[Cite as Stover v. Baker, 2020-Ohio-148.]




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




BRIAN STOVER,
                                                          CASE NO. 9-19-29
       PLAINTIFF-APPELLANT,

       v.

KRISTA BAKER,                                             OPINION

       DEFENDANT-APPELLEE.



                 Appeal from Marion County Common Pleas Court
                                 Family Division
                            Trial Court No. 17 PC 184

                                      Judgment Affirmed

                            Date of Decision: January 21, 2020



APPEARANCES:

        Joel M. Spitzer for Appellant
Case No. 9-19-29



WILLAMOWSKI, J.

       {¶1} Plaintiff-appellant Brian Stover (“Stover”) brings this appeal from the

judgment of the Court of Common Pleas of Marion County, Family Division

denying his motion to modify child support. Stover argues on appeal that there was

a change of circumstances and the trial court erred in finding there was not. For the

reasons set forth below, the judgment is affirmed.

       {¶2} On March 11, 2014, a child was born to Stover and Krista Baker

(“Baker”) Doc. 1 The parties were not married. On September 1, 2017, Stover

filed a complaint to establish parentage and allocate parental rights and

responsibilities. Id. In the motion, Stover requested that he be named the residential

parent of the child. Id. Baker filed her answer to the complaint on September 25,

2017. Doc. 5. Baker also requested to be named the residential parent of the child.

Id. A Guardian ad Litem (“GAL”) was appointed in the case on October 17, 2017.

Doc. 10.

       {¶3} On January 30, 2018, the final hearing on the complaint was held. Doc.

15. At that time, the parties had reached an agreement as to custody and visitation

of the child. Id. However, the issue of child support remained before the magistrate

for a ruling. Id. The magistrate noted that the child spent approximately equal time

in the homes of both parents. Id. at 2. The magistrate then recommended that Stover

pay $1,813.17 per month in child support, that the parties split the medical expense,


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that both parties carry health insurance on the child, and that Baker would pay the

child care costs, extra-curricular activities and school fees. Id. at 3. Baker filed a

notice of objections to the magistrate’s decision on March 9, 2018, but did not state

what the objections were. Doc. 17. The notice indicated that more specific

objections as to the findings of fact and conclusions of law would be filed once a

transcript was completed. Id. A review of the record shows that no further

objections were filed and no transcript was filed. Since Baker failed to file a

transcript, the trial court overruled the objections on May 9, 2018. Doc. 19.

       {¶4} On June 26, 2018, the trial court filed a judgment entry indicating that

it adopted the agreed custody and visitation plan. Doc. 23 at 1. The trial court noted

that it had overruled the objections to the child support and adopted the

recommendations of the magistrate. Id. at 2. The trial court named Baker as the

residential parent for the purpose of school placement, but also ordered that each

parent was the residential parent during their respective shared parenting time. Id.

No appeal was taken from this judgment.

       {¶5} On August 10, 2018, Stover filed a motion to modify the parenting

order claiming that there was a substantial change of circumstances. Doc. 25. Baker

filed her response on August 30, 2018. Doc. 28. Her response notes that Stover’s

motion did not allege what the change of circumstances was in the 6 weeks from the

final judgment order and the motion and that the filings appeared to be all about the

amount of child support due. Id. On March 4, 2019, Stover filed a memorandum

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in support of the motion to modify child support and the parenting order. Doc. 34.

The memorandum claims that he has more time than the trial court gave him credit

for and that the trial court erred in calculating child support for the June 26, 2018

entry. Id. Baker filed a response to Stover’s memorandum on March 25, 2019.

Doc. 35.        Baker again noted that Stover has not identified what change of

circumstances existed. Id. A review of the record shows that no hearing appears to

have been held on the matter; that the parties instead chose to submit briefs.1 On

April 17, 2019, the trial court denied the motion to modify the parenting order as

there was no change of circumstances. Doc. 36.

         {¶6} Stover filed a timely notice of appeal. Doc. 37. On appeal, Stover raises

the following assignments of error.

                                         First Assignment of Error

         The trial court erred and abused [its] discretion in denying
         [Stover’s] motion citing there has been no change in
         circumstances.

                                       Second Assignment of Error

         The trial court erred and abused [its] discretion in not modifying
         [Stover’s] child support.




1
  Although the record shows that a hearing was scheduled by the trial court for December 6, 2018 (see Doc.
30), no transcript was provided, the parties do not mention the hearing in their briefs to the trial court, the
trial court does not mention the hearing in the judgment entry, and the docket does not reflect any fees for
the hearing.

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                             Change of Circumstances

       {¶7} In the first assignment of error, Stover claims that the trial court erred

by finding no change of circumstances. Modification of a prior decree allocating

parental rights is governed by R.C. 3109.04(E)(1)(a), which provides in pertinent

part as follows.

       (E)(1)(a) 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 a
       shared parenting decree, and that the modification is necessary to
       serve the best interest of the child. In applying these standards,
       the court shall retain the residential parent designated by the
       prior decree or the prior shared parenting decree, unless a
       modification is in the best interest of the child and one of the
       following applies:

       (i) The residential parent agrees to a change in the residential
       parent or both parents under a shared parenting decree agree to
       a change in the designation of residential parent.

       (ii) The child, with the consent of the residential parent or of both
       parents under a shared parenting decree, has been integrated into
       the family of the person seeking to become the residential parent.

       (iii) The harm likely to be caused by a change of environment is
       outweighed by the advantages of the change of environment to the
       child.

“Under R.C. 3109.04, a trial court, in determining whether a modification of a

decree allocating parental rights and responsibilities is appropriate, must go through

a two-step analysis.” Southern v Scheu, 3d Dist. Shelby No. 17-17-16, 2018-Ohio-


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1440, ¶ 17. The first step is to determine whether a change in circumstances has

occurred since the prior decree was issued. Fisher v. Hasenjager, 116 Ohio St.3d

53, 2007–Ohio–5589, 876 N.E.2d 546, ¶ 33, 36. Such a change must be one of

substance and have a material effect on the child. Southern, supra at ¶ 17. When

reviewing a ruling pertaining to the allocation of parental rights, an appellate court

will grant great deference to the decision of the trial court. Id. at 18.

       {¶8} In this case, neither Stover’s motion nor his trial brief set forth any

change of circumstance that occurred between the June 26, 2018, date of the

judgment entry and the August 10, 2018 date of the motion to modify residential

parent status. Instead, Stover argues that the trial court erred in calculating the child

support he should pay when it entered its judgment on June 26, 2018. This is not a

change of circumstances, but rather an argument to be made on direct appeal from

that judgment entry. A review of the record shows that Stover never specifically

argued this issue in an objection to the magistrate’s recommendation. The trial court

then adopted the calculation of the magistrate. Stover also never took a direct appeal

from that judgment. A motion to modify parental allocations does not take the place

of the direct appeal as it does not address anything that changed after the judgment

hearing. R.C. 3109.04 prohibits modification of a prior decree unless facts that have

arisen since the prior decree show the modification is necessary. That is not the

case here. Thus, the trial court did not err in finding no change of circumstances.

The first assignment of error is overruled.

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                           Modification of Child Support

       {¶9} Stover argues in his second assignment of error that the trial court erred

by not modifying his child support. Stover claims that the trial court did not consider

the time allocated for parenting time in its calculation of child support.

       If an obligor or obligee under a child support order requests that
       the court modify the amount of child 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. 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.

R.C. 3119.79(A). “Before modifying an existing child support order, the trial court

must determine whether there has been a substantial change of circumstances that

was not contemplated at the time of the issuance of the original child support order.”

Barto v. Barto, 11th Dist. Lake No. 2003-L-070, 2005-Ohio-823, ¶ 11. See Frey v.

Frey, 3d Dist. Hancock No. 5-15-11, 2015-Ohio-4622.

       {¶10} As noted above, the argument presented by Stover is that the trial court

erred in the calculation of child support as set forth in the June 26, 2018, judgment

entry. However, he is not arguing that anything has really changed since then, only

that the trial court made a mistake previously. This is not a change of circumstances.

Stover is merely attempting to circumvent the deadline for filing a direct appeal by

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requesting a modification. However, an issue that could have or should have been

raised on direct appeal is barred from further review by the appellate court by the

doctrine of res judicata. See Coulson v. Coulson, 5 Ohio St.3d 12, 13, 448 N.E.2d

809 (1983). Since Stover failed to show a change of circumstance, the trial court

did not err in denying the motion to modify the child support.        The second

assignment of error is overruled.

       {¶11} Having found no errors in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Marion County, Family Division is

affirmed.


                                                              Judgment Affirmed


ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls




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