         [Cite as Reddy v. Reddy, 2015-Ohio-3368.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




MATTHEW J. REDDY,                                :   APPEAL NOS. C-140609
                                                                 C-140678
        Plaintiff-Appellant,                     :   TRIAL NO. DR0601018

  vs.                                            :       O P I N I O N.

SHELLEY E. REDDY,                                :

    Defendant-Appellee.                          :




Appeals From: Hamilton County Court of Common Pleas, Domestic Relations
              Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 21, 2015




Sebaly Shillito + Dyer and Alex S. Rodger, for Plaintiff-Appellant,

Beth I. Silverman & Associates, LLC, and Beth I. Silverman, and Ginger S. Bock Law
Office, Inc., and Ginger S. Bock, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}     Plaintiff-appellant Matthew J. Reddy appeals the trial court’s decision

granting defendant-appellee Shelley E. Reddy’s motion for spousal support. We find no

merit in his four assignments of error, and we affirm the trial court’s judgment.

                               I.   Factual Background

       {¶2}     The record shows that the parties were divorced on April 19, 2007. They

had four children.     The oldest child, Rachel, had numerous medical issues.        She

functioned at a five-month level and required constant care. At the time of the divorce,

neither party received any government assistance for Rachel’s support.

       {¶3}     Under the terms of the decree of shared parenting, Matthew was to pay

child support of $500 per month per child. Because of his unpredictable bonuses, he

agreed to pay directly to Shelley child support equaling 20 percent of his income that

exceeded $200,000. The decree specifically stated that “[t]he parties have deviated

from the child support guidelines because Father’s income exceeds $150,000, and

because of the needs of the children and their lifestyle.”

       {¶4}      Under the terms of a separation agreement incorporated into the

divorce decree, Matthew was to pay Class I spousal support of $4,000 per month. Class

I support was to terminate after 72 months. When that support order terminated,

Shelley could then seek Class II spousal support.

       {¶5}     The divorce decree stated that “if the court is asked to exercise its

jurisdiction to order Class II support, the following circumstances shall be considered”

in determining the amount:          (1) Rachel’s condition and needs, including any

improvement or deterioration in her condition, changes in her required level of care, and

increases or decreases in expenses for her care, (2) Matthew’s income and ability to pay,



                                             2
                      OHIO FIRST DISTRICT COURT OF APPEALS



(3) Shelley’s circumstances, including her health, employment opportunities, and the

impact of Rachel’s care requirements, (4) any government assistance available for

Rachel, including but not limited to, Social Security, and (5) any other relevant factors.

       {¶6}     The decree further provided that the parties had agreed that Matthew

would “pay no less than 20% of his gross income between child support and spousal

support.” The trial court was to retain jurisdiction to modify the amount and duration of

Class II support, but “in any event, the mandatory minimum level of support * * * shall

be binding.”

       {¶7}     Subsequently, Shelley filed a motion asking that Matthew be found in

contempt for failing to pay child support and spousal support. The court journalized an

entry on August 15, 2014, stating that the parties had agreed that the child-support

arrearage was $28,609 and the spousal-support arrearage was $4105.91. The entry also

stated that “[t]he child support arrearage is established pursuant to the obligation set

forth in the parties [sic] Decree of Shared Parenting, wherein Father is to pay Mother

20% of his income which exceeds $200,000 per year, as additional child support.” The

entry indicated that “the parties reached an agreement * * * that Father owed Mother

$28,609 pursuant to that formula.”

       {¶8}     Shortly before the Class I spousal support was to terminate, Shelley filed

a motion asking the trial court to “establish Class II spousal support.” The parties

presented evidence at a hearing before a magistrate.

       {¶9}     The evidence showed that Shelley was Rachel’s primary caregiver.

Because of the intensive amount of care that Rachel needed, Shelley was able to work

only part-time for a flexible employer and, as a result, she made about $15,840 per year.

After the divorce, Rachel and the parties started receiving some government assistance.

At the time of the hearing, Rachel was receiving $8350 annually in SSI benefits.



                                             3
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10}    Additionally, Hamilton County Developmental Disabilities Services

started providing the parties with services equivalent to $34,700 annually under an

Independent Options (“IO”) wavier. Those services included in-home aides, summer

camp, medical equipment, home-accessibility modifications and respite care. Though

both parties have access to the IO resources, Shelley used the vast majority of them. The

parties did not receive any money directly under the IO waiver.

       {¶11}    Shelley presented evidence that the aides were generally uneducated and

unreliable. When an aide quit, Shelley was required to train a new aide for a few days to

ensure proper care for Rachel. Further, aides could not care for some of Rachel’s

specialized needs, and they did not do laundry, go to the pharmacy, or take Rachel to

medical appointments. While aides could administer medication, Shelley had to obtain

and organize the medicines.

       {¶12}    The evidence also showed that Rachel’s condition was deteriorating. She

had been hospitalized on several occasions, and she will need surgery in the future.

When Rachel was hospitalized, Shelley monitored her medication at the hospital to

make sure that it was “accurate.” An expert stated that “[i]t is medically necessary that

Rachel have close ongoing supervision by caregivers familiar with her condition,

administration of her multiple medications, and understand how to intervene in the

event of acute problems which occur frequently and without warning.” The magistrate

found that Shelley “continues to be the primary point person between Rachel and her

doctors, teachers, and home health aide workers.”

       {¶13}    The evidence also showed that Matthew makes at least $195,000 a year,

plus bonuses.    In the three years preceding the hearing, he earned more than

$1,000,000. At the time of the divorce decree, he had no outstanding debt. Afterward,

he accumulated a substantial amount of debt, which he acknowledged was his personal



                                           4
                        OHIO FIRST DISTRICT COURT OF APPEALS



responsibility. He testified that between paying the debt, the spousal support and child

support, he had difficulty making ends meet.

       {¶14}    After hearing the evidence, the magistrate issued a decision with findings

of fact and conclusions of law. The magistrate discussed the provision in the divorce

decree stating that Matthew would pay no less than 20 percent of his income between

child support and spousal support. She then stated that “[i]n order for the court to

determine the percentage and amount of spousal support that is appropriate in this case,

if the Court orders Class II spousal support, the Court must know the amount of support

that will be ordered[.]” The magistrate reduced the amount of child support to $481.05

per month per child, struck the provisions in the decree requiring Matthew to pay

additional support on income exceeding $200,000, and reduced the amount of spousal

support to $1,333.33.

       {¶15}    The magistrate’s decision was journalized on May 8, 2014, and an entry

adopting the magistrate’s decision was journalized the same day.                Shelley filed

objections on May 23, 2014, one day out of time. Matthew did not raise the issue of the

timeliness of the objections, and the trial court never specifically addressed it.

       {¶16}    The trial court sustained Shelley’s objections. It stated:

               At issue is spousal support, particularly the spousal support

       identified as “Class II” spousal support.        Father, in the Separation

       Agreement, agreed to pay in total, no less than $20% of his gross income

       in payments to Mother divided between spousal support and child

       support.    When making a determination of adjustment for spousal

       support, the magistrate should have kept the child support amount static

       because it was not necessary, nor was it anticipated by the parties that




                                              5
                       OHIO FIRST DISTRICT COURT OF APPEALS



       future modifications would be calculated in such a way to ensure all

       future payment obligations must be exactly 20% of gross.

               It is not proper for this Court to sua sponte strike the prior

       approved Entry/Agreement of these parties. (There has been no credible

       evidence that it is in the best interests of the children to do so.)

               Shared Parenting Plan paragraph 14.2 provides “. . . the Husband

       will pay no less than 20% of his gross income between child support and

       spousal support…”. It is inaccurate to interpret this as Father shall pay

       exactly 20%; just simply “no less than” 20%. The Court does not need to

       strive to balance the child support and support amounts to exactly “20%”

       of Father’s income.

(Emphasis sic.)

       {¶17}      Consequently, the court ordered spousal support to remain at $4000 per

month and child support to remain at $500 per month per child. The court also ordered

that the “April 15, 2014 Agreed Entry still stands as valid and enforceable.” Finally, it

stated that “[t]he language of the parties’ agreement and the Court’s statutory obligation

to decide the best interest of the children requires that the parties [sic] agreement be

upheld.” This appeal followed.

                                II.   Timeliness of Objections

       {¶18}      In his first assignment of error, Matthew contends that the trial court

erred by ruling on Shelley’s objections because they were not timely filed. He argues

that because the trial court had already entered judgment on the magistrate’s decision

and no timely objections were filed, the court did not have jurisdiction to consider the

objections. This assignment of error is not well taken.




                                              6
                      OHIO FIRST DISTRICT COURT OF APPEALS



         {¶19}   Before we reach the merits of this assignment of error, we must address

a procedural issue. After the appeal was filed, Shelley filed a motion to correct the

record under App.R. 9(E). The trial court improperly granted that motion. See Brown

v. Pollack, 8th Dist. Cuyahoga No. 85865, 2005-Ohio-6231, ¶ 24; Woodman v. Jones,

103 Ohio App.3d 577, 580, 660 N.E.2d 520 (8th Dist.1995); State v. Bullock, 5th Dist.

Perry No. CA-468, 1995 Ohio App. LEXIS 3727, *2-3 (May 11, 1995). Consequently, we

cannot consider any of the issues raised in that motion as they are not a part of the

record on appeal. See State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),

paragraph one of the syllabus; State v. Fields, 1st Dist. Hamilton No. C-090648, 2010-

Ohio-4114, ¶ 15.

         {¶20}   We turn now to the merits of the assignment of error. Under Civ.R.

53(D)(3)(b)(i), a party may file written objections to a magistrate’s decision within 14

days of the filing of the decision. But Civ.R. 53(D)(5) allows the court to extend the time

to file objections “for good cause shown.”

         {¶21}   In this case, Matthew did not bring the timeliness issue to the trial

court’s attention and waived the right to raise the issue on appeal. See Stores Realty Co.

v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975); Werden v. Children’s Hosp.

Med. Ctr., 1st Dist. Hamilton No. C-040889, 2006-Ohio-4600, ¶ 15.              Absent an

indication to the contrary in the record, we presume that the trial court found good

cause to entertain the untimely objections. See Cwik v. Cwik, 1st Dist. Hamilton No. C-

090843, 2011-Ohio-463, ¶ 84-85. Therefore, we overrule Matthew’s first assignment of

error.

                                   III. Spousal Support

         {¶22}   In his second assignment of error, Matthew contends that the trial

court erred in awarding spousal support that was neither appropriate nor


                                             7
                     OHIO FIRST DISTRICT COURT OF APPEALS



reasonable. He argues that the trial court failed to consider the factors in R.C.

3015.18. This assignment of error is not well taken.

       {¶23}   R.C. 3105.18 provides that the trial court may award spousal support

as is “appropriate and reasonable.” Coors v. Maceachen, 1st Dist. Hamilton No. C-

100013, 2010-Ohio-4470, ¶ 12. In making its determination, the court must consider

the factors set forth in R.C. 3105.18(C)(1), but it should not base its determination on

any one of those factors taken in isolation. Kaechele v. Kaechele, 35 Ohio St.3d 93,

96, 518 N.E.2d 1197 (1988); Kaletta v. Kaletta, 8th Dist. Cuyahoga No. 98821, 2013-

Ohio-1667, ¶ 22. The trial court is not required to enumerate each statutory factor as

long as it considered the relevant factors. Kaletta at ¶ 22.

       {¶24}   The trial court has broad discretion in determining the amount and

duration of spousal support. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83

(1990); Coors at ¶ 13. If some competent, credible evidence supports the court’s

decision, it is not an abuse of discretion. Middendorf v. Middendorf, 82 Ohio St.3d

397, 401, 696 N.E.2d 575 (1998); Coors at ¶ 13.

       {¶25}   The record shows that the trial court considered the statutory factors, as

well as the factors enumerated by the parties in the separation agreement incorporated

into the divorce decree. The trial court’s decision was supported by competent, credible

evidence, including evidence showing Rachel’s need for full-time care, the responsibility

borne by Shelley for caring for Rachel, and the disparity in the parties’ incomes. Under

the circumstances, we cannot hold that the trial court abused its discretion in awarding

spousal support.

       {¶26}   Matthew also argues that the trial court abused its discretion in failing

to consider the changes in circumstances of the parties in relation to the mandatory




                                           8
                       OHIO FIRST DISTRICT COURT OF APPEALS



factors in R.C. 3105.18 and the agreed-upon factors in the parties’ separation

agreement. We find no merit in this argument.

       {¶27}    First, the record shows that the trial court did consider the changes in

circumstances. The trial court simply didn’t agree with the magistrate’s assessment

of those circumstances. A magistrate’s oversight of a case is an aid to the trial court’s

judicial functions, not a substitute for them. The trial court remains the “ultimate

determiner” of the case. Yantek v. Coach Builders, Ltd., 1st Dist. Hamilton No. C-

060601, 2007-Ohio-5126, ¶ 10.

       {¶28}    Further, the trial court did not modify spousal support. It made a

new award of Class II spousal support because Class I support had terminated per

the parties’ agreement. In the agreement, the parties did not determine the initial

amount of Class II support. Under the circumstances, we cannot say that the trial

court erred in awarding Class II spousal support, and we overrule Matthew’s second

assignment of error.

                                   IV. Direct Payments

       {¶29}    In his third assignment of error, Mathew contends that the trial court

erred in enforcing an order that was contrary to R.C. 3121.44. He argues that the trial

court abused its discretion by authorizing child-support payments directly to Shelley and

not through the Child Support Enforcement Agency (“CSEA”). This assignment of error

is not well taken.

       {¶30}    The record shows that the decree of shared parenting required Matthew

to make payments directly to Shelley if his annual income exceeded $200,000. The

arrearage calculated in the April 15, 2014 agreed entry was based on that provision. He

argues that that provision of the shared-parenting plan was void and the trial court erred

by enforcing the April 15, 2014 agreed entry. We disagree.


                                            9
                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶31}   R.C. 3121.44 and 3121.45 set forth mandatory language requiring the

payment of child support to “the office of support in the department of job and family

services” and obligating the court to consider any direct payment as a gift. Lepore v.

Breidenbach, 1st Dist. Hamilton No. C-140310, 2015-Ohio-2929, ¶ 14. Some courts

have stated that the trial court has no authority to approve payments that are not paid to

CSEA. See Bowley v. Bowley, 12th Dist. Warren No. CA97-12-126, 1998 Ohio App.

LEXIS 2280, *3-4 (May 26, 1998); Starr v. Starr, 109 Ohio App.3d 116, 121, 671 N.E.2d

1097 (8th Dist.1996).

       {¶32}   This court has recently held that a trial court’s failure to order child

support to be paid to CSEA does not render the judgment void, but merely voidable.

Therefore, that judgment can only be attacked on direct appeal and cannot be

collaterally attacked in a separate proceeding. Lepore at ¶ 18-19. We further held that a

voidable order that has not been reversed, vacated, or set aside can be enforced in

contempt. Id. at ¶ 22-24.

       {¶33}   The 2007 decree of shared parenting was a final, appealable order, as

was the April 15, 2014 agreed entry. Any alleged errors contained in them should have

been raised in a direct appeal from those judgments. See Lepore at ¶ 29. Further, to the

extent that a party seeks to revisit an issue regarding a support arrearage that was

previously considered and decided by a court, the doctrine of res judicata applies. Id. at

¶ 27. Consequently, Matthew cannot now raise the issue that the past child-support

orders did not comply with the mandate of R.C. 3121.44.           We overrule his third

assignment of error.

                             V. Modification of Child Support

       {¶34}   Finally, in his fourth assignment of error, Matthew contends that the

trial court erred when it found that a court may not, upon its own motion, modify child


                                           10
                       OHIO FIRST DISTRICT COURT OF APPEALS



support. He argues that the trial court abused its discretion in vacating the magistrate’s

decision modifying child support on that basis. This assignment of error is not well

taken.

         {¶35}   We agree that the trial court was incorrect in stating that a court may not

modify child support on its own motion, because R.C. 3109.04(E)(2)(b) allows a court to

do so as long as the modification is in the best interest of the children. Murphy v.

Murphy, 1st Dist. Hamilton No. C-130229, 2014-Ohio-656, ¶ 38, citing Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 27-31.

         {¶36}   Nevertheless, the trial court went on to state that “[t]here has been no

credible evidence that it is in the best interest of the children to do so.” Competent,

credible evidence supported that finding. Under the circumstances, we cannot hold that

the trial court’s decision denying a modification of child support was an abuse of

discretion. Therefore, we overrule Matthew’s fourth assignment of error.

                                        VI. Summary

         {¶37}   In sum, we find no reversible error in the trial court’s decision.

Consequently, we overrule Matthew’s four assignments of error and affirm the trial

court’s judgment.

                                                                       Judgment affirmed.

H ENDON , P.J., concurs.
D E W INE , J., concurs in judgment only.


Please note:
         The court has recorded its own entry this date.




                                             11
