[Cite as In re J.H., 2020-Ohio-576.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.H. :
: No. 108565
A Minor Child :
:
[Appeal by A.H., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 20, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD12920956
Appearances:
A.H., pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Steven W. Ritz, Latina Bailey-Williams, and
Marilyn Orkin Weinberg, Assistant Prosecuting
Attorneys, for appellee Cuyahoga County Office of Child
Support Services.
EILEEN A. GALLAGHER, J.:
Appellant-mother A.H. (“Mother”) appeals from an order of the
juvenile court, imposing a minimum child support order for her son, J.H., who had
been placed in the legal custody of his paternal aunt. For the reasons that follow, we
affirm.
Factual Background and Procedural History
J.H., born in August 2012, is the biological son of Mother and C.W.
(“Father”). In March 2013, he was adjudicated to be a dependent child. On April 4,
2014, the juvenile court granted legal custody of J.H. to his paternal aunt, S.W. No
child support order was entered at that time.
On August 15, 2018, when J.H. was nearly six years old, the Cuyahoga
County Office of Child Support Services (“OCSS”) filed a motion to intervene and to
establish support, requesting that the juvenile court enter a child support order for
J.H. pursuant to R.C. 2151.231 and 2151.36. On February 25, 2019, the magistrate
held an evidentiary hearing on the motion. Mother was advised that she had the
right to be represented by counsel at the hearing but waived that right. Although
Mother received and signed a notice of hearing, she did not appear for the hearing.
On March 28, 2019, the magistrate issued her decision. She
recommended that Mother and Father each pay child support of $50 per month
(plus the 2 percent fee), concluding that “a minimum support order is in the child’s
best interests pursuant to R.C. 3119.06.” The magistrate declined to impute any
income to the parents, indicating that Mother and Father each received
supplemental security income (“SSI”) benefits and that it was, therefore, “just and
appropriate and in the best interest of the child not to determine that the parent[s]
[are] voluntarily unemployed or under employed.” The magistrate also
recommended that Mother and Father share the costs of J.H.’s future health care
needs and expenses.
On April 12, 2019, 15 days after the magistrate issued her decision,
Mother filed objections to the magistrate’s decision. She did not request a transcript
of the hearing.
On April 18, 2019, the juvenile court approved and adopted the
magistrate’s decision.
Mother appealed, raising the following single assignment of error for
review:
This matter involves a hearing that took place on February 25, 2019,
where the Magistrate and the Appellate Court [sic] entered an Order
that the Appellant and father pay child support. However, on or about
April 4, 2014, the child J.H. was placed into the legal care and custody
of a third party.
Law and Analysis
Mother first contends that the juvenile court erred in ordering her to
pay child support because S.W. had legal custody of J.H.1 Mother further argues
that the juvenile court’s decision imposing a minimum child support order2 and
ordering her to share in the cost of J.H.’s future health care needs and expenses was
“arbitrary” and, therefore, an abuse of discretion because (1) the juvenile court has
the discretion to reduce a child support order to zero under R.C. 3119.06, (2) the
1 Mother’s appellate brief contains no argument and cites no authority in support
of this contention. For this reason alone we could disregard it. App.R. 12(A)(2), 16(A)(7);
5106 Franklin, Inc. v. A & A, Inc., 8th Dist. Cuyahoga Nos. 107517, 107544, and 107712,
2019-Ohio-2222, ¶ 37.
2 At the time OCSS filed its motion to establish child support, the minimum child
support order pursuant to R.C. 3119.06 was $50 per month. Effective March 28, 2019,
the minimum child support order increased to $80 per month.
magistrate found that Mother’s only source of income was SSI, (3) “SSI cannot be
held to constitute a financial resource” and (4) even if a minimum support order was
in J.H.’s best interest, “there is no case law that supports child support being taken
from SSI.”
Generally, we review matters concerning child support under an
abuse-of-discretion standard. See, e.g., Booth v. Booth, 44 Ohio St.3d 142, 144, 541
N.E.2d 1028 (1989). In this case, however, our review is limited to plain error
because Mother failed to timely file objections to the magistrate’s decision.3 See
3 Pursuant to Juv.R. 40(D)(3)(b)(i), “[a] party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision.” The magistrate’s
decision states that it was “[r]eceived for filing” on March 28, 2019. However, there is
nothing in the record to indicate when the magistrate’s decision was actually “filed” with
the court. The record reflects that, with respect to orders “filed” and “journalized” in this
case, including orders issued by the magistrate, there was often a gap of several days or
more between the date on which an order was marked “received for filing” and the date
on which the order was actually “filed” and “journalized” by the clerk. However, in In re
A.F.R., 2018-Ohio-962, 108 N.E.3d 1107, ¶ 5-7, this court distinguished the “filing” of a
magistrate’s decision from other documents that are “journalized” by the clerk of courts
and held that the date of “issuance of the magistrate’s decision,” i.e., the date the decision
is marked “received for filing,” triggers the start of the 14-day period within which to file
objections to the magistrate’s decision under Juv.R. 40(D)(3)(b)(i).
The record in this case reflects that it was not until April 3, 2019 — six days after
the magistrate’s decision was “[r]eceived for filing” — that the clerk sent a copy of the
magistrate’s decision via ordinary mail to A.H. See Juv.R. 40(D)(3)(a)(iii) (“A
magistrate’s decision shall be in writing, identified as a magistrate’s decision in the
caption, signed by the magistrate, filed with the clerk, and served on all parties or their
attorneys no later than three days after the decision is filed.”). It is unknown when A.H.
received a copy of the magistrate’s decision. Under the circumstances here, A.H. would
have had good cause to seek an extension of the deadline within which to file her
objections. See Juv.R. 40(D)(5) (“For good cause shown, the court shall allow a
reasonable extension of time for a party to file a motion to set aside a magistrate’s order
or file objections to a magistrate’s decision. ‘Good cause’ includes, but is not limited to, a
failure by the clerk to timely serve the party seeking the extension with the magistrate’s
order or decision.”). However, she did not do so. Although we are constrained to follow
A.F.R. and find that A.H.’s objections — filed 15 days after the magistrate’s decision was
“received for filing” — were untimely, given the absence of a transcript, we cannot say that
we would have reached a different result in this appeal if A.H. had timely objected to the
Juv.R. 40(D)(3)(b)(iv) (“Except for a claim of plain error, a party shall not assign as
error on appeal the court’s adoption of any factual finding or legal conclusion,
whether or not specifically designated as a finding of fact or conclusion of law under
Juv. R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Juv.R. 40(D)(3)(b).”); see also Civ.R. 53(D)(3)(b)(iv).
In civil cases, review for plain error is to be conducted “with the
utmost caution.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099
(1997). Plain error is limited to those “extremely rare cases” in which “exceptional
circumstances require its application to prevent a manifest miscarriage of justice,
and where the error complained of, if left uncorrected, would have a materially
adverse effect on the character of, and public confidence in, judicial proceedings.”
Id.; see also Gue v. Girardi, 8th Dist. Cuyahoga No. 106269, 2018-Ohio-3788, ¶ 43.
The error must be clearly apparent on the face of the record and prejudicial to the
appellant. See, e.g., Wells Fargo Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No.
107184, 2020-Ohio-28, ¶ 12; Hamilton v. Hamilton, 10th Dist. Franklin No. 14AP-
1061, 2016-Ohio-5900, ¶ 8.
Mother has not argued plain error on appeal and following our careful
review of the limited record before us, we cannot say that this is the “extremely rare
case” in which an error has occurred that “seriously affect[s] the basic fairness,
integrity, or public reputation of the judicial process” and in which recognition of
magistrate’s decision and we were to review the trial court’s decision for error or abuse of
discretion, rather than plain error.
plain error is necessary to avoid a “manifest miscarriage of justice.” Goldfuss at
syllabus.
As the biological mother of J.H., Mother has a duty to support him.
See R.C. 3103.03 and 3103.031. The fact that S.W. has been granted legal custody
of J.H. does not obviate that duty. R.C. 3119.07(C) expressly provides:
If neither parent of a child who is the subject of a child support order is
the residential parent and legal custodian of the child and the child
resides with a third party who is the legal custodian of the child, the
court shall issue a child support order requiring each parent to pay that
parent’s child support obligation pursuant to the child support order.
See also R.C. 2151.231 (“The parent, guardian, or custodian of a child, the person
with whom a child resides, or the child support enforcement agency of the county in
which the child, parent, guardian, or custodian of the child resides may bring an
action in a juvenile court * * * under this section requesting the court to issue an
order requiring a parent of the child to pay an amount for the support of the child
without regard to the marital status of the child’s parents. * * * The court, in
accordance with sections 3119.29 to 3119.56 of the Revised Code, shall include in
each support order made under this section the requirement that one or both of the
parents provide for the health care needs of the child to the satisfaction of the
court.”); R.C. 3119.30(A) (addressing provision for health care for children in child
support order).
Contrary to Mother’s assertion, the juvenile court did not treat
Mother’s SSI benefits as “income” when determining her child support obligation.
Rather, the court issued a minimum child support order pursuant to R.C. 3119.06.
The version of R.C. 3119.06 in effect at the time OCSS filed its motion to establish
support stated:
Except as otherwise provided in this section, in any action in which a
court issues or modifies a child support order or in any other
proceeding in which a court determines the amount of child support to
be paid pursuant to a child support order, the court shall issue a
minimum child support order requiring the obligor to pay a minimum
of fifty dollars a month. The court, in its discretion and in appropriate
circumstances, may issue a minimum child support order requiring the
obligor to pay less than fifty dollars a month or not requiring the obligor
to pay an amount for support. The circumstances under which a court
may issue such an order include the nonresidential parent’s medically
verified or documented physical or mental disability or
institutionalization in a facility for persons with a mental illness or any
other circumstances considered appropriate by the court.
If a court issues a minimum child support order pursuant to this section
and the obligor under the support order is the recipient of need-based
public assistance, any unpaid amounts of support due under the
support order shall accrue as arrearages from month to month, and the
obligor’s current obligation to pay the support due under the support
order is suspended during any period of time that the obligor is
receiving need-based public assistance and is complying with any seek
work orders issued pursuant to section 3121.03 of the Revised Code.
The court, obligee, and child support enforcement agency shall not
enforce the obligation of the obligor to pay the amount of support due
under the support order while the obligor is receiving need-based
public assistance and is complying with any seek work orders issued
pursuant to section 3121.03 of the Revised Code.
Mother asserts that because she receives SSI, the juvenile court’s
order, imposing a minimum child support obligation, was not “legal.” However,
R.C. 3119.06, expressly contemplates that a “recipient of need-based public
assistance” — such as SSI — could be an obligor under a minimum child support
order and states what is to occur “[i]f a court issues a minimum child support order
pursuant to this section and the obligor under the support order is the recipient of
need-based public assistance.” Although the juvenile court has the discretion in
“appropriate” circumstances, including where a nonresidential parent has a
“medically verified or documented physical or mental disability,” to issue a child
support order requiring the obligor to pay less than fifty dollars a month (or to issue
zero support order), we cannot say, based on the limited record before us, that the
juvenile court plainly erred in failing to do so here.
The cases relied upon by Mother in challenging the juvenile court’s
child support order do not support her position. In Loewen v. Newsome, 9th Dist.
Summit No. 28107, 2018-Ohio-73, the Ninth District held that the trial court did not
act arbitrarily in “following the statute” and imposing a minimum child support
obligation under R.C. 3119.06 on a mother who “did not argue that any exception
applied.” Id. at ¶ 57. In In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450,
131 N.E.3d 28, the court addressed the “two statuses of parental obligation,” i.e., the
general obligation of parents to support their children imposed by law in R.C.
3103.03, and the specific child-support obligation imposed by judicial decree that
supersedes the general obligation once the court issues its decree, as it relates to R.C.
3107.07 (the statute declaring when the consent of a parent is not required for a
minor’s adoption). Id. at ¶ 36. The court held that a parent’s nonsupport of his or
her minor child pursuant to a zero-support court order did not extinguish the
requirement that the parent must consent to the adoption of the child. Id. at ¶ 43.
Finally, Paton v. Paton, 91 Ohio St.3d 94, 742 N.E.2d 619 (2001), involved the
treatment of SSI benefits received by a disabled child for the purpose of calculating
her parents’ child support obligation — not SSI benefits received by a parent. In that
case, the court held that the SSI benefits received by a disabled child “do not
constitute a financial resource of the child” for purposes of “justifying a trial court’s
deviation from the basic child support schedule.” Id. at 98.
We are aware that in Morris v. Morris, 4th Dist. Meigs No. 02CA10,
2003-Ohio-5598, the Fourth District held that “a trial court abuses its discretion in
ordering child support when the parent’s only source of income is SSI” because it
“circumvents the prohibition against SSI being included in income for purposes of
calculating support.” Id. at ¶ 1, 9-12. However, this case is distinguishable from
Morris. In Morris, the Child Support Enforcement Agency filed a motion to modify
the father’s support obligation, requesting that the trial court impose a minimum
support order. The father appeared at the hearing. The parties did not dispute that
the father’s only source of income was SSI benefits and that he was permanently and
totally disabled due to blindness. Id. at ¶ 3.
In this case, Mother did not appear at the hearing and the magistrate’s
decision contains limited factual information. Because we have no transcript of the
proceedings, we have no way of knowing what (if any) evidence was presented
regarding the nature or extent of Mother’s mental or physical disability, her living
situation and expenses, the child’s situation and expenses or any other factors that
may have been relevant to the magistrate’s decision to recommend a minimum
support order. Where, as here, a party does not file timely objections to the
magistrate’s decision, the juvenile court may adopt the magistrate’s decision “unless
it determines that there is an error of law or other defect on the face of the
magistrate’s decision.” Juv.R. 40(D)(4)(c); see also Civ.R. 53(D)(4)(c). Neither has
been shown to exist here.
We find no indication in the record that the magistrate or the juvenile
court committed plain error. Without a transcript from which to determine the
factual basis for the decision to impose a minimum support order, we must presume
regularity of the proceedings in the juvenile court and affirm. See, e.g., Tibbitts v.
Tibbitts, 8th Dist. Cuyahoga No. 96746, 2011-Ohio-5280, ¶ 5; Dinu v. Dinu, 8th Dist.
Cuyahoga No. 89216, 2008-Ohio-223, ¶ 12; Studley v. Biehl, 10th Dist. Franklin No.
18AP-11, 2018-Ohio-2274, ¶ 12-14. Accordingly, we overrule Mother’s assignment
of error.
Judgment affirmed.
It is ordered that appellees recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga
County 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.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR