[Cite as Adams v. Adams, 2013-Ohio-2947.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              UNION COUNTY




MARISSA D. ADAMS,

        PLAINTIFF-APPELLEE,                             CASE NO. 14-13-01

        v.

MICHAEL J. ADAMS,                                       OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Union County Common Pleas Court
                           Domestic Relations Division
                           Trial Court No. 04-DR-0168

                      Judgment Reversed and Cause Remanded

                             Date of Decision: July 8, 2013




APPEARANCES:

        Anthony W. Greco for Appellant

        Rebecca J. Stumler for Appellee
Case No. 14-13-01


ROGERS, J.

       {¶1} Defendant-Appellant, Michael Jason Adams (“Jason”), appeals the

judgment of the Court of Common Pleas of Union County modifying his child

support obligation and awarding Plaintiff-Appellee, Marissa Adams (“Marissa”),

her attorney fees and litigation costs. On appeal, Jason argues that the trial court

erred by: (1) finding that a substantial change of circumstances occurred; (2)

finding that the parties agreed to remove Jason’s obligation to reimburse Marissa

for the cost of their minor child’s health insurance; (3) failing to make findings

regarding Jason’s designation as obligor for child support purposes; (4) improperly

calculating the parties’ incomes; and (5) awarding Marissa her attorney fees and

costs. For the reasons that follow, we reverse the trial court’s judgment.

       {¶2} Jason and Marissa were married in June 2003. The couple has one

minor child, A.A., who is approximately 12 years old. In August 2004, divorce

proceedings commenced and were concluded on January 13, 2005 when the

parties entered into an agreed judgment entry and divorce decree.

       {¶3} The divorce decree incorporated a shared parenting plan (the “Original

Plan”). The Original Plan stated relevantly that “[t]he parties have agreed to a

deviation in their child support obligation so that neither party shall pay the other

child support.” (Docket No. 48). It also required that Jason reimburse Marisa for

A.A.’s health insurance premium up to a maximum of $200.00 per month.


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       {¶4} On October 19, 2010, Marissa filed a post-decree motion to terminate

the Original Plan in which she requested to be designated A.A.’s residential parent

and to receive approximately $600.00 in monthly child support. Her motion did

not request an award of attorney fees or litigation expenses.

       {¶5} The parties resolved many of the issues raised in Marissa’s motion by

filing an amended shared parenting plan (the “Amended Plan”) on June 20, 2011.

The Amended Plan, which was adopted by the trial court on July 12, 2011, left

several issues unresolved, however, including child support, dependency tax

exemptions, and health insurance. As to health insurance, the Amended Plan

provided that “[t]he cost of health insurance coverage for [A.A.] shall be included

in the child support calculation.” (Docket No. 108, p. 12).

       {¶6} After the filing of Marissa’s motion, the parties experienced a variety

of discovery disputes that were highlighted by several competing motions to

compel and for Civ.R. 11 sanctions.            Although the parties dismissed their

discovery-related motions by agreement on August 2, 2011, Marissa filed a

continuance motion on August 23, 2011 due to Jason’s alleged failure to provide

discovery. The trial court orally denied the motion on August 24, 2011, which

was the date of the hearing on Marissa’s motion for child support.

       {¶7} At the hearing, the following relevant evidence was adduced. First,

Jason was called by Marissa as though on cross-examination. He testified at


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length regarding the payment of his monthly expenses and the relationship

between his trucking business, MLA Trucking, and Adams Brother Farms, which

is partly owned by his father, Michael Adams. Outside of this testimony, Jason

did not discuss anything relating to a change in his financial circumstances since

the Original Plan.

       {¶8} Marissa then called Chrissy A. Powers, a forensic accountant, as an

expert witness. Based on her review of the financial records disclosed by Jason,

she found that several of the items he labeled as business expenses were

questionable.   Powers also found that Jason was using MLA funds to cover

personal expenses. She estimated that from 2007 to 2011, Jason’s income had an

approximate range of $45,000.00 to $105,000.00. On cross-examination, Powers

acknowledged that the items she labeled as questionable business expenses were

properly claimed as business expenses for tax deduction purposes.        She also

admitted that her estimate of $105,000.00 for Jason’s 2011 income was merely an

estimate. Since Powers’ testimony simply related to Jason’s income from 2007 to

2011, it did not cover any changes in Jason’s financial position since the 2005

filing of the Original Plan.

       {¶9} Marissa then testified. According to her testimony, she had to cash in

the proceeds from two retirement plans in 2008 and 2009 and that at various points

she had to work two jobs to make ends meet. Despite her actions, Marissa said


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that she was still running a $1,600.00 monthly deficit. Further, Marissa indicated

that while Jason had repaid her for A.A.’s health insurance premium every month

as required by the Original Plan, he did not reimburse her for the previous two

months. Marissa also discussed the payment of her housing expenses. She owned

her house with a roommate, who contributed $1,000.00 to the monthly payment of

the mortgage.     Additionally, Marissa rented part of the house out to another

person, who paid anywhere from $400.00 to $700.00 per month. Despite covering

her current financial situation, Marissa did not testify to her current position in

relation to her position at the time of the Original Plan’s filing.

       {¶10} On October 19, 2011, the magistrate issued a decision with the

following relevant findings: (1) Marissa’s income for child support purposes was

approximately $46,000.00 per year; (2) Jason’s income for child support purposes

was approximately $78,000.00 per year; and (3) there was a substantial change of

circumstances meriting a modification of the original child support order. Based

on these findings, the trial court awarded Marissa approximately $700.00 per

month in child support. The trial court also ordered Jason to pay $2,036.67 in

attorney fees and $8,427.90 in litigation expenses to Marissa.

       {¶11} Jason appealed the trial court’s judgment to this court. On appeal,

we found as follows:

       Since the parties entered into an agreement to deviate the child
       support obligation to zero, * * * the trial court was required to find

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      more than a ten-percent deviation under R.C. 3119.79(A); the trial
      court was also required to find a substantial change in circumstances
      that was not contemplated at the time of the issuance of the child
      support order under R.C. 3119.79(C). The trial court failed to make
      this additional finding prior to modifying the child support order
      here, and therefore, erred as a matter of law. Adams v. Adams, 3d
      Dist. No. 14-12-03, 2012-Ohio-5131, ¶ 30 (hereinafter, “Adams I”).

Consequently, we reversed the trial court’s judgment and remanded this matter

with the instruction that the trial court “make further findings under R.C.

3119.79(C) based upon evidence in the record.” Id.

      {¶12} After remand, the trial court issued a judgment entry on December

17, 2012 in which it found that a substantial change of circumstances had occurred

under R.C. 3119.79(C). The trial court’s finding was as follows:

      In the present case, the court FINDS that a substantial change of
      circumstances that was not contemplated at the time of the issuance
      of the original child support order has occurred since the last order
      setting child support; specifically, on June 20, 2011, the parties filed
      a first amended shared parenting plan, resolving many of the issues
      in Marissa’s motion to terminate the original shared parenting plan,
      with the exceptions of child support, the dependency tax exemption,
      and health insurance, those issues “[t]o be determined by the court.”
      * * * It is clear that [sic] both parties that these three issues would
      be resolved by the Court upon further hearing. By incorporating the
      agreement of the parties to remove [Jason]’s obligation to reimburse
      [Marissa] for the cost of providing health insurance for [A.A.] and
      that “the cost of health insurance coverage for the minor child shall
      be included in the child support calculation,” the agreed upon first
      amended shared parenting plan on its face sets forth a substantial
      change of circumstances that was not contemplated at the time of the
      issuance of the original child support order.
            On July 12, 2011, the trial court adopted the parties’ first
      amended shared parenting plan. * * * The court notes that [Jason]
      thereafter relied upon this agreement by not tendering

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       reimbursement to [Marissa] of the cost of providing health insurance
       to the child in the two months following the filing of the amended
       plan for shared parenting through the date of the motion hearing.
       Clearly there was a bargained for exchange between the parties upon
       which both parties relied and which constituted a substantial change
       of circumstances that was not contemplated at the time of the
       issuance of the original child support order and which occurred since
       the last order setting child support. (Docket No. 166, p. 4-5).

The trial court also readopted the other portions of its previous ruling.

       {¶13} Jason timely appealed this judgment, presenting the following

assignments of error for our review.

                             Assignment of Error No. I

       THE TRIAL COURT ERRED AND ABUSED ITS
       DISCRETION IN FINDING THAT THE FIRST AMENDED
       SHARED PARENTING PLAN’S LANGUAGE REMOVING
       FATHER’S OBLIGATION TO REIMBURSE MOTHER FOR
       THE COST OF PROVIDING HEALTH INSURANCE FOR
       THE MINOR CHILD AND INCORPORATING THE COST
       OF HEALTH INSURANCE COVERAGE INTO THE CHILD
       SUPPORT CALCULATION SETS FORTH A SUBSTANTIAL
       CHANGE OF CIRCUMSTANCES THAT WAS NOT
       CONTEMPLATED AT THE TIME OF THE ISSUANCE OF
       THE ORIGINAL CHILD SUPPORT ORDER.

                            Assignment of Error No. II

       THE TRIAL COURT ERRED AND ABUSED ITS
       DISCRETION IN FINDING THAT THE PARTIES AGREED
       TO REMOVE FATHER’S OBLIGATION TO REIMBURSE
       MOTHER FOR THE COST OF THE MINOR CHILD’S
       HEALTH INSURANCE AS SAID FINDING IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.




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                           Assignment of Error No. III

      THE TRIAL COURT ERRED AND ABUSED ITS
      DISCRETION WHEN IT FAILED TO MAKE A FINDING OF
      FACT AS TO WHY FATHER IS DESIGNATED AS THE
      OBLIGOR FOR CHILD SUPPORT PURPOSES.

                           Assignment of Error No. IV

       THE TRIAL COURT ERRED AND ABUSED ITS
       DISCRETION BY NOT PROPERLY CALCULATING BOTH
       MOTHER’S AND FATHER’S INCOMES BY FAILING TO
       CONSIDER MOTHER’S CONSISTENT RENTAL INCOME,
       BY FAILING TO CONSIDER DISCREPANCIES IN
       MOTHER’S MANY REPORTED GROSS INCOMES, AND BY
       IMPROPERLY IMPUTING INCOME TO FATHER FOR
       COSTS PAID FOR DEFENDANT’S RESIDENCE.

                            Assignment of Error No. V

       THE TRIAL COURT ERRED AND ABUSED ITS
       DISCRETION BY AWARDING MOTHER’S ATTORNEY’S
       FEES AND LITIGATION COSTS.

                             Assignment of Error No. I

       {¶14} In his first assignment of error, Jason argues that the trial court erred

in finding a substantial change of circumstances that supported the modification of

his child support obligation. We agree.

                                Standard of Review

       {¶15} Since trial courts are vested with broad discretion in deciding

whether to modify child support orders, Woloch v. Foster, 98 Ohio App.3d 806,

810 (2d Dist. 1994), we review a trial court’s modification of a child support order


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merely for an abuse of discretion, 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. State v. Boles,

2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18.         When applying the abuse of

discretion standard, a reviewing court may not simply substitute its own judgment

for that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

                                    R.C. 3119.79

       {¶16} R.C. 3119.79 controls the modification of child support orders and

provides, in pertinent part, as follows:

       (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.

       ***

       (C) If the court determines that the amount of child support
       required to be paid under the child support order shall 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

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      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 enter in the journal the
      figure, determination, and findings specified in section 3119.22 of
      the Revised Code.

We have previously found 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. Adams I at ¶ 24.

      {¶17} This matter focuses on the substantial change of circumstances

requirement under R.C. 3119.79(C). A trial court granting a modification of child

support “must find both (1) a change of circumstances, and (2) that such change in

circumstance ‘was not contemplated at the time of the issuance of the child

support order.’” Bonner v. Bonner, 3d Dist. No. 14-05-26, 2005-Ohio-6173, ¶ 11,

quoting R.C. 3119.79(C).        It is well-established “that ‘changes in the

circumstances of the parties that may be considered must be material and not

purposely brought about by the complaining party, and must be considered on the

basis that the judgment sought to be modified was justified and proper when

made.’” Frey v. Frey, 3d Dist. No. 5-09-11, 2009-Ohio-5275, ¶ 14, quoting Nash

v. Nash, 77 Ohio App.3d 155 (9th Dist. 1945), paragraph two of the syllabus.

Based on this general rule, a substantial change of circumstances typically exists

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where the minor child’s needs or the allocation of parenting time has changed.

E.g., Melick v. Melick, 9th Dist. No. 26488, 2013-Ohio-1418, ¶ 14-17 (finding

substantial change of circumstances where couple’s son developed violent

tendencies, father stopped exercising his overnight visitations as a result, and son

required additional child care); Green v. Tarkington, 3d Dist. No. 10-10-02, 2010-

Ohio-2165, ¶ 14 (finding substantial change of circumstances where parental

rights were reallocated under shared parenting plan and father spent more time

with minor child); Smith v. Smith, 10th Dist. Nos. 99AP-453, 99AP-88 (Feb. 10,

2000) (finding substantial change of circumstances where shared parenting plan

was terminated and residential parent designation changed). Conversely, there is

generally not a substantial change of circumstances where there is a lack of

evidence indicating that the parents’ employment, parenting time, or respective

financial positions have changed after the issuance of the original child support

order. E.g., Frey at ¶ 16 (finding no substantial change of circumstances where

the parties’ parenting time did not change significantly and where the mother’s

employment did not change); Adams v. Sirmans, 3d Dist. No. 5-08-02, 2008-Ohio-

5400, ¶ 11 (finding no substantial change of circumstances where parties moved

and remarried); Steggeman v. Steggeman, 3d Dist. No. 8-06-23, 2007-Ohio-5482,

¶ 16 (finding no substantial change of circumstances where there was no evidence

that father’s remarriage, mother’s sharing of living expenses with significant other,


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and mother’s filing of bankruptcy petition occurred after the issuance of the

original child support order); accord Bright v. Collins, 2 Ohio App.3d 421, 423

(10th Dist. 1982) (“[F]or if there has been no change in either the needs of the

child for support, or in the ability of his parents to pay, then it follows that the

original order must stand.”).

           {¶18} With these principles in mind, we are unable to find that there was a

substantial change of circumstances in this matter. A review of the record reveals

that since the Original Plan was instituted, John and Marissa have maintained the

same allocation of parenting time and that A.A.’s needs have not dramatically

changed.         There is also no evidence in the record showing that the parties’

earnings or financial positions have changed since the Original Plan. Based on

this, we find that this matter falls under the ambit of cases in which the courts have

not found a substantial change of circumstances.

           {¶19} The trial court based its finding of a substantial change of

circumstances on the Original and Amended Plans’ different handling of A.A.’s

health insurance costs. Even if the Amended Plan removes Jason’s obligation to

reimburse Marissa for A.A.’s health insurance premium,1 it cannot constitute a


1
    We note that Marissa testified as follows regarding the Amended Plan’s handling of health insurance:
          Q:       And you and Jason had an agreement prior to the shared parenting plan where he
          would basically pay 100 percent of [A.A]’s cost for health insurance?
          A:       The premium. Correct.
          Q:       The premium. I’m sorry, ma’am. And in our shared parenting plan you
          basically left the issue of health insurance premium reimbursement or sharing of it for the
          Court’s order in this case, correct?

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substantial change in circumstances because Marissa voluntarily agreed to the

Amended Plan. In effect, there was a change in the parties’ agreement, not in their

circumstances, and Marissa knowingly brought on any changed treatment of

A.A.’s health insurance by entering into the Amended Plan. See Frey, 2009-Ohio-

5275, at ¶ 14. As a result, the trial court abused its discretion in finding that a

substantial change of circumstances existed and awarding Marissa child support.

       {¶20} Accordingly, we sustain Jason’s first assignment of error.

                          Assignments of Error Nos. II, III & IV

       {¶21} Our resolution of Jason’s first assignment of error renders his second,

third and fourth assignments of error moot. Consequently, we decline to address

them. See App.R. 12(A)(1)(c).

                                  Assignment of Error No. V

       {¶22} In his fifth assignment of error, Jason argues that the trial court erred

in awarding Marissa her attorney fees and litigation costs. Specifically, he claims

that Marissa is barred from recovering her fees and costs since she failed to

request them in writing. We agree and consequently reverse the trial court’s

award of attorney fees and litigation expenses.

       {¶23} Since this is a post-divorce decree proceeding, the dictates of R.C.

3105.73(B) apply. It provides, in pertinent part, as follows:

       A:        Right. And I believe since it was left for the Court, what we said in mediation
       that all of that would not change and would remain the same until the Court made a new
       decision. Hearing Tr., p. 150-51.

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       In any post-decree motion or proceeding that arises out of an action
       for divorce, * * * the court may award all or part of reasonable
       attorney’s fees and litigation expenses to either party if the court
       finds the award equitable. In determining whether an award is
       equitable, the court may consider the parties’ incomes, the conduct
       of the parties, and any other relevant factor the court deems
       appropriate * * *. R.C. 3105.73(B).

We review a trial court’s award of attorney fees and litigation costs under R.C.

3105.73(B) for an abuse of discretion. Patterson v. Patterson, 197 Ohio App.3d

122, 2011-Ohio-5644, ¶ 7 (1st Dist.).

       {¶24} Our decision in Barto v. Barto, 3d Dist. No. 5-08-14, 2008-Ohio-

5538, is directly on-point to this matter. There, the trial court awarded attorney

fees to the mother under R.C. 3105.73(B) even though she did not request such an

award in her motion. Id. at ¶ 38. Due to the lack of such a request, we sustained

the father’s assignment of error and reversed the trial court’s attorney fees award.

Id. at ¶ 40; see also Hubbard v. Hubbard, 3d Dist. No. 4-08-37, 2009-Ohio-2194,

¶ 11 (reversing attorney fee award where the party “did not seek attorney fees in

her original motion”); Miller v. Miller, 9th Dist. No. 09CA0025, 2010-Ohio-1251,

¶ 31 (same). Based on this well-established precedent, we likewise find that the

trial court abused its discretion in awarding attorney fees and litigation expenses to




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Marissa, who did not request attorney fees in her original motion for child

support.2

        {¶25} Accordingly, we sustain Jason’s fifth assignment of error.3

        {¶26} Having found error prejudicial to Jason in the first and fifth

assignments of error, we reverse the trial court’s judgment and remand this matter

for further proceedings consistent with this opinion.

                                                                           Judgment Reversed and
                                                                                Cause Remanded

WILLAMOWSKI, J., concurs.

SHAW, J., concurs in Judgment Only.

/jlr




2
  We also note that our resolution of the first assignment of error renders Marissa a non-prevailing party.
Under well-settled law, non-prevailing parties are generally precluded from recovering attorney fees and
litigation expenses. E.g., Hubbard at ¶ 11.
3
  Marissa also failed to comply with Loc.R. 18.12(A), which states that “[a] request for attorney fees and
expenses to prosecute an action shall be made in writing and shall be included in the body of a motion or
other pleading that gives rise to the request for fees.”


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