[Cite as Akin v. Akin, 2011-Ohio-2765.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

JASON A. AKIN                                        C.A. Nos.       25524
                                                                     25543
        Appellee/Cross-Appellant

        v.
                                                     APPEAL FROM JUDGMENT
CHRISTINA M. AKIN                                    ENTERED IN THE
                                                     COURT OF COMMON PLEAS
        Appellant/Cross-Appellee                     COUNTY OF SUMMIT, OHIO
                                                     CASE No.   2007-06-2013

                                 DECISION AND JOURNAL ENTRY

Dated: June 8, 2011



        DICKINSON, Judge.

                                          INTRODUCTION

        {¶1}    Jason and Christina Akin divorced in Texas in 2000. They have two daughters.

In 2007, Mr. Akin moved the Domestic Relations Division of the Summit County Common

Pleas Court to register the Texas decree and assume jurisdiction over the allocation of parental

rights and responsibilities. He also moved to modify the parties’ shared parenting plan and for

the court to hold Ms. Akin in contempt for not allowing him visitation on Father’s Day. In

response, Ms. Akin moved to increase child support, for health insurance, and to change the

parenting schedule. After a hearing before a magistrate began, Mr. Akin moved to “dismiss”

Ms. Akin’s motion because she had not attached a financial disclosure affidavit to it. The

magistrate denied Mr. Akin’s motion to dismiss and the parties’ contempt motions and entered

her decision. Both parents objected to the decision, but the trial court overruled their objections.

It adopted the Texas decree, approved a new shared parenting plan, and increased Mr. Akin’s
                                                2


child support obligation. Ms. Akin moved for relief from judgment after she discovered that Mr.

Akin had underestimated his income for 2008, but the trial court denied her motion. Ms. Akin

has appealed, assigning as error that the trial court incorrectly denied her motion for relief from

judgment, incorrectly based the child support award on Mr. Akin’s average income over three

years, incorrectly denied her motion for contempt, and incorrectly granted Mr. Akin judgment on

an unconscionable contract. Mr. Akin has cross-appealed, arguing that the trial court incorrectly

denied his motion to dismiss, incorrectly ordered him to produce the entire hearing transcript,

incorrectly applied Rule 1(B) of the Ohio Rules of Civil Procedure, incorrectly denied his motion

for contempt, and incorrectly denied his request for a downward deviation in child support. We

affirm in part because the trial court correctly used a three-year average to calculate Mr. Akin’s

child support obligation, correctly denied Ms. Akin’s motion for contempt, correctly entered

judgment for Mr. Akin regarding their tuition agreement, correctly denied Mr. Akin’s motion to

dismiss Ms. Akin’s motion to increase child support, and correctly denied Mr. Akin’s motion for

contempt. We reverse and remand in part because the trial court should have construed Ms.

Akin’s motion for relief from judgment as a motion for reconsideration.

                                             FACTS

       {¶2}    At the time of their divorce, the Akins agreed to shared parenting. After they

moved to Ohio, however, they largely ignored the parenting plan. To accommodate their work

schedules, Ms. Akin had the girls on weekdays and Mr. Akin had them on weekends. They did

not have any major issues with visitation until June 2007 when Ms. Akin wanted to take the girls

to Disney World.

       {¶3}    Ms. Akin and her live-in boyfriend asked Mr. Akin if they could take the girls to

Disney World, and Mr. Akin agreed. The boyfriend, however, could not get time off work for
                                                 3


the week they had planned to go. The only week he could get off coincided with Father’s Day,

when the girls were to be with Mr. Akin. According to Ms. Akin, she asked Mr. Akin if she

could have the girls on Father’s Day, and he agreed. Ten minutes later, however, he called back

and suggested that, since he was doing a favor for her, she should reciprocate and obtain

passports for the girls. Ms. Akin initially agreed, but later changed her mind. When she refused

to get the passports, Mr. Akin refused to allow the girls to go to Disney World. Because the trip

was already paid for, Ms. Akin took the girls anyway. Mr. Akin, therefore, brought this action.

According to him, Ms. Akin’s agreement to get passports for the girls was part of their

agreement about whether the girls could go on vacation over Father’s Day.

       {¶4}    After Mr. Akin moved to enforce the Texas decree, Ms. Akin moved to increase

child support. According to Ms. Akin, she had told Mr. Akin that she would not ask the court to

increase his child support obligation as long as he paid for the girls to attend a Montessori

school. Mr. Akin stopped paying their tuition because one of the daughters was late to school

more than 30 times three years in a row.

       {¶5}    A magistrate began a hearing on the parties’ motions in August 2008, and it

continued on several days over the next few months. In November 2008, Mr. Akin moved for

dismissal of Ms. Akin’s motion to increase child support because she had not attached a financial

disclosure affidavit to it, as required under the court’s local rules. The magistrate, however,

determined that Mr. Akin had agreed to let the court hear the motion. The magistrate also

determined that Mr. Akin had withdrawn his motion for contempt. She recalculated Mr. Akin’s

support obligation by averaging his salary over the last three years, including his estimate that his

income for 2008 was $90,000. The magistrate wrote in her decision that, because there was

uncertainty regarding Mr. Akin’s income for 2008, “if it is later learned that his gross income is
                                                     4


significantly in excess of the $90,000.00 he testified to, a modification may be made retroactive

to the effective date of the child support order.”

       {¶6}    Mr. Akin objected to the magistrate’s decision, arguing that he did not waive any

defects regarding Ms. Akin’s motion to increase child support and that he had not withdrawn his

motion for contempt. He ordered a copy of the transcript from the final day of the hearing to

support his objections. Upon motion from Ms. Akin, the trial court ordered Mr. Akin to provide

a transcript of the entire hearing. Mr. Akin did not comply with that order. Ms. Akin also

objected to the magistrate’s decision, arguing that the magistrate should not have averaged Mr.

Akin’s income and that it should not have denied her motion to show cause.

       {¶7}    The trial court overruled Mr. Akin’s objection regarding Ms. Akin’s motion to

increase child support because it determined that he had waited too long to move for dismissal.

While it sustained his objection regarding the denial of his motion for contempt, it denied the

motion itself because Ms. Akin had made up the visitation time. It entered an order that

incorporated most of the magistrate’s decision, but did not include any language allowing the

parties to modify child support if Mr. Akin’s income for 2008 was higher than his estimate.

       {¶8}    Mr. Akin appealed the trial court’s decision, and Ms. Akin cross-appealed. While

the appeals were pending, Ms. Akin reportedly discovered that Mr. Akin’s gross income for

2008 had been $112,000. She moved the trial court to reconsider its child support award and,

when the court denied that motion, moved for relief from judgment under Rule 60 of the Ohio

Rule of Civil Procedure. This Court remanded the matter so the trial court could rule on Ms.

Akin’s motion for relief from judgment, which it denied. This Court subsequently dismissed the

appeals for lack of jurisdiction because the trial court had not ruled on Ms. Akin’s objections to
                                                  5


the magistrate’s decision. On remand, the trial court ruled on all of the objections, but otherwise

entered the same judgment. The Akins have renewed their appeals.

                                        CIVIL RULE 60(B)

       {¶9}    Ms. Akin’s first assignment of error is that the trial court incorrectly denied her

motion for relief from judgment. She has argued that, while Mr. Akin testified that he earned

only $7500 per month in 2008, his actual income was $9400 per month. She has also argued

that, even if the court only averaged the correct number into Mr. Akin’s income over the last

three years, it would result in a larger child support award.

       {¶10} Under Rule 60(B) of the Ohio Rules of Civil Procedure, the trial court “may

relieve a party . . . from a final judgment[.]” At the time Ms. Akin moved for relief from

judgment, however, the trial court’s judgment was not final. Akin v. Akin, 9th Dist. Nos. 24794,

24972, 2010-Ohio-3492, at ¶7.          Accordingly, her motion was actually a motion for

reconsideration. See Vanest v. Pillsbury Co., 124 Ohio App. 3d 525, 533-34 (1997) (construing

Civil Rule 60(B) motion filed before a final judgment was entered as a motion for

reconsideration); Beyke v. Beyke, 3d Dist. No. 14-05-13, 14-05-15, 2005-Ohio-5465, at ¶17

(construing motion improperly labeled as a motion to set aside judgment under Civil Rule 60(B)

as a motion for reconsideration under Civil Rule 54(B)).

       {¶11} Even though its judgment was not final, the trial court analyzed Ms. Akin’s

motion under Civil Rule 60(B) and denied it because she had not supported it with any evidence,

because she did not identify the Civil Rule 60(B) subsection under which she sought relief, and

because she did not establish whether she had moved under the rule within a reasonable time.

See GTE Automatic Elec. Inc. v. ARC Indus. Inc., 47 Ohio St. 2d 146, paragraph two of the

syllabus (1976) (identifying standard for Civil Rule 60(B) motions). While “a trial court has
                                                 6


plenary power in entertaining a motion for reconsideration prior to entering a final judgment,” in

this case, the trial court evaluated Ms. Akin’s motion under a standard that only applies to post-

judgment motions. Vanest v. Pillsbury Co., 124 Ohio App. 3d 525, 535 (1997). We, therefore,

vacate the trial court’s ruling on Ms. Akin’s motion for relief from judgment and remand so that

the trial court may reevaluate the motion as a motion for reconsideration. Ms. Akin’s first

assignment of error is sustained.

                                    CHILD SUPPORT AWARD

       {¶12} Ms. Akin’s second assignment of error is that the trial court incorrectly calculated

Mr. Akin’s child support obligation by averaging his income from 2006, 2007, and 2008. She

has argued that the court should have based the award only on Mr. Akin’s 2007 income, which

was verified by his tax return from that year.

       {¶13} Under Section 3119.05(H) of the Ohio Revised Code, “[w]hen the court or agency

calculates gross income, the court or agency, when appropriate, may average income over a

reasonable period of years.” “The decision regarding when the use of an averaging method is

appropriate is left to the sound discretion of the trial court because it is in the best position to

weigh the facts and circumstances.” In re Sullivan, 167 Ohio App. 3d 458, 2006-Ohio-3206, at

¶29.

       {¶14} Mr. Akin testified that he is self-employed and that his income fluctuates from

year to year. There was evidence that his income in 2003 was $108,000, that in 2004 it was

$118,500, that in 2005 it was $75,415, that in 2006 it was $80,675, and that in 2007 it was

$119,460. He testified that his income for 2008 was approximately $90,000. In light of the

undisputed evidence that Mr. Akin’s self-employment income fluctuated from year to year, we

conclude that the trial court exercised proper discretion when it averaged his income over the last
                                                  7


three years to calculate his child support obligation. Of course, if the trial court finds, based on

our disposition of Ms. Akin’s first assignment of error, that Mr. Akin understated his income for

2008, the trial court will have to recalculate his average income using the amended data. Ms.

Akin’s second assignment of error is overruled.

                                    MOTION FOR CONTEMPT

       {¶15} Ms. Akin’s third assignment of error is that the trial court incorrectly determined

that she withdrew her motion for contempt.         She has also argued that Mr. Akin’s discovery

responses established that he did not maintain health insurance for their children, as required by

the Texas decree.

       {¶16} At the hearing before the magistrate, Ms. Akin argued that the parties’ cross-

motions for contempt should be denied because they were equal. According to Ms. Akin’s

lawyer, “[i]f my client is found in contempt, I would like Mr. Akin to be found in contempt as

well, and then we can come back and offset attorney’s fees equally.” The lawyer also noted that

“our proposal is that . . . [the] contempts be offset or that both be dismissed.”

       {¶17} The magistrate denied both contempt motions, which is one of the outcomes that

Ms. Akin requested. Accordingly, any error that the magistrate or trial court made in denying

her motion for contempt was invited. “Under the invited-error doctrine, a party will not be

permitted to take advantage of an error which he himself invited or induced the trial court to

make.” State ex rel. Bitter v. Missig, 72 Ohio St. 3d 249, 254 (1995). Ms. Akin’s third

assignment of error is overruled.

                                      TUITION CONTRACT

       {¶18} Ms. Akin’s fourth assignment of error is that the trial court incorrectly granted

Mr. Akin judgment on an unconscionable contract. She has argued that her decision to enter into
                                                  8


an agreement with Mr. Akin regarding the girls’ school tuition was involuntary. She has also

argued that the court incorrectly applied the terms of the agreement.

       {¶19} “Unconscionability has generally been recognized to include an absence of

meaningful choice on the part of one of the parties together with contract terms which are

unreasonably favorable to the other party.” Lake Ridge Acad. v. Carney, 66 Ohio St. 3d 376, 383

(1993) (quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965)).

“A contract is unconscionable if it did not result ‘from real bargaining between parties who had

freedom of choice and understanding and ability to negotiate in a meaningful fashion.’” Id.

(quoting Kugler v. Romain, 279 A.2d 640, 652 (N.J. 1971)). “The crucial question is whether

‘each party to the contract, considering his obvious education or lack of it, [had] a reasonable

opportunity to understand the terms of the contract, or were the important terms hidden in a maze

of fine print . . . ?’” Id. (quoting Williams, 350 F.2d at 449). “[W]hether a written contract is

unconscionable is an issue of law which [this] court reviews de novo.” Saari v. Saari, 9th Dist.

No. 08CA009507, 2009-Ohio-4940, at ¶11.

       {¶20} Ms. Akin testified that the girls slept at her house on school nights and that she

was the one responsible for getting them to school on time. She admitted that one of the girls

had been tardy over 30 times for three consecutive years. She also testified that Mr. Akin grew

tired of paying the girls’ tuition, only to have them repeatedly arrive late for school.

       {¶21} According to Ms. Akin, in the spring of 2006, Mr. Akin refused to pay the down

payment for the following school year unless the girls’ attendance improved. She told their

daughters the situation, and the girls were not late again through the end of the school year. Over

the summer, she signed a contract with the school, promising to pay it $16,000 in tuition. When

the school year began, however, Mr. Akin refused to pay the girls’ tuition unless she entered into
                                                9


an agreement with him. Under the terms of the proposed agreement, Ms. Akin had to reimburse

Mr. Akin for each day that the girls were late or absent for a non-medical reason.

       {¶22} Ms. Akin testified that she initially refused to sign the agreement, but, as a result,

Mr. Akin did not pay the girls’ tuition. When the school pressured her for payment, it was

stressful because she was the one who had signed the $16,000 contract and did not earn enough

to pay it herself. In November, when the school began to threaten her with late fees, she finally

signed the contract prepared by Mr. Akin, who paid the girls’ tuition.

       {¶23} Ms. Akin has argued that there was a significant difference in bargaining power

between Mr. Akin and her because she only earned minimum wage and had to pay the girls’

tuition even if they withdrew from the Montessori school. She has also argued that, at the time

she signed the agreement, she was under pressure from the school to pay her daughters’ tuition.

       {¶24} Ms. Akin testified that, in previous years, either Mr. Akin or both Mr. Akin and

she signed the tuition contract with the school. In 2006, however, only she signed the contract.

Ms. Akin did not allege that she was under any duress when she signed the contract with the

school, but it put her in a difficult position because she did not earn enough to cover the expense

by herself. While Mr. Akin may have taken advantage of Ms. Akin’s hardship by offering to pay

the girls’ tuition only if they got to school on time, we do not find anything unconscionable about

their agreement. The agreement was not “unreasonably favorable” to Mr. Akin, but merely

designed to assure that the girls got to school on time. Lake Ridge Acad. v. Carney, 66 Ohio St.

3d 376, 383 (1993) (quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.

Cir. 1965)). We note that, under Section 2152.02(F)(5) of the Ohio Revised Code, the definition

of a delinquent child includes any child who is a chronic truant, which means “any child of
                                                10


compulsory school age who is absent without legitimate excuse . . . from the . . . school the child

is supposed to attend for . . . fifteen or more school days in a school year.” R.C. 2152.02(D).

       {¶25} Ms. Akin has also argued that the agreement was unconscionable because it

penalized her for the girls’ tardiness even if they were ill. The agreement, however, specifically

provided that Ms. Akin only had to reimburse Mr. Akin if one of the girls was “tardy or absent

for non-medical reasons.”

       {¶26} Ms. Akin has further argued that the magistrate’s findings were not based on the

record. In particular, she has argued that the court incorrectly found that the agreement required

her “to provide a share of the Montessori tuition.” What the magistrate determined, however, is

that Ms. Akin had agreed to reimburse Mr. Akin $3600. That is a proper construction of her

promise to “refund” to Mr. Akin any tuition he had paid for days that the girls did not get to

school on time. Ms. Akin’s fourth assignment of error is overruled.

                                   AFFIDAVIT OF INCOME

       {¶27} Mr. Akin’s first assignment of error is that the trial court incorrectly denied his

motion to “dismiss” Ms. Akin’s motion to increase child support because she did not file an

affidavit of income and expenses, as required under the court’s local rules. Under Rule 2.07(C)

of the Summit County Common Pleas Court, Domestic Relations Division, Local Rules, “[p]ost-

decree motions to modify . . . child support . . . shall be accompanied by an Affidavit of Income

and Expenses, which shall be filed and served on the opposing party with the motion . . . .”

Local Rule 14.01(A) also provides that “[a] motion to modify child support must be

accompanied by a completed Affidavit of Income and Expenses.”

       {¶28} Mr. Akin has argued that, because Ms. Akin did not attach a financial affidavit to

her motion to modify child support, the trial court should have granted his motion to dismiss.
                                                 11


The court, however, determined that Mr. Akin’s motion raised “a procedural issue which should

have been raised prior to the beginning of the evidentiary hearing” before the magistrate. It also

found that Mr. Akin knew the information that Ms. Akin would have disclosed in the affidavit.

It, therefore, denied his motion.

       {¶29} “A court’s local rules ‘are of the court's own making . . . and not substantive

principles of law.’” GMAC Mortgage LLC v. Jacobs, 9th Dist. No. 24984, 2011-Ohio-1780, at

¶20 (quoting Michaels v. Michaels, 9th Dist. No. 07CA0058–M, 2008–Ohio–2251, at ¶13). “If

the local rule is administrative and designed to facilitate case management, the court is not bound

to comply with the rule.” Id. (citing Wallner v. Thorne, 9th Dist. No. 09CA0053–M, 2010–

Ohio–2146, at ¶21). “If, on the other hand, the local rule ‘implicates issues of due process, [and

the trial court’s failure to follow it deprives] a party of a reasonable opportunity to defend against

the disposition of the case in favor of the other party, the trial court is bound to comply with [the

local rule].’” Id. (quoting Wallner, 2010-Ohio-2146, at ¶21).

       {¶30} Ms. Akin moved to modify the child support order on September 7, 2007. Mr.

Akin did not move to dismiss her motion because of the procedural defect until November 20,

2008, fourteen months after Ms. Akin filed it and three months after a magistrate began an

evidentiary hearing on it. He did not establish that Ms. Akin’s failure to attach the affidavit

deprived him of the ability to defend against her motion. To the contrary, the trial court found

that Mr. Akin knew the facts that Ms. Akin would have disclosed in it. We, therefore, conclude

that the trial court exercised proper discretion when it denied Mr. Akin’s motion to dismiss.

       {¶31} Mr. Akin has argued that the facts of this case resemble Vocaire v. Beltz, 5th Dist.

No. 2003CA00215, 2003-Ohio-6015. In that case, however, the local rule provided that “[a]ny

motion filed without the required financial statement . . . is subject to immediate dismissal.” Id.
                                                12


at ¶10. The local rules at issue in this case do not contain similar language. Accordingly,

Vocaire is distinguishable. Mr. Akin’s first assignment of error is overruled.

                                    TIMING OF MOTIONS

       {¶32} Mr. Akin’s second assignment of error is that the trial court incorrectly applied

Rules 6(D), 12(B), and 53(D)(3)(b)(iii) of the Ohio Rules of Civil Procedure and Domestic

Relations Division Local Rule 27.04(B) in its April 17, 2009, order. He has argued that the court

incorrectly imposed a filing deadline on his motion to dismiss.

       {¶33} Under Civil Rule 6(D), “[a] written motion . . . shall be served not later than seven

days before the time fixed for the hearing . . . .” According to Mr. Akin, under that rule, he had

until January 6, 2009, to file his motion. Mr. Akin, however, has ignored the fact that the

evidentiary hearing began in August 2008. The magistrate and trial court, therefore, correctly

determined that his motion was untimely under Civil Rule 6(D).

       {¶34} Mr. Akin has also argued that the court did not apply the Ohio Rules of Civil

Procedure equally. The only motion that Ms. Akin filed after Mr. Akin moved to dismiss her

motion to increase child support was a motion to enforce settlement agreement. Ms. Akin’s

motion concerned an agreement that she had allegedly made with Mr. Akin during the

evidentiary hearing about the release of Mr. Akin’s mental health records. Unlike Mr. Akin’s

motion to dismiss, which challenged the adequacy of a motion that Ms. Akin had filed over a

year earlier, Ms. Akin’s motion concerned an agreement that had allegedly been reached on the

last day that the parties had been in court for hearing and concerned documents that Ms. Akin

allegedly needed to review before the next scheduled hearing day. Accordingly, we conclude

that the trial court did not unfairly apply the civil rules when it considered a motion that Ms.

Akin filed after Mr. Akin filed his motion.
                                                 13


          {¶35} Mr. Akin has also argued that the trial court incorrectly made its award of child

support retroactive to the date Ms. Akin filed her motion. This Court, however, has recognized

that “a modification of child support normally becomes effective the date the motion was

filed[.]” O’Neill v. Bowers, 9th Dist. No. 21950, 2004-Ohio-6540, at ¶20; State ex rel. Draiss v.

Draiss, 70 Ohio App. 3d 418, 421 (1990). Mr. Akin’s second assignment of error is overruled.

                                        FULL TRANSCRIPT

          {¶36} Mr. Akin’s third assignment of error is that the trial court incorrectly ordered him

to produce a transcript of the entire proceeding. He has argued that, under Rule 53(D)(3)(b)(iii)

of the Ohio Rules of Civil Procedure, he only had to order the parts of the transcript that were

necessary to resolve his objections to the magistrate’s decision.

          {¶37} Mr. Akin has not demonstrated that, even if the trial court incorrectly ordered him

to provide the full transcript, he was harmed by its decision. We note that Mr. Akin did not

provide a copy of the entire transcript to the trial court, even after the court ordered him to do so.

Despite his failure to comply with the order, the trial court considered his objections on the

merits.     The court even sustained one of them, concluding that the magistrate incorrectly

determined that he had withdrawn his contempt motion. He has failed to demonstrate that any

error by the trial court in ordering him to produce the entire transcript affected his substantial

rights. Civ. R. 61.

          {¶38} Mr. Akin has also again argued that the trial court improperly considered Ms.

Akin’s motions while rejecting his motion to dismiss. According to him, the trial court did not

treat the parties equally. As explained earlier, Mr. Akin’s motion was untimely while Ms.

Akin’s was not. It was proper, therefore, for the trial court to treat them differently even if they
                                                 14


were both, as Mr. Akin has argued, “procedural” motions. Mr. Akin’s third assignment of error

is overruled.

                                        CIVIL RULE 1(B)

       {¶39} Mr. Akin’s fourth assignment of error is that the trial court improperly exercised

its discretion when it applied Rule 1(B) of the Ohio Rules of Civil Procedure only in Ms. Akin’s

favor. Under Civil Rule 1(B), “[t]hese rules shall be construed and applied to effect just results

by eliminating delay, unnecessary expense and all other impediments to the expeditious

administration of justice.”

       {¶40} Mr. Akin has argued that, because Ms. Akin did not attach a financial affidavit to

her motion to increase child support, he incurred additional expense learning that information.

According to him, the trial court should have reduced the amount he owed in retroactive child

support by the amount he paid to learn the information Ms. Akin did not provide him. He has

also argued that, since he was ordered to pay additional child support retroactively to the date of

Ms. Akin’s motion, he should also have been allowed to claim the girls on his tax return for that

same time period.

       {¶41} Regarding Mr. Akin’s argument under Civil Rule 1(B), we reject his contention

that the trial court applied the rule unequally. There is no indication that, if Mr. Akin had filed a

timely motion to dismiss Ms. Akin’s motion to increase child support, the trial court would not

have entertained his motion. Mr. Akin, however, did not file a timely motion, but waited until

the court had held two days of hearings on the matter. The trial court, therefore, correctly

concluded that Mr. Akin had forfeited any defects in Ms. Akin’s motion.

       {¶42} Regarding Mr. Akin’s argument about tax deductions, we conclude that it has

been forfeited. Under Rule 53(D)(3)(b)(iv) of the Ohio Rules of Civil Procedure, “[e]xcept for a
                                                 15


claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual

finding or legal conclusion . . . unless the party has objected to that finding or conclusion as

required by Civ.R. 53(D)(3)(b).” Mr. Akin did not object to the trial court’s assignment of tax

deductions and has not alleged or shown plain error. Mr. Akin’s fourth assignment of error is

overruled.

                                      CONTEMPT MOTION

       {¶43} Mr. Akin’s fifth assignment of error is that the trial court incorrectly denied his

motion for contempt. He has argued that he had a right to have the girls on Father’s Day, but

Ms. Akin took them to Disney World instead. He has also argued that, although make-up time

gave him some relief, the court should have ordered Ms. Akin to get passports for the girls and

awarded him attorney’s fees.

       {¶44} Ms. Akin admitted that she had the girls on Father’s Day in 2007. The trial court

denied Mr. Akin’s motion for contempt, however, because it found that she had made up all the

time that the girls had missed with him. This Court has held that, “[if] contempt proceedings are

invoked solely by the person aggrieved by disobedience of the court’s order, a refusal to punish

for contempt is largely within the discretion of the trial court . . . .” Thomarios v. Thomarios, 9th

Dist. No. 14232, 1990 WL 1777 at *2 (Jan. 10, 1990). According to Ms. Akin, she made up the

time that the girls would miss on Father’s Day before they even went on the trip to Disney

World. Mr. Akin did not dispute her claim. Since Ms. Akin had made up the time she owed Mr.

Akin before he filed his motion for contempt, the trial court exercised proper discretion when it

declined to award him attorney fees for his motion.         Furthermore, in light of Ms. Akin’s

testimony that Mr. Akin did not ask her to get passports for the girls until after he agreed to let
                                                 16


them go to Disney World over Father’s Day, the court also exercised proper discretion when it

declined to order Ms. Akin to obtain passports. Mr. Akin’s fifth assignment of error is overruled.

                                  DOWNWARD DEVIATION

       {¶45} Mr. Akin’s sixth assignment of error is that the trial court incorrectly failed to

grant him a downward deviation in child support based on his payments to the Montessori

school. He has argued that, since he had been paying the girls’ school expenses in addition to

child support, he should have received credit for his additional payments when the court was

calculating how much he owed in retroactive child support.

       {¶46} Mr. Akin did not raise this issue at trial or in his objections to the magistrate’s

decision. Accordingly, he has forfeited it under Rule 53(D)(3)(b)(iv) of the Ohio Rules of Civil

Procedure.   Furthermore, although the court modified Mr. Akin’s child support obligation

retroactively to the date of Ms. Akin’s September 2007 motion, there was no evidence that he

paid for the girls to attend Montessori school for the 2007-2008 school year. Thus, even if Mr.

Akin had preserved his argument, there would have been nothing for the trial court to offset. Mr.

Akin’s sixth assignment of error is overruled.

                                         CONCLUSION

       {¶47} The trial court correctly used a three-year average to calculate Mr. Akin’s child

support obligation, correctly denied Ms. Akin’s motion for contempt, correctly entered judgment

for Mr. Akin regarding their tuition agreement, correctly denied Mr. Akin’s motion to dismiss

Ms. Akin’s motion to increase child support, and correctly denied Mr. Akin’s motion for

contempt. Because its original judgment was not final, the trial court improperly evaluated her

motion for relief from judgment under Rule 60(B) of the Ohio Rules of Civil Procedure. The

judgment of the Summit County Common Pleas Court, Domestic Relations Division, is affirmed
                                                17


in part and reversed in part, and this matter is remanded for further proceedings consistent with

this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT

CARR, P. J.
WHITMORE, J.
CONCUR

APPEARANCES:

LESLIE GRASKE, Attorney at Law, for Appellant/Cross-Appellee.

JASON AKIN, pro se, Appellee/Cross-Appellant.
