[Cite as Wyant v. Wyant, 2014-Ohio-792.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




DONALD R. WYANT                            :       JUDGES:
                                           :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                :       Hon. Sheila G. Farmer, J.
                                           :       Hon. Patricia A. Delaney, J.
-vs-                                       :
                                           :
LUCY H. WYANT                              :       Case No. 2013CA00159
                                           :
        Defendant-Appellee                 :       OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Family Court Division, Case
                                                   No. 2007DR00587



JUDGMENT:                                          Affirmed in Part, Reversed in Part,
                                                   and Remanded




DATE OF JUDGMENT:                                  March 3, 2014




APPEARANCES:

For Plaintiff-Appellant                            For Appellee SCCSEA

DONALD R. WYANT, Pro Se                            KIMBERLY R. HOPWOOD
2814 10th Street NW                                Stark County Office Building
Canton, OH 44708                                   P.O. Box 21337
                                                   Canton, OH 44701
Stark County, Case No. 2013CA00159                                                     2

Farmer, J.

      {¶1}    On January 9, 2008, appellant, Donald Wyant, and Lucy Wyant were

granted a divorce. Appellant was ordered to pay child support for two of the parties'

three children in the amount of $697.11 per month.

      {¶2}    Appellant was convicted of gross sexual imposition regarding one of his

children for which he served time in prison from 2007 to 2012.

      {¶3}    Pursuant to a request by appellant, an administrative hearing was held on

January 29, 2013 on the issue of child support. By findings and recommendations filed

February 6, 2013, the hearing officer recommended child support in the amount of

$204.31 per month. A gross yearly income was imputed to appellant in the amount of

$10,010.00.

      {¶4}    Ms. Wyant filed an objection with the Court of Common Pleas, arguing

child support should remain at $697.11. Appellant also filed an objection, arguing the

child support order should have been retroactively modified to the date of his

incarceration.   By decision filed June 7, 2013, a magistrate dismissed appellant's

objection for failure to prosecute, granted Ms. Wyant's objection, and reinstated child

support in the amount of $697.11 per month.

      {¶5}    Appellant filed an objection to the magistrate's decision, arguing he was

able to pay only $51.00 per month. By judgment entry filed July 13, 2013, the trial court

denied the objection and approved and adopted the magistrate's decision.

      {¶6}    Appellant filed an appeal and this matter is now before this court for

consideration. As appellant failed to list any assignments of error pursuant to App.R.

16(A)(3), we glean the following assignments from appellant's arguments:
Stark County, Case No. 2013CA00159                                                           3


                                                 I

       {¶7}    "THE    TRIAL     COURT       ERRED      IN   FAILING      TO      REDUCE   THE

ARREARAGE AMOUNT BY RETROACTIVILY MODIFYING THE CHILD SUPPORT

ORDER."

                                                II

       {¶8}    "R.C. 3119.05(I)(2) IS UNCONSTITUTIONAL."

                                                III

       {¶9}    "THE TRIAL COURT ERRED IN ITS AWARD OF CHILD SUPPORT."

       {¶10} Appellant's appeal arises out of objections made to the February 6, 2013

findings and recommendations of the hearing officer from an administrative hearing on

the issue of child support.       The hearing officer recommended child support in the

amount of $204.31 per month. A hearing was held in the Court of Common Pleas

before a magistrate on June 4, 2013. As noted in the magistrate's decision filed June 7,

2013, appellant failed to appear and no testimony was taken. The magistrate dismissed

appellant's objection for failure to prosecute, granted Ms. Wyant's objection, and

reinstated child support in the amount of $697.11 per month.

       {¶11} Appellant objected, arguing he was able to pay only $51.00 a month in

child support because of his minimal employment. We note, as did the trial court in its

judgment entry filed July 31, 2013, that a transcript of the magistrate's hearing was not

provided for review. However, as noted in the magistrate's decision, no testimony was

taken; therefore, the failure to file a transcript is not fatal to this appeal.
Stark County, Case No. 2013CA00159                                                       4


                                           I, II

      {¶12} In these assignments, appellant claims the trial court erred in failing to

reduce the arrearage amount by retroactively modifying the child support order, and

R.C. 3119.05(I)(2) is unconstitutional. Because neither of these issues were raised to

the trial court, we find they are not available for appeal. Civ.R. 53(D)(3)(b)(iv); Bennett

v. Bennett, 5th Dist. Fairfield No. 22-CA-92, 1993 WL 134886 (April 26, 1993); Trotter v.

Trotter, 5th Dist. Delaware No. 94CA05012, 1995 WL 42501 (January 9, 1995); Young

v. Rogers, 12th Dist. Butler No. CA2001-08-183, 2002-Ohio-5135.

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

                                            III

      {¶14} Appellant claims the trial court erred in maintaining the original order of

child support in the amount of $697.11. Appellant challenges the application of R.C.

3119.05(I)(2). We agree in part.

      {¶15} R.C. 3119.05(I)(2) states the following:



             (I) Unless it would be unjust or inappropriate and therefore not in

      the best interests of the child, a court or agency shall not determine a

      parent to be voluntarily unemployed or underemployed and shall not

      impute income to that parent if either of the following conditions exist:

             (2) The parent is incarcerated or institutionalized for a period of

      twelve months or more with no other available assets, unless the parent is

      incarcerated for an offense relating to the abuse or neglect of a child who

      is the subject of the support order or an offense under Title XXIX of the
Stark County, Case No. 2013CA00159                                                       5


       Revised Code when the obligee or a child who is the subject of the

       support order is a victim of the offense.



       {¶16} It is undisputed that appellant's past unemployment was due to his

incarceration for gross sexual imposition regarding one of his children, M.W. Although

appellant is no longer incarcerated as he was released in August 2012, he argues he is

now underemployed because of his felony conviction and his previous employer's "no

rehire" policy.

       {¶17} From our reading of R.C. 3119.05(I)(2), we find a reduction in child

support is not available to appellant for M.W., but may be available for his other child,

Z.W., who was not a victim.

       {¶18} Upon review, we find child support for M.W. shall remain at the original

amount as set forth in the January 9, 2008 order, and the trial court is to determine child

support for Z.W. in light of the fact that the statute does not apply to this child.

       {¶19} Assignment of Error III is granted in part and denied in part.
Stark County, Case No. 2013CA00159                                                    6


      {¶20} The judgment of the Court of Common Pleas of Stark County, Ohio,

Family Court Division is hereby affirmed in part and reversed in part, and the matter is

remanded to said court for further proceedings consistent with this opinion.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




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