[Cite as Lewis v. Lewis, 2014-Ohio-958.]




                IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

DANIEL T. LEWIS                                     :

        Plaintiff-Appellant                         :        C.A. CASE NO.    2013 CA 68

v.                                                  :        T.C. NO.   04DM56

KATHRYN LEWIS                                       :        (Civil appeal from Common
                                                                 Pleas     Court,  Domestic
Relations)
       Defendant-Appellee                           :

                                                    :

                                           ..........

                                           OPINION

                         Rendered on the     14th       day of      March        , 2014.

                                           ..........

REBECCA BARTHELEMY-SMITH, Atty. Reg. No. 0003474, 7821 N. Dixie Drive,
Dayton, Ohio 45414
      Attorney for Plaintiff-Appellant

KEITH R. KEARNEY, Atty. Reg. No. 0003191, 2160 Kettering Tower, Dayton, Ohio
45423
      Attorney for Defendant-Appellee

                                           ..........

DONOVAN, J.

        {¶ 1}     First petitioner-appellant Daniel T. Lewis appeals a judgment of the Greene
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County Court of Common Pleas, Domestic Relations Division, overruling his objections and

adopting the decision of the magistrate granting second petitioner-appellee Kathryn Lewis’

motion to terminate the parties’ shared parenting plan and motion for reallocation of parental

rights and responsibilities. On November 8, 2013, Daniel filed a timely notice of appeal

with this Court.

       {¶ 2}       Daniel and Kathryn were married on October 2, 1995, in Richmond, Indiana.

 The parties produced two children as a result of the marriage, to wit: H.L., born July 17,

1998; and J.L., born August 5, 2000. On May 12, 2004, a Final Decree of Dissolution of

Marriage was filed, thereby terminating the parties’ marriage. Initially, the parties entered

into a shared parenting plan for the minor children. Kathryn was designated as the primary

residential parent for school attendance purposes.

       {¶ 3}       On March 26, 2012, Kathryn filed a motion to terminate the parties’ shared

parenting plan and a motion for reallocation of parental rights and responsibilities. Prior to

the hearing on Kathryn’s motions, the parties agreed to the termination of the shared

parenting plan and agreed that Kathryn should be designated the residential parent and legal

custodian of the parties’ two minor children. No stipulations were entered into regarding

the issue of child support.

       {¶ 4}       Accordingly, a hearing was held before the magistrate on November 6, 2012.

 On November 8, 2012, the magistrate issued a decision ordering Daniel to pay child support

to Kathryn in the amount of $656.35 per month for both of the minor children, retroactive to

April 1, 2012. The magistrate also ordered that Kathryn was entitled to claim both of the

parties’ children as dependents for tax purposes from 2012 and forward until further order of
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the court.

       {¶ 5}   On November 21, 2012, Daniel filed partial objections to the magistrate’s

decision regarding the child support order. Daniel filed supplemental objections to the

magistrate’s decision on January 3, 2013. The judgment and entry overruling Daniel’s

objections and adopting the decision of the magistrate was issued by the trial court on

October 9, 2013.

       {¶ 6}   It is from this judgment that Daniel now appeals.

       {¶ 7}   Daniel’s sole assignment of error is as follows:

       {¶ 8}   “OHIO REVISED CODE SECTION 3119.01(C) IS IN CONTRADICTION

TO THE FEDERAL LAW, SPECIFICALLY 38 U.S.C. 5301, AND THEREFORE,

APPELLANT          SHOULD    NOT    BE    ORDERED        TO       PAY   CHILD   SUPPORT.

APPELLANT FURTHER CONTENDS THAT 42 U.S.C. 659 DOES NOT ALLOW FOR

GARNISHMENT OF VETERAN’S DISABILITY PAY, UNLESS IT IS BASED ON

EMPLOYMENT. APPELLANT IS NOT EMPLOYED.”

       {¶ 9}   In his sole assignment, Daniel contends that the trial court abused its

discretion when it adopted the magistrate’s decision ordering that his income from his VA

disability benefits be used in calculating his child support obligation to the parties’ two

minor children. Specifically, Daniel argues that the VA benefits that he receives are not

assignable as income to him for child support purposes because they are exempt from any

kind of attachment by virtue of 38 U.S.C. 5301, the Disabled Veteran’s Protection Act

(DVPA), passed in 2010. Daniel further asserts that 42 U.S.C. 659, the Social Security Act

(SSA), does not permit garnishment of a veteran’s disability benefits, unless it is based on
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employment.

       {¶ 10} Pursuant to Civ.R. 53(D)(3)(b), a party who disagrees with a magistrate’s

proposed decision must file objections to said decision. Claims of trial court error must be

based on the actions taken by the trial court, itself, rather than the magistrate’s findings or

proposed decision. When reviewing objections to a magistrate’s decision, the trial court is

not required to follow or accept the findings or recommendations of its magistrate. Breece v.

Breece, 2d Dist. Darke No. 99-CA-1491, 1999 WL 999759 (Nov. 5, 1999); Seagraves v.

Seagraves, 2d Dist. Montgomery Nos. 15047 and 15069, 1995 WL 559970 (Aug. 25, 1995).

 In accordance with Civ.R. 53, the trial court must conduct an independent review of the

facts and conclusions contained in the magistrate’s report and enter its own judgment.

Dayton v. Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671 (2d Dist.1996). Thus, the

trial court’s standard of review of a magistrate’s decision is de novo.

       {¶ 11} An “abuse of discretion” standard is the appellate standard of review.

When an appellate court reviews a trial court’s adoption of a magistrate’s report for an abuse

of discretion, such a determination will only be reversed where it appears that the trial

court’s actions were arbitrary or unreasonable. Proctor v. Proctor , 48 Ohio App.3d 55,

60-61, 548 N.E.2d 287 (3d Dist.1988). Presumptions of validity and deference to a trial

court as an independent fact-finder are embodied in the abuse of discretion standard.

Whiting, supra.

               “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. (Citation omitted.) It is to be

       expected that most instances of abuse of discretion will result in decisions
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       that are simply unreasonable, rather than decisions that are unconscionable or

       arbitrary.

                 A decision is unreasonable if there is no sound reasoning process that

       would support that decision. It is not enough that the reviewing court, were it

       deciding the issue de novo, would not have found that reasoning process to be

       persuasive, perhaps in view of countervailing reasoning processes that would

       support a contrary result. AAAA Enterprises, Inc. v. River Place Community

       Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

       (1990).

       {¶ 12} In support of his argument, Daniel relies on one particular section of the

DVPA, specifically 38 U.S.C. 5301(a)(1), which states in pertinent part:

                 (a)(1) Payments of benefits due or to become due under any law

       administered by the Secretary shall not be assignable except to the extent

       specifically authorized by law, and such payments made to, or on account of,

       a beneficiary shall be exempt from taxation, shall be exempt from the claims

       of creditors, and shall not be liable to attachment, levy, or seizure by or under

       any legal or equitable process whatever, either before or after receipt by the

       beneficiary.

       {¶ 13} Daniel’s arguments are misplaced. In Rose v. Rose, 481 U.S. 619, 107 S.Ct.

2029, 95 L.Ed.2d 599 (1987), the U.S. Supreme Court concluded that VA disability benefits

are intended by Congress to provide compensation for disabled veteran’s and their families.

Id., 481 U.S. at 630-634. Therefore, the Supreme Court recognized that an exception to the
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application of 38 U.S.C. 3101(a) [now 38 U.S.C. 5301], which prohibits attachment, levy, or

seizure of VA disability benefits, would further rather than undermine the federal purpose in

providing the benefits. Id., 481 U.S. at 634. Thus, the Rose court concluded that 38 U.S.C.

3101(a) does not protect a veteran’s disability benefit from an otherwise valid order of child

support. Id.

       {¶ 14} 42 U.S.C. 659(a) states as follows:

               (a) Consent to support enforcement

               Notwithstanding any other provision of law (including section 407 of

       this title and section 5301 of Title 38), effective January 1, 1975, moneys (the

       entitlement to which is based upon remuneration for employment) due from,

       or payable by, the United States or the District of Columbia (including any

       agency, subdivision, or instrumentality thereof) to any individual, including

       members of the Armed Forces of the United States, shall be subject, in like

       manner and to the same extent as if the United States or the District of

       Columbia were a private person, to withholding in accordance with State law

       enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and

       regulations of the Secretary under such subsections, and to any other legal

       process brought, by a State agency administering a program under a State

       plan approved under this part or by an individual obligee, to enforce the

       legal obligation of the individual to provide child support or alimony.

       (Emphasis added)

       {¶ 15} Daniel also asserts that 42 U.S.C. 659 specifically protects VA disability
                                                                                           7

benefits from being subject to support enforcement except for remuneration based on

employment. Here again, Daniel misconstrues the language of the statute. 42 U.S.C. 659

was intended by Congress “to create a limited waiver of sovereign immunity so that state

courts can issue valid orders directed against agencies of the United States Government

attaching funds in the possession of those agencies.” Rose, 481 U.S. at 635. Clearly, it is

not the intent of the DVPA nor the SSA to preclude a veteran who is receiving VA benefits

from paying child support. Rather, the statutes create a means by which a state court can

attach a veteran’s child support obligation so that it is paid out of his or her VA benefits.

Thus, once the funds are delivered to a veteran from the VA, a state court can require him or

her to use them to satisfy an order of child support.

       {¶ 16} R.C. 3119.01(C)(7) provides that “gross income” for purposes of calculating

child support includes:

               *** [b]enefits that are not means-tested and that are received by and

       in the possession of the veteran who is the beneficiary for any

       service-connected disability under a program or law administered by the

       United States department of veterans' affairs or veterans' administration ***.

       {¶ 17} Income excluded as gross income under this statute includes:

               [b]enefits for any service-connected disability under a program or law

       administered by the United States department of veterans' affairs or veterans'

       administration that are not means-tested, that have not been distributed to the

       veteran who is the beneficiary of the benefits, and that are in the possession

       of the United States department of veterans' affairs or veterans'
                                                                                            8

        administration.

        {¶ 18} In light of the foregoing analysis, Daniel’s VA benefits are subject to

inclusion in the calculation of income for purposes of child support. Contrary to Daniel’s

assertion, 38 U.S.C. 5301 and 42 U.S.C. 659 complement, rather than contradict, R.C.

3119.01(C). Therefore, the trial court did not abuse its discretion when it ordered that

Daniel’s VA disability benefits be used as income for the calculation of child support for his

two minor children. Further, the trial court did not err when it ordered Daniel to create a

bank account for the withholding of the child support payments since a withholding order

cannot be administered to the VA. The trial court also properly ordered that Daniel’s child

support obligation be made retroactive to April 1, 2012, because he admitted that he had not

provided support to the parties’ minor children since before Kathryn filed her motion to

terminate the parties’ shared parenting plan and motion for reallocation of parental rights

and responsibilities on March 26, 2012.

        {¶ 19} Daniel’s sole assignment of error is overruled.

        {¶ 20} Daniel’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

                                          ..........

FROELICH, P.J. and HALL, J., concur.



Copies mailed to:

Rebecca Barthelemy-Smith
Keith R. Kearney
Hon. Steven L. Hurley
