In re I.L.J.

[Cite as In re I.L.J., 2019-Ohio-5241.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

In Re: I.L.J. :
: No. 108251
A Minor Child :
:
[Appeal by T.J., Father] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; DISMISSED IN PART
RELEASED AND JOURNALIZED: December 19, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. CU 11110416 and SU 14704092

Appearances:

Robert C. Aldridge, for appellant.

Michael B. Telep, for appellee S.M.

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Gabriel R. Rivera, and Steven W. Ritz, Assistant
Prosecuting Attorneys, for appellees OCSS.

MARY J. BOYLE, P.J.:

Appellant, T.J. (“father”), appeals from judgment of the Cuyahoga

County Juvenile Court (1) denying his motion to vacate an administrative child

support order adopted by the trial court on April 14, 2017, (2) denying his motion to
vacate a parenting agreement filed on May 24, 2016, (3) denying his motion to

escrow child support payments, and (4) granting appellee, S.M.’s (“mother”) motion

to show cause and for attorney fees regarding father’s failure to pay out-of-pocket

medical expenses for the child. Father raises four assignments of error for our

review:

1. The trial court erred when [it] denied appellant’s motion to vacate
administrative order without a hearing on the merits.

2. The trial court erred when it failed to vacate the adopted
administrative order pursuant to Civ.R. 60(B).

3. The trial court erred in finding that appellant was in contempt of
court for violating the terms of the adopted administrative order and
awarding attorney fees.

4. The trial court erred in failing to vacate the May 19, 2016 parenting
agreement for lack of jurisdiction.

We find no merit to father’s first, second, and fourth assignments of

error. We therefore affirm the trial court’s judgment with respect to father’s

Civ.R. 60(B) motions (i.e., his motion to vacate the February 4, 2013 administrative

support order and his motion to vacate the parenting agreement). With respect to

father’s third assignment of error, however, we find there is not a final appealable

order. We therefore dismiss father’s appeal regarding the trial court’s judgment

granting mother’s show cause motion for lack of final appealable order.

I. Procedural History and Factual Background

To say that the procedural history of this case is convoluted would be

somewhat of an understatement. What is pertinent to this appeal is what occurred

in the juvenile court subsequent to this court’s decision in the first appeal in this
case, In re I.L.J., 8th Dist. Cuyahoga No. 104272, 2016-Ohio-7052. Nonetheless, by

way of providing background information, we will set forth the facts and procedure

from the first appeal.

A. What Occurred Prior to First Appeal

Father and mother were never married, but I.L.J. was born from their

relationship in October 2010. In March 2011, the Cuyahoga County Job and Family

Services, Office of Child Support Services (“OCSS”) determined that father was

obligated to pay child support in the amount of $423.60 per month plus a 2 percent

processing fee when private health insurance was being provided or $383.53 per

month plus a 2 percent processing fee when private health insurance was not being

provided as well as $72.42 per month plus a 2 percent processing fee as cash medical

support. The child received health insurance through Medicaid, so father was

obligated to pay mother $465.07 per month effective March 24, 2011.

In August 2012, mother filed for administrative modification of the

child support. OCSS held hearings on mother’s request in November 2012 and

January 2013. OCSS modified the support order requiring father to pay more per

month toward cash medical support and added daycare expenses. OCCS issued its

support modification on February 4, 2013, obligating father to pay mother $631.02

per month plus 2 percent processing fee when private health insurance was being

provided or $587.81 per month plus a 2 percent processing fee when private health

insurance was not being provided as well as $101.42 per month plus a 2 percent
processing fee for cash medical support. The February 4, 2013 administrative

modification was made effective retroactive to November 1, 2012.

Over a year later, in March 2014, father requested that the juvenile

court adopt the February 4, 2013 administrative child support order so that he could

request a modification of it. The juvenile court did not do so. Despite this, in August

2014, father filed a motion to vacate the February 4, 2013 administrative support

order pursuant to R.C. 3119.961 or Civ.R. 60(B). He contended that during the

discovery process in a related custody case, he discovered that mother failed to

disclose at the January 28, 2013 hearing that her income had increased and that

mother also intentionally withheld information regarding the costs of her private

health insurance that was available as coverage for the child. Father also filed a

motion for contempt and for attorney fees.

Mother opposed father’s motion to vacate and filed a motion to modify

the child support arguing that the income of both parties had changed. She also filed

a motion for contempt based on the father’s refusal to pay for medical expenses that

were not covered by medical insurance.

The OCSS moved to dismiss the father’s amended motion to vacate,

arguing that Civ.R. 60(B) could not be used to vacate an administrative order and

that R.C. 3119.961, upon which the father was relying as grounds for vacating the

administrative order, was only available when a father was disputing paternity.

The magistrate held a hearing on all matters in February 2015 and

issued a decision in August 2015. The magistrate denied the parties’ motions for
contempt. The magistrate vacated the February 4, 2013 administrative order and

entered a new child support order, effective November 1, 2012, for the father to pay

$398.71 per month plus 2 percent fee when health insurance is provided or $444

per month plus 2 percent fee when health insurance is not provided. The magistrate

also granted mother’s motion to modify support and increased father’s child support

obligation to $613.59 per month, including 2 percent fee, and ordered that “it would

be equitable to start the increase retroactive to February 23, 2015.”

The parties objected to the various orders. The trial court ultimately

overruled the parties’ objections and, on September 9, 2015, adopted and approved

the magistrate’s decision in its entirety.

B. First Appeal

Mother appealed, raising several arguments. On September 29, 2016,

this court sustained two of mother’s assigned errors and reversed the juvenile court’s

judgment vacating the February 4, 2013 administrative order. We held that father

incorrectly relied on R.C. 3119.961 in his motion to vacate the February 4, 2013

administrative order because that statute only provides relief when paternity is at

issue. We explained that father could have sought relief from the administrative

order under R.C. 3118.84, but under this statute, a parent must bring an action in

the juvenile court within 30 days of the issuance of the administrative order. Father

did not bring an action in the juvenile court until March 31, 2014, beyond the 30-

day time limit. He then filed his motion to vacate the administrative order on

August 4, 2014, well beyond the 30-day time limit. R.C. 3118.84 states an
administrative support order becomes final and enforceable if neither parent brings

an action in the juvenile court within the 30-day period.

This court further held that the juvenile court erred when it granted

father’s Civ.R. 60(B) motion because Civ.R. 60(B) “cannot provide an alternative to

the procedure outlined in R.C. 3111.84 because [the rule] does not apply to

administrative orders.” I.L.J., 8th Dist. Cuyahoga No. 104272, 2016-Ohio-7052, at

¶ 30, citing Griffin v. Ohio Bur. of Workers’ Comp., 10th Dist. Franklin No. 11AP-

1126, 2012-Ohio-3655. We reversed and vacated the juvenile court’s judgment.

C. Custody Case

After the trial court adopted the magistrate’s decision and issued its

September 9, 2015 judgment, but before mother appealed that judgment (which was

not until March 21, 2016, due to some procedural irregularities), father moved to

consolidate the child support case with an ongoing custody case that was on the

docket in the juvenile court before a different visiting judge. On December 1, 2015,

the trial court granted father’s motion to consolidate the “companion cases” and

transferred the support case to the same visiting judge who was presiding over the

custody case. Despite this, for the most part, the parties continued to file pleadings

in the respective cases with the case number associated either with the support case

or the custody case and did not file the pleadings in both cases. Further, for the most

part, the trial court continued to issue separate judgment entries with respect to each

case.
 While the support case was pending on appeal, and despite the

consolidation, the juvenile court proceeded with the custody case. The court held a

hearing on mother’s motion to terminate a shared parenting order in May 2016

(mother filed her motion to terminate the shared parenting agreement in

September 2015). The parties ultimately entered into a parenting agreement where

mother became the sole custodial and residential parent on May 18, 2016, which

became an order of the court on May 19, 2016.

D. What Occurred Subsequent to This Court’s Remand

The parties filed various motions upon remand. We will only discuss

the ones that they did not voluntarily withdraw and are relevant to this appeal.

On January 30, 2017, father filed a motion to adopt the

February 4, 2013 administrative order as well as a motion to vacate that same order

pursuant to Civ.R. 60(B).

On May 1, 2017, the juvenile court adopted the two administrative

supports orders effective November 1, 2012, and February 4, 2013. The court found

that the February 4, 2013 order was the “current child support order.”

In July 2017, the court vacated its September 8, 2015 judgment in its

entirety due to this court’s decision in In re I.L.J., 8th Dist. Cuyahoga No. 104272,

2016-Ohio-7052.

On August 22, 2017, the matter was transferred to a visiting judge.

In October 2017, father filed a motion to vacate a May 19, 2016

parenting order pursuant to Civ.R. 60(B).
 In November 2017, mother filed a motion to show cause and for

attorney fees and moved to strike father’s motion to vacate the parenting order.

In August 2018, mother moved to modify the February 4, 2013

administrative order adopted by the court on April 14, 2017, asserting that there had

been a substantial change of circumstances that required a modification under

R.C. 3119.79.

The visiting judge held a hearing on September 10, 2018, on all

motions except mother’s August 2018 motion to modify child support. The court

issued its judgment on February 5, 2019. The court found that father elected to

proceed on his motion to vacate the administrative support order pursuant to

Civ.R. 60(B). The court found that father could not prevail on Civ.R. 60(B)(1), (2),

or (3) because the one-year time limit had passed. The court further found that the

order he was attempting to vacate was issued over four years ago and that was not a

reasonable amount of time under Civ.R. 60(B)(4) or (5).

The court further denied father’s motion to vacate the parenting order

journalized in May 2016. The court found that father’s first reason, that he was

prohibited from presenting evidence regarding child support at the hearing on

custody because the child support matter was in the court of appeals, was without

merit. The court explained that even if the child support matter would not have been

in the court of appeals, father could not have presented evidence of child support

because under R.C. 3109.04(F)(1)(g), the best interest factors, a court can only

consider whether the obligor is complying with the child support order. Based upon
this, the court concluded that only mother, the obligee, would have been able to raise

the issue of child support as part of the best interest factors.

The trial court then found that father’s second reason to vacate the

parenting order — that he was forced to enter into the agreement — was not

supported by the evidence. The court found that the evidence showed that mother

and father drafted the agreement themselves, that father actively participated, and

that father’s initials and signature appear four times in the document.

The court explained that mother proceeded on two of her motions,

including her motion to show cause for father’s failure to pay his share of the medical

bills and her motion for attorney fees. Based upon evidence presented by mother,

the court found that father owed mother $398.07 for his share of the unpaid medical

expenses. The court also awarded mother $525 in attorney fees for the amount her

attorney charged her for filing this motion and for the filing fees.

It is from this judgment that father now appeals.

II. February 4, 2013 Administrative Order

In his first and second assignments of error, father contends that the

trial court erred when it denied his Civ.R. 60(B) motion to vacate the

February 4, 2013 administrative order without a full evidentiary hearing on the

merits of his motion. He further argues that the trial court erred when it denied his

Civ.R. 60(B) motion because he “clearly met the requirements of GTE Automatic

[Electric Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976)].” We
will address father’s first and second assignments of error together because they are

interrelated.

Father admits that his current motion to vacate the February 4, 2013

administrative support order, which he filed on January 30, 2017, “was the refiling

of a prior motion [that] raised the same issues” as his original motion, which he filed

on August 4, 2014. Father contends that the juvenile court decided the merits of the

issues in his motion in his favor after an evidentiary hearing (when the juvenile court

vacated the February 4, 2013 administrative order on September 8, 2015) but then

this court reversed the juvenile court on jurisdictional grounds because the juvenile

court had never adopted the administrative order, a requirement for jurisdiction.

Father now contends that because the juvenile court finally adopted the

February 4, 2013 administrative order on May 1, 2017, removing the jurisdictional

impediment, the juvenile court’s September 8, 2015 decision vacating the

administrative order should be the law of the case.

Pursuant to R.C. 3111.84, the father of a child who is the subject of an

administrative support order may object to the order by bringing an action in the

juvenile court under R.C. 2151.231. An action under R.C. 3111.84, however, must be

filed no later than 30 days after the date the administrative support order is issued.1

If neither parent brings an action within that 30-day period, the administrative

1 R.C. 3111.84 has been amended by Am.Sub.S.B. No. 70, which became effective
February 11, 2019. It now provides that if a parent wishes to object to an administrative
support order, the parent must bring an action in the juvenile court within 14 days of the
issuance of the order.
support order is final and enforceable by a court and may be modified only as

provided in R.C. Chapters 3119, 3121, and 3123. In re I.L.J., 8th Dist. Cuyahoga No.

104272, 2016-Ohio-7052, at ¶ 28-29, citing R.C. 3111.84.

Father is attempting to vacate a February 4, 2013 administrative

support order. To do so, however, father needed to file an action in the juvenile court

within 30 days of that order. He failed to do so. Although the juvenile court adopted

the administrative order subsequent to our remand, that does not change the fact

that father did not timely object to the February 4, 2013 administrative order.

Father cannot use Civ.R. 60(B) to circumvent the rule set forth in R.C. 3111.84.

Even if we were to get to the merits of father’s Civ.R. 60(B) motion,

he would lose. Civ.R. 60(B) provides:

On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise or excusable neglect; (2) newly discovered evidence which by
due diligence could not have been discovered in time to move for a new
trial under Rule 59(B); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of an
adverse party; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (5) any other reason
justifying relief from the judgment.

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.

GTE Automatic, 47 Ohio St.2d 146, 351 N.E.2d 113, at paragraph two of the syllabus.

A failure to establish any one of the foregoing circumstances is ordinarily fatal to a

Civ.R. 60(B) motion. See Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520

N.E.2d 564 (1988) (the trial court should overrule a Civ.R. 60(B) motion if the

movant fails to meet any one of the foregoing three requirements); GTE Automatic

at 151 (the three requirements are “conjunctive”).

The trial court is vested with discretion in determining whether to

grant a motion for relief from judgment under Civ.R. 60(B), and the court’s ruling

will not be disturbed on appeal absent an abuse of discretion. Rose Chevrolet at 20.

To find that a trial court abused that discretion, “the result must be so palpably and

grossly violative of fact or logic that it evidences not the exercise of will but the

perversity of will, not the exercise of judgment but the defiance of judgment, not the

exercise of reason but instead passion or bias.” Nakoff v. Fairview Gen. Hosp., 75

Ohio St.3d 254, 256, 662 N.E.2d 1 (1996).

In his January 30, 2017 motion to vacate, father does not set forth

which subsection of Civ.R. 60(B) upon which he based his motion. In his brief in

support of his motion to vacate, which he did not file until nearly five months later

in June 2017, he asserts that mother failed to disclose “material information relevant

to the calculation of child support under Civ.R. 60(B)(1), (2), or (3), although the

specific misrepresent[ation] [of] financial and medical insurance information falls
most specifically under subsection (3).” He next states that because mother

misrepresented her financial information and medical insurance, “it is no longer

equitable that the judgment should have prospective application under

Civ.R. 60(B)(4).” Finally, he contends that he is also entitled to relief under

Civ.R.60 (B)(5) due to the fact that he did not discover the “fraud until after the one

year had passed.”

Father states that the basis of his Civ.R 60(B) motion is mother’s

misrepresentation of her financial information and medical insurance, which falls

squarely under Civ.R. 60(B)(3) — “fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation or other misconduct of an adverse party.” He

specifically argues that at the administrative hearing in January 2013, mother failed

to report her “then-current income” and withheld information “regarding her

private health insurance availability.” Under GTE Automatic, 47 Ohio St.2d 146,

351 N.E.2d 113, at paragraph two of the syllabus, however, motions to vacate based

upon fraud must be brought within one year of the judgment.

Civ.R. 60(B)(5) is a catch-all provision reflecting the inherent power

of a court to relieve a person from the unjust operation of a judgment. Volodkevich

v. Volodkevich, 35 Ohio St.3d 152, 154, 518 N.E.2d 1208 (1988), citing Caruso-

Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983). However, the

grounds for invoking Civ.R. 60(B)(5) must be substantial, and the provision is not

to be used as a substitute for any of the more specific provisions of Civ.R. 60(B).

Caruso-Ciresi at paragraphs one and two of the syllabus. In other words, if a motion
for relief from judgment under Civ.R. 60(B)(3) is not filed within one year of the

discovery of the fraud, the movant cannot file the motion for relief from judgment

under the “reasonable time” parameters of Civ.R. 60(B)(5). See Cerney v. Norfolk

& W. Ry. Co., 104 Ohio App.3d 482, 491, 662 N.E.2d 827 (8th Dist.1995). Father

did not file his motion for relief from judgment within one year of allegedly

discovering the fraud because he made the same allegation in his first motion filed

in August 2014.

The question of whether to hold an evidentiary hearing on a Civ.R.

60(B) motion is addressed to the sound discretion of the trial court. Schneider v.

Gunnerman, 12th Dist. Fayette Nos. CA98-11-019 and CA99-03-009, 1999 Ohio

App. LEXIS 3784, 3 (Aug. 16, 1999). The Ohio Supreme Court has held it is an abuse

of discretion for the trial court to deny a hearing “where grounds for relief from

judgment are sufficiently alleged and are supported with evidence which would

warrant relief from judgment.” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 19,

665 N.E.2d 1102 (1996) (also stating “[i]f the movant files a motion for relief from

judgment and it contains allegations of operative facts which would warrant relief

under Civil Rule 60(B), the trial court should grant a hearing to take evidence and

verify these facts before it rules on the motion[.]”). Here, however, father did not

present sufficient operative facts to warrant a hearing. Accordingly, we find no

abuse of discretion on the part of the trial court for denying father’s motion without

an evidentiary hearing.

Father’s first and second assignments of error are overruled.
III. Mother’s Motion To Show Cause and For Attorney Fees

In father’s third assignment of error, he contends that the trial court

erred when it granted mother’s motion to show cause for father’s failure to pay his

share of out-of-pocket medical expenses and for attorney fees.

The parties’ February 4, 2014 child support order included a cash

medical support order requiring father to pay 57 percent of out-of-pocket medical

costs that insurance did not cover. Mother asserted that she was explicitly asking

for 57 percent of medical bills incurred for ten doctor visits. Mother attached the

medical bills in question to her motion.

The trial court found that the bills totaled $811.28 but that two of

them were incurred during a time when father was not required to reimburse

mother. Thus, the court found that the medical bills totaled $673.64 of which father

was required to pay 57 percent of that amount, equaling $398.07. Mother testified

that when she asked father for his portion of these costs, father would tell her that

she should pay the bills with the child support that he paid her. The trial court

questioned father about these bills. It directly asked him, “Have you ever

reimbursed mother for 57%?” Father responded, “No.”

In its February 5, 2019 judgment, the trial court granted mother’s

motion and ordered father to pay $398.07 on or before February 28, 2019.

The trial court further considered mother’s request for attorney fees

that she incurred in processing the motion to show cause. Mother testified that she

paid a $25 filing fee for the motion and that her attorney billed her for five hours at
a rate of $100 per hour for consultation before the filing of the motion and the actual

trial of the motion. The court found that number of hours expended and the hourly

rate to be fair and reasonable. The court granted mother’s motion in its

February 5, 2019 judgment and ordered father to pay $525 on or before

March 29, 2019.

At the outset, we must determine whether the trial court’s judgment

regarding its finding of contempt amounted to a final appealable order. This court

instructed the parties to show cause as to whether there was a final appealable order

in this case regarding the contempt portion of the judgment. After review, we agree

with mother that the trial court’s judgment regarding contempt and attorney fees is

not a final appealable order.

Contempt consists of two elements: (1) a finding of contempt of court

and (2) imposition of a penalty or sanction. “Until both a finding of contempt is

made and a penalty imposed by the court, there is not a final order.” Chain Bike

Corp. v. Spoke ’N Wheel, Inc., 64 Ohio App.2d 62, 64, 410 N.E.2d 802 (8th

Dist.1979). In Chain Bike, the trial court found the defendant to be in contempt of

court, but it never imposed a penalty. This court held that we did not have

jurisdiction over the matter due to lack of final appealable order. Id.

In the present case, the trial court granted mother’s motion to show

cause and ordered father to pay $398.07, but it did not make a finding of contempt

or impose a penalty or sanction for the contempt. Accordingly, we do not have a
final appealable order in this case only with respect to mother’s motion to show

cause.

The trial court also did not include a purge order. “Violations which

are primarily offenses against the party for whose benefit the order was made, and

where the primary purpose of the punishment is remedial or coercive and for the

benefit of the complainant, are civil contempts, and the sanction must afford the

contemnor the opportunity to purge himself of his contempt.” Tucker v. Tucker, 10

Ohio App.3d 251, 252, 461 N.E.2d 1337 (10th Dist.1983), citing Brown v. Executive

200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980), and State v. Kilbane, 61 Ohio

St.2d 201, 400 N.E.2d 386 (1980). There is no question in this case that father’s

contempt was civil in nature. Thus, the trial court should have given father the

opportunity to purge his contempt to avoid a penalty, but the trial court did not

impose a penalty either in this case so there was no way for father to purge his

contempt.

The OCSS claims that the trial court’s judgment ordering father to pay

his portion of the medical bills was the punishment for the contempt. However,

father was already required to pay the medical bills. Thus, paying the medical bills

cannot be punishment for not paying the medical bills.

We further note that the trial court’s award of attorney fees related to

the motion was not a penalty or sanction for the contempt. Patterson v. Patterson,

5th Dist. Stark No. 2002CA00167, 2003-Ohio-517, ¶ 14. R.C. 3109.05(C) provides

that if a court finds a person in contempt of court for failure to make support
payments under a child support order, “the court that makes the finding, in addition

to any other penalty or remedy imposed, shall assess all court costs arising out of the

contempt proceeding against the person and require the person to pay any

reasonable attorney’s fees of any adverse party[.]” R.C. 3109.05(C). Moreover, if a

party purges the contempt, it does not mean that the party no longer has to pay the

opposing parties’ attorney fees.

Accordingly, we find that the trial court’s judgment granting mother’s

show cause motion and ordering father to pay attorney fees was not a finding of

contempt and penalty that father could purge. We therefore do not have a final

appealable order regarding the trial court’s judgment on contempt. We note that

this does not affect the remaining judgment or assignments of error. The trial court

held a joint hearing on several motions, each of which provided a separate

appealable order. “Final orders are those that dispose of the whole case or some

separate and distinct subdivision of it while leaving nothing for future

determination.” Carpenter v. Carpenter, 12th Dist. Butler No. CA2013-05-083,

2013-Ohio-4980, ¶ 8, citing Hetterick v. Hetterick, 12th Dist. Brown No. CA2012-

02-002, 2013-Ohio-15.

Thus, father’s appeal of the trial court’s judgment with respect to

contempt is dismissed for lack of final appealable order.

IV. Parenting Order

In his fourth assignment of error, father maintains that the trial court

erred when it failed to grant his motion to vacate the May 19, 2016 parenting order.
 Father moved to vacate the parenting order in October 2017. Father

based his motion to vacate the parenting order on Civ.R. 60(B)(4) and (5). Father

argued in his motion that the juvenile court erred when it held a trial on the

parenting action in May 2016 because the child support matter was pending on

appeal at that time. As we previously set forth, the child support and parenting

actions began as separate cases. They were consolidated in October 2015. At that

time, the trial court had already held a hearing on all child support issues and had

issued its judgment regarding those matters in September 2015. Mother appealed

the trial court’s September 2015 judgment in the child support case in March 2016

(she did not file the appeal within 30 days due to procedural mishaps, which are not

relevant here but that we fully explained in the first appeal). While mother’s appeal

regarding child support was pending, the juvenile court (visiting judge) held a

hearing in May 2016 on mother’s motion to terminate the shared parenting

agreement, which resulted in the parties entering into a new parenting agreement

with mother named as the sole residential parent.

Father argued in his Civ.R. 60(B) motion to vacate the parenting

order that because a trial proceeded on the parenting matter while the support

matter was pending, it “prevented all factors from being presented at the time of

trial in the determination of custody” of the child. Father stated in his motion that

“[t]his identifies the clear error and thus warrants justifiable cause to vacate such

order.”
 After a hearing on the matter, the juvenile court found that father’s

arguments were misplaced. The juvenile court determined that father’s first

argument that the judge presiding over the custody matter erred when it prevented

him from bringing up child support matters was without merit because child

support is only relevant to custody matters under R.C. 3109.04(F)(1)(g), which sets

forth the best interest factors. But the juvenile court found that this provision would

have only helped mother, not father, because it states, “Whether either parent has

failed to make all child support payments, including all arrearages, that are required

of that parent pursuant to a child support order under which that parent is an

obligor[.]” Therefore, the juvenile court found that father’s first argument to vacate

the parenting order “must fail.”

The juvenile court then considered father’s second argument to

vacate the parenting order, which was that he was forced to enter into the parenting

agreement. The juvenile court noted that father testified that the previous juvenile

court judge “practically told [him] that if [he] didn’t come to an agreement with

[mother], he would issue just the standard order, the standard shared parenting

time and * * * would remove my parental rights, my decision-making authority.”

Mother’s recollection was different. Mother stated that the judge presiding over the

custody matter in May 2016 told them that they could “put together an order that’s

going to be ten times better than anything I can put together for you.” Mother

further stated that the previous judge told her and father that “we can continue this
for the next however many days you want to continue it and I’ll make a decision, but

I guarantee you it won’t be better than the one you can make for yourselves.”

The juvenile court further noted that mother and father, not the court

or the guardian ad litem, prepared the parenting agreement in May 2016, and that

father signed the agreement and initialed three pages of it. Mother testified as to

how she and father drafted the agreement together using the court’s standard

parenting agreement but then they modified it to fit their agreement.

The juvenile court found that based upon the testimony presented,

father’s active participation in the drafting of the agreement, and the number of

times father signed and initialed the agreement, he was not forced to enter into the

agreement.

On appeal, father does not challenge the juvenile court’s findings with

respect to his motion to vacate the parenting order. Rather, father now contends for

the first time that because the custody and support cases had been consolidated and

the support case was pending on appeal at the time of the parenting hearing, the

juvenile court lacked subject matter jurisdiction over the custody case at that time.2

Because a party or court can raise the issue of subject matter jurisdiction at any time,

we will address father’s argument.

Typically, “once an appeal is perfected, the trial court is divested of

jurisdiction over matters that are inconsistent with the reviewing court’s jurisdiction

2Father asserts that he raised the issue of subject matter jurisdiction in his motion
to vacate, but he did not.
to reverse, modify, or affirm the judgment.” State ex rel. Rock v. Sch. Emples. Ret.

Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8, citing Howard v.

Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 637 N.E.2d 890

(1994). However, the trial court can act on issues that are not inconsistent with the

reviewing power of the appellate court. State ex rel. State Fire Marshal v. Curl, 87

Ohio St.3d 568, 570, 722 N.E.2d 73 (2000).

In In re I.L.J., 8th Dist. Cuyahoga No. 104272, 2016-Ohio-7052, this

court decided several matters all relating to child support. The trial court did not

consolidate the cases until after it issued a judgment adopting the magistrate’s

decision regarding all child and medical support issues. This judgment was a final

appealable order, which mother appealed. This court addressed the child support

matters in In re I.L.J.

The parties’ custody disputes had been ongoing practically as long as

their arguments relating to child support. We agree with the juvenile court judge

who presided over the custody matter in May 2016 that it could decide custody while

the support issues were pending on appeal because the juvenile court’s decision on

custody did not affect our ability to reverse, modify, or affirm the judgment

regarding the child support matters. Therefore, the juvenile court had subject

matter jurisdiction to decide the custody matter in May 2016 while the child support

appeal was pending.

Accordingly, father’s fourth assignment of error is overruled.
 Judgment affirmed with respect to father’s Civ.R. 60(B) motions.

Father’s appeal of the trial court’s judgment granting mother’s show cause motion

is dismissed for lack of final appealable order.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR