[Cite as Sandel v. Choma, 2013-Ohio-5410.]


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

LORI S. SANDEL                                       C.A. No.       26895

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DAVID CHOMA                                          COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   1998-06-1433

                                DECISION AND JOURNAL ENTRY

Dated: December 11, 2013



        HENSAL, Judge.

        {¶1}    Appellant, David Choma, appeals from the judgment of the Summit County Court

of Common Pleas, Domestic Relations Division. For the reasons set forth below, this Court

affirms.

                                                I.

        {¶2}    Mr. Choma and Lori S. Sandel were divorced in 1998. They have two minor

children from the marriage. This Court previously stated the applicable facts in Sandel v.

Choma, 9th Dist. Summit No. 25995, 2012-Ohio-3781:

        As part of the divorce decree, the parties entered into a shared parenting
        agreement that provided that Mr. Choma would pay $522.29 per month for each
        child in child support. Over the years, the parties’ incomes increased at different
        rates, and Mr. Choma’s child support obligation was modified twice. In 2003, the
        trial court modified his obligation to $375 per month for each child. Later the
        same year, the parties agreed to another modification that reduced Mr. Choma’s
        child support obligation to $209.88 per month for each child, including poundage.
        In February 2009, Mr. Choma moved to terminate his child support obligation and
        for an order requiring Ms. Sandel to pay child support instead. The trial court
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       terminated his obligation to pay child support, but upon finding that the parties
       had essentially equal incomes, did not order Ms. Sandel to pay.

       On August 10, 2009, Mr. Choma filed the motion that is at issue in this appeal,
       requesting that the trial court order Ms. Sandel to pay child support in light of her
       increased income. Hearing on the matter was continued until May 2010 and,
       when a second day of testimony was required, the magistrate scheduled a hearing
       one month later. The magistrate issued a decision on March 30, 2011,
       recommending an amendment of the shared parenting plan effective April 1,
       2011, and an award of child support from Ms. Sandel effective on the same date.
       The trial court entered judgment on the magistrate’s decision in accordance with
       Civ.R. 53(D)(4)(e)(i). Mr. Choma objected to the magistrate's decision, arguing
       that although the amendment to the shared parenting plan was effective April 1,
       2011, the effective date of the child support award should have been the date he
       filed the motion to modify. The trial court overruled his objection, and Mr.
       Choma appealed.

Id. at ¶ 2-3. This Court reversed and remanded the matter for the trial court to explain its reasons

for not ordering that the child support be retroactively modified to the date Mr. Choma filed his

motion. Id. at ¶ 7.

       {¶3}    On remand, the trial court held a hearing and entered a judgment that again

determined the effective date of the child support modification to be April 1, 2011. Mr. Choma

filed a timely appeal and raises one assignment of error for our review.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN NOT MODIFYING CHILD SUPPORT
       EFFECTIVE AUGUST 10, 2009, THE DATE OF THE FILING OF THE
       MOTION FOR MODIFICATION.

       {¶4}    Mr. Choma argues that the trial court erred when it ordered Ms. Sandel’s child

support obligation to commence on the date that the parenting time was changed in 2011 rather

than the filing date of his 2009 motion. He maintains that there were no special circumstances to

justify the use of the 2011 date and that the trial court should have found that the 2009 date of the

motion’s filing was the effective date of the revised child support order. This Court disagrees.
                                                  3


          {¶5}   A trial court’s calculation of child support is reviewed for an abuse of discretion.

Cameron v. Cameron, 9th Dist. Medina No. 10CA0064-M, 2011-Ohio-3884, ¶ 6, citing Dunbar

v. Dunbar, 68 Ohio St. 3d 369, 371 (1994). An abuse of discretion “implies that the trial court’s

attitude [was] unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). This Court may not substitute its judgment for that of the trial court when

applying the abuse of discretion standard. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

          {¶6}   Unless there are “special circumstances” to warrant the use of a different date, the

trial court should use the date that a motion to modify child support is filed as the effective date

of the new support award. Sandel, 2012-Ohio-3781 at ¶ 5, quoting State ex rel. Draiss v. Draiss,

70 Ohio App.3d 418, 421 (9th Dist.1990). As this Court has explained, this rule is utilized to

protect the parties from the often significant delay between the filing of the motion and a

decision thereon. Id. “When a trial court selects a different effective date for a child support

modification, that date must have a ‘reasonable basis’ and bear some significance in the

underlying litigation.” Id. at ¶ 6, quoting In re P.J.H., 196 Ohio App.3d 122, 2011-Ohio-5970, ¶

19 (2d Dist.2011). While the trial court has the discretion to utilize a date other than the date

when the motion was filed, it must state an adequate basis for doing so. Id.

          {¶7}    Mr. Choma filed a multi-branched motion on August 10, 2009, seeking, in part,

“an [o]rder requiring * * * [Ms.] Sandel * * * to pay child support * * * [as] [t]here has been a

change in circumstances * * *.” He requested that the revised child support order be retroactive

to the date of Ms. Sandel’s change in income. Simultaneous with the filing of his motion, he

filed an affidavit in which he averred that Ms. Sandel’s income changed and that there was a

change in the parties’ parenting time as the children were spending more than 50 percent of their
                                                4


time under his care. At the time Mr. Choma filed his motion, neither parent was paying child

support. Mr. Choma’s obligation to pay was terminated February 18, 2009, and, due to equal

parenting time and equivalent incomes, Ms. Sandel was not ordered to pay child support. Mr.

Choma did not request a temporary order of child support while his motion was pending.

       {¶8}    A remand hearing was held at which both Mr. Choma and Ms. Sandel testified

and presented evidence. The trial court again found that April 1, 2011, was the effective date for

the child support modification. The court concluded that, at the time Mr. Choma filed his

motion, Ms. Sandel had yet to experience an increase in income as she did not sign her

employment contract until nine days later. It also noted that, when Mr. Choma was the obligor,

his child support obligation was subject to a downward deviation. However, the most important

factor that the trial court relied upon when it decided not to use the date of the filing of the

motion as the effective date of Ms. Sandel’s child support obligation, was “the fact that the

modification of child support naming [Ms. Sandel] as obligor stems from changes made to the

custodial portion of the Shared Parenting Plan which substantially decreased the amount of time

the children were with [Ms. Sandel].”

       {¶9}    Based upon the affidavit filed with Mr. Choma’s motion to modify and a review

of the remand hearing transcript, it is apparent that Mr. Choma sought to increase the amount of

Ms. Sandel’s child support obligation due to two factors that he argued demonstrated a change in

circumstances: (1) her increase in income and (2) her alleged decrease in parenting time. With

regard to Ms. Sandel’s change in income, she testified that, on August 19, 2009, she signed an

employment contract with a local school district for the 2009/2010 school year. When she

received her first pay pursuant to that contract, it reflected that she was paid a salary effective

August 1, 2009. Her salary for the 2009/2010 school year was $92,762.38 and her salary for the
                                                 5


2010/2011 school year was $97,709.81. These amounts were an increase from her previous

income of $75,000 per year.

       {¶10} However, the testimony at the remand hearing demonstrated that, up until April 1,

2011, the only change in parenting time was when Ms. Sandel would drop the children off at Mr.

Choma’s home so that he could supervise them before and after school. Ms. Sandel testified that

this accounted for 20 or 30 minutes in the morning and that Mr. Choma was only home with the

children for approximately 30 minutes before she picked them up in the afternoon. Ms. Sandel

further testified that “everything changed” on April 1, 2011, when the shared parenting plan was

modified to provide for a substantial decrease in her parenting time.

       {¶11} Based on this Court’s review of the record, we cannot conclude that the trial court

abused its discretion in finding that the effective date of the child support modification was April

1, 2011, when the parenting time was modified rather than in 2009 when Mr. Choma’s motion

was filed.   The trial court’s use of the date in which Ms. Sandel’s parenting time was

substantially decreased is a “reasonable basis” that “bear[s] some significance” given the

testimony and evidence adduced at trial that April 1, 2011, was the date when significant

changes were made to the shared parenting plan. Sandel, 2012-Ohio-3781 at ¶ 6, quoting In re

P.J.H., 2011-Ohio-5970 at ¶ 19. There is ample evidence in the record to demonstrate that the

amount of parenting time was a major factor that both the trial court and the parties previously

used when determining the amount of child support. Thus, the trial court did not abuse its

discretion in finding that the April 1, 2011, parenting time modification constituted a “special

circumstance” that justified not using the date of the motion’s filing as the effective date of Ms.

Sandel’s child support obligation. Mr. Choma’s assignment of error is overruled.
                                                 6


                                                III.

       {¶12} Mr. Choma’s assignment of error is overruled. The judgment of the Summit

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 Summit, 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.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.
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APPEARANCES:

JOHN M. DOHNER, Attorney at Law, for Appellant.

MORA LOWRY, Attorney at Law, for Appellee.
