v. Jindra, 9th Dist. Medina No.
04CA0011-M, 2004-Ohio-6742, we affirmed the trial court’s denial of a parent’s motion to
modify child support where the trial court applied the parents’ previously agreed upon 29 percent
deviation in its recalculation of child support and found a less than ten percent difference
between the prior and current calculations. Id. at ¶ 9. This Court held that “[a]bsent evidence of
a change in the parties’ original shared parenting plan, the trial court does not abuse its discretion
in utilizing the deviation that the parties agreed upon.” Id., citing Harless v. Harless, 6th Dist.
Lucas No. L-01-1383, 2002-Ohio-2361, ¶ 8.
{¶14} In the instant case, Mother and Father agreed to deviate from the amount of child
support indicated by the statutory worksheet and schedule so that neither party would pay any
child support to the other. It is axiomatic that any recalculation of child support pursuant to the
worksheet and schedule would result in a greater than ten percent difference where the prior 7
support obligation was zero dollars. Accordingly, 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. See Adams at ¶ 30. Moreover, the moving party must prove that such change of
circumstances was not contemplated by the parties when they agreed to the prior deviation. Id.
This is not to say that the changes in the parties’ incomes alone cannot justify a modification; the
domestic relations court must still consider the facts of each case. If those specific changes in
incomes are substantial and were not contemplated at the time of the original order, those facts
may justify a modification. The mere fact of a ten percent difference alone, however, will not
justify a modification from the parties’ prior agreed child support order.
{¶15} In this case, when the parties agreed to deviate from the amount of child support
indicated by the statutory guidelines, they enunciated two bases for that agreement. They agreed
to pay each other zero dollars for child support “based upon the parties’ annual income, which is
currently approximately the same, and the parenting schedule, which provides companionship on
an approximately equal basis.” At that time, Father’s and Mother’s annual incomes were
$62,000 and $42,000, respectively. Nevertheless, the parties found the $20,000 difference in
their respective incomes negligible, as they agreed that the two incomes were “approximately the
same.” As to parenting time, the parties’ agreement directed that, in every two-week period,
Mother would have the children 12 days to Father’s 2. Nevertheless, the parties found Mother’s
daily companionship to be “approximately equal” to Father’s every other weekend
companionship. This Court notes the discrepancies in both the amount of the parents’ incomes
and the amount their respective companionship time with the children. Although it is not clear 8
why the parties found these variables to be relatively equal, those issues are not before us and we
decline to address them.
{¶16} At the hearing, the evidence established that Mother’s income had remained
substantially the same since the parties agreed to a child support deviation. Father’s income
from teaching had increased from $62,000.00 to $64,163.56. Father had also assumed a part-
time job as an athletic trainer, earning an additional $9,887.68 a year. Therefore, Father was
earning approximately $12,000.00 more per year. On the other hand, the evidence demonstrated
that Father had assumed the bulk of responsibility for the children.
{¶17} The evidence established that Father paid the full amount of health insurance for
the children as the parties had agreed. Despite the parties’ agreement that they equally split the
costs of uncovered health expenses, however, Father testified that he had paid all uncovered
expenses. Mother did not dispute this. In addition, despite the parties’ agreement to equally
divide the costs of the children’s latchkey, sports, and other extracurricular expenses, Father had
assumed all of B’s latchkey expenses, all sports expenses, and the vast majority of expenses for
other extracurricular activities. Moreover, Mother conceded that Father sees the children every
day and keeps them overnight at least three nights a week. Because Mother works on weekends,
she admitted that Father has the children every weekend. Father testified that he is the parent
who takes the children to health care appointments and takes off time from work to care for any
ill child. Both parents agreed that Father has the children most of the time in the summer
because Father also enjoys summers off from his work as a teacher.
{¶18} Father testified that he takes the children to their many sporting events and
practices year round. He takes them to weekend tournaments. He testified that Mother rarely
attends any of the children’s sporting events. In addition, the parties agreed that Father takes the 9
children to church and church activities. Although Mother would drop off children at the bus
stop or school when they had spent a school night with her, the parties agreed that the children
returned to Father’s home every day after school. Father provided school lunches and dinner for
the children. In addition, Father signed school ledgers every day indicating that the children had
completed their homework. When the children slept at Mother’s on Tuesdays, Wednesdays, and
Thursdays during the school year, Father would drop off the children or Mother would pick them
up after 5:30 p.m. when she was done with work. Although Mother testified that she cared for
the children 60 percent of the time, except during the summer when Father had the children more
often, Father testified that he consistently cared for the children 70 percent of the time. The
children confirmed during in camera interviews that they spent the majority of their time under
Father’s care. Although Mother argues on appeal that the trial court had no authority to conduct
an in camera interview with the children, she cites no authority and this Court has found none
prohibiting such an interview.
{¶19} The trial court has the opportunity to view and hear the witnesses and is,
therefore, in the best position to assess credibility. Hammond v. Harm, 9th Dist. Summit No.
23993, 2008-Ohio-2310, ¶ 52, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80
(1984). Accordingly, this Court cannot say that the trial court erred by believing Father’s
testimony that he had assumed the vast majority of the responsibility for physical care and
financial support of the children. When asked why she wants Father to pay child support,
Mother replied that groceries and clothing cost more and she needs a “nicer” place for the
children to live.
{¶20} Given Father’s assumption of the majority of the responsibility for the children,
this Court concludes that Mother failed to demonstrate a substantial change in circumstances 10
warranting a modification of child support inuring to her benefit.1 Father’s increase in income
was offset by his assumption of financial obligations that the parties had agreed to split equally,
as well as by his daily companionship (instead of two days every two weeks as the parties earlier
agreed) which necessitated his feeding, housing, transporting, clothing, and supervising the
children. It is important to bear in mind that “[t]he purpose of child support is to meet the needs
of the minor children[, which] needs include shelter, food, clothing and ordinary medical care.”
Irish v. Irish, 9th Dist. Lorain No. 10CA009810, 2011-Ohio-3111, ¶ 13. Under these
circumstances, this Court cannot say that the domestic relations court erred by denying Mother’s
motion to modify the amount of child support to above zero dollars where Father had assumed
the bulk of the responsibility for the physical and financial needs of the children.
{¶21} Mother argues, and Father concedes, that the trial court miscalculated Father’s
income for purposes of the child support computation worksheet. We agree. The trial court
recited Father’s income as $66,538.00, rather than $74,051.24, the amount that would have taken
into account his income from his part-time job. Nevertheless, in light of our conclusion that the
mere existence of a greater than ten percent difference between the prior child support order and
the current one did not warrant a modification, that error is harmless. Civ.R. 61.
{¶22} Finally, Mother argues that the domestic relations court erred by failing to address
the issue of a deviation from the amount of child support indicated by the statutory guidelines.
Mother disregards the fact that the parties agreed to deviate from the guideline amount based on
1 Father has not moved for a modification of child support and this Court, therefore, renders no conclusion regarding whether his assumption of the bulk of the responsibility for the children would constitute a substantial change in circumstances not contemplated by the parties warranting a modification of child support in his favor. 11
their respective incomes and the division of companionship. The issue before the domestic
relations court was whether a substantial change in circumstances not contemplated by the
parties existed warranting a modification of child support. This Court concluded that the trial
court did not err in finding no substantial change in circumstances warranting a modification. In
the absence of the propriety of a modification, the issue of deviation from the statutory
guidelines is not ripe. Moreover, Mother did not raise the issue of a deviation of the amount of
child support ordered pursuant to R.C. 3119.22 before the trial court. Instead, she limited her
argument to whether a change of circumstances warranting modification had occurred pursuant
to R.C. 3119.79. Accordingly, Mother’s argument in this regard is not well taken.
{¶23} For the reasons enunciated above, Mother’s three assignments of error are
overruled.
III.
{¶24} Mother’s assignments of error are overruled. The judgment of the Summit
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 Summit, 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 12
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.
DONNA J. CARR FOR THE COURT
HENSAL, P. J. MOORE, J. CONCUR.
APPEARANCES:
ARTHUR AXNER, Attorney at Law, for Appellant.
LESLIE S. GRASKE, Attorney at Law, for Appellee.