[Cite as Rowe v. Rowe, 2018-Ohio-1103.]


STATE OF OHIO                      )                IN THE COURT OF APPEALS
                                   )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                    )

NATALIE E. ROWE, nka MARSHALL                       C.A. No.       16AP0062

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
TODD A. ROWE                                        COURT OF COMMON PLEAS
                                                    COUNTY OF WAYNE, OHIO
        Appellant                                   CASE No.   13-DI-0371

                                DECISION AND JOURNAL ENTRY

Dated: March 26, 2018



        SCHAFER, Presiding Judge.

        {¶1}    Respondent-Appellant, Todd Rowe, appeals the order of the Wayne County Court

of Common Pleas, Domestic Relations Division modifying his child support. For the reasons

that follow, this court affirms.

                                               I.

        {¶2}    Mr. Rowe and Petitioner-Appellee, Natalie Rowe, now known as Natalie

Marshall, were granted a decree of dissolution on December 4, 2013. Two minor children were

born of the marriage (“Rowe children”). Ms. Marshall subsequently married John Marshall.

        {¶3}    Pursuant to the decree of dissolution, Mr. Rowe was designated the obligor and

Ms. Marshall the obligee for purposes of child support and cash medical support. Additionally,

the court found that Mr. Rowe had private health insurance coverage available for the children at

a reasonable cost through his then employer. Consequently, Mr. Rowe was designated the health
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insurance obligor and ordered to provide private health insurance for the children. However, Mr.

Rowe was thereafter terminated from his employment and thus, lost his health insurance.

       {¶4}    As Ms. Marshall is voluntarily unemployed and the Rowe children were left

without health insurance, Mr. Marshall elected to add the Rowe children to the health insurance

policy available to him through his employment. Ms. Marshall thereafter filed a motion to

modify child support due to the increased cost to her household to cover the Rowe children on

Mr. Marshall’s policy. A magistrate granted Ms. Marshall’s motion and the trial court adopted

the magistrate’s decision over Mr. Rowe’s objections and entered judgment.

       {¶5}    Mr. Rowe filed this timely appeal raising four assignments of error for our

review. As Mr. Rowe’s first, second, and third assignments of error raise similar issues, we elect

to address them together.

                                               II.

                                     Assignment of Error I

       The trial court committed error as a matter of law in adopting the
       magistrate’s calculation on child support which requires the appellant
       (obligor) to pay a portion of a stepparent’s health insurance premium when
       there is not health insurance available to either parent at reasonable cost.

                                    Assignment of Error II

       The trial court committed error in adopting the magistrate’s decision which
       calculates child support that includes an upward deviation based upon health
       insurance premiums that are not reasonable as a matter of law.

                                    Assignment of Error III

       The trial court’s order providing for an upward deviation of child support
       based upon costs of health insurance that are statutorily not reasonable is
       unreasonable and an abuse of discretion.

       {¶6}    In his first assignment of error, Mr. Rowe argues that the trial court erred in

adopting the magistrate’s decision that Mr. Rowe’s child support should deviate upward based
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on his “fair share” of the cost of the Rowe children’s private health insurance because he had

already been ordered to pay cash medical support. Mr. Rowe argues in his second assignment of

error that pursuant to the statute, the cost of health insurance to a parent may only be considered

in the calculation of child support if that cost is reasonable as a matter of law. Since the

magistrate determined, as a matter of law, that health insurance was not available to either Mr.

Rowe or Ms. Marshall at a reasonable price, the magistrate was precluded from considering the

cost of the Rowe children’s insurance when determining if an upward deviation was appropriate

in this case. In his third assignment of error, Mr. Rowe argues that the trial court abused its

discretion in adopting the magistrate’s decision because an upward deviation based on the costs

of health insurance that are statutorily unreasonable was an abuse of the magistrate’s discretion.

We disagree.

       {¶7}    “This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion.” Sifferlin v. Sifferlin, 9th Dist. Summit No. 27169, 2014-

Ohio-5645, ¶ 8. “‘In so doing, we consider the trial court’s action with reference to the nature of

the underlying matter.’” Id. quoting Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-

M, 2009-Ohio-3139, ¶ 18. The propriety of a trial court’s determination regarding child support

is reviewed for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). An abuse

of discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Moreover, when applying an abuse of

discretion standard, this Court may not substitute its own judgment for that of the trial court.

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶8}    In this case, the magistrate determined that neither Mr. Rowe nor Ms. Marshall

should be designated the health insurance obligor since medical insurance was not available at a
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reasonable cost to either party. See R.C. 3119.30(B); R.C. 3119.29(A)(8). Accordingly, the

magistrate concluded that Mr. Rowe would “pay child support from the column of the child

support computation worksheet which states: ‘WHEN HEALTH INSURANCE IS NOT

PROVIDED’ and will pay cash medical support.”               The magistrate then considered which

portion, if any, of the cost of covering the Rowe children under private health insurance should

be taken into consideration in computing child support. Ultimately, the magistrate determined

that that the amount calculated using the basic child support schedule and the applicable

worksheet would be unjust or inappropriate and would not be in the best interests of the Rowe

children. The magistrate explicitly cited R.C. 3119.23(P), “[a]ny other relevant factor” and

specifically found it was in the Rowe children’s best interest to have private insurance and for

Mr. Rowe to contribute financially to the cost of that insurance so that the children can remain

insured.      Consequently, the magistrate determined Mr. Rowe’s “fair share” of the Rowe

children’s insurance, off set that amount by the amount of cash medical support Mr. Rowe was

required to pay, and ordered an upward deviation in Mr. Rowe’s child support based on the

difference.

       {¶9}      Generally, if a trial court issues a shared parenting order, the court must also order

the payment of child support calculated using the child support schedule and worksheet set forth

in R.C. 3119.022. R.C. 3119.24(A). The worksheet allows for a calculation of the obligor’s

actual annual obligation when insurance is provided and for when insurance is not provided.

R.C. 3119.022. Cash medical support is required to be paid when the children are not covered

by private health insurance and is defined as “an amount ordered to be paid in a child support

order toward the cost of health insurance provided by a public entity, another parent, or person
                                                5


with whom the child resides, through employment or otherwise, or for other medical cost not

covered by insurance.” R.C. 3119.29(A)(1); see R.C. 3119.30(C).

       {¶10} Mr. Rowe’s argument that pursuant to the language of R.C. 3119.30(B) and (C),

the cost of health insurance to a parent is only includable in the calculation of child support if

that cost is reasonable misconstrues the statute and ignores additional provisions allowing a trial

court to deviate from that calculation. See R.C. 3119.22. First, Pursuant to R.C. 3119.30(B)(1)-

(3), if at the time of the child support order, health insurance coverage for the children is

available at a reasonable cost, the order must contain a requirement that either the obligor,

obligee, or both obtain private health insurance for the children. R.C. 3119.30(B)(4) states,

however, that if at the time of the child support order, health insurance coverage for the children

is not available at a reasonable cost, the order must include a requirement that the obligor or the

obligee immediately inform the child support enforcement agency when private health insurance

coverage for the children has become available. R.C. 3119.30(C), on the other hand, states that

whenever a child support order is issued and an obligor’s income is over a specific amount, the

order shall include the amount of cash medical support, as calculated by that section, to be paid

during any period after the order is issued during which the children are not covered by private

health insurance. The inclusion of what the amount of cash medical support will be is required

regardless of whether private insurance is or is not available at a reasonable cost and regardless

of whether private medical insurance is being provided at the time of the order.

       {¶11} Moreover, the presumption that the child support calculated pursuant to the basic

child support schedule and applicable worksheet through the line establishing the actual annual

obligation is the correct amount of child support due is rebuttable. R.C. 3119.03. The line

establishing the actual annual obligation includes the cash medical support calculation. See R.C.
                                                    6


3119.022. By statute, if the actual annual obligation “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 circumstance of the parents or because of any other factors or criteria set forth in

[R.C. 3119.23], the court may deviate from that amount.” R.C. 3119.24(A). If a court deviates

from the calculated child support, the court must consider extraordinary circumstances and other

factors or criteria and enter findings of fact supporting its determination. R.C. 3119.24(A)(2).

“Extraordinary circumstances of the parents” includes “each parent’s expenses, including child

care expenses, school tuition, medical expenses, dental expenses, and any other expenses the

court considers relevant” and well as “[a]ny other circumstances the court considers relevant.”

R.C. 3119.24(B)(3)-(4). Additionally, pursuant to R.C. 3119.23(P), the court may consider

“[a]ny other relevant factor”, but if the court grants a deviation pursuant to this section, it must

specifically state the facts that are the basis for the deviation.

        {¶12} In this case, the magistrate determined that the actual annual obligation would be

unjust or inappropriate and would not be in the best interests of the Rowe children. The

magistrate specifically found it was in the Rowe children’s best interest to have private insurance

and for Mr. Rowe to contribute financially to the cost of continuing that insurance coverage.

Although the magistrate acknowledged that Mr. Rowe was contributing to that cost through his

court ordered cash medical support, the magistrate determined that amount was not his “fair

share” and that “it would be fair and equitable and in the best interests of the children for [Mr.

Rowe] to pay a percentage of this insurance” based upon the percentage of income determined in

the applicable worksheet.

        {¶13} In adopting the magistrate’s decision, the trial court recognized in its judgment

entry filed May 12, 2016, that R.C. 3119.23 specifically directs a court to consider all relevant
                                                 7


factors, including “(G) the disparity in income between the parties or households, (H) benefits

that either parent receives from remarriage or sharing living expenses with another person, and

(P) any other relevant factor.” (Emphasis sic.) The trial court found as follows:

       the imposition of a standard guideline level child support worksheet order would
       be unjust, inappropriate and not in the best interest of the minor children taking
       into account the fact father was obligated to provide insurance of the children, he
       failed to do so after being fired from his job, mother’s family was required
       therefore to assume the obligation at significant cost, and eliminating father’s
       responsibility for providing health insurance saved him significant amounts of
       money, while costing mother, through mother’s immediate family, significant
       amounts of money.

The trial court further found that it was in the Rowe children’s best interest to have Mr. Rowe

contribute financially to the cost of “their necessary expenses and well[-]being, and recognize[d]

that it is also equally important that the children be covered through health insurance.” The trial

court also found that mother acted “appropriately” when placing the Rowe children on Mr.

Marshall’s health insurance despite the “considerable expense to the family, and even though at

the time it was father’s obligation to maintain health insurance on the children.”

       {¶14} Accordingly, we cannot say that the trial court abused its discretion by adopting

the magistrate’s decision determining that an upward deviation was appropriate.

       {¶15} Mr. Rowe’s first, second, and third assignments of error are overruled.

                                    Assignment of Error IV

       The trial court’s decision establishing the effective date of June 1, 2015 for
       the recalculated child support is unreasonable and an abuse of discretion.

       {¶16} In his fourth assignment of error, Mr. Rowe argues that the trial court erred and

abused its discretion when it adopted the magistrate’s decision to retroactively set the effective

date of the child support modification as the date Ms. Marshall filed her motion to modify

support. We disagree.
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       {¶17} The propriety of a trial court’s determination regarding child support is reviewed

for an abuse of discretion. Booth, 44 Ohio St.3d at 144. An abuse of discretion “implies that the

court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore, 5 Ohio St.3d at 219.

Moreover, when applying an abuse of discretion standard, this Court may not substitute its own

judgment for that of the trial court. Pons, 66 Ohio St.3d at 621.

       {¶18} In this case, Ms. Marshall filed her motion to modify on June 1, 2015. Although a

review of the record shows that the trial court did not specifically determine the appropriate

effective date of the child support modification, this Court has previously recognized that

“[w]hen a trial court modifies child support, the change should be effective as of the date that the

motion to modify was filed unless ‘special circumstance[s]’ justify a different date.” Sandel v.

Choma, 9th Dist. Summit No. 25995, 2012-Ohio-3781, ¶ 5, citing State ex rel Draiss v. Draiss,

70 Ohio App.3d 418, 421 (9th Dist.1990). “[T]his rule is utilized to protect the parties from the

often significant delay between the filing of the motion and a decision thereon.” Sandel v.

Choma, 9th Dist. Summit No. 26895, 2013-Ohio-5410, ¶ 6. However, a “‘presumption of

retroactivity’ * * * may be ‘overcome’ by facts in the record that demonstrate special

circumstances.” Sandel, 2012-Ohio-3781 at ¶ 5, quoting Cameron v. Cameron, 9th Dist. Medina

No. 10CA0064-M, 2011-Ohio-3884, ¶ 7.

       {¶19} On appeal, Mr. Rowe argues that the child support modification should not be

retroactive because: (1) “there is no statutory or case law support” for an upward deviation based

on a step-parent’s health insurance costs that are not reasonable as a matter of law; and (2) the

magistrate used an approach to calculate child support which was “unknown to anyone until the

decision was issued [and] which is based upon a theory heretofore not embraced by any court in

the State of Ohio.”     Nonetheless, our resolution of Mr. Rowe’s first, second, and third
                                                 9


assignments of error shows that his above contentions are meritless and thus, cannot be “special

circumstances.” Accordingly, we cannot say that the trial court abused its discretion by adhering

to the general rule that “[w]hen a trial court modifies child support, the change should be

effective as of the date that the motion to modify was filed[.]” Sandel, 2012-Ohio-3781 at ¶ 5,

citing Draiss at 421.

       {¶20} Therefore, Mr. Rowe’s fourth assignment of error is overruled.

                                                III.

       {¶21} Mr. Rowe’s assignments of error are overruled. Therefore, the judgment of the

Wayne County Court of Common Pleas, Domestic Relations Division is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                                  JULIE A. SCHAFER
                                                  FOR THE COURT




TEODOSIO, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

R.J. HELMUTH, Attorney at Law, for Appellant.

LON VINION, Attorney at Law, for Appellee.
