[Cite as Phelps v. Saffian, 2016-Ohio-5514.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 103549



                                         CHRISTINE PHELPS

                                                      PLAINTIFF-APPELLEE/
                                                      CROSS-APPELLANT

                                                vs.

                                          MICHAEL SAFFIAN

                                                      DEFENDANT-APPELLANT/
                                                      CROSS-APPELLEE



                                   JUDGMENT:
                AFFIRMED IN PART, REVERSED IN PART AND REMANDED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                    Domestic Relations Division
                                      Case No. DR-08-322365

        BEFORE: Stewart, J., E.A. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: August 25, 2016
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

Joyce E. Barrett
James P. Reddy
Law Offices of Joyce E. Barrett
55 Public Square, Suite 1260
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE/CROSS-APPELLANT

Carolyn C. Soeder
Joseph G. Stafford
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114
MELODY J. STEWART, J.:

       {¶1} Plaintiff-mother Christine Phelps and defendant-father Michael Saffian asked the

domestic relations division to modify Saffian’s $1,571 per month child support obligation for the

parties’ 11-year-old daughter: Phelps wanted an increase in child support; Saffian wanted a

decrease in child support. A magistrate conducted a trial and ordered that child support be

modified, ordering retroactive, incremental increases raising Saffian’s obligation to $4,350 per

month. The court adopted the magistrate’s findings without substantive change.

       {¶2} Both parties appeal. The primary issues concern the amount of child support and

attorney fees ordered: Saffian complains those amounts are too high; Phelps complains they are

too low. Saffian also complains that the court erred by making the modification of spousal

support retroactive to February 2009, that it took too long to issue a decision on the motion to

modify child support, and that the court erred by failing to award him the child dependency

exemption for tax purposes. Phelps complains that the court abused its discretion by failing to

order Saffian to reimburse her for the child’s school transportation expenses and by refusing to

award her the full amount of her request for attorney fees.

       {¶3} We conclude that the court erred by failing to consider whether it should impute

potential income to Phelps, who worked only 20 hours per week. The court also erred by

holding Saffian responsible for the child’s private school tuition without considering that Phelps

made the unilateral decision to send the child to private school and did so in violation of a

restraining order prohibiting her from doing so. Finally, we find that the court erred by ordering

the modification of child support to be retroactive to the date on which Phelps filed the motion to

modify child support. We affirm the court’s refusal to order Saffian to pay Phelps’s costs

incurred in transporting the child to school.        The remaining assignments of error and
cross-assignments of error relating to the modified amount of child support ordered and the

payment of attorney fees are mooted given that the court will need to recalculate child support on

remand.

                                          I. Child Support

       {¶4} Saffian’s first assignment of error and Phelps’s first cross-assignment of error relate

to the court’s order increasing Saffian’s child support obligation.

       {¶5} The common law duty requiring a parent to support a child is now set forth by

statute. See R.C. 3109.05; Meyer v. Meyer, 17 Ohio St.3d 222, 224, 478 N.E.2d 806 (1985)

(“The duty of divorced parents to support the minor children of their marriage is governed by * *

* R.C. 3109.05[.]”).

       {¶6} The “needs” of a child must be viewed in light of first principles of child support:

that “[t]he biological or adoptive parent of a minor child must support the parent’s minor

children out of the parent’s property or by the parent’s labor.” R.C. 3103.03(A). The duty of

support is one that provides the child with “necessaries” like food, clothing, shelter, medical care,

and education. Basista v. Basista, 8th Dist. Cuyahoga No. 83532, 2004-Ohio-4078, ¶ 16.

       {¶7} Consistent with this duty of support, Ohio has adopted what is known as the

“income shares” model for child support — a model that presumes that a child should receive the

same proportion of parental income as he or she would have received if the parents lived

together. The income shares approach is based on expected child rearing costs and is allocated

based on an “amount equivalent to the proportion of the obligor’s share of the parents’ aggregate

incomes.” J. David Sanders, Comment, Shared Responsibility: Time for Illinois to Adopt the

Income Shares Model of Child Support, 38 S.Ill.U.L.J. 281, 287 (2014), citing Williams, Robert

G., Guidelines for Setting Levels of Child Support Orders, 21 Fam.L.Q. 281, 293 (1987).
       {¶8} The income shares approach is codified in R.C. 3119.02. That section states that a

court shall issue a child support order by calculating the obligor’s child support obligation in

accordance with the child support schedule set forth in R.C. 3119.021. That schedule applies to

parents with a combined income of up to $150,000.

       {¶9} If the parents have a combined income exceeding $150,000, the child support

guidelines do not apply. Instead, R.C. 3119.04(B) states that if the combined income of the

parties exceeds $150,000, the court must establish the amount of child support on a case-by-case

basis, taking into consideration the “the needs and the standard of living of the children who are

the subject of the child support order and of the parents.” For purposes of R.C. 3119.04(B), the

“needs” of a child are the same as they were at common law: food, clothing, shelter, medical

care, and education.

       {¶10} The “lifestyle” of a child goes beyond mere need. It indicates the level of comfort

that the child would have enjoyed beyond basic necessaries had the parents remained living

together. Wells v. Wells, 9th Dist. Summit No. 27097, 2014-Ohio-5646, ¶ 14. Some courts

have described this as addressing the “qualitative” needs of the child. Abbey v. Peavy, 8th Dist.

Cuyahoga No. 100893, 2014-Ohio-3921, ¶ 24, citing Zeitler v. Zeitler, 9th Dist. Summit No.

04CA008444, 2004-Ohio-5551 at ¶ 8.          A qualitative analysis focuses on observation and

descriptions of a child’s lifestyle. Although the word “qualitative” does not necessarily provide

for precise determinations, its use recognizes that circumstances between children can vary based

on their parents’ income, and that the court has discretion to fashion a support order accordingly

and on a case-by-case basis.

       {¶11} Although the usual rule is that the courts prefer the finality of judgments, child

support cases are an exception to the rule of finality: R.C. 3119.71 gives the court continuing
jurisdiction to modify a child support order. However, modification of a child support order can

occur only if there has been a “substantial” change in circumstances from the original support

order. See R.C. 3119.79(C).

       {¶12} R.C. 3119.79(A) permits either the obligor or the obligee under a child support

order to request a modification of the amount of child support due to a “substantial” change of

circumstances. When an existing child support order has been entered using the R.C. 3119.02

mandatory child support guidelines, the court is required to recalculate the amount of child

support owing under the guidelines. If the recalculated amount of child support exceeds the

existing order by ten percent or is ten percent less then the existing order, the court shall consider

the ten percent difference as a substantial change in circumstances warranting modification. See

R.C. 3119.79(A).

       {¶13} When the parties to a child support order collectively earn more than $150,000,

what constitutes a substantial change of circumstances from the original support order is unclear.

  R.C. 3119.04(B) is silent on the matter.

       {¶14} Some courts have applied the ten percent deviation test of R.C. 3119.79 to

determine whether there has been a substantial change of circumstances warranting the

modification of a child support order entered under R.C. 3119.04(B). See, e.g., Reik v. Bowden,

172 Ohio App.3d 12, 2007-Ohio-2533, 872 N.E.2d 1253, ¶ 18 (1st Dist.). But we question the

application of the ten percent deviation rule to a request for modification of child support when

the court did not use the child support guidelines to establish child support in the first instance.

       {¶15} In Siebert v. Tavarez, 8th Dist. Cuyahoga No. 88310, 2007-Ohio-2643, we held

that the child support guidelines are “expressly inapplicable in cases where the combined income

of the parties exceeds $ 150,000[,]” apart from setting a floor beneath which support ordered
under R.C. 3119.04(B) cannot fall. Id. at ¶ 31. We reached this conclusion for two reasons.

First, the plain language of R.C. 3119.04(B) makes it clear that the child support guidelines do

not apply — the court is directed to determine the amount of child support on a case-by-case

basis without “any factors to guide the court’s determination in setting the amount of child

support[.]” Id.   Second, we concluded that the court could not fulfill its duty to make a

case-by-case determination of child support if it “by rote extrapolates a percentage of income to

determine child support.” Id. at ¶ 34. If rote application of the child support guidelines does

not fulfill the court’s obligation to make a case-by-case determination of child support under

R.C. 3119.04(B), application of the ten percent rule, without more, would likewise not constitute

a case-by-case determination for purposes of modifying child support.

       {¶16} In addition, it is unlikely that the General Assembly enacted a child support statute

specifically for high-income parents, yet intended to permit modification of child support

consistent with a statute designed for parents whose combined income is less than $150,000. By

enacting R.C. 3119.04(B), the General Assembly understood that as the combined income of the

parents increases, there comes a point under the guidelines where the amount of child support

might far outstrip the needs of any child. We made this point in Siebert, noting that for very

high income parents, the amount of child support under the guidelines could reach levels that

could be viewed as “excessive.”      Id. at ¶ 35. For this reason, incremental changes in income

for very high income parents are not, standing alone, substantial changes in circumstances

because they do not affect a child’s needs or lifestyle.

       {¶17} Even though R.C. 3119.04(B) is silent on the issue of what constitutes a substantial

change of circumstances sufficient to justify modification of child support, there are several

considerations that guide the courts.
       {¶18} First, consistent with R.C. 3119.04(B) from which an original child support order

would issue, the court must consider the needs and the standard of living of the child and the

parents. With the exception of extraordinary individual medical or developmental issues, as

previously noted, the “needs” of a child are necessaries like food, clothing, shelter, medical care,

and education. Needs are not income based — they apply in similar fashion for all children,

regardless of the income level of the parents. That a parent has a large income has no effect on a

child’s basic needs: a child needs to eat, but a child does not need to eat caviar.

       {¶19} Consideration of the “standard of living” the child would have enjoyed is based on

the premise that parents may freely decide to dissolve their relationship, but children have no

choice in the matter. If the child enjoyed a high standard of living during the marriage, the child

is entitled to enjoy that standard after the marriage has been dissolved. Boone v. Holmes, 10th

Dist. Franklin No. 14AP-449, 2015-Ohio-2242, ¶ 16. The court must be careful, however, to

consider only how the child would have lived had the parents remained together, not how the

child could have lived. When considering the standard of living of the parents, the court must

ensure that the obligor parent is not so overburdened by support obligations that it affects that

parent’s ability to survive. Id. at ¶ 36. The court must also consider intangible contributions by

the noncustodial parent to the effect those contributions may adversely affect that parent’s

standard of living. Id.

       {¶20} Second, the court should be careful to give meaning to the word “substantial” as

applied to what constitutes a change in circumstances warranting modification of child support.

The word “substantial” means “drastic,” “material,” or “significant[.]”               Mandelbaum v.

Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, ¶ 32; Wuscher v. Wuscher,

9th Dist. Summit No. 27697, 2015-Ohio-5377, ¶ 16.              The requirement that a change in
circumstances be “substantial” is intended to prevent endless motions for modification based on

incremental changes in income.

       {¶21} Third, the change in circumstances must be one that the parties did not contemplate

at the time the court issued the original child support order. See R.C. 3119.79(C) (allowing

modification 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”).

       {¶22} In Abbey, 8th Dist. Cuyahoga No. 100893, 2014-Ohio-3921, ¶ 27, the panel

suggested that a magistrate’s decision that a party seeking modification of child support failed to

establish “a substantial change of circumstances that was not contemplated at the time of the

agreement” would be error because the modification provisions of R.C. 3119.79(C) do not apply

to child support determinations made under R.C. 3119.04(B). But R.C. 3119.04(B) applies only

to setting original child support obligations — the statute says nothing about modification of

child support orders issued under that division.   We believe that modification of child support

orders entered under R.C. 3119.04(B) is governed by the general terms of R.C. 3119.79. And

while all divisions of R.C. 3119.79 reference the child support guidelines, R.C. 3119.79(C)

makes it clear that the court’s obligation to modify child support consistent with the guidelines

does not apply if the amount calculated pursuant to the child support guidelines would be

“inappropriate.” Because the child support guidelines do not apply to child support awards set

under R.C. 3119.04(B), it would be “inappropriate” for the court to issue a new support order by

utilizing the child support guidelines — a conclusion that Abbey specifically recognized. Id. at ¶
21 (quoting Siebert for the proposition that “the child support guidelines ‘are expressly

inapplicable in cases where the combined income of the parties exceeds $150,000.’”)

       {¶23} Fourth, the court should be careful to separate child support from spousal support.

We have cautioned the trial court to avoid entering child support orders that operate as “de facto

spousal support[.]” Siebert, 8th Dist. Cuyahoga No. 88310, 2007-Ohio-2643 at ¶ 36. While an

obligee parent’s standard of living is a consideration under R.C. 3119.04(B), the court must not

modify child support solely to offer the obligee parent a better standard of living. To properly

differentiate child support from spousal support, the court must consider how the obligee parent’s

standard of living has suffered in providing necessaries for the child. A decreased standard of

living caused by an obligee parent’s unnecessary expenditures for the child is not a valid basis for

modifying child support, unless those expenditures would have been part of the lifestyle that the

child would have enjoyed had the parents remained married.

       {¶24} Phelps and Saffian were married in October 2002. Their child was born in July

2004. They were living in California when divorce proceedings were commenced. In January

2008, the California court issued an order establishing Phelps as custodial parent. Noting that

the child had “primarily been in the care of her mother” since birth, the court approved Phelps’s

request to relocate to Cuyahoga County. The January 2008 custody order did not establish child

support.

       {¶25} Phelps and the child moved to Cuyahoga County in March 2008.                    Saffian,

deciding to live near the child, likewise moved to Cuyahoga County.             Those moves were

completed by the time the California court issued the divorce decree in November 2008. In that

decree, the California court established child support in the amount of $1,571 per month. The

California court also found that “[t]he parties stipulated to the termination of spousal support[.]”
       {¶26} In February 2009, Phelps filed a petition to register the California support decree

and sought modification of child support; Saffian filed his own motion to modify child support in

August 2009. The court granted the motion to register the foreign decree and combined the

motions to modify child support for hearing.

       {¶27} A magistrate presided over a trial on the issues and issued findings of fact and

conclusions of law. The magistrate found that Phelps is a physician’s assistant for a surgical

unit at a hospital. She works, on average, 20 hours per week (two days per week and an

additional day every other week). The magistrate’s findings of fact conflicted on the reason why

Phelps worked part-time: Phelps claimed that she desired to work more hours but none were

available from her employer (magistrate’s decision at 10); however, Phelps also testified that the

reason she does not work full time is because she would need daycare for the child (magistrate’s

decision at 7). The magistrate found that Phelps had unsuccessfully requested more hours from

her employer, but conceded that she did not inquire into moving to a different department after

being told that there were no more hours available to her in her current position.

       {¶28} The magistrate determined Phelps’s earnings as follows:

       2009: $42,606.05
       2010: $43,844.01
       2011: $46,872.78
       2012: $50,425.09
       2013: $53,816.80

       {¶29} Determining Saffian’s income was significantly more problematic. Saffian is a

medical doctor and partner in an anesthesiology practice group. In addition to the salary and

dividend income that he earned from his medical partnership, Saffian has various real estate

investments from which he derives income. A summarized version of the magistrate’s decision

shows Saffian’s earnings as follows:
       2009: $368,676.98
       2010: $489,951.38
       2011: $475,217.30
       2012: $543,970.97
       2013: $544,791.04

       {¶30} The magistrate’s findings show that Phelps has two major expenses: private school

tuition for the child and attorney fees incurred for this action.

       {¶31} The magistrate found that Phelps made the decision, over Saffian’s objection, to

send the child, then five years old, to private school. It is unclear when the child started school:

the magistrate stated that Phelps testified that the child started attending the private school in the

2009-2010 school year; the mother also testified that she alone paid the child’s school tuition,

and had done so “since the 2011-2012 school year.” Those facts conflicted with an October

2010 temporary restraining order issued by the court, barring Phelps from removing the child

from the public school. In any event, even with financial aid, Phelps pays tuition of nearly

$9,000 per year — an amount that the magistrate determined equated to 18 percent of her gross

income. In addition to tuition, Phelps claimed “travel expenses” of $4,108.40 to transport the

child back and forth to school, and daycare expenses of $6,600 per year. Saffian offered to

assist Phelps with the child’s school transportation, but Phelps refused the offer.

       {¶32} Apart from finding that the child had been diagnosed with attention deficit

hyperactive disorder in January 2014, the magistrate made no findings that the child had any

special needs. Saffian opposed the child’s attending private school because he believed that she

was doing well in her former school and he feared that changing schools would “destabilize” her.

 The magistrate found that by the time of trial, Saffian had conceded that removing the child

from private school and re-enrolling her in public school would not be in her best interests.
       {¶33} The magistrate found that Phelps owes $30,000 to $40,000 in attorney fees related

to her motion to modify child support. By Phelps’s own estimation, the prolonged litigation has

her “sinking and sinking financially.”

       {¶34} The magistrate made a number of findings regarding Phelps’s living situation.

She rents a house for $500 per month. As the trial was nearing its conclusion, Phelps’s rental

house was severely damaged by flooding caused by thunderstorms. Phelps said that insurance

would not cover any of her losses. Her automobile was also damaged by the flooding. She said

that her insurance claim on the automobile had been denied, but later admitted that her auto

insurance company was investigating her claim and had provided her with a “loaner” vehicle.

       {¶35} The magistrate found that Phelps was “frugal.” Despite her frugality, she was

forced to use her savings to pay her monthly bills. In addition to school tuition, Phelps pays for

the child’s extra-curricular activities like gymnastics and girl scouts. Phelps also pays the

child’s out-of-pocket medical expenses. Those medical expenses, for the years 2011 and 2012,

averaged a little over $10 per month; in 2013, the medical expenses were $12.

       {¶36} The magistrate made few findings regarding Saffian’s standard of living apart from

his having the ability to purchase a home and vehicle of his choosing and traveling on vacations.

The magistrate rejected Saffian’s assertion that he lived an “austere” lifestyle, noting that Saffian

believed the child lived in a “good” home when staying with him, but that the child did not have

to live in a home like his when staying with Phelps.

       {¶37} The magistrate made the following findings with respect to the change in

circumstances of the parties as justification for granting Phelps’s motion to modify child support:

       After reviewing and considering the sworn testimony of the parties and the
       evidence presented, and after considering the nature, value and truthfulness of said
       evidence and testimony this Magistrate determines that a substantial change in
       circumstances has occurred in considering the minor child, * * * qualitative needs
       and standard of living, in considering the Plaintiff’s qualitative needs and standard
       of living and in considering the Defendant’s qualitative needs and standard of
       living. The change in circumstances having occurred since Plaintiff moved to
       Ohio in March / 2008 and also since the filing of her original Motion to Modify
       Child Support (#275176) filed on February 5, 2009 as part of her Petition to
       Register the California Decree and her Motion to Modify Child Support
       (#278388, filed on April 2, 2009). The change of circumstances since the parties’
       divorce is evident not only economically in that there is a great and growing
       disparity of income between father and mother, but more importantly in the
       standard of living and lifestyle [the child] both previously and currently has in her
       primary household with mother as in comparison to father’s lifestyle and standard
       of living.

       Further, in this case the evidence showed that mother is solely paying [the child’s]
       school tuition since [the child’s] enrollment in [the private school] since the
       2011-2012 school year. The school tuition payment comprises of [sic] about 18%
       of her gross income. Mother also has had to pay all of [the child’s] associated
       school expenses. Further, mother alone has paid all of [the child’s] out of pocket
       medical expenses, daycare expenses and extracurricular expenses. [The child’s]
       needs and standard of living in her mother’s home, wherein she lives a clear
       majority of the time is clearly sub-standard and deficient. The home is prone to
       flooding. [The child’s] standard of living in mother’s home dramatically pales in
       comparison to the standard of living she would have enjoyed had the parties
       remained married. Further, and importantly, [the child] has been diagnosed as
       having Attention Deficit Hyperactivity Disorder (ADHD). She will likely need
       additional supportive treatment in this regard.

       {¶38} The magistrate carried out two different calculations under the child support

guidelines: one calculation with extrapolation; the other calculation without extrapolation.

       The magistrate issued a new support order, effective June 1, 2015, ordering Saffian to pay

$4,350 per month in child support.       The magistrate also modified Saffian’s child support

obligation with retroactive effect based on the following dates:

       From February 5, 2009 through December 31, 2009, $3,249.57 per month;
       From January 1, 2010 through December 31, 2010, $3,911.37 per month;
       From January 1, 2011 through December 31, 2011, $3,990.67 per month;
       From January 1, 2012 through December 31, 2012, $4,290.04 per month;
       From January 1, 2013 forward, $4,350.00 per month.
       {¶39} Calculating the retroactive amount of unpaid, modified child support, the

magistrate found that Saffian owed a total of $191,558.74.

       {¶40} Saffian’s first assignment of error raises a number of arguments in opposition to

the court’s decision to modify child support, particularly with respect to the amount ordered.

       {¶41} We first consider Saffian’s argument that the court erred by adopting the

magistrate’s finding that Phelps earned $53,816.80.        Saffian argues that Phelps was only

working 20 hours per week, so the court should have imputed income to her based on full-time

employment.

       {¶42} For purposes of calculating child support obligations, R.C. 3119.01(C)(5)(b)

defines “income” for a parent who is unemployed or underemployed as “the sum of the gross

income of the parent and any potential income of the parent.” “Potential” income is defined as

“[i]mputed income that the court or agency determines the parent would have earned if fully

employed[.]” R.C. 3119.01(C)(11)(a). Whether a parent is “voluntarily underemployed” is a

matter to be determined by the trial court based upon the facts and circumstances of each case.

Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993), syllabus.

       {¶43} The magistrate issued conflicting findings about Phelps’s employment. He found

that she denied that her part time employment had been voluntary and that her work hours were

“what is available from her employer.” However, the magistrate found that Phelps “testified

that the reason why she does not work full time is because she would need daycare” and that “her

employment allows her to spend more quality time” with the child. In addition, the magistrate

found that Phelps “testified that she has not asked to work more hours” and conceded that she did

not inquire into transferring to other units where more work hours might be available to her.
        {¶44} An abuse of discretion exists when a decision is unreasonable, arbitrary, or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E. 2d 1140 (1983). The magistrate acted unreasonably by making factual

findings that were inherently contradictory with respect to why Phelps only worked part time

hours. What is more, the magistrate gave no consideration to whether Phelps had the ability to

work more hours and whether potential income should be imputed to her. While the court had

broad discretion to fashion a child support order, it erred by upholding a magistrate’s decision

that failed to consider Phelps’s potential income for purposes of establishing child support.

        {¶45} Phelps’s primary basis for seeking a modification of child support was that the

expense of providing a private school education for her child caused a significant financial

distress. Saffian complains that the court erred by finding that Phelps’s unilateral decision to

enroll the child in private school constituted a change of circumstances warranting modification

of child support to assist her in paying for it.

        {¶46} The magistrate found that Phelps “conceded that the decision for [the child] to

attend [private school] was her own decision, without father’s input.” Saffian’s objection to the

child attending private school was not only known to the court, but was the subject of an October

15, 2010 temporary restraining order barring Phelps from removing the child from the public

school she was attending. The court issued a second temporary restraining order on August 18,

2011, again restraining Phelps from removing the child from the public school she was attending.

 In an affidavit attached to a motion to vacate the temporary restraining order, Phelps admitted

that the child began attending the private school beginning August 17, 2011. On September 6,

2011, Saffian filed a motion asking the court to have Phelps show cause as to why she should not

be held in contempt for violating the temporary restraining order. That motion pended before
the court until July 2013, when the parties, in the course of resolving certain parenting issues,

agreed that the child would continue to attend the private school.

          {¶47} When modifying child support retroactive to the February 2009 date on which

Phelps filed her motion to modify child support, the magistrate gave no consideration to Phelps’s

act of defying the temporary restraining order prohibiting her from enrolling the child in private

school.     Instead, the magistrate focused solely on how the child’s private school tuition

comprises 18 percent of Phelps’s gross income and how she alone was bearing that expense.

However, that expense was unilaterally and voluntarily entered into by Phelps, and in direct

violation of the court’s restraining order. The magistrate gave no attention to Phelps’s act of

violating the temporary restraining order and should have considered whether she alone should

have borne the cost of the first two years of the child’s private school tuition. To hold otherwise

would be to allow Phelps to benefit from her clear disregard of the court’s restraining order.

          {¶48} Our resolution above necessarily moots any consideration of the parties’ separate

arguments relating to the modified amount of child support. Nevertheless, we wish to draw

attention to certain aspects of the magistrate’s decision that may have blurred the distinction

between child support and spousal support.

          {¶49} The findings of fact issued by the magistrate suggest that Saffian had a duty to offer

financial support to Phelps beyond his stated obligation in the child support order.

          {¶50} When the parties divorced, they stipulated to the termination of spousal support.

Despite (or perhaps because of) that stipulation, there appears to be obfuscation of child support

and spousal support by Phelps. In her brief on appeal, Phelps details how Saffian was ordered

by the California court to pay $1,428 per month for spousal support, an order “which ultimately

terminated without a corresponding increase in child support. [Husband] merely skated by on the
remaining $1,571 monthly child support which was ordered, paying no more than the bare

minimum until the court finally modified the woefully inadequate child support order * * *.”

Appellee’s brief at 2.

       {¶51} The magistrate asserted that he had “differentiated between the need to ensure the

custodial parent’s standard of living from defacto spousal support,” magistrate’s decision at 56,

but many of the magistrate’s findings suggested that Saffian had an obligation to raise Phelps’s

standard of living. With no evidence to show that the child suffered as a result of these findings,

the magistrate appeared to suggest that Saffian had a moral obligation to support Phelps beyond

the terms of their divorce decree, a position consistent with Phelps’s trial strategy. Saffian had

no legal duty to support Phelps. On remand, the court must carefully distinguish the child’s

need for support from Phelps’s personal needs when considering modification of child support.

       {¶52} Nothing we have said here should be construed to suggest that modification of

child support was unwarranted in this case.         Saffian’s increased income alone warranted

modification so that the child could enjoy a lifestyle consistent with the one she would have

enjoyed had the parents not divorced. The court has broad discretion to modify child support;

however, that discretion must be exercised consistent with the law.

                         II. Retroactive Effect of Child Support Modification

       {¶53} Although our conclusions thus far moot other arguments relating to the amount of

child support, Saffian’s argument that the court erred by giving retroactive effect to the modified

child support order remains viable for review. The magistrate ordered support modification

retroactive to the date when Phelps filed her motion to modify child support. That order

modified child support retroactive for six years to the date when Phelps filed her motion to

modify child support.
        {¶54} R.C. 3119.84 allows the court to “modify an obligor’s duty to pay a support

payment that becomes due after notice of a petition to modify the court support order has been

given to each obligee and to the obligor before a final order concerning the petition for

modification is entered.” This section has been interpreted to “plainly state[ ] that a court may

retroactively modify a child-support payment that became due after the obligee of the order had

notice of the petition to modify the support order.” Byrd v. Knuckles, 120 Ohio St.3d 428,

2008-Ohio-6318, 900 N.E.2d 164, ¶ 4. As with other child support issues, we review the court’s

decision to order retroactive modification of child support for an abuse of discretion. Davis v.

Dawson, 8th Dist. Cuyahoga No. 87670, 2006-Ohio-4260, ¶ 7.

        {¶55} It took six years for a decision on the motions to modify child support. The

magistrate acknowledged that a question over the court’s jurisdiction to rule on an unrelated

motion for the allocation of parental rights and responsibilities left the parties in “judicial limbo”

for two years.1 Even after the jurisdictional issue had been resolved, matters did not proceed

apace. Although there were only six days of trial, they were held between November 27, 2013

and May 20, 2014. The magistrate mentioned the delay only by noting that there were “time

constraints.” The parties were given nearly three months to file closing arguments. It took an

additional ten months to issue a decision.

        {¶56} We have encountered cases involving even longer delays in the issuance of

magistrate’s decisions from the domestic relations division.                   See, e.g., Brown v. Brown,


1
  In Pula v. Pula-Branch, 8th Dist. Cuyahoga No. 93460, 2010-Ohio-912, this court held that the domestic relations
division did not have jurisdiction to hear an interstate petition for child support because it was not a “domestic
relations matter” for purposes of R.C. 2301.03(L)(1), which defines the jurisdiction of the domestic relations
division and that a motion filed under the interstate act should be brought in the juvenile division. The Ohio
Supreme Court reversed this court in Pula v. Pula-Branch, 129 Ohio St.3d 196, 2011-Ohio-2896, 951 N.E.2d 72,
holding that the domestic relations division has jurisdiction over an action for support brought under the Uniform
Interstate Family Support Act “even if the action does not arise from a divorce, dissolution of marriage, legal
separation, or annulment.” Id. at ¶ 10.
2014-Ohio-2402, 14 N.E.3d 404, ¶ 4 (8th Dist.) (Sixteen month delay); Chiro v. Foley, 8th Dist.

Cuyahoga No. 99888, 2013-Ohio-4808 (describing 16-month delay as “troubling”); Hall v. Hall,

8th Dist. Cuyahoga No. 77804, 2001 Ohio App. LEXIS 1167 (Mar. 15, 2001) (questioning the

“reasonableness” of a 19-month delay). In those cases we found no error that would require

reversal nor do we find any error in that respect in this case. We do, however, find that the

magistrate acted unreasonably by deciding that a “possible inequity” might result if he did not

modify child support retroactively.

       {¶57} Saffian was not responsible for putting the case into a “judicial limbo,” nor was he

solely responsible for stretching six days of trial over five months. And there is no dispute that

neither party had any control over the length of time it took for a decision to render. Those

delays, amounting to well over three years, must be attributed to the court. It was inequitable for

the court to order modification of child support retroactive to the date on which Phelps filed her

motion to modify because the length of the delay allowed the court to order modification of child

support based on Saffian’s income in the most current years and not on his income at the time the

motion was filed.

       {¶58} The delay also enabled the magistrate to modify child support based on expenses

that Phelps incurred well after the motion to modify had been filed. For example, the magistrate

made findings that the modification of child support was necessary because Phelps suffered

significant expenses after her rental home was flooded, causing her the loss of certain appliances

and damage to her vehicle. The flooding occurred in May 2014, a week before the last day of

trial. Although the flooding would have been a viable factor to consider as part of Phelps’s

“needs and standard of living,” it would not have been a viable factor to consider for purposes of

modifying child support retroactively to February 2009. The magistrate did not clearly indicate
that he did not take those expenses into account when ordering retroactive modification of child

support.

       {¶59} We also question how the magistrate could have determined that it would be

equitable to retroactively modify a California child support order that had been in place for only a

few months. Phelps argues that the California support order “was a mere $1,571.00 per month,”

Appellee’s brief at 1, but when she appealed from aspects of that child support order, she did not

challenge the amount of the child support at that time. See Phelps v. Saffian, Cal. App. No.

A116570, 2007 Cal. App. Unpub. LEXIS 9685 (Nov. 30, 2007). Although decided in 2007, that

appeal was interlocutory and the case did not become final until November 2008 when the

California court issued the divorce decree. That decree again stated Saffian’s child support

obligation as $1,571 per month. To our knowledge, Phelps did not appeal from the final

California divorce decree to raise any issue regarding the amount of child support; instead, she

registered that decree in Ohio in February 2009 and in April 2009 sought modification of the

decree. The magistrate ordered modification of child support retroactive to February 2009 on

the mistaken belief that Phelps had first sought modification of the order at that time. The

February 2009 filing by Phelps was a petition to register the divorce decree for “enforcement and

modification of the terms of that decree governing support.” In fact, the February 2009 petition

did not seek modification of child support — it merely asked the court to register a foreign

decree so that a future motion to modify child support might be offered. Notably, the February

2009 petition to register the decree did not contain an affidavit in support of a request for

modification of child support as required by Loc.R. 19(B) of the Cuyahoga County Court of

Common Pleas, Domestic Relations Division — (but the April 2009 motion did). So not only

did the magistrate lack a basis for finding that a substantial change in circumstances existed from
a support order entered just a few months before Phelps filed her motion to modify child support,

the court erred by ordering the retroactive modification of child support to a point in time that

predated the actual motion to modify.

       {¶60} We are aware that the magistrate believed that Saffian “seemingly concedes” that

child support should have been modified retroactively given his closing argument on his own

motion to modify child support on a yearly basis beginning in 2009. We reject this assertion

because Saffian’s request that his motion to modify child support be granted retroactive to 2009

is not the same as “conceding” that Phelps’s motion to modify child support should likewise be

given retroactive effect. Saffian’s closing argument made it clear that he was referring only to

his motion to modify child support, not Phelps’s motion to modify child support.

                                 III. Child Support Exemption

       {¶61} Saffian next argues that the court erred by failing to award him the child

dependency exemption for federal income tax purposes.

       {¶62} R.C. 3119.82 requires the court to designate which parent may claim the federal

income tax child dependency exemption. This has been held to be a mandatory duty. See

Horvath v. Horvath, 5th Dist. Stark No. 2004-CA-00160, 2004-Ohio-6764, ¶ 7. The court did

not fulfill this duty — there is nothing in the magistrate’s decision assigning the exemption to

either party.   We sustain this assignment of error. On remand, the court must assign the

exemption consistent with R.C. 3119.82.

                                        IV. Attorney Fees

       {¶63} Both Saffian and Phelps complain about the amount of attorney fees awarded:

Saffian claims they are too high; Phelps claims they are too low. Given the remand necessary

for a recalculation of child support and any retroactive application, the court may modify the
amount of attorney fees accordingly. We therefore decline to address the substance of these

assigned errors.

                                          V. Transportation Expenses

          {¶64} In the sole remaining cross-assignment of error, Phelps complains that the court

erred by failing to order Saffian to reimburse her $4,108.40 as costs for transporting their child to

school.

          {¶65} The magistrate found that Phelps made the unilateral decision to send the child to

private school, even ignoring the terms of a temporary restraining order that prohibited her from

removing the child from her public school. Phelps does not contest that finding, but claims that

Saffian eventually agreed that it was in the child’s best interests to attend the private school.

That argument misrepresents the facts: Saffian only agreed to withdraw his objection to the

private school after two years had elapsed without a ruling by the court on his motion to have

Phelps show cause why she should not be held in contempt for violating the temporary

restraining order. By that point, the child was established in the new school, and Saffian

apparently concluded that another move would have been counterproductive.

          {¶66} Throughout these proceedings Phelps complained that Saffian did not “voluntarily”

offer to pay amounts that he was not legally obligated to pay. In fact, at numerous points in his

decision, the magistrate appeared to agree with Phelps.2 We wish to be clear that Saffian had no

legal obligation to contribute voluntarily to support the child. Nevertheless, the magistrate



2
   For example, the magistrate found that Phelps enrolled the child in an expensive private school over Saffian’s
objection and that Saffian “had not paid any money toward the tuition.” The magistrate found that Phelps drives a
“used” vehicle and that Saffian has not assisted Phelps in “getting a better car.” The magistrate found that the child
is placed in child care when Phelps works second shift, but “father has refused to assist her in paying the babysitter.”
  The magistrate found that Phelps did not work full-time because she would need daycare, but “cannot afford it and
Saffian has not offered to help.”
found that Saffian did offer to transport the child to and from school — an offer that Phelps

rejected. Given that Phelps made the unilateral decision to enroll the child in private school in

violation of a court order prohibiting her from doing so, and that she rejected Saffian’s offer to

transport the child, the court did not err by adopting the magistrate’s decision to deny Phelps’s

claim for transportation expenses.

                                             VI. Delay

         {¶67} Saffian raises several arguments concerning the delay in bringing this case to a

conclusion. As earlier indicated, those delays are not reversible error, nor could they be because

they do not involve an error of law.

         {¶68} Nevertheless, we agree that the delays in this case have been untenable. We

therefore order the court to issue a new ruling on the motions to modify child support consistent

with this opinion within 60 days of the date this decision is journalized.

         {¶69} Judgment affirmed in part, reversed in part and remanded.

         It is ordered that appellant/cross-appellee recover of appellee/cross-appellant costs herein

taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the domestic relations

division to carry this judgment into execution.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR
