Ward v. Ward

[Cite as Ward v. Ward, 2016-Ohio-5178.]

COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JULIE A. WARD : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case Nos. 15-CA-33
JOHN R. WARD : 15-CA-53
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 2005 DS 216

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 29, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAINA D. CORNELL RANDY L. HAPPENEY
329 East Main Street 144 East Main Street
Lancaster, OH 43130 P.O. Box 667
Lancaster, OH 43130
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 2

Farmer, P.J.

{¶1} On August 22, 1986, appellant, John Ward, and appellee, Julie Ward,

were married. One child was born as issue of the marriage, Nicole, born October 12,

1992. Nicole is disabled due to a medical condition.

{¶2} On December 2, 2005, the parties' marriage was terminated pursuant to a

decree of dissolution with a shared parenting plan. The parties agreed that appellant

would pay appellee child support in the amount of $490.41 per month, and child support

would continue beyond Nicole's eighteenth birthday, until the parties agreed to

terminate the child support obligation.

{¶3} Due to subsequent disputes that arose, an agreed judgment entry was

filed on July 6, 2009, terminating the shared parenting agreement, naming appellee as

residential parent, and maintaining the terms of the shared parenting agreement that

were not otherwise modified e.g., child support.

{¶4} Nicole turned eighteen on October 12, 2010. Further disputes arose. On

January 21, 2011, a judgment entry was filed increasing appellant's child support

obligation to $830.12 per month.

{¶5} On February 12, 2013, appellant filed a motion to terminate child support

as Nicole turned eighteen years old and was no longer a high school student. On April

26, 2013, appellant filed a motion to modify child support as Nicole was receiving social

security benefits. On October 8, 2013, appellee filed a motion to modify child support

and on January 9, 2014, filed a motion for contempt over appellee's failure to pay

medical expenses per the July 6, 2009 agreed judgment entry and the January 21, 2011

judgment entry. A hearing before a magistrate was held on January 28, 2014. Prior to
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 3

the hearing, appellant withdrew his motions to terminate and modify child support. By

decision filed August 28, 2014, the magistrate increased appellee's child support

obligation to $2,802.35 per month, found him in contempt, and ordered him to pay

attorney fees. Appellant filed objections. On October 30, 2014, the magistrate filed a

nunc pro tunc decision to name appellant as the child support obligor and appellee as

the child support obligee. Again, appellant filed objections. By judgment entry filed May

12, 2015, the trial court overruled the objections and adopted the magistrate's nunc pro

tunc decision.

{¶6} On June 9, 2015, appellant filed an appeal, Case No. 15-CA-33.

{¶7} On July 1, 2015, appellant filed a motion to set aside the magistrate's nunc

pro tunc decision and the trial court's May 12, 2015 judgment entry, and for a

recalculation of the child support order due to a change of circumstances. By judgment

entry filed August 31, 2015, this court remanded the matter to the trial court for ruling on

the Civ.R. 60(B) motion. Appellant filed a supplemental memorandum on September 9,

2015. By judgment entry filed September 25, 2015, the trial court denied the motion,

finding relief was not warranted under any of the grounds stated in Civ.R. 60(B)(1)

through (5).

{¶8} On October 20, 2015, appellant filed an appeal, Case No. 15-CA-53.

{¶9} By entry filed April 12, 2016, this court consolidated the two cases for "oral

argument and decision." This matter is now before this court for consideration.

{¶10} Assignments of Error in Case No. 15-CA-33 are as follows:
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 4

I

{¶11} "THE MAGISTRATE IMPROPERLY CALCULATED CHILD SUPPORT

USING A DAYCARE AMOUNT THAT WAS INACCURATE, INCOMPLETE AND

EXCESSIVE."

II

{¶12} "THE MAGISTRATE IMPROPERLY CALCULATED CHILD SUPPORT

USING A 'STIPULATED' DAYCARE AMOUNT WHEN SAID STIPULATION WAS

INACCURATE AND INCOMPLETE."

III

{¶13} "THE MAGISTRATE ERRED IN MAKING THE MODIFICATION OF

CHILD SUPPORT EFFECTIVE APRIL 26, 2013."

IV

{¶14} "THE MAGISTRATE IMPROPERLY FOUND APPELLANT GUILTY OF

CONTEMPT BASED UPON A HEARSAY DOCUMENT, INCORRECTLY ADMITTED

INTO EVIDENCE."

{¶15} Assignments of Error in Case No. 15-CA-53 are as follows:

I

{¶16} "THE TRIAL COURT ERRED IN REFUSING TO CONSIDER THE

DEPOSITION TESTIMONY OF REPRESENTATIVES OF THE FAIRFIELD COUNTY

BOARD OF DEVELOPMENTAL DISABILITIES, AS TO APPELLANT'S MOTION FOR

RELIEF FROM JUDGMENT."
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 5

II

{¶17} "THE TRIAL COURT ERRED IN REFUSING TO SET ASIDE THE

MAGISTRATE'S DECISION DATED OCTOBER 31, 2014 AND THE JUDGMENT

ENTRY OVERRULING OBJECTIONS TO THE SAME, DATED MAY 12, 2015,

PURSUANT TO CIV.R.60(B)(1) [EXCUSABLE NEGLECT] AND CIV.R. 60(B)(3)

[FRAUD ON THE COURT]."

III

{¶18} "THE TRIAL COURT ERRED IN FAILING/REFUSING TO CORRECT

THE EFFECTIVE DATE OF THE SUPPORT MODIFICATION HEREIN, TO WIT: FROM

APRIL 26, 2013 [DATE OF FILING OF APPELLANT’S MOTION] TO OCTOBER 8,

2013 [DATE OF FILING OF APPELLEE'S MOTION]."

CASE NO. 15-CA-33

I, II

{¶19} Appellant claims the trial court improperly calculated child support in its

modification by using an incorrect daycare expense amount. We disagree.

{¶20} Determinations on child support are within a trial court's sound discretion.

Booth v. Booth, 44 Ohio St.3d 142 (1989). In order to find an abuse of discretion, we

must determine the trial court's decision was unreasonable, arbitrary or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217

(1983).

{¶21} Appellant argues the amount was calculated without a time frame and

without a finding on reasonableness. By nunc pro tunc decision filed October 30, 2015,

the magistrate stated the following:
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 6

It was stipulated by the parties that Julie A. Ward earns $73,775.00.

She pays local taxes in the amount of 5.5 percent. She pays $0.00 for

health care, $40,709.76 for day care for Nicole, $0.00 for work related

expenses. Mrs. Ward does not have other children.

It was stipulated by the parties that John R. Ward earns

$118,502.00 annually. He pays 5.5 percent for local taxes. He pays

$0.00 for health insurance for the minor child, $0.00 for daycare, $0.00 for

work related expenses. He has one other minor child who resides with

him.

{¶22} The magistrate raised appellant's child support obligation from $830.12

per month to $2,802.35 per month, "due primarily to the increase in day care expense.

The increase in the amount of child support is substantial enough to require a

modification of the child support amount."

{¶23} We note Civ.R. 53(D)(3)(b)(ii) states: "An objection to a magistrate's

decision shall be specific and state with particularity all grounds for objection."

Appellant filed objections and generally argued the child support order was "improperly

calculated by the inclusion of unspecified medical and daycare expenses." From our

review, the objection calls into question lines 18 and 19 of the Child Support

Computation Summary Worksheet. Line 18 lists "Annual Support per Parent":

$9,249.50 for appellant, and $5,968.50 for appellee. Line 19 lists "Net Child Care Exp.

Paid": $0.00 for appellant, and $40,109.76 for appellee.
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 7

{¶24} In its May 12, 2015 judgment entry ruling on appellant's objection to the

child support calculation, the trial court stated the following:

John R. Ward also objected that his court ordered child support

obligation had been improperly calculated by the inclusion of unspecified

medical and daycare expenses. Julie Ward's Response to the Objections

indicates that the expenses were not unspecified, but were in fact

stipulated at the outset of the hearing. A review of the Transcript indicates

the amounts of these expenses were stipulated by the parties. (Transcript

pp 14-21). This objection by John R. Ward is without merit.

{¶25} At these specifically referenced pages, the daycare expense paid by

appellee was agreed to be forty-two hours per week at $18.64 per hour. T. at 17, 21.

No objection was made when the magistrate recited these figures, no testimony was

taken on the issue of daycare expenses, and no argument was made by appellant in

closing as to the daycare expenses vis-à-vis child support.

{¶26} As explained by our brethren from the Eighth District in Rice v. Rice, 8th

Dist. Cuyahoga No. 78682, 2001 WL 1400012, *4 (Nov. 8, 2001):

A stipulation, sometimes used synonymously with "contract", is a

voluntary agreement entered into between opposing parties concerning

the disposition of some relevant point to avoid the necessity for proof on

an issue. Burdge v. Bd. of Cty. Commrs. (1982), 7 Ohio App.3d 356, 358,
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 8

455 N.E.2d 1055, 1058. A stipulation of a fact renders proof unnecessary.

F. Fareydoon-Nezhad v. Kilgore, 1998 Ohio App. LEXIS 6328 (Dec. 18,

1998), Lawrence App. 98 CA 3, citing, Peters Motors, Inc. v. Rodgers

(1954), 161 Ohio St. 480, 120 N.E.2d 80, paragraph two of the syllabus.

Where parties choose to stipulate facts in lieu of presenting evidence, they

"waive[ ] any error that may have occurred with respect to the fact that the

trial court decided this case without hearing evidence presented by the

parties." Id.

{¶27} "A trial court's decision with regard to granting or denying relief from a

stipulation will not be interfered with on appeal except where the trial court has been

guilty of a manifest abuse of discretion." Id.; Blakemore, supra.

{¶28} Appellant also argues Loc.R. 18.1 of the Court of Common Pleas of

Fairfield County was violated wherein the rule provides that "[a]ll stipulations are to be in

writing, approved by the parties or their counsel and filed with the Court unless waived

by the Court." Under the doctrine of "invited error," it is well settled that "a party will not

be permitted to take advantage of an error which he himself invited or induced the trial

court to make." State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 1995-Ohio-40,

citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 1994-Ohio-302. See, also,

Lester v. Leuck, 142 Ohio St. 91 (1943), paragraph one of the syllabus. As the

Supreme Court of Ohio stated in Lester at 92-93, quoting State v. Kollar, 95 Ohio St. 89

(1915):
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 9

'The law imposes upon every litigant the duty of vigilance in the trial

of a case, and even where the trial court commits an error to his prejudice,

he is required then and there to challenge the attention of the court to that

error, by excepting thereto, and upon failure of the court to correct the

same to cause his exceptions to be noted.

'It follows, therefore, that, for much graver reasons, a litigant cannot

be permitted, either intentionally or unintentionally, to induce or mislead a

court into the commission of an error and then procure a reversal of the

judgment for an error for which he was actively responsible.'

{¶29} Upon review, we find the trial court did not abuse its discretion in

accepting the stipulated daycare expense amount in its calculation of child support.

{¶30} Assignments of Error I and II are denied.

III

{¶31} Appellant claims the trial court erred in setting the date for the new child

support amount as the date he filed his motion to modify his child support obligation

(April 26, 2013) as opposed to using the date appellee filed her motion to modify child

support (October 8, 2013). We disagree.

{¶32} Again, our standard of review is abuse of discretion. Booth, supra;

Blakemore, supra.

{¶33} We note appellant did not file an objection to the effective date of the child

support modification in violation of Civ.R. 53(D)(3)(iv) which states: "Except for a claim

of plain error, a party shall not assign as error on appeal the court's adoption of any
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 10

factual finding or legal conclusion, whether or not specifically designated as a finding of

fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to

that finding or conclusion as required by Civ.R. 53(D)(3)(b)."

{¶34} Nevertheless, in McNeeley v. Ortiz, 5th Dist. Stark No. 2010-CA-00012,

2010-Ohio-4650, ¶ 22, this court stated: "Generally, trial courts may make orders

altering child support effective as of the date the opposing party had notice of the

request ordered child support. Waco v. Waco (March 8, 1999), Stark App. No.1998-CA-

00279."

{¶35} Appellant admits this is the general rule, but argues appellee also filed a

subsequent motion to modify on October 8, 2013, and therefore the use of his motion's

April date was error, especially since he withdrew his motion prior to the magistrate's

hearing. In his appellate brief at 1, appellant admits his prior counsel filed a motion to

terminate child support on February 12, 2013, "apparently unaware of the Castle

agreement set forth in the original parenting plan of the parties."

{¶36} Appellant's April 26, 2013 motion to modify child support was predicated

on the allegation that the child was receiving social security benefits. Appellee's

October 8, 2013 motion to modify child support was predicated on a change of

circumstances. Both motions put the issue squarely before the trial court.

{¶37} Upon review, we find the trial court properly chose the April 26, 2013 date

pursuant to R.C. 3119.84, and the decision was not an abuse of discretion.

{¶38} Assignment of Error III is denied.
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 11

IV

{¶39} Appellant claims the trial court erred in finding him in contempt for failure

to reimburse appellee for medical expenses. We disagree.

{¶40} We review contempt decisions under an abuse of discretion standard.

State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69 (1991); Blakemore, supra.

{¶41} As explained by our brethren from the Fourth District in McDonald v.

McDonald 4th Dist. Highland No. 12CA1, 2013-Ohio-470, ¶ 17–18:

Civil contempt exists when a party fails to do something ordered by

a court for the benefit of an opposing party. Pedone v. Pedone, 11 Ohio

App.3d 164, 165, 463 N.E.2d 656 (1983); Beach v. Beach, 99 Ohio App.

428, 431, 134 N.E.2d 162 (1955). The punishment is remedial, or

coercive, in civil contempt. State ex rel. Henneke v. Davis, 66 Ohio St.3d

119, 120, 609 N.E .2d 544 (1993). In other words, civil contempt is

intended to enforce compliance with a court's orders.

The party seeking to enforce a court order must establish, by clear

and convincing evidence, the existence of a court order and the

nonmoving party's noncompliance with the terms of that order. Wolf v.

Wolf 1st Dist. Hamilton No. C-090587, 2010-Ohio-2762, 2010 WL

2473277, ¶ 4; Morford v. Morford, 85 Ohio App.3d 50, 55, 619 N.E.2d 71

(4th Dist.1993).
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 12

{¶42} "Once the prima facie case has been established by clear and convincing

evidence, the burden shifts to the non-moving party to either rebut the initial showing of

contempt or establish an affirmative defense by a preponderance of the evidence."

Allen v. Allen, 10th Dist. Franklin No. 02AP-768, 2003-Ohio-954, ¶ 16.

{¶43} "Clear and convincing evidence" is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

{¶44} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).

The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

{¶45} In her decision filed October 30, 2014, the magistrate found the following:

John Ward testified that after January 21, 2011, he began to

receive separate bills for his 70 percent directly from the chiropractor. He

paid medical bills directly to Keller Chiropractic, and that is not in dispute.

There is no evidence presented, however, that he paid the portion from

May 5, 2010, through January 21, 2011, of the chiropractic bill owed to

Julie Ward that is the center of this action. John Ward admitted that he

had seen Petitioner's Exhibit 1 prior to the hearing along with spread

sheets from her on a monthly basis and eventually on a quarterly basis.
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 13

He testified that he believed that the chiropractic services were rendered

to Nikki, and that he does not take Nikki to her appointments. He further

testified that he does not remember what he paid and what he did not pay,

and although he has all of the records at home, he did not bring the

records to Court for the hearing.

***

Regarding Branch Two of the Motion and Affidavit in Contempt,

John Ward is in contempt of court for failing to follow the Orders of the

Court. He shall be incarcerated for a period of 30 days, suspended upon

the condition that he pay to Julie Ward the sum of $1,276.98 within 60

days of the date of this entry and attorney fees in the amount of $675.00

within 90 days of the date of this Entry and the court costs of this action.

{¶46} In its decision filed May 12, 2015, the trial court found the following:

Lastly, John R. Ward objected to the Magistrate's finding that John

R. Ward was in contempt of Court for failing to pay the child's bill owed to

Dr. Keller. Julie Ward argues that the Magistrate's finding of contempt

was correct as the evidence presented was clear and convincing. The

Court finds that the Transcript indicates that the Plaintiff testified about a

specific bill owed to Dr. Keller which she paid, and claims John R. Ward

failed to reimburse his share. (Transcript, p. 48). The Court further finds

that John Ward could not remember whether he paid the bill or not.
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 14

(Transcript, p. 34). The Court also finds that John R. Ward testified that

he had records for payments made on the child's medical expenses at

home, but he apparently failed to bring them to Court. (Transcript, p. 33).

The Court finds that the evidence was clear and convincing to support a

finding of Contempt against John Ward.

{¶47} Appellee testified appellant never reimbursed her for the amounts she

paid on the bill from May 5, 2010 to January 11, 2011, and presented supporting

documentation. T. at 42-45; Petitioner's Exhibit 1. Appellant admitted to previously

reviewing the subject bill from Dr. Keller's office as he received bills from the office, but

he was not certain if he had reimbursed appellee for any of the charges or whether his

medical insurance had paid the amounts. T. at 34, 36-40. Appellant did not present

any supporting documentation.

{¶48} Upon review, we find the trial court did not abuse its discretion in finding

appellant in contempt of court.

{¶49} Assignment of Error IV is denied.

CASE NO. 15-CA-53

{¶50} In this appeal, appellant claims the trial court erred in denying his Civ.R.

60(B) motion for relief from judgment. A motion for relief from judgment under Civ.R.

60(B) lies in the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987);

Blakemore, supra. Appellant based his Civ.R. 60(B) motion on "excusable neglect" and

"fraud." Civ.R. 60(B)(1) and (3). In GTE Automatic Electric Inc. v. ARC Industries, Inc.,
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 15

47 Ohio St.2d 146 (1976), paragraph two of the syllabus, the Supreme Court of Ohio

held the following:

To prevail on a motion brought under Civ.R. 60(B), the movant

must demonstrate that: (1) the party has a meritorious defense or claim to

present if relief is granted; (2) the party is entitled to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made

within a reasonable time, and, where the grounds of relief are Civ.R.

60(B)(1), (2) or (3), not more than one year after the judgment, order or

proceeding was entered or taken.

I

{¶51} Appellant claims the trial court erred in denying the admission of the

depositions of representatives from the Fairfield County Board of Developmental

Disabilities (hereinafter "FCBODD"). We disagree.

{¶52} Appellant concedes the depositions of the representatives were taken

without proper notice to appellee, but argues this should be disregarded because of the

trial court's limited time to rule on the Civ.R. 60(B) motion pursuant to remand.

{¶53} Appellant argues the depositions would have shown that Nicole

participated in programs offered by the FCBODD that overlapped with the alleged

daycare expense. The trial court never reached this issue as it denied the Civ.R. 60(B)

motion because of the stipulated daycare expense amount.

{¶54} Upon review, we find whether the depositions were or were not received

had no bearing on the trial court's decision.
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 16

{¶55} Assignment of Error I is denied.

II

{¶56} Appellant claims the trial court erred in denying his Civ.R. 60(B) motion

claiming excusable neglect and fraud based on his former attorney's reliance on

statements made by opposing counsel regarding the aforementioned stipulation. We

disagree.

{¶57} In its September 25, 2015 judgment entry denying the motion, the trial

court clearly explained in a lengthy entry that all of the numbers used to calculate the

daycare expense amount, forty-two hours a week at $18.64 per hour, were stipulated to

by appellant. This stipulation was made after discovery and on the record. As we found

above, despite the fact that the stipulation was not memorialized per local rule, the

record is unequivocal that both parties agreed to the stipulation and argued the case on

other issues. Appellee testified to the daycare expense and appellant and his trial

counsel had ample opportunity to cross-examine her.

{¶58} A Civ.R. 60(B) motion is not a sword to strike down unanticipated losses,

but to set wrongs right. Excusable neglect or failure to object or pursue discovery by

trial counsel are not valid reasons to re-open a fully litigated case. Appellant's present

defense à la the FCBODD depositions were available to him at the time of the hearing.

Appellee's October 8, 2013 motion to modify child support put appellant on notice of the

extended daycare:

Petitioner, Julie Ward asserts that it is in the best interest of the

parties' minor child for the child support obligation of Petitioner-Father to
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 17

be adjusted based upon a change in circumstances. The minor child is

disabled and has received substantial daycare assistance through public

resources. On the date of the minor child's twenty-first birthday, October

12, 2013, the child's public assistance for daycare will be greatly reduced.

At that time, it will be necessary for Petitioner-Mother to pay for daycare

for the child out of private funds. Furthermore, Petitioner-Mother avers

that there may be other changes in circumstances that would warrant a

modification of the child support award.

{¶59} This was known to appellant a year prior to the trial court's final decision.

Appellant's claim of fraud premised on appellee's "[f]ailure to disclose Nikki's

participation in adult disability services" is without merit. See, Appellant's Supplemental

Memorandum filed September 9, 2015.

{¶60} Upon review, we find the trial court did not abuse its discretion in denying

the Civ.R. 60(B) motion for relief from judgment.

{¶61} Assignment of Error II is denied.

III

{¶62} Appellant claims the trial court should have granted his motion for relief

from judgment because no specific objection was made to the retroactive start date of

the modified child support amount. We disagree.

{¶63} "A party may not use a Civ.R. 60(B) motion as a substitute for a timely

appeal." Doe v. Trumbull County Children Services Board, 28 Ohio St.3d 128, (1986),

paragraph two of the syllabus.
Fairfield County, Case Nos. 15-CA-33 & 15-CA-53 18

{¶64} Appellant filed a timely appeal on the issue of the retroactive start date

which was addressed above and denied.

{¶65} Assignment of Error III is denied.

{¶66} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Domestic Relations Division is hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.

SGF/sg 624