[Cite as McNabb v. McNabb, 2013-Ohio-2158.]



                                  IN THE COURT OF APPEALS

                         TWELFTH APPELLATE DISTRICT OF OHIO

                                        WARREN COUNTY




BRYAN CLAYTON MCNABB,                         :
                                                     CASE NOS. CA2012-06-056
     Plaintiff-Appellant/Cross-Appellee,      :                CA2012-06-057

                                              :             OPINION
   - vs -                                                    5/28/2013
                                              :

JENNIFER MCNABB,                              :

     Defendant-Appellee/Cross-Appellant.      :



            APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                       DOMESTIC RELATIONS DIVISION
                            Case No. 07DR31523



Kornman Law Office, LLC, Sharon A. Kornman, 731 S. South Street, P.O. Box 1041,
Wilmington, Ohio 45177, for appellant/cross-appellee

John D. Smith Co., LPA, John D. Smith, Andrew P. Meier, 140 North Main Street, Suite B,
Springboro, Ohio 45066, for appellee/cross-appellant



       RINGLAND, P.J.

       {¶ 1} Appellant/cross-appellee, Bryan Clayton McNabb, appeals from the judgment of

the Warren County Court of Common Pleas, Division of Domestic Relations, modifying his

child support obligations. Appellee/cross-appellant, Jennifer McNabb, cross-appeals from

the same judgment. For the reasons that follow, we affirm in part and reverse in part the

judgment of the domestic relations court and remand this matter for further proceedings.
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       {¶ 2} Bryan McNabb (Father) and Jennifer McNabb (Mother) were divorced in 2009.

The parties' divorce decree incorporated a decree of shared parenting which, in turn,

incorporated the parties' agreed shared parenting plan.           The shared parenting plan

addressed the issues of parenting time, child support and health insurance coverage for the

parties' minor child. The parties agreed on the amount of their respective incomes for

purposes of calculating child support. The parties agreed to provide Father with a 21 percent

deviation in the amount of child support that he would otherwise have been obligated to pay

under the basic child support schedule in R.C. 3119.02 and the child support worksheets in

R.C. 3119.022 and 3119.023 in recognition of the additional parenting time that Father

exercised with the parties' minor child. The parties also agreed not to include as income to

Mother benefits she receives from certain trusts that had been established for her that pay

most expenses related to the home in which she resides. Additionally, the shared parenting

plan obligated mother to pay $200 per month from the child support she received from Father

into a "529 plan" to help establish a college fund for the parties' minor child.

       {¶ 3} In 2010, the parties began exercising parenting time with their minor child under

a schedule different from the one set forth in the agreed shared parenting plan. The parties'

informal agreement gave Father additional parenting time with the parties' child. The parties

followed their informal agreement for approximately one year, during which time the parties

agreed to change their parenting schedule on several occasions. However, the parties were

eventually unable to agree on a mutually acceptable parenting schedule. Moreover, Father

experienced a significant decrease in his annual income, which at the time of the parties'

divorce was $231,000 but had decreased to $176,000.

       {¶ 4} As a result, in 2011 father filed a motion to modify the agreed shared parenting

plan. Father asked the domestic relations court to make the parties' informal modifications to

their shared parenting plan the order of the court, and modify the child support order to reflect
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both the increased amount of time the minor child was spending with him and the significant

reduction in his income. Several months later, Mother filed a motion to modify the shared

parenting schedule with respect to evenings during the school week because the minor child

was entering kindergarten.

       {¶ 5} In 2012 the magistrate, after holding an evidentiary hearing on the parties'

motions, issued a decision granting Father's motion to modify the parenting schedule and

denying Mother's motion to modify the parenting schedule. The magistrate lowered Father's

monthly child support payment from $1,624.98 to $1,325.84. The magistrate noted that the

child support order she issued was a deviation from the child support schedule, and stated

that the deviation was necessary because the "scheduled amount" of child support "would be

unjust and inappropriate and * * * deviation is in the best interest of the child[.]" The

magistrate determined the amount of the deviation by "offsetting" the parties' child support

obligations, finding that it was in the child's best interest to do so.

       {¶ 6} The magistrate rejected Father's request that Mother's trust benefits be

considered for purposes of calculating child support, finding that he was barred from

relitigating this issue by the doctrine of collateral estoppel, and that he failed to show the

necessary change of circumstances required by R.C. 3119.79(C).                  Additionally, the

magistrate sua sponte modified the provision in the parties' original agreed shared parenting

plan in which they had agreed to split evenly the minor child's uninsured medical expenses,

finding that Father now should pay 90 percent of those expenses and that Mother should pay

the remaining 10 percent.

       {¶ 7} The domestic relations court overruled both parties' objections to the

magistrate's decision and adopted that decision as its final order.

       {¶ 8} Father now appeals from the judgment of the domestic relations court and

assigns the following as error:
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       {¶ 9} Assignment of Error No. 1:

       {¶ 10} "THE TRIAL COURT'S APPLICATION OF COLLATERAL ESTOPPEL TO

REMOVE CONSIDERATION OF DEFENDANT/APPELLEE'S TRUST BENEFITS AS

INCOME FOR THE PURPOSE OF CALCULATING CHILD SUPPORT IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW."

       {¶ 11} Assignment of Error No. 2:

       {¶ 12} "THE TRIAL COURT'S DECISION TO CALCULATE THE DEVIATION IN

CHILD SUPPORT BY USING AN OFFSET OF THE PARTIES [sic] OBLIGATIONS INSTEAD

OF DEVIATING BY THE FACTORS IN R.C. §3119.24 IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW."

       {¶ 13} Assignment of Error No. 3:

       {¶ 14} "THE TRIAL COURT'S DECISION TO MODIFY THE ALLOCATION OF

UNINSURED MEDICAL EXPENSES WHERE NEITHER PARTY HAD PUT FORTH THE

MATTER AS AN ISSUE BEFORE THE COURT AND NO TESTIMONY WAS PRESENTED

ON THE MATTER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

       {¶ 15} Mother cross-appeals from the same judgment, assigning the following as error:

       {¶ 16} Cross-assignment of Error No. 1:

       {¶ 17} "THE TRIAL COURT ERRED IN NOT ELIMINATING MOTHER'S OBLIGATION

TO DEPOSIT $200 OF THE CHILD SUPPORT SHE RECEIVES INTO A 529 PLAN WHERE

THE TRIAL COURT REDUCED THE AMOUNT OF CHILD SUPPORT SHE RECEIVES

AND THE PARTIES DID NOT AGREE TO THE $200 DEPOSIT BEFORE OR AT THE

HEARING."

       {¶ 18} In his first assignment of error, Father asserts that the domestic relations court

erred by finding that he was barred under the doctrine of collateral estoppel from arguing that


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the original shared parenting plan should be modified to have Mother's trust benefits

considered as income to her for purposes of calculating child support. Father argues

collateral estoppel does not apply because the necessary elements of the doctrine do not

exist in this case. He also argues the domestic relations court erred because the law in this

state requires that the doctrine of res judicata, of which collateral estoppel is one branch,

should be applied cautiously, especially in cases where the court has retained continuing

jurisdiction over a matter such as child support.

       {¶ 19} The decision of a domestic relations court regarding modification of a child

support obligation falls within the court's sound discretion, and its decision will not be

reversed absent a showing of an abuse of discretion. Pauly v. Pauly, 80 Ohio St.3d 386, 390

(1997). A court abuses its discretion only when its decision is arbitrary, unconscionable or

unreasonable. York v. York, 12th Dist. No. CA2011-03-016, 2011-Ohio-5872, ¶ 8.

       {¶ 20} Father initially asserts that collateral estoppel cannot be applied in this case

because the issue concerning Mother's trusts was not actually and directly litigated in the

parties' original divorce proceedings, since those proceedings were concluded with an

agreement between the parties rather than by litigation between them. While Father does

not cite any specific authority or case law in support of this argument, there is authority to

support it. See, e.g., Restatement Second of Judgments, §27 (1982), comment e ("In the

case of a judgment entered by confession, consent, or default, none of the issues is actually

litigated. Therefore, the rule of this Section ["Issue Preclusion-General Rule"] does not apply

with respect to any issue in a subsequent action."). However, this state does not follow the

Restatement's position on this point of law.

       {¶ 21} In In re Gilbraith v. Hixson, 32 Ohio St.3d 127, 129 (1987), the court found that

"a judgment entered by consent, although predicated upon an agreement between the

parties, is an adjudication as effective as if the merits had been litigated and remains,
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therefore, just as enforceable as any other validly entered judgment." This principle has

been followed in Packer, Thomas & Co. v. Eyster, 126 Ohio App.3d 109, 118 (1998) and

Kashnier v. Donnelly, 81 Ohio App.3d 154, 156 (1991).

        {¶ 22} Nevertheless, there is another basis on which to sustain Father's first

assignment of error. In Flege v. Flege, 12th Dist. No. CA2003-05-111, 2004-Ohio-1929, ¶

32, this court stated that "as a general rule, a motion to invoke the continuing jurisdiction of a

domestic relations court regarding support matters is not barred by res judicata." Moreover,

in Kiehborth v. Kiehborth, 169 Ohio App.3d 308, 2006-Ohio-5529, ¶ 15, the court found that

res judicata should be applied with the "strictest of caution in order to prevent a chilling effect

on Ohio's legal mechanisms for periodic adjustments to child-support orders."

        {¶ 23} Collateral estoppel or "issue preclusion," is one branch of the doctrine of res

judicata, which generally prohibits a party from relitigating the same issue once it has been

actually litigated and determined in a prior action, O'Nesti v. DeBarolo Realty Corp., 113 Ohio
                                  1
St.3d 59, 61, 2007-Ohio-1102, ¶ 7. Consequently, we believe that the principles in Flege

and Kiehborth apply to collateral estoppel or issue preclusion, as well as res judicata.

Therefore, a motion to invoke the continuing jurisdiction of a domestic relations court

regarding support matters is not barred by collateral estoppel, see Flege, and collateral

estoppel should be applied with the strictest of caution in order to prevent a chilling effect on

this state's legal mechanisms for periodic adjustments to child-support orders, see Kiehborth.

        {¶ 24} The magistrate cited Petralia v. Petralia, 11th Dist. No. 2002-L-047, 2003-Ohio-

3867, in support of its decision to apply the doctrine of collateral estoppel in this case.

However, Petralia is readily distinguishable. In Petralia, the court found that a father's motion



1. The second branch of the doctrine of res judicata is known as "estoppel by judgment" or "claim preclusion"
which generally prevents a party from bringing the same claim that was, or could have been, litigated in a prior
action. O'Nesti at ¶ 6.
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to modify child support was barred by res judicata since he had previously moved to modify

his support obligation on the same basis and had presented no new evidence to support his

motion. Here, by contrast, Father had not previously moved to modify his child support

obligation on the same basis that he was seeking to have it modified in the current action.

       {¶ 25} In light of the principles set forth in Flege and Kiehborth, we conclude that the

domestic relations court erred by applying the doctrine of collateral estoppel and refusing to

consider Father's request that Mother's trust benefits be considered as income to her for

purposes of calculating the parties' child support obligations.

       {¶ 26} The magistrate also cited Father's failure to establish a change of

circumstances an additional reason in support of her decision to deny Father's request to

have Mother's trust benefits considered as income to her for purposes of determining the

parties' child support obligations. We find this reason to be unpersuasive, as well.

       {¶ 27} In considering a request for modification of a prior child support order, a

domestic relations court must first determine if a change of circumstances exists. R.C.

3119.79; Yark v. Yark, 6th Dist. No. F-00-010, 2001 WL 27550, *4, citing Tremaine v.

Tremaine, 111 Ohio App.3d 703.

       {¶ 28} R.C. 3119.79(A) provides:

              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 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.

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       {¶ 29} R.C. 3119.79(C) provides that other substantial changes of circumstances not

contemplated when the last order was issued may also constitute the type of change of

circumstances sufficient to warrant modification of a prior support order. If the domestic

relations court finds that a change of circumstances has occurred, it must then determine the

appropriate amount of child support. R.C. 3119.79.

       {¶ 30} There is no question that there is a 10 percent difference between the amount

of child support that Father had been ordered to pay under the parties' original shared

parenting decree and the new amount calculated under the applicable schedule and

worksheet that takes into account the significant decrease in his income. As a result of this

change of circumstances, the magistrate reduced Father's monthly child support obligation

by approximately $300. However, the magistrate refused to deem the significant reduction in

Father's income as a change of circumstances sufficient to permit Father to seek

modification of the provision in the parties' original shared parenting agreement in which the

parties had agreed that the benefits Mother receives from certain trusts would not be

considered as income to her for purposes of calculating child support. We conclude that the

magistrate erred by refusing to do so.

       {¶ 31} Under R.C. 3119.79(A), if the amount of child support as recalculated under the

change of circumstances is more than 10 percent greater than, or more than 10 percent less

than, the amount of child support required to be paid under the existing child support order,

the domestic relations court is required to view this difference as a change of circumstances

substantial enough to warrant modification of the child support order.

       {¶ 32} The magistrate justified her decision not to find a change of circumstances with

respect to the provision in the parties' original shared parenting plan on the basis that Father

was aware of Mother's trust benefits at the time the parties entered into their original shared

parenting agreement, and there had been no change in the trust benefits Mother receives.
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However, the magistrate's determination ignores that there was a change of circumstances

with respect to Father's income, i.e., he is now receiving significantly less income than he

was receiving at the time of the original divorce decree.

       {¶ 33}    Accordingly, the trial court erred by refusing to consider whether to include

Mother's trust benefits in her income for purposes of calculating child support based upon res

judicada/collateral estoppel and/or lack of change of circumstances. This cause is therefore

remanded so the trial court can address this issue. Father's first assignment of error is

sustained.

       {¶ 34} In his second assignment of error, Father argues that the domestic relations

court erred by using an "offset" of the parties' obligations, rather than the factors in R.C.

3119.24, in calculating the deviation in child support to which he was entitled. Father asserts

that "[t]he offset calculation in determining child support in a shared parenting arrangement

was expressly rejected by the [Ohio] Supreme Court" in Pauly v. Pauly, 80 Ohio St.3d 386

(1997) and Hubin v. Hubin, 92 Ohio St.3d 240, 241 (2001), affirming Hubin v. Hubin, 10th

Dist. No. 99AP-1156, 2000 WL 868590, on the authority of Pauly. We find this argument

unpersuasive.

       {¶ 35} R.C. 3119.24, which governs child support modifications in shared parenting

cases, states:

                (A)(1) A court that issues a shared parenting order in accordance
                with section 3109.04 of the Revised Code shall order an amount
                of child support to be paid under the child support order that is
                calculated in accordance with the schedule and with the
                worksheet set forth in section 3119.022 of the Revised Code,
                through the line establishing the actual annual obligation, except
                that, if that amount would be unjust or inappropriate to the
                children or either parent and would not be in the best interest of
                the child because of the extraordinary circumstances of the
                parents or because of any other factors or criteria set forth in
                section 3119.23 of the Revised Code, the court may deviate from
                that amount.

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              (2) The court shall consider extraordinary circumstances and
              other factors or criteria if it deviates from the amount described in
              division (A)(1) of this section and shall enter in the journal the
              amount described in division (A)(1) of this section its
              determination that the amount would be unjust or inappropriate
              and would not be in the best interest of the child, and findings of
              fact supporting its determination.

              (B) For the purposes of this section, "extraordinary
              circumstances of the parents" includes all of the following:

              (1) The amount of time the children spend with each parent;

              (2) The ability of each parent to maintain adequate housing for
              the children;

              (3) Each parent's expenses, including child care expenses,
              school tuition, medical expenses, dental expenses, and any
              other expenses the court considers relevant;

              (4) Any other circumstances the court considers relevant.

       {¶ 36} The magistrate deviated from the child support schedules when modifying

Father's child support order because she found that the scheduled amount "would be unjust

and inappropriate and that a deviation is in the best interest" of the parties' minor child based

upon the parties' equal parenting time with the child, the parties' standard of living and the

factors contained in R.C. 3119.04. The magistrate deviated from the scheduled amount by

running two child support calculations, one with Mother as the obligor and one with Father as

the obligor, and then offsetting those calculations; Father was ordered to pay the difference.

The magistrate determined that "offsetting the two child support obligations is in the child's

best interest."

       {¶ 37} Father argues the magistrate erred when she used an offset method to

calculate the proper deviation from the scheduled amount of his child support obligation

because the Ohio Supreme Court made it clear in Pauly that the offset method was not to be

used in shared parenting cases and is applicable only in "split parenting arrangements"

where there are two or more children and each parent is the residential parent of one of the
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children.

       {¶ 38} The Pauly case based upon analysis of R.C. 3113.215, which has been

repealed. Further, there is nothing in R.C. 3119.24 or Pauly that prohibits a domestic

relations court from using the offset method in shared parenting cases as a guide to

determining the appropriate deviation from the scheduled amount of child support once the

domestic relations court has determined that the scheduled amount is unjust and

inappropriate and not in the best interest of the child and that use of the offset method is in

the best interest of the child. See MacDonald v. MacDonald, 8th Dist. No. 96099, 2011-Ohio-

5389, ¶ 28 ("R.C. 3119.24 does not prohibit the trial court from using the split-parenting

worksheet as a guide."). Father's second assignment of error is therefore overruled.

       {¶ 39} In his third assignment of error, Father contends that the domestic relations

court erred in modifying, sua sponte, the provision in the parties' original shared parenting

plan regarding their minor child's uninsured medical expenses because this issue was not

raised by either party in their motions to modify and thus was not properly before the

domestic relations court, and the domestic relations court offered no explanation as to why it

modified this provision. Father therefore contends that the domestic relations court abused

its discretion by modifying this provision. This argument lacks merit. Under R.C. 3119.30(A),

the domestic relations court had continuing authority to modify, sua sponte, the parties'

obligations regarding the medical bills of their minor child. Consequently, Father's third

assignment of error is overruled.

       {¶ 40} In her cross-assignment of error, Mother argues the domestic relations court

erred by not eliminating her obligation to pay $200 per month from the amount of child

support she receives from Father into a 529 plan for the parties' minor child, since the trial

court reduced the amount of child support she receives, and "the parties did not agree to the


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$200 deposit before or at the hearing." We disagree with this argument.

       {¶ 41} In overruling Mother's objection to the magistrate's decision on this issue, the

domestic relations court agreed with the magistrate that Mother presented "little to no

evidence" on this issue at the hearing and that, while Mother acknowledged at the hearing

that she paid into the 529 plan for the benefit of the parties' minor child, she made no specific

request to eliminate or reduce that obligation.

       {¶ 42} The record supports the domestic relations court's finding that Mother did not

request termination of her obligation to pay $200 per month from the child support she

receives from Father into a 529 plan for the parties' minor child until after the magistrate

issued its decision on the parties' motions to modify. Mother had ample opportunity to

present her request to terminate her obligation to pay $200 from the child support she

receives from Father into a 529 plan for the parties' minor child, and present evidence in

support of that request, during the proceedings but failed to do so in a timely manner.

       {¶ 43} Furthermore, the transcript of the evidentiary hearing held before the magistrate

supports the determination that Mother presented "little to no evidence" to support the claim

she made in her initial objections to the magistrate's initial decision, i.e., with the reduction in

Father's child support obligation, "all of the [child] support [that Mother receives] at this point

is necessary for the immediate needs of the [parties' minor] child."

       {¶ 44} In light of the foregoing, we conclude that the domestic relations court did not

err in overruling Mother's request to terminate her obligation to pay $200 from the child

support she receives from Father into a 529 plan for the parties' minor child. Mother's cross-

assignment of error is overruled.




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      {¶ 45} The judgment of the domestic relations court is affirmed in part and reversed in

part, and this cause is remanded for further proceedings consistent with this opinion.



      PIPER and M. POWELL, JJ., concur.




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