[Cite as Frey v. Frey, 2015-Ohio-4622.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
RICK J. FREY,
PLAINTIFF-APPELLEE, CASE NO. 5-15-11
v.
KIMBERLY S. FREY, NKA
KIMBERLY S. NIGH, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2001-DR-287
Judgment Reversed and Cause Remanded
Date of Decision: November 9, 2015
APPEARANCES:
William E. Clark for Appellant
Case No. 5-15-11
PRESTON, J.
{¶1} Defendant-appellant, Kimberly Frey, n.k.a. Kimberly Nigh,
(“Kimberly”), appeals the March 23, 2015 judgment entry of the Hancock County
Court of Common Pleas, Domestic Relations Division, granting plaintiff-
appellee’s, Rick Frey (“Rick”), motion for a modification of Kimberly’s child
support obligations. We reverse.
{¶2} The facts relevant to this appeal are as follows. Kimberly and Rick
divorced in May 2002. Frey v. Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, ¶ 2
(3d Dist.). Three children were born from the marriage—Ashley Frey (“Ashley”),
Austin Frey (“Austin”), and Chelsea Frey (“Chelsea”) (collectively, the
“children”). Frey v. Frey, 3d Dist. Hancock No. 5-09-11, 2009-Ohio-5275, ¶ 2.
After a number of modifications,1 the trial court adopted a consent entry on
August 4, 2010 regarding Kimberly’s child support obligations:
1. All monies held in escrow by the Child Support Enforcement
Agency shall be released immediately to the Father, Rick Frey.
2. The Father’s current Child Support withholding shall be
terminated immediately.
1
See Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, at ¶ 2-12.
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3. The Mother, Kimberly Nigh, shall pay a lump sum to the
Father, Rick Frey, in the amount of $1,000.00, to be paid
immediately.
4. After the termination of the Father’s Child Support obligation
and upon receipt of the lump sum herein, Mother will owe
$9,823.00 to Father for the overpayment of Child Support.
5. Mother shall pay child support to Father in the amount of
$356.57 per month, effective as of January 1, 2010. In
addition, Mother shall pay Father $72.00 per month towards the
overpayment she received. In addition, Mother shall pay any
processing fees in accordance with the Ohio Revised Code. All
payments, including processing fee[s] at the legal rate shall be
payable through the Ohio Office of Child Support. A copy of
the Child Support calculations is attached hereto.
6. Mother shall immediately establish an account with a financial
institution under the jurisdiction of the court and maintain in
that account funds sufficient to satisfy her child support
obligation set forth herein. Mother shall provide the Hancock
County Child Support Enforcement Agency information
regarding the account and shall take whatever steps necessary
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for child support payments to be automatically withdrawn from
said account.
7. The Mother shall be subject to seek a work order [sic].
8. Court costs shall be divided equally between the parties.
(Doc. No. 284); Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, at ¶ 13.
{¶3} On December 18, 2014, Rick filed a “Motion for Modification of
Support Obligations” requesting that the trial court order Kimberly to pay $400 in
child support because Rick was injured in a workplace accident and cannot work
and to pay, “instead of Medicaid,” the children’s health insurance. (Doc. No.
328). After a hearing on February 13, 2015, the trial court filed its entry on March
23, 2015 concluding that there was “a change of circumstance[s] * * * substantial
enough to require modification of the prior child support amount pursuant to
[R.C.] 3119.79.” (Doc. No. 344); (Feb. 13, 2015 Tr. at 1). The trial court ordered
Kimberly to provide health insurance for Austin and Chelsea; “to seek full-time
employment and report her efforts in writing to the Hancock County Child
Support Enforcement agency”; and to pay child support in the amount of $281.08
per month as of December 1, 2014. (Doc. No. 344).
{¶4} Kimberly filed her notice of appeal on April 13, 2015. (Doc. No.
347). She raises four assignments of error for our review. Because it is
dispositive, we address only Kimberly’s first assignment of error.
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Assignment of Error No. I
The Trial Court Erred and Abused its Discretion When it
Modified Appellant’s Child Support Obligation.
{¶5} In her first assignment of error, Kimberly argues that the trial court
abused its discretion by granting Rick’s motion to modify Kimberly’s child
support obligations. Specifically, she argues that Rick did not provide R.C.
3119.05(A)-quality documentation of his income to warrant a
change-of-circumstances finding to justify modifying Kimberly’s child support
obligations.
{¶6} We review a trial court’s ruling on a child support modification
request for an abuse of discretion because trial courts are vested with broad
discretion in deciding whether to modify a child support order. Montgomery v.
Montgomery, 3d Dist. Union No. 14-14-22, 2015-Ohio-2976, ¶ 24, citing Brose v.
Copeland, 3d Dist. Seneca No. 13-13-08, 2013-Ohio-3399, ¶ 11 and Pauly v.
Pauly, 80 Ohio St.3d 386, 390 (1997). “A trial court abuses its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound.” Id., citing Brose at ¶ 11, citing State v. Boles, 2d Dist.
Montgomery No. 23037, 2010-Ohio-278, ¶ 17-18. “In applying the abuse of
discretion standard, a reviewing court may not simply substitute its own judgment
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for that of the trial court.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶7} R.C. 3119.79 governs the modification of child support orders and
provides, in pertinent part:
(A) If an obligor or obligee under a child support order requests
that the court modify the amount of support required to be paid
pursuant to the child support order, the court shall recalculate
the amount of support that would be required to be paid under
the child support order in accordance with the schedule and the
applicable worksheet through the line establishing the actual
annual obligation. If that amount as recalculated is more than
ten per cent greater than or more than ten per cent less than the
amount of child support required to be paid pursuant to the
existing child support order, the deviation from the recalculated
amount that would be required to be paid under the schedule
and the applicable worksheet shall be considered by the court
as a change of circumstance substantial enough to require a
modification of the child support amount.
***
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(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.
R.C. 3119.79(A), (C).
{¶8} This court previously concluded that “where the original child support
order resulted from the parties’ voluntary agreement, R.C. 3119.79(A) must be
read in conjunction with R.C. 3119.79(C) to appropriately determine whether a
modification of the order is proper.” Montgomery at ¶ 26, citing Adams v. Adams,
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3d Dist. Union No. 14-13-01, 2013-Ohio-2947, ¶ 16. Therefore, because
Kimberly and Rick voluntarily agreed that Kimberly would pay Rick $356.57 per
month in child support under the August 4, 2010 consent judgment, the trial court
“‘must find both (1) a [substantial] change of circumstances, and (2) that such
change in circumstance “was not contemplated at the time of the issuance of the
child support order.”’” Id., quoting Bonner v. Bonner, 3d Dist. Union No. 14-05-
26, 2005-Ohio-6173, ¶ 11, quoting R.C. 3119.79(C).
{¶9} “‘A court may only modify an existing child support order if there is a
substantial change of circumstances.’” Brose, 2013-Ohio-3399, at ¶ 12, quoting
Green v. Tarkington, 3d Dist. Mercer No. 10-10-02, 2010-Ohio-2165, ¶ 13. “The
requisite change in circumstances exists wherever the newly calculated ‘child
support amount deviates from the existing order by at least ten percent.’” Id.,
quoting Green at ¶ 13 and Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-
3344, ¶ 13 (“A difference of ten per cent from the amount of the current child
support order constitutes a ‘change of circumstances’ that requires the court to
modify the child support order.”). “The burden of proving a change in
circumstances under R.C. 3119.79 rests on the party requesting the modification of
the child support order.” Id., citing Maguire v. Maguire, 9th Dist. Summit No.
23581, 2007-Ohio-4531, ¶ 14.
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{¶10} “When considering whether a change in circumstances exists so as to
merit a modified child support order, a trial court must determine each parent’s
income.” (Emphasis sic.) Id. at ¶ 13, citing Drummer v. Drummer, 3d Dist.
Putnam No. 12-11-10, 2012-Ohio-3064, ¶ 24. “This determination necessarily
implicates R.C. 3119.05(A), which requires that, in child support modification
proceedings, trial courts verify both parents’ incomes ‘by electronic means or with
suitable documents, including, but not limited to, pay stubs, employer statements,
receipts and expense vouchers related to self-generated income, tax returns, and all
supporting documentation and schedules for tax returns.’” Id., quoting R.C.
3119.05(A). To prove their current income, “‘a parent must exactly adhere to this
requirement * * * by presenting those documents listed in R.C. 3119.05(A).’” Id.,
quoting Ornelas v. Ornelas, 12th Dist. Warren No. CA2011-08-094, 2012-Ohio-
4106, ¶ 23, citing Ellis v. Ellis, 7th Dist. Mahoning No. 08-MA-133, 2009-Ohio-
4964, ¶ 60 (“[P]ursuant to R.C. 3119.05(A) a trial court is restrained to review
documents, not testimony, to establish income.”); Ostmann v. Ostmann, 168 Ohio
App.3d 59, 2006-Ohio-3617, ¶ 53 (9th Dist.).
{¶11} “Further, the failure to comply with R.C. 3119.05(A) precludes a
movant from obtaining a modified child support order” because the “‘“[f]ailure to
obtain the necessary financial information renders the court’s order arbitrary and
therefore an abuse of discretion.’” Brose at ¶ 14; Montgomery, 2015-Ohio-2976,
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at ¶ 37, quoting Basham v. Basham, 3d Dist. Allen No. 1-02-37, 2002-Ohio-4694,
¶ 6, quoting Aiello v. Aiello, 3d Dist. Seneca No. 13-96-12, 1996 WL 517351, *2
(Sept. 11, 1996).
{¶12} If a change of circumstances is established, the trial court must then
determine whether that change of circumstances was contemplated at the time of
the issuance of the child support order. See Adams v. Adams, 3d Dist. Union No.
14-12-03, 2012-Ohio-5131, ¶ 30, citing Bonner, 2005-Ohio-6173, at ¶ 11.
{¶13} The trial court abused its discretion in granting Rick’s motion to
modify Kimberly’s child support obligations because Rick failed to sustain his
burden under R.C. 3119.79 that there is a change in circumstances related to his
income since he did not provide any R.C. 3119.05(A)-quality evidence of his
reduced income. Rick filed a motion requesting that the trial court modify
Kimberly’s child support obligation because his income was reduced after he was
injured in a workplace accident. At the hearing, Rick testified that he is unable to
work after sustaining a workplace injury and is receiving $242 per week in
workers’ compensation benefits. (Feb. 13, 2015 Tr. at 12). He testified that, at the
time he entered the consent decree with Kimberly regarding her child support
obligations, he “was making around an average of about [$]2,200 to [$]2,400 a
month.” (Id. at 12-13). Rick testified that he did not bring any documentation of
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his workers’ compensation benefits other than his “workers [sic] card number.”
(Id. at 17-18).
{¶14} The trial court concluded that there was a change of circumstances
and modified Kimberly’s child support obligations based on Rick’s testimony that
he was receiving $242 per week in workers’ compensation benefits as income. As
we stated in Montgomery, “The statute and the case law interpreting it require
more than testimony to satisfy the burden of proof.” Montgomery, 2015-Ohio-
2976, at ¶ 48. As such, Rick’s testimony alone is insufficient to establish a change
of circumstances related to his income. Id. at ¶ 51, citing Basham, 2002-Ohio-
4694, at ¶ 7-8, Brose, 2013-Ohio-3399, at ¶ 15-17, and Ornelas, 2012-Ohio-4106,
at ¶ 25. Because Rick’s testimony alone is insufficient to establish a change of
circumstances related to his income, whether his income deviated by 10 percent
from the existing child support order cannot be established. Accordingly, a
change in circumstances cannot be established to warrant a modification of
Kimberly’s child support obligations. Therefore, the trial court’s order modifying
Kimberly’s child support obligations is arbitrary and an abuse of discretion.
{¶15} Because we conclude that the trial court improperly found that there
was a change of circumstances, we need not determine the second prong of the
R.C. 3119.79-child-support-modification test—whether that change was
contemplated at the time of the issuance of the child support order.
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{¶16} Thus, we have no choice but to sustain Kimberly’s first assignment
of error.
Assignment of Error No. II
The Trial Court Erred and Abused its Discretion When the
Judge Acted as an Advocate for the Pro Se Party.
Assignment of Error No. III
The Trial Court Erred and Abused its Discretion When it
Imposed on Appellant an Order to Seek Full Time Employment
and Report Her Efforts in Writing to the Hancock County Child
Support Enforcement Agency.
Assignment of Error No. IV
The Trial Court Erred and Abused its Discretion When it
Ordered Appellant to Provide Health Insurance Without
Assuring that it Could be Provided at a Reasonable Cost.
{¶17} In her second, third, and fourth assignments of error, Kimberly
argues that the trial court abused its discretion by acting as an advocate for a pro se
party, by ordering her to seek full-time employment, and by ordering her to
provide health insurance for Austin and Chelsea.
{¶18} Because we determined in Kimberly’s first assignment of error that
the trial court abused its discretion in modifying Kimberly’s child support
obligations, Kimberly’s second, third, and fourth assignments of error are rendered
moot, and we decline to address them. See Adams, 2013-Ohio-2947, at ¶ 21,
citing App.R. 12(A)(1)(c).
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{¶19} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
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