[Cite as Vanek v. Hereda, 2019-Ohio-4290.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


MARY VANEK,                                  :     JUDGES:
                                             :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                :     Hon. John W. Wise, J.
                                             :     Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
MATTHEW HEREDA,                              :     Case No. 2019CA00039
                                             :
        Defendant - Appellee                 :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court
                                                   of Common Pleas, Domestic
                                                   Relations Division, Case No. 2014
                                                   DR 00129



JUDGMENT:                                          Affirmed in Part; Reversed in Part
                                                   Remanded



DATE OF JUDGMENT:                                  October 17, 2019



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

DAVID L. ENGLER                                    ROSEMARY G. RUBIN
181 Elm Road, N.E.                                 The Victorian Professional Building
Warren, Ohio 44483                                 1435 Market Avenue, North
                                                   Canton, Ohio 44714
Stark County, Case No. 2019CA00039                                                  2

Baldwin, J.

       {¶1}   Mary Vanek appeals from the decision of the Stark County Court of

Common Pleas granting Appellee child support. Appellee is Matthew Hereda.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   The trial court issued a divorce decree on July 23, 2015 dissolving the

marriage of the parties and incorporating the Shared Parenting Plan and Separation

Agreement adopted by the parties. The parenting plan provided equal parenting time and

"due to the allocation of time that each spends with the children and the incomes of each

party, that child support shall be set at zero ($0.00). Guideline support is not in the best

interest of the children and would be unjust and unreasonable." (Shared Parenting Plan,

p. 4, Section 2). The Separation Agreement incorporated the zero child support order and

the decree of divorce approved both documents and expressly made the terms of the

Separation Agreement and Shared Parenting Plan an order of the Court.

       {¶3}   In August 2017 Appellant moved to Aurora, Ohio and it appears that was a

catalyst for the Appellant’s desire to amend the Shared Parenting Plan to include, among

other changes, an order that the children attend school in Aurora, Ohio. The distance

between Appellant in Aurora and Appellee in North Canton also complicated visitation by

requiring the parties to spend more of their parenting time transporting the children.

       {¶4}   Appellant filed a motion to modify the Shared Parenting Plan on March 12,

2018 and followed with an amendment of that motion on March 26, 2018. Appellee

responded with a motion to dismiss Appellant's motion or, in the alternative, to make

Appellee the residential parent for purposes of attending school. Appellee submitted a

proposed Amended Shared Parenting Plan on August 1, 2018 which contained a
Stark County, Case No. 2019CA00039                                                   3


requirement that Appellant pay child support. A hearing was held on August 8, 2018 and

the record suggests that the parties agreed on all points except child support. That

agreement was read into the record, but a transcript of that hearing was not requested.

At the conclusion of the August 8th hearing, the trial court ordered that an entry containing

the terms of settlement be provided within fourteen days, but the parties were unable to

agree to terms until October 31, 2018.

       {¶5}   On August 13, 2018, Appellee filed an amended motion to modify the

shared parenting plan to establish child support and modify other financial obligations.

Appellant filed a Request for Child Support on September 21, 2018 and submitted an

amended shared parenting plan on October 29, 2018, but that plan lacked Appellee's

agreement. The trial court scheduled a hearing for the pending matters to occur October

31, 2018.

       {¶6}   The Magistrate presided over a two day hearing beginning October 31,

2018 and concluding December 17, 2018 with the sole issue being the competing

requests for child support. Prior to taking any testimony or evidence, the Magistrate noted

that the agreed entry that had been requested by the trial court after the August 8, 2018

hearing had not been filed. Without having terms of that agreement before the Court, the

Magistrate was unwilling to proceed with the hearing, concerned that calculating child

support may be impossible without the terms of the agreed upon shared parenting plan.

After some delay, the parties reached an agreement, the Amended Shared Parenting

Plan was submitted to the Court, and the hearing proceeded.

       {¶7}   The Magistrate did note that Appellant's motion for child support was not

accompanied by a financial affidavit and she indicated that she intended to dismiss the
Stark County, Case No. 2019CA00039                                                 4


motion for that reason. On December 3, 2018, after the first day of testimony on October

31 and before the second day of testimony on December 17, Appellant filed a motion to

modify child support in which she requests that the trial court order Appellee to pay her

child support. Appellee did not object and the motion was considered by the Magistrate.

      {¶8}    Appellant and Appellee testified and submitted exhibits and there was no

material conflict in the evidence. Appellant's move to Aurora increased the distance

between the parties’ homes and likewise increased the travel time necessary to transport

the children. Appellant's income was $97,552.00 and Appellee's income was $72,195.00.

The difference in the income had increased by $1,357.00 in Appellant's favor. Appellant

also provided evidence of increased child care costs as it was necessary for her to pay

for child care under the Amended Parenting plan.

      {¶9}    The Magistrate issued her decision on December 20, 2018, finding a

change in circumstances sufficient to warrant a modification of child support.         The

Magistrate recommended an award of child support to Appellee of $1275.79 per month,

but applied a 50% downward deviation to account for the equal parenting time. The

Magistrate overruled Appellant’s motion for child support.

      {¶10} Appellant filed objections contending, among other things that the

Magistrate failed to make a determination that there had been any change of

circumstance or any causation for a new child support order, despite the fact that

Appellant was pursuing child support and continued to request it, even within the

objections.

      {¶11} The trial court issued a judgment entry regarding the objections finding “[t]he

Magistrate included an inaccurate statement in her findings of fact #3 relating to Mother's
Stark County, Case No. 2019CA00039                                                 5


relocation. That Fact shall be stricken from the original decision. Based upon the

remaining facts presented in testimony, the Court completed an independent analysis of

the Magistrate's Decision" The order in this judgment entry states:

       THE COURT, AFTER HAVING MADE AN INDEPENDENT ANALYSIS OF THE

       FACTS AND APPLICABLE LAW, HEREBY APPROVES AND ADOPTS THE

       MAGISTRATE(sic) DECISION, AFTER CORRECTED FOR THE ABOVE

       FINDING, AND ORDERS IT ENTERED AS A MATTER OF LAW.

       THE MAGISTRATE SHALL CORRECT HER DECISION AND SUBMIT IT TO THE

       COURT.

       {¶12} The Magistrate amended her decision and submitted it to the trial court. On

the final page of that decision this language appears: "The court having mad(sic) an

independent analysis of the issues and the applicable law hereby approves and adopts

the Magistrate's decision and orders it to be entered as a matter of record."

       {¶13} Appellant filed a timely notice of appeal and submitted three assignments

of error:

       {¶14} “I. THE COURT ERRED IN NOT ABIDING BY THE MANDATE OF ORC

3119.79 THAT A CHANGE OF CIRCUMSTANCE WAS NECESSARY BEFORE

RECALCULATING CHILD SUPPORT.”

       {¶15} “II. THE COURT ERRED IN APPLYING A NEW TEST FOR CHANGE OF

CIRCUMSTANCES BASED WRONGFULLY ON QUALITY OF PARENTING TIME.”

       {¶16} “III.   THE   COURT     ERRED     IN   NOT    CONSIDERING          MOTHER'S

INCREASED DAY CARE COSTS IN DETERMINING HER INCOME SINCE, WITHOUT

DAYCARE, SHE WOULD NOT BE ABLE TO EARN HER SALARY.”
Stark County, Case No. 2019CA00039                                                  6


                                STANDARD OF REVIEW

       {¶17} In Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989), the Ohio

Supreme Court determined an abuse of discretion standard is the appropriate standard

of review in matters concerning child support. In order to find an abuse of that discretion,

we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Furthermore, as an appellate court, we are

not the trier of fact. Our role is to determine whether there is relevant, competent and

credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, 5th Dist. Stark App. No. CA-5758, 1982 WL 2911 (February 10, 1982).

Accordingly, a judgment supported by some competent, credible evidence will not be

reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley

Construction, 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

                                        ANALYSIS

       {¶18} Appellant's First and Second Assignments of Error contend the trial court

erred by finding that the facts supported a finding that a change of circumstances occurred

that warranted an award of child support to Appellee. Appellant specifically argues that

the trial court misapplied R.C. 3119.79(A) and that it erroneously relied upon a change in

the quality of parenting time as sufficient to support a finding that a change in

circumstances occurred satisfying the requirements of R.C 3119.79(C). Because these

assignment are so closely related, we will address them simultaneously.
Stark County, Case No. 2019CA00039                                                  7


       {¶19} The relevant language of R.C 3119.79(A) obligates the trial court to

recalculate the amount of child support in accordance with the schedule and the

worksheet and:

       [i]f 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.



       {¶20} Appellant's reference to the figures on the worksheets completed when the

support order was first established and the worksheet filed in the current proceeding is

incorrect. The inquiry is limited to whether the increase or decrease in the amount of child

support calculated in the present worksheet differs from the prior order by ten percent,

and does not consider the figure in the prior worksheet.

       {¶21} In the case at bar, the parties had agreed to a deviation in child support in

the initial order, reducing the amount due to zero. In Hill v. Hill, 5th Dist. Coshocton No.

2011 CA 0016, 2012-Ohio-1903, ¶¶ 19-20, we recognized that a child support order which

requires zero support to be paid is an “existing child support order.” The Ohio Supreme

Court, in DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 538, 679 N.E.2d 266, held that

where a support order already exists, the test for determining whether child support shall

be modified is the ten percent threshold set forth in R.C. 3113.215(B)(4) (now R.C.
Stark County, Case No. 2019CA00039                                                    8

3119.79(A)). Pursuant to DePalmo, the ten percent test is to be applied to the amount of

the current order. Fox v. Fox, 3rd Dist., Hancock App.No. 5–03–42, 2004–Ohio–3344, ¶

15. “Obviously, when the amount of child support is zero, but the support guidelines

establish that the parent owes support, then the ten percent difference is clearly met.”

Ayers v. Haas, Van Wert App.No. 15–07–13, 2008–Ohio–2405, ¶ 25, quoting DePalmo

at 540, 679 N.E.2d 266. We find that the ten percent difference is clearly met in this case

as the order that existed prior to the filing of Appellee's request required zero support as

a result of an agreed deviation and the court found, in the current case, that the amount

of support due Appellee was $15,309.51 per year.

       {¶22} The trial court also found a change in circumstances existed as a result of

Appellant's move to Aurora, Ohio "which impacts the quality of parenting time,

extracurricular activities and amount of travel now required to transport the children to

and from school and to each parent's residence." Appellant argues that the trial court

was improperly focusing on the quality of the parenting time as the basis for finding a

change in circumstances, but the trial court's findings are not so limited. The court found

that the parenting time was essentially unchanged with regard to the amount of time, but

that the parties did spend more time driving as a result of Appellant's relocation.

       {¶23} " [A] substantial change of circumstances typically exists where the minor

child's needs or the allocation of parenting time has changed.” Adams at ¶ 17, citing

Melick v. Melick, 9th Dist. Summit No. 26488, 2013–Ohio–1418, ¶ 14–17 (additional

citations omitted). as quoted in Montgomery v. Montgomery, 3rd Dist. Union No. 14-14-

22, 2015-Ohio-2976, ¶ 2. Neither of those circumstances exist in this case as the needs

of the children have not changed and the ultimate allocation of time remains equal. The
Stark County, Case No. 2019CA00039                                                  9


parties testified to the system they adopted to insure the timely transfer of custody while

insuring the children attended school in Aurora, but this Court is not convinced this

arrangement comprises a substantial change that satisfies the requirements of R.C.

3119.79(C). However, because we have found that the ten percent threshold in R.C.

3119.79(A) has been met, we hold that this issue is now moot as a substantial change is

evident on the record. While we acknowledge the trial court may have found a substantial

change occurred for a different reason, we will not reverse the trial court's "otherwise

correct judgment merely because the trial court utilized different or erroneous reasons as

the basis for its determination." Reid v. Plainsboro Partners, III, 10th Dist. Franklin No.

09AP-442, 2010-Ohio-4373, ¶ 20 (Citations omitted.)

       {¶24} Appellant’s first and second assignments of error are overruled.

       {¶25} Appellant contends that the trial court erred by not including her stated child

care expenses on line nineteen of the childcare worksheet in her third assignment of error.

Appellee contends that the inclusion of those expenses is unnecessary because the

parties have agreed that they shall be responsible for their own child care expenses

prospectively and that the magistrate was recognizing the Appellant's financial

advantage. The only reference to child care in the Magistrate's decision is contained in

the section addressing the deviation from the calculated amount. The trial court did not

provide any explanation for a failure to include the child care costs in the worksheet.

       {¶26} Appellant provided an explanation and an itemization of her day care costs

at the hearing of this matter. She explained that though she works from the home, she

cannot effectively work and care for the children. She provided an itemization of the
Stark County, Case No. 2019CA00039                                                  10


charges and cancelled checks showing payment to her step-daughters for day care

service. Appellee did not dispute the amounts or necessity of the expense.

       {¶27} The Supreme Court of Ohio has held that requirement to use the worksheet

and the basic support schedule is "mandatory in nature and must be followed literally and

technically in all material respects." Marker v. Grimm, 65 Ohio St.3d 139, 143, 601 N.E.2d

496, 499 (1992). While a party is not entitled to have all claimed daycare expenses

included, the Appellant did "establish the amount of the expense, that the expenses were

work, job-training, or education related, and that the expenses were reasonable and

necessary. Haldy v. Hoeffel, 3rd Dist. Henry No. 7-17-02, 2017-Ohio-8786, ¶ 37. The

trial court did not enter any amount for the child care expenses on line 19 of the

worksheet. While the trial court might exercise discretion regarding what amount should

be included in that space, the record lacks any evidence of the trial court's rational for

disregarding its obligation to follow the requirements of the code literally and technically

in all respects. While the trial court does explain why the child care expenses are not

considered as part of its calculation of a deviation from the amount of child support

required by the worksheet and schedule, we hold that is insufficient compliance with the

mandatory requirement that child care expenses are to be included in the worksheet and

an abuse of discretion.

       {¶28} We sustain Appellant's Third Assignment of Error.
Stark County, Case No. 2019CA00039                                                   11


       {¶29} The decision of the Stark County Court of Common Pleas, Family Court

Division is affirmed in part and reversed in part. The decision finding a change of

circumstances warranting the award of child support is affirmed; the part of the decision

calculating the amount of child support to be awarded is reversed and the matter is

remanded to the trial court for further proceedings consistent with this court's opinion.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.
