[Cite as Wells v. Wells, 2014-Ohio-4610.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
KATHLEEN WELLS :
Plaintiff-Appellee : C.A. CASE NO. 26145
v. : T.C. NO. 98LS25
DALE K. WELLS : (Civil appeal from Common
Pleas Court, Domestic Relations)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of October , 2014.
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JOYCE M. DEITERING, Atty. Reg. No. 0005776, 8801 N. Main Street, Suite 200, Dayton,
Ohio 45415
Attorney for Plaintiff-Appellee
DEAN E. HINES, Atty. Reg. No. 0062990, 7950 Clyo Road, Centerville, Ohio 45459
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Dale K. Wells (hereinafter “Dale”) seeks to appeal a
decision and judgment of the Montgomery County Court of Common Pleas, Domestic
Relations Division, sustaining the objections of plaintiff-appellee Kathleen Wells
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(hereinafter “Kathleen”) and modifying the decision of the magistrate. The trial court
issued the decision on December 20, 2013. Neither party appealed this decision of the trial
court.
{¶ 2} On February 18, 2014, Kathleen filed a motion pursuant to Civ. R. 60(A), in
which she alleged that the trial court made a clerical error with respect to the child support
award to be paid for two of the parties’ children. The trial court found Kathleen’s Civ. R.
60(A) motion to be well taken and amended its earlier judgment in a decision issued on
February 28, 2014. Dale filed a timely notice of appeal of the trial court’s amended
decision with this Court on March 27, 2014.
{¶ 3} Dale and Kathleen were married on August 14, 1992, in Dayton, Ohio. The
parties had four children as a result of the marriage, to wit: E.M.W., born on April 30, 1992;
L.W., born on November 5, 1993; J.W., born on August 11, 1995; and E.W., born on April
4, 1997. On January 5, 1999, a Final Decree and Judgment for Divorce was filed, thereby
terminating their marriage. Kathleen was named the residential parent of all four children,
and Dale was granted a standard order of visitation. Dale was ordered to pay child support
to Kathleen in the amount of $333.00 per month per child for the four minor children. Dale
was also ordered to pay Kathleen $500.00 per month in spousal support ending upon either
party’s death or Kathleen’s remarriage.
{¶ 4} Since the parties’ divorce in 1999, this case has been the subject of many
motions and subsequent decisions. Pertinent to the instant appeal, however, on October 30,
2012, the Montgomery County Support Enforcement Agency (CSEA) reviewed Dale’s
support obligation to his two minor children, J.W. and E.W., who were still residing with
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Kathleen. At the time, Dale was paying $396.00 per month for each child. Upon review of
his current circumstances, however, the CSEA modified his child support obligation and
ordered him to pay $752.76 per month for each child.
{¶ 5} On November 16, 2012, Dale filed a motion for a mistake of fact
hearing/objection regarding the CSEA’s order. A hearing was held on January 30, 2013,
before a magistrate who heard testimony from both parties in regards to their respective
incomes, the time each parent spent with the minor children, J.W. and E.W., and the
expenses for the minor children. We note that Dale testified that his projected yearly
income in 2013 would be approximately $107,000.00. On May 13, 2013, the magistrate
issued a decision finding that Dale was entitled to a $5,000.00 downward deviation in his
child support obligation because he voluntarily extended visitation with J.W. and paid for
his education at a private high school without any financial help from Kathleen. 1 The
magistrate also noted that Dale continued to pay child support for E.W. even though the
minor child requested that he not have any visitation with his father. Accordingly, the
magistrate set Dale’s child support obligation at $479.00 per month for each child, effective
as of June 13, 2013.
{¶ 6} Kathleen filed an objection to the magistrate’s decision on May 28, 2013,
arguing that it was error to grant Dale a $5,000.00 downward deviation in his child support
obligation. We note that the record establishes that the trial court found that J.W. was
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Dale testified that, based on an agreement between he and Kathleen,
J.W. resided with him fifty percent of the time on a week on/week off basis.
E.W. chose to reside full-time with Kathleen and chose not to spend any time
with Dale.
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emancipated as of August 11, 2013. On September 30, 2013, Kathleen supplemented her
objection to the magistrate’s decision with portions of the transcript from the hearing on
January 30, 2013.
{¶ 7} On December 20, 2013, the trial court issued a decision finding that the
magistrate erred in granting Dale a $5,000.00 downward deviation in his child support
obligation. The trial court ultimately found that Dale was entitled to a downward deviation
of $2,664.00 and ordered that he pay child support of $686.00 per month for each child,
effective as of June 1, 2013. Based on J.W.’s emancipation on August 11, 2013, the trial
court set Dale’s child support obligation for E.W. at $746.00, affective as of August 12,
2013. The trial court utilized Dale’s testimony regarding his projected 2013 income of
$107,000.00 as a basis upon which to calculate his child support obligation. As previously
noted, neither party appealed this decision of the trial court.
{¶ 8} On February 18, 2014, Kathleen filed a motion pursuant to Civ. R. 60(A)
wherein she argued that the trial court made a clerical error in its decision rendered on
December 20, 2013. Specifically, Kathleen pointed out that the trial court mistakenly found
that E.W., not J.W. spends equal time with each of the parties, and reduced Dale’s child
support obligation for E.W. based upon that finding from $968.00 per month down to
$746.00 per month.2 Accordingly, on February 28, 2014, the trial court issued an amended
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We note that Dale asserts in his merit brief that in its December 20, 2013,
decision, the trial court “incorrectly indicated that [E.W.] had emancipated when
[J.W], who is the older child, had emancipated.” Upon review, however, in its
original decision, the trial court correctly found that J.W. had emancipated on
August 11, 2013. Rather, the trial court mistakenly found that E.W. spent fifty
percent of his time residing with Dale, when it was actually J.W. who resided with
both parents on a week on/week off basis.
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decision granting Kathleen’s motion for relief pursuant to Civ. R. 60(A). Taking into
account that Dale exercised no visitation with E.W., the trial court corrected itself and
vacated the downward deviation of $2,664.00 improperly granted to Dale for the benefit of
J.W., the emancipated child. The trial court attached a new child support worksheet to its
amended decision which calculated Dale’s child support obligation for E.W. to be set at
$970.00 per month.
{¶ 9} In the instant appeal, Dale asserts three assignment of error.
{¶ 10} Because they are interrelated, Dale’s first, second, and third assignments of
error will be discussed together as follows:
{¶ 11} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
CONDUCTING MULTIPLE REVIEWS OF CHILD SUPPORT AND SETTING
APPELLANT’S SUPPORT OBLIGATION FOR PERIODS WELL BEYOND THE TIME
ENCOMPASSED IN THE PENDING MOTION AND OBJECTIONS BEFORE THE
TRIAL COURT WITHOUT CONDUCTING AN ADDITIONAL REVIEW IN REGARDS
TO THE PARTIES’ INCOMES OR CIRCUMSTANCES AT THAT TIME.”
{¶ 12} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
NOT ALLOWING THE ENTIRE DEVIATION DOWNWARD FROM THE CHILD
SUPPORT OBLIGATION.”
{¶ 13} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
CALCULATING THE AMOUNT OF INCOME OF APPELLANT TO BE UTILIZED IN
CALCULATING HIS CHILD SUPPORT INCOME.”
{¶ 14} Initially, we note that it is undisputed that Dale did not file a notice of appeal
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from the trial court’s original decision rendered on December 20, 2013. The only notice of
appeal Dale filed was in regards to the trial court’s amended decision issued on February 28,
2014. In his merit brief, Dale argues that the trial court’s amended decision “incorporated
and referred directly to the Decision and Judgment filed on December 20, 2013.” Dale
therefore asserts his notice of appeal filed on March 27, 2014, “is in regards to both the
Decision and Judgment of December 20, 2013 and the Amended Decision an [sic] Judgment
of February 28, 2014.” (Emphasis added).
{¶ 15} App. R. 3(A) expressly states that the only jurisdictional requirement for the
filing of a valid appeal is the timely filing of notice of appeal. A notice of appeal generally
must be filed within 30 days of the entry of the judgment or order. App.R. 4(A). The
Supreme Court of Ohio has held that the failure to comply with time requirements of App.R.
4(A) is a jurisdictional defect, which is fatal to an appeal. In re H.F., 120 Ohio St.3d 499,
2008-Ohio-6810, 900 N.E.2d 607, ¶ 17; Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320,
649 N.E.2d 1229 (1995); App.R. 3(A).
{¶ 16} Upon review, we conclude that Dale’s first, second, and third assignments of
error relate back to the original decision the trial court rendered on December 20, 2013. In
his first assignment, Dale argues that the trial court abused its discretion when it belatedly
determined his child support obligation in its December 20, 2013 decision, issued
approximately eleven months after the hearing before the magistrate. In his second
assignment, Dale argues that the trial court erred when it did not order the entire $5,000.00
downward deviation initially recommended by the magistrate in her May 13, 2013 decision.
In his third assignment of error, Dale asserts that the trial court erred when it used his
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projected 2013 income of $107,000.00 as a basis upon which to calculate his child support
obligation.
{¶ 17} As we stated previously, Dale did not file a notice of appeal of the trial
court’s original decision pursuant to App. R. 4(A). We note that Dale did file a timely
notice of appeal of the trial court’s amended decision rendered on February 28, 2014.
However, the amended decision was merely issued to correct the trial court’s error regarding
which of the two minor children, J.W. or E.W., resided with Dale fifty per cent of the time.
In its amended decision, the trial court described its mistake as follows:
The court inadvertently indicated that the parties used a week on/ –
week/off schedule with the youngest child, [E.W.], and that the oldest child,
[J.W.], resided primarily with Kathleen. In fact, the opposite is true. The
parties exercise a week/on – week/off schedule with [J.W.], and [E.W.] lives
exclusively with Kathleen. (Emphasis added)
As a result, the deviation granted to Dale in the Child Support
Computation Worksheet of $2,664.00 for time spent with Dale, was
incorrectly applied. The court has completed another Child Support
Computation Worksheet.
{¶ 18} Thus, the correction of E.W. for J.W. necessitated the trial court’s decision
to vacate the remaining downward deviation of $2664.00 of his child support obligation.3 If
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We note that in his second assignment of error, Dale limits his argument
to attacking the trial court’s failure to order the entire $5,000.00 deviation initially
recommended by the magistrate. Dale does not challenge the portion of the
trial court’s amended decision vacating the $2,664.00 deviation. Dale’s second
assignment only relates back to the trial court’s December 20, 2013 decision,
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Dale wanted to challenge the portion of the trial court’s original decision: 1) disallowing the
entire $5,000.00 downward deviation originally recommended by the magistrate; 2) setting
his child support obligation in its December 20, 2013, decision, issued approximately eleven
months after the hearing before the magistrate; and 3) using his claimed 2013 income of
$107,000.00 as the basis for his child support obligation, he should have filed a timely notice
of appeal of the court’s original decision rendered on December 20, 2013. None of these
issues were affected by the trial court’s amended decision. Dale’s timely appeal of the trial
court’s amended decision was limited to the issue raised therein, i.e. the trial court’s
confusion over which child, J.W. or E.W., resided at Dale’s house fifty per cent of the time.
By failing to file a notice of appeal, Dale waived his right to challenge the trial court’s
original decision rendered on December 20, 2013. Thus, we are without jurisdiction to
address the merits of Dale’s first, second, and third assignments of error.
{¶ 19} Dale’s first, second, and third assignments of error are overruled.
{¶ 20} All of Dale’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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FROELICH, P.J. and WELBAUM, J., concur.
Copies mailed to:
Joyce M. Deitering
Dean E. Hines
Hon. Timothy D. Wood
from which he did not file an appeal.