[Cite as Myosky v. Myosky, 2014-Ohio-4398.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                   OTTAWA COUNTY


Scott Myosky                                      Court of Appeals No. OT-14-002

        Appellee                                  Trial Court No. 11DR171

v.

Lois Myosky                                       DECISION AND JUDGMENT

        Appellant                                 Decided: October 3, 2014

                                              *****

        Lois Myosky, pro se.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, Lois Myosky, appeals the judgment of the Ottawa County Court

of Common Pleas, Domestic Relations Division, granting the motion to modify

custody/parental rights and responsibilities and motion to modify child support in

accordance with custody and modification of appellee, Scott Myosky. We affirm the

judgment, in part, and reverse, in part. We conclude the trial court properly adopted the
magistrate’s decision finding appellee should be the legal custodian of the minor

children. However, because the trial court erred in its calculation of appellant’s child

support obligation, we vacate that portion of the judgment and remand the matter for

further proceedings.

       {¶ 2} Appellant sets forth the following assignments of error:

              1. The trial court denied the appellant her constitutional rights to

       due process and equal protection of the law when it ordered the appellant to

       pay child support contrary to the long standing law and legal authority on

       the matter.

              2. The trial court committed reversible error when it terminated

       and/or modified the shared parenting plan that was agreed to by the parties

       in 2011.

       {¶ 3} Appellant and appellee were married in 2000 and are the parents of two

minor children. On October 3, 2011, a petition for dissolution of marriage was filed by

the parties. On November 21, 2011, a judgment entry of dissolution was entered, into

which were incorporated a separation agreement and shared parenting plan that the

parties had negotiated. The shared parenting plan provided that appellee would pay

appellant $289.51 per month for child support for the children.

       {¶ 4} On April 23, 2013, appellee filed a motion to modify custody of the minor

children and to modify child support payments. Appellee alleged there was a change in

circumstances, pursuant to R.C. 3109.04, and parental rights should be reallocated to him.




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Appellee also requested, that upon reallocation, the court reestablish the child support

obligation of the parties.

       {¶ 5} On August 29, 2013, a magistrate heard testimony from the parties regarding

appellee’s motions. On August 30, 2013, the magistrate issued his decision which

included findings of fact and attached to which were two exhibits, a completed standard

child support orders form and child support computation summary worksheet. The

magistrate determined a change of circumstances had occurred since the time of the

initial custody order of 2011, it was in the best interest of the children to grant legal

custody to appellee, and any harm resulting from the change in the children’s

environment was outweighed by the benefit of the change. The magistrate found

appellant lives with a man who is a registered sex offender and who has a domestic

violence charge pending against him in which appellant is the victim. The magistrate

further found neither appellant nor her boyfriend was employed but appellant received

Social Security disability payments of $1,006 monthly and each child received $222

monthly through her claim. In addition the magistrate found, for the purpose of child

support calculation, appellant was voluntarily unemployed and imputed income to her of

$6,000 a year. The magistrate awarded appellant standard visitation with the children

and ordered her to pay child support to appellee in the amount of approximately $110 per

month for both children.

       {¶ 6} Appellant filed objections to the magistrate’s decision wherein she

contended the finding by the magistrate that she was voluntarily unemployed was not




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supported by the evidence as she is disabled and has not been released to return to work.

Appellant also argued, according to the authority in Williams v. Williams, 88 Ohio St.3d

441, 727 N.E.2d 895 (2000), she was entitled to a complete credit in her child support

obligation for the Social Security payments received by the minor children due to her

disability. Appellant further asserted there was no evidence her boyfriend’s status as a

registered sex offender, based on his conviction for corruption of a minor, had “any

bearing on the whether the minor children should be allowed to continue in the prior

shared parenting plan that has been in place since 2011.” As to the domestic violence

charge, appellant submitted it was an ongoing, unresolved matter and neither of the minor

children was present during the alleged incident.

       {¶ 7} On January 3, 2014, the trial court issued its decision and order overruling

appellant’s objections. After undertaking a careful and independent examination of the

magistrate’s decision, the court found the decision sufficient to make an independent

analysis of the issues and to apply the appropriate law in reaching its judgment. The trial

court noted when an objecting party fails to provide a transcript to the court, the court

may adopt the magistrate’s factual findings without further consideration. The trial court

found appellant had failed to provide a transcript of proceedings or other relevant

material as required by Civ.R. 53. Thus, the trial court adopted the magistrate’s factual

findings and incorporated into its decision and order the exhibits attached to the

magistrate’s decision.




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       {¶ 8} Civ.R. 53(D)(3)(b)(iii) provides that a party objecting to a magistrate’s

finding of fact shall support the objection with a “transcript of all the evidence submitted

to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is

not available.” When an objecting party fails to file a transcript or an affidavit in support

of the objections to the magistrate’s decision, the trial court’s review of the magistrate’s

decision is limited to an examination of the conclusions of law predicated on those facts.

Allread v. Allread, 2d Dist. Darke No. 2010-CA6, 2011-Ohio-1271, ¶ 18; Crawford v.

Crawford, 5th Dist. Richland No. 10CA36, 2010-Ohio-4239, ¶ 16. Moreover, a party

who fails to comply with any of the provisions of Civ.R. 53(D)(3)(b) cannot assign as

error on appeal, except for a claim of plain error, the trial court’s adoption of the

magistrate’s factual findings or legal conclusions. Civ.R. 53(D)(3)(b)(iv).

       {¶ 9} The plain error doctrine should only be applied by reviewing courts in

       those extremely rare cases where exceptional circumstances require its

       application to prevent a manifest miscarriage of justice, and where the error

       complained of, if left uncorrected, would have a material adverse effect on

       the character of, and public confidence in, judicial proceedings. Goldfuss v.

       Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997).

       {¶ 10} Here, since no transcript or affidavit was filed by appellant with the trial

court, we are bound by the magistrate’s factual findings, subject to plain error, and can

only review the legal issues raised to determine whether the trial court’s application of




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the law was proper or if the court abused its discretion. State ex rel. Duncan v. Chippewa

Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995).

       {¶ 11} An abuse of discretion connotes more than an error of law or judgment, it

implies the trial court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, when a trial

court’s decision is based on an erroneous standard or a misconstruction of the law, it is

not proper for a reviewing court to use an abuse of discretion standard. State v. Nguyen,

157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶ 16 (6th Dist.) The decision

will be reviewed de novo, as “it is appropriate for an appellate court to substitute its

judgment for that of the trial court where matters of law are involved.” (Citation

omitted.) Id.

       {¶ 12} In her first assignment of error, appellant argues the trial court erred by

failing to apply the Williams authority to her child support obligation. Appellant also

contends since the case before the court involves strictly issues of law, no transcript was

needed or submitted.

       {¶ 13} Child support is governed by R.C. Chapter 3119. Gross income, for

purposes of child support calculation, includes

       the total of all earned and unearned income from all sources during a

       calendar year, whether or not the income is taxable, and includes income

       from salaries, wages, * * * social security benefits, including retirement,

       disability, and survivor benefits that are not means-tested; workers’




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       compensation benefits; unemployment insurance benefits; disability

       insurance benefits; * * * all other sources of income. R.C. 3119.01(C)(7).

       {¶ 14} In Williams, at the syllabus, the Supreme Court of Ohio held “[a] disabled

parent is entitled to a full credit in his or her child support obligation for Social Security

payments received by a minor child due to the parent’s disability.”

       {¶ 15} This court, in Parker v. Parker, 6th Dist. Sandusky No. S-10-026, 2011-

Ohio-5684, ¶ 10, found

              Ohio appellate courts have since interpreted and applied Williams

       unequivocally to mean that, for purposes of child support calculations,

       Social Security disability payments are to be included in the recipient’s

       income and then credited back against that parent’s child support

       obligation. See Epitropoulos v. Epitropoulos, 10th Dist. No. 10AP-877,

       2011-Ohio-3701; Alexander v. Alexander, 10th Dist. No. 09AP-262, 2009-

       Ohio-5856; Hirzel v. Ooten, 4th Dist. Nos. 06CA10, 07CA13, 2008-Ohio-

       7006; Slowbe v. Slowbe, 8th Dist. No 83079, 2004-Ohio-2411; and Breen v.

       Kraus, 12th Dist. No. CA2002-06-143, 2003-Ohio-505. * * * If the

       recipient is the non-custodial parent, then the Social Security payments are

       credited against his or her child support obligation.

       {¶ 16} Here, the child support computation summary worksheet completed by the

magistrate, which is attached to and incorporated into the trial court’s decision and order,

shows the only income for appellant is the $6,000 imputed to her. The worksheet does




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not include appellant’s disability payments or the disability payments she received on

behalf of the minor children in her gross income, nor a credit for the disability payments

she received on behalf of the minor children against her child support obligation.

Accordingly, the trial court erred in its calculation of appellant’s child support obligation

by not including the disability payments in her gross income, and not crediting the

disability payments she received on behalf of her children against her child support

obligation, as required by Williams. We therefore find appellant’s first assignment of

error well-taken, and remand this issue to the trial court to recalculate appellant’s child

support obligation.

       {¶ 17} In her second assignment of error, appellant argues the trial court erred

when it terminated and/or modified the shared parenting plan based on the facts as found

by the magistrate.

       {¶ 18} R.C. 3109.04 governs the domestic relations court’s allocation of parental

rights and responsibilities and sets forth the procedures and standards the courts must use

in proceedings pertaining to such matters. Braatz v. Braatz, 85 Ohio St.3d 40, 44, 706

N.E.2d 1218 (1999). R.C. 3109.04 (E)(1)(a) provides in pertinent part:

              The court shall not modify a prior decree allocating parental rights

       and responsibilities for the care of children unless it finds, based on facts

       that have arisen since the prior decree or that were unknown to the court at

       the time of the prior decree, that a change has occurred in the circumstances

       of the child, the child’s residential parent, or either of the parents subject to




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       a shared parenting decree, and that the modification is necessary to serve

       the best interest of the child.

       {¶ 19} “Whether a change in circumstance has occurred sufficient to warrant

modification of a prior custody order is necessarily a factual determination.” In re

R.L.H., 8th Dist. Cuyahoga No. 100327, 2014-Ohio-3411, ¶ 25.

       {¶ 20} Here, we must accept the findings of fact in the magistrate’s decision as

true since no transcript was filed. Our review is therefore limited to whether the trial

court’s adoption of the magistrate’s conclusions of law based on those facts was plain

error. A thorough review of the magistrate’s decision as well as the trial court’s decision

and order leads us to conclude the trial court did not commit plain error. Accordingly,

appellant’s second assignment of error is found not well-taken.

       {¶ 21} On consideration, the judgment of the Ottawa County Court of Common

Pleas, Domestic Relations Division, is affirmed, in part, and reversed, in part. This

matter is remanded to that court to correct errors in calculating appellant’s child support

obligation. It is ordered that appellant and appellee split the court costs of this appeal

equally pursuant to App.R. 24.


                                                                  Judgment affirmed in part,
                                                                      and reversed, in part.




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                                                               Myosky v. Myosky
                                                               C.A. No. OT-14-002




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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