[Cite as Schilling v. Ball, 2017-Ohio-5511.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


JASON SCHILLING,                                  :      OPINION

                 Plaintiff-Appellant,             :
                                                         CASE NO. 2016-L-072
        - vs -                                    :

JENNIFER BALL,                                    :

                 Defendant-Appellee.              :


Appeal from the Lake County Court of Common Pleas, Domestic/Juvenile Division,
Case No. 2004 PR 2166.

Judgment: Affirmed.


Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44094
(For Plaintiff-Appellant).

R. Russell Kubyn, Kubyn & Ghaster, LLP, 8373 Mentor Avenue, Mentor, OH 44060
(For Defendant-Appellee).

Rebecca Castell, 12690 Opalocka Drive, Chesterland, OH 44026 (Guardian ad litem).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Jason Shilling, appeals from the judgment of the Lake County

Court of Common Pleas, granting a motion to modify child support, filed by appellee,

Jennifer Ball. We affirm.

        {¶2}     On May 20, 2008, the parties entered into a shared parenting plan

regarding the allocation of parental rights and responsibilities of their minor child.
Pursuant to the original plan, appellee agreed to a standard parenting time/visitation

schedule, i.e., parenting time every other Friday until Sunday, along with a Wednesday

visit; appellee additionally had two weeks of extended time each summer. Pursuant to

the support guidelines, appellee’s support obligation would have been $280.96 per

month. Based upon the financial circumstances of the parties, as well as the substantial

visitation time and expenses paid for the minor child during each party’s parenting time,

the parties agreed the child support obligation deviated to zero.

       {¶3}     On August 1, 2011, the parties modified the shared parenting schedule;

pursuant to this agreement, the parenting schedule was reversed such that appellant

received standard parenting (alternating weekends and one night a week) and the child

lived with appellee at all other times. According to the worksheet, appellant would have

been required to pay $342.22 per month; the parties, however again agreed that neither

party would pay child support because, inter alia, they each were living and paying for

their own separate residences and maintaining such residences was in the best interest

of the child.

       {¶4}     On July 9, 2015, appellee filed a motion to modify child support alleging a

change of circumstance had occurred justifying the modification. The matter was heard

on May 19, 2016; during the hearing, appellant testified he no longer had his own

independent residence and had been living with his parents for approximately three

years. He claimed he was looking for and expected to obtain his own residence in the

future, but had not found one at the time of the hearing.




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         {¶5}   On June 10, 2016, pursuant to the child support worksheet, the trial court

ordered appellant to pay child support in the amount of $356.58 per month, retroactively

from the date of July 9, 2015. Appellant now appeals, assigning the following as error:

         {¶6}   “The trial court erred on May 26, 2016 and June 10, 2016 when it granted

Ms. Ball’s motion to modify child support and ordered that Mr. Schilling pay child

support to Ms. Ball given that the court granted the modification without finding a proper

substantial change in circumstances that was not contemplated at the time of the

issuance of the previous child support order which included an agreed deviation to

zero.”

         {¶7}   “A trial court’s decision regarding child support obligations falls within the

discretion of the trial court and will not be disturbed save a showing of an abuse of

discretion.” Longo v. Longo, 11th Dist. Geauga No. 2004-G-2556, 2005-Ohio-2069,

¶62. The trial court’s application of the relevant law, however, requires this court to

conduct a de novo review.          See e.g. Manning v. Manning, 9th Dist. Wayne No.

01CA0063, 2002 WL 347316, *1 (Mar. 6, 2002).

         {¶8}   R.C.   3119.79,    captioned       “Change   of   Circumstances    Requiring

Modification of Child Support Amount,” governs the recalculation of child support. It

provides:

         {¶9}   (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



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             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.

      {¶10} (B) In determining the recalculated support amount that would be
            required to be paid under the child support order for purposes of
            determining whether that recalculated amount 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 court shall consider, in addition to all other
            factors required by law to be considered, the cost of health
            insurance the obligor, the obligee, or both the obligor and the
            obligee have been ordered to obtain for the children specified in the
            order. Additionally, if an obligor or obligee under a child support
            order requests that the court modify the support amount required to
            be paid pursuant to the child support order and if the court
            determines that the amount of support does not adequately meet
            the medical needs of the child, the inadequate coverage shall be
            considered by the court as a change of circumstance that is
            substantial enough to require a modification of the amount of the
            child support order.

      {¶11} (C) If the court determines that the amount of child support required
            to be paid under the child support order should 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 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 enters in the journal the
            figure, determination, and findings specified in section 3119.22 of
            the Revised Code.

      {¶12} Appellant contends the trial court erred in granting the modification in child

support because it failed, pursuant to R.C. 3119.79(C), to find 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 * * *[.]” Id. Appellant




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maintains the trial court was statutorily required to enter such a finding to justify the

modification. Because the court failed to do so, its judgment must be reversed as a

matter of law.

       {¶13} Alternatively, appellee contends the trial court did not err because the

parties previously agreed to a zero child-support obligation and that agreement was

reduced to an order. The modified order, however, requires appellant to pay $356.58

per month, which is clearly more than 10 percent greater than zero.         According to

appellee, such an increase is a presumptive substantial change in circumstances that

was not contemplated at the time of the issuance of the last agreed modification. In

appellee’s view, the amount was sufficient to meet the statutory requirements.

       {¶14} Both parties concede that R.C. 3119.79 governs modifications of an

existing child-support order; moreover, both parties concede that there must be a

substantial change of circumstances that was not contemplated at the time of the

issuance of the original child support order.    Appellant maintains the trial court was

required to make this determination without regard to the 10 percent deviation; by

contrast, appellee argues that because the order was 10 percent greater than the

previous order, the determination was statutorily presumed. We agree with appellee.

       {¶15} In DePalmo v. DePalmo, 78 Ohio St.3d 535 (1997), the Supreme Court of

Ohio held that “[w]hen the court is modifying a preexisting order for the payment of child

support, the court must apply the ten percent test established by R.C. 3113.215(B)(4)

[now R.C. 3119.79(A) in the Child Support Guidelines and the standards set out in

Marker v. Grimm, 65 Ohio St.3d 139 (1992).” DePalmo, supra, at paragraph two of the

syllabus.




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       {¶16} The Court in DePalmo did not agree with the obligor’s argument that the

prior order could not be modified because “circumstances at the time of the hearing

were substantially similar to those on * * * the date of the original agreement.” Id. at

536–537. Instead, the Court stated “[o]bviously, when the amount of child support

provided by the noncustodial parent is zero, but the Child Support Guidelines clearly

establish that the noncustodial parent owes support, then that ten percent difference is

clearly met.” Id. at 540. Accordingly, and despite the previous agreements to deviate

the amount to zero, there is no requirement that a court find a substantial change in

circumstances beyond the 10 percent difference.

       {¶17} The statute considered in DePalmo was R.C. 3113.215, specifically, R.C.

3113.215(B)(4). Id. at 539–540. Although this subsection has been re-codified as R.C.

3119.79, there has been no change in the statutory requirements. Hence, the court’s

observations in DePalmo still apply. Mossing-Landers v. Landers, 2d Dist. Montgomery

No. 27031, 2016-Ohio-7625, ¶48.

       {¶18} Applying the foregoing to the instant case, appellant’s prior support

obligation was zero. Pursuant to the support worksheet, appellant is required to pay

$356.58 per month, which is clearly more than 10 percent greater than zero. The trial

court did not err in modifying the existing order.

       {¶19} Appellant’s assignment of error lacks merit.

       {¶20} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas, Juvenile Division, is affirmed.




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COLLEEN MARY O’TOOLE, J., concurs,

DIANE V. GRENDELL, J., concurs with a Concurring Opinion.

                                _____________________


DIANE V. GRENDELL, J., concurs with a Concurring Opinion.

       {¶21} I concur in the majority’s decision to affirm the juvenile court’s judgment.

The plain and unambiguous meaning of R.C. 3119.79(A) is that, when there is a

deviation of more than ten percent between an existing support order and the

recalculated amount of support, “the deviation * * * shall be considered by the court as a

change of circumstance substantial enough to require a modification of the child support

amount.”

       {¶22} The Ohio Supreme Court has expressly rejected the position that a

juvenile court must find additional circumstances “not contemplated” by the parties in

addition to the ten percent deviation: “The ten percent difference applies to the change

in the amount of child support, not to the change in circumstances of the parents. * * *

Obviously, when the amount of child support provided by the noncustodial parent is

zero, but the Child Support Guidelines clearly establish that the noncustodial parent

owes support, then that ten percent difference is clearly met.”            (Emphasis sic.)

DePalmo v. DePalmo, 78 Ohio St.3d 535, 540, 679 N.E.2d 266 (1997); compare Adams

v. Adams, 2012-Ohio-5131, 982 N.E.2d 103 (3d Dist.), ¶ 30 (“[s]ince the parties’ entered

into an agreement to deviate the child support obligation to zero * * *, the trial court was

required to find more than a ten-percent deviation under R.C. 3119.79(A) * * * [and] also

required to find a substantial change in circumstances that was not contemplated at the




                                             7
time of the issuance of the child support order under R.C. 3119.79(C) * * * prior to

modifying the child support order”).

      {¶23} In addition to faithfully applying the statute as written, the Ohio Supreme

Court stated additional reasons for its holding: “The law favors settlements. However,

the difficult issue of child support may result in agreements that are suspect. In custody

battles, choices are made, and compromises as to child support may be reached for the

sake of peace or as a result of unequal bargaining power or economic pressures. The

compromises may be in the best interests of the parents but not of the child. Thus, the

legislature has assigned the court to act as the child’s watchdog in the matter of

support.” Id.

      {¶24} The Ohio Supreme Court’s interpretation and application of the statute has

been followed in subsequent appellate decisions.          Cornell v. Cornell, 2d Dist.

Montgomery No. 26732, 2015-Ohio-5296, ¶ 10-11; Hill v. Hill, 5th Dist. Coshocton No.

2011 CA 0016, 2012-Ohio-1903, ¶ 20; Cameron v. Cameron, 10th Dist. Franklin No.

04AP-687, 2005-Ohio-2435, ¶ 19-20.

      {¶25} In the present case, the appellant’s existing support obligation was zero.

According to the support worksheet, the appellant owes $356.58 per month per child.

The ten percent deviation has clearly been met.       Neither the statute nor the Ohio

Supreme Court require more.

      {¶26} Accordingly, I concur in the decision to affirm the juvenile court’s

judgment.




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