[Cite as Hill v. Hill, 2012-Ohio-1903.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



DALLAS L. HILL                                     JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Petitioner-Appellee                        Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2011 CA 0016
CHRISTIE L. HILL

        Petitioner-Appellant                       OPINION




CHARACTER OF PROCEEDING:                        Civil Appeal from the Court of Common
                                                Pleas,   Domestic    Relations Division,
                                                Case No. 08 DS 0514


JUDGMENT:                                      Affirmed in Part, Reversed in Part
                                               And Remanded


DATE OF JUDGMENT ENTRY:                        April 30, 2012



APPEARANCES:

For Petitioner-Appellee                         For Petitioner-Appellant

MICHAEL MANNING                                BRIAN W. BENBOW
OWENS & MANNING                                BENBOW LAW OFFICES
413 Main Street, P O Box 787                   605 Market Street
2nd Floor                                      Zanesville, Ohio 43701
Coshocton, Ohio 43812
Coshocton County, Case No. 2011 CA 0016                                                 2

Wise, J.

      {¶1}   Appellant Christie L. Hill appeals the decision of the Court of Common

Pleas, Domestic Relations Division, Coshocton County, which denied her motion

requesting a modification of child support to be paid by Appellee Dallas L. Hill, her

former husband. The relevant facts leading to this appeal are as follows.

      {¶2}   Appellant and appellee were married on May 17, 2003. Appellant has a

child, D.H., from a prior relationship; appellee became his adoptive father in early 2007.

      {¶3}   On September 29, 2008, the parties’ marriage was terminated via

dissolution in the Coshocton County Court of Common Pleas. At the time of the

dissolution, the guideline worksheet obligation for appellee was calculated at $304.76

per month. However, in the parties’ separation agreement, it was provided that

appellee would have no parenting time with D.H. and that he would pay no child

support or medical insurance for D.H. Specifically, the parties agreed that a deviation

to zero dollars on the basis that appellant had “sufficient income to provide for the

minor child.” The separation agreement was approved and incorporated into the

dissolution decree by the trial court.

      {¶4}   In February 2009, appellant requested an administrative review of child

support by the Coshocton County Child Support Enforcement Agency (“CSEA”). The

CSEA hearing officer recommended a new child support obligation of $333.43 per

month. The matter then came before the court upon a hearing to review the CSEA’s

administrative modification. On August 10, 2009, a magistrate issued a decision

rejecting the CSEA-recommended modification, thus leaving appellee’s obligation for
Coshocton County, Case No. 2011 CA 0016                                                3


child support at zero dollars. The trial court adopted the decision of the magistrate on

August 31, 2009.

      {¶5}   On April 7, 2010, appellant filed a request for an in-court modification of

child support.

      {¶6}   On April 28, 2010, appellee filed a motion for contempt against appellant,

alleging that appellant had failed to pay the remaining sum of $4,300.00 owed to

appellee in regard to the property division provisions of their dissolution decree.

      {¶7}   The matter proceeded to a magistrate’s hearing on October 13, 2010 and

March 10, 2011.

      {¶8}   The magistrate issued a decision on April 13, 2011. Even though the new

guideline worksheet resulted in a support obligation of $323.15 per month, plus

processing charges, the magistrate found no change in circumstances warranting a

modification of child support. Additionally, however, appellant was found in contempt

of court, and ordered to serve three days in jail, subject to purge conditions of paying

$4,300.00 to appellee within ninety days and committing no further acts of contempt.

Appellant was also ordered to pay attorney fees of $1,247.75 within ninety days of the

decision.

      {¶9}   Appellant thereafter filed objections to the magistrate’s decision.      On

October 19, 2011, the trial court issued a judgment entry adopting the magistrate’s

decision.

      {¶10} On November 4, 2011, appellant filed a notice of appeal. She herein

raises the following four Assignments of Error:
Coshocton County, Case No. 2011 CA 0016                                               4


     {¶11} “I.     THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ADOPTING THE MAGISTRATE'S DECISION THAT ERRED IN FINDING THAT THE

TRIAL COURT DID NOT HAVE JURISDICTION TO MODIFY THE PRIOR CHILD

SUPPORT ORDER. THE TRIAL COURT THUS COMMITTED PREJUDICIAL ERROR

BY NOT AWARDING CHILD SUPPORT AND CASH MEDICAL SUPPORT TO

APPELLANT AND BY NOT ADDRESSING THE TAX DEPENDENCY DEDUCTION

AND BY FAILING TO REALLOCATE UNINSURED MEDICAL EXPENSES.

     {¶12} “II.    THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ADOPTING THE MAGISTRATE'S DECISION THAT DID NOT ATTACH A CHILD

SUPPORT WORKSHEET.

     {¶13} “III.   THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ADOPTING THE MAGISTRATE'S DECISION THAT FAILED TO MAKE ANY

FINDINGS AS TO WHETHER THE GUIDELINE SUPPORT AMOUNT WAS UNJUST

OR INAPPROPRIATE AND NOT IN THE CHILD'S BEST INTEREST.

     {¶14} “IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ADOPTING THE MAGISTRATE'S DECISION THAT FOUND APPELLANT IN

CONTEMPT, THAT FURTHER SET ARBITRARY AND UNREASONABLE PURGE

CONDITIONS, AND WHICH IMPROPERLY AWARDED ATTORNEY'S FEES.”

                                           I.

     {¶15} In her First Assignment of Error, appellant contends the trial court erred in

declining to further proceed on her request to modify the prior child support obligation

of zero dollars per month. We agree.
Coshocton County, Case No. 2011 CA 0016                                               5


      {¶16} R.C. 3119.79 addresses modification of child support. This section reads

in pertinent part as follows:

      {¶17} “(A) If an obligor or obligee under a child support order requests that the

court modify the amount of 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 through the line establishing the actual annual obligation. 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.

      {¶18} “ ***

      {¶19} “(C) If the court determines that the amount of child support required to be

paid under the child support order should be changed due to a substantial change of

circumstances that was not contemplated at the time of the issuance of the original

child support order or the last modification of the child support order, the court shall

modify the amount of child support required to be paid under the child support order to

comply with the schedule and the applicable worksheet through the line establishing

the actual annual obligation, unless the court determines that the amount calculated

pursuant to the basic child support schedule and pursuant to the applicable worksheet

would be unjust or inappropriate and would not be in the best interest of the child and
Coshocton County, Case No. 2011 CA 0016                                                 6


enters in the journal the figure, determination, and findings specified in section 3119.22

of the Revised Code.”

      {¶20} We have previously recognized that a child support order which requires

zero support to be paid is an “existing child support order.” See Foss v. Foss, Richland

App.No. 05 CA 7, 2005-Ohio-3614, ¶ 12, citing Fields v. Fields, Medina App.No.

04CA0018-M, 2005-Ohio-471, ¶ 11 (additional citations and quotations omitted). 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 10 percent threshold set forth in R.C.

3113.215(B)(4) (now R.C. 3119.79(A)). Pursuant to DePalmo, the ten percent test is to

be applied to the amount of the current order. Fox v. Fox, 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, citing DePalmo at 540.

      {¶21} In the case sub judice, the magistrate determined that “ *** [appellant] has

failed to establish that the amount of support to be paid by the Obligor/Father varies

more than ten percent (10%) from the current child support obligation without deviation

***.” Magistrate’s Decision, April 13, 2011, at 9 (emphasis added). The magistrate also

determined that appellant’s income had not been demonstrably reduced by more than

ten percent. Id.

      {¶22} Thus, it is evident that the trial court, rather than starting with the actual

zero dollar support order, compared the pre-deviation guideline obligation from the
Coshocton County, Case No. 2011 CA 0016                                                 7


dissolution decree ($304.76 per month) with the new guideline amount of $323.15 per

month, for purposes of determining the “ten percent” threshold. As such, we hold the

trial court, in finding no change in circumstances had occurred, failed to follow the

mandate of R.C. 3119.79 and DePalmo, supra. Similarly, we hold the court’s

consideration of whether appellant’s income had changed by more than ten percent is

a misinterpretation of DePalmo.

      {¶23} We therefore find the proper remedy in this case is to remand for the trial

court to review the most recent guideline worksheet and determine if such figure would

presently be unjust or inappropriate and not in the child's best interest, for purposes of

determining if the prior deviation should be maintained.

      {¶24} Appellant's First Assignment of Error is sustained.

                                          II., III.

      {¶25} In her Second Assignment of Error, appellant contends the trial court erred

in failing to award cash medical support and failing to attach a child support worksheet

or ensure that one was attached to the magistrate’s decision. In her Third Assignment

of Error, appellant contends the trial court erred in failing to make adequate findings as

to whether the guideline support amount was unjust or inappropriate and not in the

child’s best interest.

      {¶26} Based on our holding as to appellant’s first assigned error, we find the

arguments in appellant's Second and Third Assignments of Error are moot or

premature.
Coshocton County, Case No. 2011 CA 0016                                              8


                                          IV.

     {¶27} In her Fourth Assignment of Error, appellant contends the trial court erred

in finding her in contempt, establishing purge requirements, and granting attorney fees

in favor of appellee in the amount of $1,247.75. We disagree.

     {¶28} Our standard of review regarding a finding of contempt is limited to a

determination of whether the trial court abused its discretion. Wadian v. Wadian, Stark

App.No. 2007CA00125, 2008-Ohio-5009, ¶ 12, citing In re Mittas (Aug. 6, 1994), Stark

App.No. 1994 CA 00053. Likewise, an award of attorney fees lies within the sound

discretion of the trial court. Rand v. Rand (1985), 18 Ohio St.3d 356, 359, 481 N.E.2d

609. In contempt actions in domestic relations cases, a trial court may award attorney

fees in the absence of supporting evidence when the amount of work and time spent

on such a case is apparent. Labriola v. Labriola (Nov. 5, 2001), Stark App.No.2001

CA00081, citing Wilder v. Wilder (Sept. 7, 1995), Franklin App.No. 94AAPE12-1810.

     {¶29} Appellant in the case sub judice chiefly argues that the contempt finding

should have been barred by the equitable doctrines of laches and “unclean hands.” We

note issues of waiver, laches, and estoppel are “fact-driven.” Riley v. Riley, Knox

App.No. 2005–CA–27, 2006–Ohio–3572, ¶ 27, citing Dodley v. Jackson, Franklin App.

No. 05AP11, 2005–Ohio–5490. The decision of a trial court concerning the application

of these equitable doctrines will not be reversed on appeal in the absence of an abuse

of discretion. See Payne v. Cartee (1996), 111 Ohio App.3d 580, 590, 676 N.E.2d 946,

952–953; Slyh v. Slyh (1955) 72 Ohio Law Abs. 537, 135 N.E.2d 675.

     {¶30} In the case sub judice, appellee has apparently complied with appellant's

wishes that appellee not be involved in his adopted son's life. Appellant has had ample
Coshocton County, Case No. 2011 CA 0016                                                9


opportunity to pay her property division obligation in installments in accordance with

the terms of the 2008 separation agreement. It appears undisputed that appellant was

mailed a demand letter from appellee's attorney but took no corrective action. Upon

review, we find no abuse of discretion in the court’s decision not to apply the doctrines

of unclean hands and laches, and we find no reversible error in the rendering of

contempt orders, including attorney fees, against appellant.

      {¶31} Appellant's Fourth Assignment of Error is overruled.

      {¶32} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Coshocton County, Ohio, is hereby

affirmed in part, reversed in part and remanded for further proceedings consistent with

this opinion.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
JWW/d 0419
Coshocton County, Case No. 2011 CA 0016                                           10


          IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT



DALLAS L. HILL                               :
                                             :
       Petitioner-Appellee                   :
                                             :
-vs-                                         :            JUDGMENT ENTRY
                                             :
CHRISTIE L. HILL                             :
                                             :
       Petitioner -Appellant                 :            Case No. 2011 CA 0016




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, Coshocton

County, Ohio, is affirmed in part and reversed in part.

       Costs to be split equally among the parties.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                 JUDGES
