[Cite as Frey v. Frey, 2015-Ohio-4622.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




RICK J. FREY,

        PLAINTIFF-APPELLEE,                            CASE NO. 5-15-11

        v.

KIMBERLY S. FREY, NKA
KIMBERLY S. NIGH,                                      OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2001-DR-287

                       Judgment Reversed and Cause Remanded

                           Date of Decision: November 9, 2015




APPEARANCES:

        William E. Clark for Appellant
Case No. 5-15-11



PRESTON, J.

           {¶1} Defendant-appellant,          Kimberly          Frey,   n.k.a.   Kimberly   Nigh,

(“Kimberly”), appeals the March 23, 2015 judgment entry of the Hancock County

Court of Common Pleas, Domestic Relations Division, granting plaintiff-

appellee’s, Rick Frey (“Rick”), motion for a modification of Kimberly’s child

support obligations. We reverse.

           {¶2} The facts relevant to this appeal are as follows. Kimberly and Rick

divorced in May 2002. Frey v. Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, ¶ 2

(3d Dist.). Three children were born from the marriage—Ashley Frey (“Ashley”),

Austin Frey (“Austin”), and Chelsea Frey (“Chelsea”) (collectively, the

“children”). Frey v. Frey, 3d Dist. Hancock No. 5-09-11, 2009-Ohio-5275, ¶ 2.

After a number of modifications,1 the trial court adopted a consent entry on

August 4, 2010 regarding Kimberly’s child support obligations:

           1.    All monies held in escrow by the Child Support Enforcement

                 Agency shall be released immediately to the Father, Rick Frey.

           2.    The Father’s current Child Support withholding shall be

                 terminated immediately.




1
    See Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, at ¶ 2-12.

                                                   -2-
Case No. 5-15-11



      3.   The Mother, Kimberly Nigh, shall pay a lump sum to the

           Father, Rick Frey, in the amount of $1,000.00, to be paid

           immediately.

      4.   After the termination of the Father’s Child Support obligation

           and upon receipt of the lump sum herein, Mother will owe

           $9,823.00 to Father for the overpayment of Child Support.

      5.   Mother shall pay child support to Father in the amount of

           $356.57 per month, effective as of January 1, 2010.          In

           addition, Mother shall pay Father $72.00 per month towards the

           overpayment she received. In addition, Mother shall pay any

           processing fees in accordance with the Ohio Revised Code. All

           payments, including processing fee[s] at the legal rate shall be

           payable through the Ohio Office of Child Support. A copy of

           the Child Support calculations is attached hereto.

      6.   Mother shall immediately establish an account with a financial

           institution under the jurisdiction of the court and maintain in

           that account funds sufficient to satisfy her child support

           obligation set forth herein. Mother shall provide the Hancock

           County Child Support Enforcement Agency information

           regarding the account and shall take whatever steps necessary

                                       -3-
Case No. 5-15-11



             for child support payments to be automatically withdrawn from

             said account.

        7.   The Mother shall be subject to seek a work order [sic].

        8.   Court costs shall be divided equally between the parties.

(Doc. No. 284); Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, at ¶ 13.

        {¶3} On December 18, 2014, Rick filed a “Motion for Modification of

Support Obligations” requesting that the trial court order Kimberly to pay $400 in

child support because Rick was injured in a workplace accident and cannot work

and to pay, “instead of Medicaid,” the children’s health insurance. (Doc. No.

328). After a hearing on February 13, 2015, the trial court filed its entry on March

23, 2015 concluding that there was “a change of circumstance[s] * * * substantial

enough to require modification of the prior child support amount pursuant to

[R.C.] 3119.79.” (Doc. No. 344); (Feb. 13, 2015 Tr. at 1). The trial court ordered

Kimberly to provide health insurance for Austin and Chelsea; “to seek full-time

employment and report her efforts in writing to the Hancock County Child

Support Enforcement agency”; and to pay child support in the amount of $281.08

per month as of December 1, 2014. (Doc. No. 344).

        {¶4} Kimberly filed her notice of appeal on April 13, 2015. (Doc. No.

347).    She raises four assignments of error for our review.            Because it is

dispositive, we address only Kimberly’s first assignment of error.

                                         -4-
Case No. 5-15-11



                            Assignment of Error No. I

       The Trial Court Erred and Abused its Discretion When it
       Modified Appellant’s Child Support Obligation.

       {¶5} In her first assignment of error, Kimberly argues that the trial court

abused its discretion by granting Rick’s motion to modify Kimberly’s child

support obligations.    Specifically, she argues that Rick did not provide R.C.

3119.05(A)-quality      documentation    of    his   income     to    warrant    a

change-of-circumstances finding to justify modifying Kimberly’s child support

obligations.

       {¶6} We review a trial court’s ruling on a child support modification

request for an abuse of discretion because trial courts are vested with broad

discretion in deciding whether to modify a child support order. Montgomery v.

Montgomery, 3d Dist. Union No. 14-14-22, 2015-Ohio-2976, ¶ 24, citing Brose v.

Copeland, 3d Dist. Seneca No. 13-13-08, 2013-Ohio-3399, ¶ 11 and Pauly v.

Pauly, 80 Ohio St.3d 386, 390 (1997). “A trial court abuses its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound.”      Id., citing Brose at ¶ 11, citing State v. Boles, 2d Dist.

Montgomery No. 23037, 2010-Ohio-278, ¶ 17-18. “In applying the abuse of

discretion standard, a reviewing court may not simply substitute its own judgment




                                        -5-
Case No. 5-15-11



for that of the trial court.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

       {¶7} R.C. 3119.79 governs the modification of child support orders and

provides, in pertinent part:

       (A) If an obligor or obligee under a child support order requests

              that the court modify the amount of support required to be paid

              pursuant to the child support order, the court shall recalculate

              the amount of support that would be required to be paid under

              the child support order in accordance with the schedule and the

              applicable worksheet through the line establishing the actual

              annual obligation. If that amount as recalculated is more than

              ten per cent greater than or more than ten per cent less than the

              amount of child support required to be paid pursuant to the

              existing child support order, the deviation from the recalculated

              amount that would be 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.

              ***



                                          -6-
Case No. 5-15-11



      (C) If the court determines that the amount of child support

           required to be paid under the child support order should be

           changed due to a substantial change of circumstances that was

           not contemplated at the time of the issuance of the original

           child support order or the last modification of the child support

           order, the court shall modify the amount of child support

           required to be paid under the child support order to comply

           with the schedule and the applicable worksheet through the line

           establishing the actual annual obligation, unless the court

           determines that the amount calculated pursuant to the basic

           child support schedule and pursuant to the applicable worksheet

           would be unjust or inappropriate and would not be in the best

           interest of the child and enters in the journal the figure,

           determination, and findings specified in section 3119.22 of the

           Revised Code.

R.C. 3119.79(A), (C).

      {¶8} This court previously concluded that “where the original child support

order resulted from the parties’ voluntary agreement, R.C. 3119.79(A) must be

read in conjunction with R.C. 3119.79(C) to appropriately determine whether a

modification of the order is proper.” Montgomery at ¶ 26, citing Adams v. Adams,

                                       -7-
Case No. 5-15-11



3d Dist. Union No. 14-13-01, 2013-Ohio-2947, ¶ 16.            Therefore, because

Kimberly and Rick voluntarily agreed that Kimberly would pay Rick $356.57 per

month in child support under the August 4, 2010 consent judgment, the trial court

“‘must find both (1) a [substantial] change of circumstances, and (2) that such

change in circumstance “was not contemplated at the time of the issuance of the

child support order.”’” Id., quoting Bonner v. Bonner, 3d Dist. Union No. 14-05-

26, 2005-Ohio-6173, ¶ 11, quoting R.C. 3119.79(C).

      {¶9} “‘A court may only modify an existing child support order if there is a

substantial change of circumstances.’” Brose, 2013-Ohio-3399, at ¶ 12, quoting

Green v. Tarkington, 3d Dist. Mercer No. 10-10-02, 2010-Ohio-2165, ¶ 13. “The

requisite change in circumstances exists wherever the newly calculated ‘child

support amount deviates from the existing order by at least ten percent.’” Id.,

quoting Green at ¶ 13 and Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-

3344, ¶ 13 (“A difference of ten per cent from the amount of the current child

support order constitutes a ‘change of circumstances’ that requires the court to

modify the child support order.”).      “The burden of proving a change in

circumstances under R.C. 3119.79 rests on the party requesting the modification of

the child support order.” Id., citing Maguire v. Maguire, 9th Dist. Summit No.

23581, 2007-Ohio-4531, ¶ 14.



                                       -8-
Case No. 5-15-11



       {¶10} “When considering whether a change in circumstances exists so as to

merit a modified child support order, a trial court must determine each parent’s

income.” (Emphasis sic.) Id. at ¶ 13, citing Drummer v. Drummer, 3d Dist.

Putnam No. 12-11-10, 2012-Ohio-3064, ¶ 24. “This determination necessarily

implicates R.C. 3119.05(A), which requires that, in child support modification

proceedings, trial courts verify both parents’ incomes ‘by electronic means or with

suitable documents, including, but not limited to, pay stubs, employer statements,

receipts and expense vouchers related to self-generated income, tax returns, and all

supporting documentation and schedules for tax returns.’”        Id., quoting R.C.

3119.05(A). To prove their current income, “‘a parent must exactly adhere to this

requirement * * * by presenting those documents listed in R.C. 3119.05(A).’” Id.,

quoting Ornelas v. Ornelas, 12th Dist. Warren No. CA2011-08-094, 2012-Ohio-

4106, ¶ 23, citing Ellis v. Ellis, 7th Dist. Mahoning No. 08-MA-133, 2009-Ohio-

4964, ¶ 60 (“[P]ursuant to R.C. 3119.05(A) a trial court is restrained to review

documents, not testimony, to establish income.”); Ostmann v. Ostmann, 168 Ohio

App.3d 59, 2006-Ohio-3617, ¶ 53 (9th Dist.).

       {¶11} “Further, the failure to comply with R.C. 3119.05(A) precludes a

movant from obtaining a modified child support order” because the “‘“[f]ailure to

obtain the necessary financial information renders the court’s order arbitrary and

therefore an abuse of discretion.’” Brose at ¶ 14; Montgomery, 2015-Ohio-2976,

                                        -9-
Case No. 5-15-11



at ¶ 37, quoting Basham v. Basham, 3d Dist. Allen No. 1-02-37, 2002-Ohio-4694,

¶ 6, quoting Aiello v. Aiello, 3d Dist. Seneca No. 13-96-12, 1996 WL 517351, *2

(Sept. 11, 1996).

       {¶12} If a change of circumstances is established, the trial court must then

determine whether that change of circumstances was contemplated at the time of

the issuance of the child support order. See Adams v. Adams, 3d Dist. Union No.

14-12-03, 2012-Ohio-5131, ¶ 30, citing Bonner, 2005-Ohio-6173, at ¶ 11.

       {¶13} The trial court abused its discretion in granting Rick’s motion to

modify Kimberly’s child support obligations because Rick failed to sustain his

burden under R.C. 3119.79 that there is a change in circumstances related to his

income since he did not provide any R.C. 3119.05(A)-quality evidence of his

reduced income.     Rick filed a motion requesting that the trial court modify

Kimberly’s child support obligation because his income was reduced after he was

injured in a workplace accident. At the hearing, Rick testified that he is unable to

work after sustaining a workplace injury and is receiving $242 per week in

workers’ compensation benefits. (Feb. 13, 2015 Tr. at 12). He testified that, at the

time he entered the consent decree with Kimberly regarding her child support

obligations, he “was making around an average of about [$]2,200 to [$]2,400 a

month.” (Id. at 12-13). Rick testified that he did not bring any documentation of



                                       -10-
Case No. 5-15-11



his workers’ compensation benefits other than his “workers [sic] card number.”

(Id. at 17-18).

       {¶14} The trial court concluded that there was a change of circumstances

and modified Kimberly’s child support obligations based on Rick’s testimony that

he was receiving $242 per week in workers’ compensation benefits as income. As

we stated in Montgomery, “The statute and the case law interpreting it require

more than testimony to satisfy the burden of proof.” Montgomery, 2015-Ohio-

2976, at ¶ 48. As such, Rick’s testimony alone is insufficient to establish a change

of circumstances related to his income. Id. at ¶ 51, citing Basham, 2002-Ohio-

4694, at ¶ 7-8, Brose, 2013-Ohio-3399, at ¶ 15-17, and Ornelas, 2012-Ohio-4106,

at ¶ 25. Because Rick’s testimony alone is insufficient to establish a change of

circumstances related to his income, whether his income deviated by 10 percent

from the existing child support order cannot be established.           Accordingly, a

change in circumstances cannot be established to warrant a modification of

Kimberly’s child support obligations. Therefore, the trial court’s order modifying

Kimberly’s child support obligations is arbitrary and an abuse of discretion.

       {¶15} Because we conclude that the trial court improperly found that there

was a change of circumstances, we need not determine the second prong of the

R.C.   3119.79-child-support-modification      test—whether    that     change   was

contemplated at the time of the issuance of the child support order.

                                        -11-
Case No. 5-15-11



       {¶16} Thus, we have no choice but to sustain Kimberly’s first assignment

of error.

                             Assignment of Error No. II

       The Trial Court Erred and Abused its Discretion When the
       Judge Acted as an Advocate for the Pro Se Party.

                             Assignment of Error No. III

       The Trial Court Erred and Abused its Discretion When it
       Imposed on Appellant an Order to Seek Full Time Employment
       and Report Her Efforts in Writing to the Hancock County Child
       Support Enforcement Agency.

                             Assignment of Error No. IV

       The Trial Court Erred and Abused its Discretion When it
       Ordered Appellant to Provide Health Insurance Without
       Assuring that it Could be Provided at a Reasonable Cost.

       {¶17} In her second, third, and fourth assignments of error, Kimberly

argues that the trial court abused its discretion by acting as an advocate for a pro se

party, by ordering her to seek full-time employment, and by ordering her to

provide health insurance for Austin and Chelsea.

       {¶18} Because we determined in Kimberly’s first assignment of error that

the trial court abused its discretion in modifying Kimberly’s child support

obligations, Kimberly’s second, third, and fourth assignments of error are rendered

moot, and we decline to address them. See Adams, 2013-Ohio-2947, at ¶ 21,

citing App.R. 12(A)(1)(c).

                                         -12-
Case No. 5-15-11



       {¶19} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




                                       -13-
