[Cite as Cauthen v. Cauthen, 2017-Ohio-5846.]




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




SHINA A. CAUTHEN,

        PLAINTIFF-APPELLANT,                             CASE NO. 9-17-01

        v.

JACK CAUTHEN,                                            OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Marion County Common Pleas Court
                                  Family Division
                           Trial Court No. 2013 PC 0024

                                    Judgment Affirmed

                             Date of Decision: July 17, 2017




APPEARANCES:

        Robert C. Nemo for Appellant

        Jeff Ratliff for Appellee
Case No. 9-17-01




PRESTON, P.J.

       {¶1} Plaintiff-appellant, Shina M. Cauthen (“Shina”), appeals the December

2, 2016 judgment entry of the Marion County Court of Common Pleas, Family

Division, granting defendant-appellee, Jack Cauthen (“Jack”), a credit against his

outstanding child-support obligation. For the reasons that follow, we affirm.

       {¶2} This case stems from a dissolution granted in California in October of

2004. Under the order that dissolved the parties’ marriage, the parties were to have

joint legal custody of their three children, and Jack was to pay $589 monthly to

Shina in child support. After the dissolution, Shina moved with her children to

Marion, Ohio. In May of 2006, Jack followed Shina to Marion and began living

with her and their children. On April 2, 2007, Shina informed Marion’s Child

Support Enforcement Agency (“CSEA”) that she was not in need of any services

from them. Jack resided with Shina and the children until the middle of 2012, during

which time he cared for the children while Shina worked. After Jack’s departure

from the home, Shina requested services from Marion’s CSEA in August of 2012.

On May 11, 2015, Jack filed a motion to “substantially” reduce the amount of his




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child support arrearage. (Doc. No. 40).1

         {¶3} The magistrate’s decision in this case was filed June 21, 2016. (Doc.

No. 68). The trial court’s initial judgment entry adopting the magistrate’s decision

was filed July 12, 2016. (Doc. No. 69). On July 14, 2016, Shina filed a motion

asking the trial court to grant her additional time to file objections to the magistrate’s

decision and to vacate its own judgment entry filed July 12, 2016. (Doc. No. 70).

The trial court granted that motion on July 19, 2016. (Doc. No. 71). Shina filed

objections to the magistrate’s decision on July 21, 2016 and September 12, 2016.

(Doc. Nos. 73, 76). The trial court overruled those objections on December 1, 2016.

(Doc. No. 80). The trial court filed its judgment entry granting Jack’s motion to

reduce his child support arrearage on December 2, 2016. (Doc. No. 81). Shina filed

her notice of appeal on January 3, 2017. (Doc. No. 82). She brings one assignment

of error for our review.

                              Assignment of Error
         The Trial Court Erred in Sustaining Appellee’s Motion For
         Modification of Arrearage.



1
  Jack’s motion to reduce his child support arrearage was filed in the context of a larger and quite lengthy
legal battle, which delayed a final judgment on his motion. The trial court joined CSEA as a party. (Doc.
No. 48). On July 14, 2015, Shina filed a response to Jack’s motion to substantially reduce his child support
arrearage. (Doc. No. 47). The trial court set another pretrial for September 28, 2015. (Doc. No. 50). Jack
filed a motion to reallocate parental rights and responsibilities on August 27, 2015. (Doc. No. 51). The trial
court scheduled another pretrial conference for November 12, 2015 (Doc. No. 58). Only the issue of child
support was before the trial court by the time of the contested hearing on April 22, 2016. (Doc. No. 65).

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       {¶4} In her sole assignment of error, Shina argues that the trial court erred in

sustaining Jack’s motion to modify his child support arrearage. Specifically, she

argues that R.C. 3119.83 prohibits a child support enforcement agency from

retroactively modifying an obligor’s duty to pay a delinquent child support balance.

Further, she argues that R.C. 3119.84 says that a court may modify a child support

arrearage only to the extent that the arrearage accrues after a petition to modify the

order has been given to each obligee and to the obligor before a final order

concerning the petition modification is entered. She argues that, as neither party

filed a request to modify the child support during the period for which the trial court

granted Jack a credit against his obligation, the trial court’s order crediting Jack

against his obligation for the time he and Shina lived together was improper. Shina

further argues that the parties’ divorce decree states that the reconciliation of the

parties does not cancel or modify the parties’ obligations.

       {¶5} We review the propriety of the trial court’s determination as to child

support for an abuse of discretion. Myers v. Myers, 147 Ohio App.3d 85, 88 (3d

Dist.2002). The term “abuse of discretion” refers to a decision that is “arbitrary,

unreasonable, or unconscionable.” Sandusky Properties v. Aveni, 15 Ohio St.3d

273, 275 (1984), citing Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 359

(1981) and State v. Adams, 62 Ohio St.2d 151,157 (1980). An abuse of discretion



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results “only when no reasonable man could take the view adopted by the trial

court.” Pembaur v. Leis, 1 Ohio St.3d 89, 92 (1982).

       {¶6} Applying the principles above, we conclude that the trial court did not

act unreasonably, arbitrarily, or unconscionably in this case.         Shina’s entire

argument, whether made with reference to statutory provisions or to the parties’

separation agreement, is based on the assumption that the trial court’s decision to

credit Jack’s child support arrearage between April 2007 and August 2012

constitutes a retroactive modification of his child support. This premise is flawed.

In Peterson v. Hunt, we dealt with a situation in which an obligee appealed the trial

court’s order granting the obligor a credit against his child support obligation for

time during which his children resided with him. Peterson v. Hunt, 3d Dist. Allen

No. 1-98-25, 1998 WL 720690, *2 (Oct. 15, 1998). We affirmed the trial court’s

decision, explaining that

       The purpose of child support is for the support of the child. Where

       the custodial parent does not provide that support, and instead, the

       child resides with the noncustodial parent who provides full support

       in kind, the custodial parent is not entitled to judgement for a support

       arrearage for such time as full support was provided by the

       noncustodial, rather than the custodial, parent.



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Id., citing Gartner v. Gartner, 10th Dist. Franklin No. 83AP-847, 1984 WL 5850,

*2 (July 26, 1984). We further held that applying credits to a child support arrearage

is proper and is not a retroactive modification of a child support obligation. Id.,

citing Wornstaff v. Wornstaff, 3d Dist. Union No. 14-91-42, 1992 WL 82631, * 2

(Apr. 23, 1992). We have also followed the line of reasoning in other cases. See,

e.g., Johnson v. Johnson, 3d Dist. Union No. 14-03-32, 2003-Ohio-6710. In

Johnson, we were faced with a set of facts in which two of the parties’ three children

moved from their father’s house to their mother’s house, but mother continued to

pay child support for all three children. Id. at ¶ 4. After the trial court refused to

grant mother a credit against her child support arrearage for the period during which

the children resided with her, we reversed the trial court, finding that mother was

entitled to a credit for the extra child support she paid. Id. at ¶ 14. We noted that

holding to the contrary would give father a windfall by giving him the child support

that mother paid, in addition to the financial benefit that already accrued to him by

virtue of the fact that mother provided in-kind support to the children during the

time they lived with her. Id.

       {¶7} Similar facts prevail here. Though Jack did not live with the children

exclusively, it is clear that Jack provided support for the children by taking care of

them during the day for more than five years while Shina worked. Giving Jack a

credit based on his care of the children is not a retroactive modification. Id. at ¶ 13.
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It is merely a recalculation of Jack’s arrearage accounting for the fact that in-kind

child support was provided. As in Johnson, to hold otherwise would be to grant

Shina a windfall by giving her all the benefit of Jack’s in-kind support of the

children, as well as $589 per month for 64 months—over $37,000 in total—for time

during which Jack lived with Shina and supported the children. The law counsels

against such an outcome. Id. at ¶ 14. We conclude that the trial court did not act

unreasonably, arbitrarily, or unconscionably in granting Jack a credit against his

outstanding child support arrearage. Id.

       {¶8} For the reasons articulated above, Shina’s assignment of error is

overruled.   Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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