         [Cite as Maddox v. Maddox, 2016-Ohio-2908.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



ANNE JO MADDOX,                                 :      APPEAL NO. C-140718
                                                       TRIAL NO. DR-1101201
        Plaintiff-Appellee,                     :

  vs.                                           :         O P I N I O N.

MATTHEW R. MADDOX,                              :

    Defendant-Appellant.                        :




Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
             Division

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded


Date of Judgment Entry on Appeal: May 11, 2016


Michaela Stagnaro, for Plaintiff-Appellee,

Dinsmore & Shohl, L.L.P., and Timothy A. Tepe, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS



M OCK , Judge.

          {¶1}    Defendant-appellant Matthew Maddox appeals from the trial

court’s judgment entry on objections, which ordered him to pay child support to

plaintiff-appellee Anne Jo Maddox for their three minor sons and awarded her

$8,000 in attorney fees. On appeal, he raises six assignments of error. He argues

that the trial court erred by making an order of child support before the termination

of his spousal-support obligation, by refusing to consider additional evidence that he

could not have produced for the hearing before the magistrate on child support, and

by miscalculating his child-support obligation.     He challenges the trial court’s

calculation of income he received from restricted stock units and bonuses, and

argues that the trial court failed to apply the R.C. 3119.23 deviation factors when

ordering him to pay child support above the $150,000 guideline amount. Finally, he

contends the trial court erred by ordering him to pay $8,000 of Anne’s attorney fees.

          {¶2}    After reviewing the parties’ shared-parenting agreement, we

cannot conclude the trial court erred by making an award of child support. But we

reach a different conclusion with respect to the additional evidence Matthew

proffered on the objections. Because Matthew has demonstrated a likelihood that he

could not have with reasonable diligence produced that evidence to the magistrate,

we conclude the trial court erred by failing to consider his motion before ruling on

his objections.   Because this additional evidence may affect the trial court’s

calculation of Matthew’s child-support obligation and its decision to award attorney

fees to Anne, our resolution of his first assignment of error renders moot his third,

fourth, fifth, and sixth assignments of error. We, therefore, affirm the trial court’s

judgment in part, reverse it in part, and remand the matter to the trial court for

further proceedings consistent with this opinion and the law.



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                                 Trial Court Proceedings

           {¶3}   Anne and Matthew were married in 2003. They had three sons

during the marriage. Their marriage was terminated by a divorce decree journalized

December 29, 2011. The divorce decree provided that Matthew would pay no child

support for the parties’ three minor sons, expressly acknowledging that, “This [wa]s

a deviation from the guideline amount of child support because of the amount of

spousal support paid.”

           {¶4}   The divorce decree incorporated a separation agreement, under

which Anne received spousal support from Matthew in the amount of $7,500 per

month from January 1 to September 30, 2011, (“Phase I”) and $9,500 per month

from October 1, 2011, through December 31, 2013, (“Phase II”). Effective January 1,

2014, Anne’s spousal support was reduced to $1500 per month for 24 months

(“Phase III”) after which time Anne’s spousal support terminated. The separation

agreement further provided that if Anne sought to modify child support during Phase

I or II, her spousal support would be reduced $1.60 for every $1 of child support

awarded.

           {¶5}   Anne and Matthew also entered into a shared-parenting plan. The

trial court approved the shared-parenting plan, and granted a final decree of shared

parenting on December 29, 2011, the same day that it journalized their decree of

divorce. The shared-parenting plan provided in pertinent part:

           Based on the respective incomes of the parties and acknowledging

           Matthew’s payment of spousal support, at this time it is agreed that

           no child support shall be paid by either parent. Based on the

           respective incomes in each household while spousal support is

           being paid/received and the time the children will spend with each



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          parent, it is agreed this is just and appropriate and in the children’s

          best interest. Effective upon the termination of spousal support,

          child support shall be calculated and effective that date of

          termination of spousal support.

          {¶6}   On January 1, 2014, Anne filed a motion to set Matthew’s child-

support obligation for their three minor sons, to modify the parties’ shared-parenting

time, and for an award of attorney fees. The parties agreed to mediate the parenting-

time issue. With respect to child support, Matthew argued that under the terms of

the shared-parenting plan the trial court could not order him to pay child support

until his obligation to pay spousal support had terminated.            The magistrate

disagreed, holding that the parties’ intent with respect to child support was clear

from the language of the shared-parenting plan and the separation agreement. The

magistrate found that once Phase II spousal support had terminated, Anne could

seek an order of child support. The magistrate set a child-support order of $665.17

per month per child beginning January 1, 2014.

          {¶7}   Matthew filed objections, which the trial court overruled in part

and sustained in part. The trial court agreed with the magistrate’s interpretation of

the shared-parenting plan and the separation agreement, reasoning that neither

prohibited a child-support order before spousal support terminated. The trial court

noted that the shared-parenting plan specified only that child support could not be

ordered at the time of the decrees because of the amount of spousal support Matthew

was paying to Anne at that time. But the trial court vacated the order of child

support because it had been based on incomplete income information.

          {¶8}   The magistrate held hearings on March 31, 2014, May 31, 2014,

and June 2, 2014. On May 15, 2014, Anne filed a motion for contempt and a motion



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for attorney fees pursuant to R.C. 3105.73(B). Both Anne and Matthew testified

during the hearings about their respective incomes. Anne and Matthew filed written

closing arguments with proposed findings of fact and conclusions of law on July 1,

2014. On July 16, 2014, the magistrate entered a decision with findings of fact and

conclusions of law, along with an order for child support, which was signed by the

trial court, for $996.42 per month per child. The magistrate denied Anne’s motion

for contempt, but awarded her $8,000 in attorney fees. Both Anne and Matthew

filed timely objections to the magistrate’s decision.

           {¶9}   On October 29, 2014, the day before oral argument on the parties’

objections, Matthew filed a motion to submit additional evidence in support of his

objections to the magistrate’s decision. Matthew attached to the motion a letter from

his employer dated September 25, 2014, notifying him that as part of a 6,000-person

layoff, he was being terminated from employment effective October 10, 2014, as well

as a copy of his separation agreement, and a recalculated child-support worksheet.

           {¶10} The record reflects that prior to hearing Anne’s and Matthew’s

objections, the trial court met with Matthew’s and Anne’s counsel in chambers,

discussed Matthew’s motion to submit additional evidence as well as the case law

Matthew had provided, and orally denied Matthew’s motion to submit this additional

evidence. The trial court, however, permitted Matthew to proffer the additional

evidence outside of its hearing.

           {¶11} After the trial judge had left the courtroom, Matthew was sworn by

a deputy clerk. Upon questioning by his counsel, Matthew stated that he had known

his employer, Cisco Systems, was in the process of restructuring and that 6,000

Cisco employees were going to be laid off, but he had been unaware that he would be

affected by the layoffs until he received a letter on September 25, 2014, notifying him



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                     OHIO FIRST DISTRICT COURT OF APPEALS



that his entire organization had been eliminated. The letter provided that his

employment was being terminated effective October 10, 2014. Matthew testified that

prior to his termination he had received a bonus on September 20, 2014, of $22,710,

but he had not received any grants of restricted stock units or options. Matthew

further stated that all his unvested restricted stock units were lost as a result of his

termination of employment and that he had no way of recovering the money from

those shares. Matthew identified his letter of termination. He further stated that he

had signed an agreement letter, which described his benefits and severance package.

He identified a child-support worksheet, which stated his bonus income as $22,710,

and a media report detailing the elimination of his organization as part of the layoff.

Matthew’s counsel then proffered these exhibits for the record.

           {¶12} Following this proffer, the trial court reentered the courtroom and

heard oral argument on the parties’ objections. It overruled some of Matthew’s and

Anne’s objections, sustained some of their objections, and adopted the magistrate’s

decision to the extent it was not inconsistent with the court’s entry on the objections.

The trial court found Matthew’s base income to be $181,481. It allocated to him

$85,301 in bonus income and $50,955 in “other income” attributed to his restricted

stock units for a total income of $320,891. The trial court found Anne’s income to be

$29,000 as a legal assistant, $2,000 from her Pilates’ instruction, and $18,000 in

spousal support, for a total income of $49,000. The trial court ordered Matthew to

pay $999.80 per month per child, and adopted the portion of the magistrate’s

decision ordering Matthew to pay $8,000 of Anne’s attorney fees.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                                   Additional Evidence

          {¶13} In his first assignment of error, Matthew challenges the trial court’s

denial of his motion to present additional evidence pursuant to Civ.R. 53(D)(4)(d).

Civ.R. 53(D)(4)(d) provides:

          If one or more objections to a magistrate’s decision are timely filed,

          the court shall rule on those objections. In ruling on objections,

          the court shall undertake an independent review as to the objected

          matters to ascertain that the magistrate has properly determined

          the factual issues and appropriately applied the law. Before so

          ruling, the court may hear additional evidence but may refuse to do

          so unless the objecting party demonstrates that the party could not,

          with reasonable diligence, have produced that evidence for

          consideration by the magistrate.

          {¶14} While Civ.R. 53(D)(4)(d) gives the trial court broad discretion in

deciding whether to hear additional evidence, a plain reading of the last sentence of

Civ.R. 53(D)(4)(d) limits this discretion and requires acceptance of additional

evidence if the objecting party demonstrates that with reasonable diligence, it could

not have produced the evidence for the magistrate’s consideration. See Riley v.

Riley, 6th Dist. Huron No. H-08-019, 2009-Ohio-2764, ¶ 20, quoting Johnson-

Wooldridge v. Wooldridge, 10th Dist. Franklin No. 00AP-1073, 2001 Ohio App.

LEXIS 3319 (July 26, 2001).

          {¶15} In determining whether a party has exercised reasonable diligence,

Ohio appellate courts have held that the crux of the analysis is whether the party was

put on notice that they would be reasonably expected to introduce the evidence at the

hearing before the magistrate. Johnson-Wooldridge, 10th Dist. Franklin No. 00AP-



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                     OHIO FIRST DISTRICT COURT OF APPEALS



1073, 2001 Ohio App. LEXIS 3319, at *17. If the party had notice that they would be

reasonably expected to introduce evidence on the subject, then the trial court has

discretion to accept or reject that evidence. Id. See also Pierce v. Pierce, 168 Ohio

App.3d 556, 2006-Ohio-4953, 860 N.E.2d 1087, ¶ 15 (7th Dist); In re C.L., 8th Dist.

Cuyahoga No. 93720, 2010-Ohio-682, ¶ 12; Riley, 6th Dist. Huron No. H-08-019,

2009-Ohio-2764, at ¶ 20; Hudson Presbyterian Church v. Eastminster Presbytery,

9th Dist. Summit No. 24279, 2009-Ohio-446, ¶ 14; Porter v. Ferrall, 11th Dist.

Portage No. 2002-P-0109, 2003-Ohio-6685, ¶ 19; McClain v. McClain, 11th Dist.

Portage No. 98-P-0002, 1999 Ohio App. LEXIS 4655, *12-13 (Sept. 30, 1999);

Brooks v. Brooks, 10th Dist. Franklin No. 95APF03-381, 1995 Ohio App. LEXIS

5488, *37-42 (Dec. 14, 1995).

           {¶16} Matthew argues the trial court abused its discretion when it

refused to hear the additional evidence related to his loss of employment because

this evidence arose after the magistrate’s hearing, and thus, he could not have with

“reasonable diligence” presented it to the magistrate. He argues that evidence of his

loss of employment, his actual 2014 bonus, his receipt of zero restricted stock units

for 2014, and his loss of all unvested restricted stock units, was relevant to the trial

court’s calculation of his child-support obligation and his ability to pay Anne’s

attorney fees pursuant to R.C. 3105.73(B). Thus, the trial court should have held a

hearing to entertain this new evidence.

           {¶17} Anne argues that the trial court did not abuse its discretion in

denying Matthew’s motion to admit this additional evidence. She asserts that under

Civ.R. 53(D)(4)(d), when a party seeks to introduce additional evidence, the party is

limited to evidence that existed at the time of the magistrate’s hearing, but that the

party could not produce with “reasonable diligence.” As support for her position, she



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                     OHIO FIRST DISTRICT COURT OF APPEALS



cites two cases from the Second Appellate District, In re Custody of Harris, 2d Dist.

Champaign No. 2005-CA-27, 2006-Ohio-3746, ¶ 23-24, and Vander Kam v. Brown,

2d Dist. Montgomery No. 25473, 2014-Ohio-632, ¶ 15. But neither case addresses a

trial court’s taking of additional evidence pursuant to Civ.R. 53(D)(4)(d).

          {¶18} Anne acknowledges that a number of appellate districts have read

the rule more broadly to require a trial court to consider any evidence the party could

not produce with reasonable diligence to the magistrate, including new evidence that

arises after the magistrate’s hearing, but before the trial court’s hearing on

objections. See Welch v. Welch, 4th Dist. Athens No. 12CA12, 2012-Ohio-6297;

Winston v. Winston, 5th Dist. Stark No. 1999CA00313, 2000 Ohio App. LEXIS 5343

*18 (Nov. 16, 2000); Morrison v. Morrison, 9th Dist. Summit No. 27150, 2014-Ohio-

2254, ¶ 26. But she argues, nonetheless, that this court should not follow these

appellate courts’ interpretation of Civ.R. 53(D)(4)(d) because it will create “bad law”

in this district by “encourag[ing] parties to make changes before an entry on

objections, in order to avoid an unfavorable magistrate’s decision,” and by reducing

the finality of the proceedings before a magistrate. See Welch at ¶ 18 and 23; see also

Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶ 45.

          {¶19} Anne’s concerns, however, have been directly addressed by the

Fourth and Ninth Appellate Districts. In reading Civ.R. 53(D)(4)(d) to encompass

evidence that arises during the interval between the magistrate’s decision and the

trial court’s judgment, these courts have focused on the nature of proceedings under

Civ.R. 53—recognizing that a magistrate’s decision is not effective until adopted by

the court. They have also focused on the nature of matters involving children, noting

that the procedures are fluid and often subject to change. See Welch at ¶ 11-12; In re

A.S., 9th Dist. Summit No. 2642, 2013-Ohio-1975, ¶ 14-20 (analyzing identical



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language in Juv.R. 40(D)(4)(d)). Thus, they reason that interpreting Civ.R.

53(D)(4)(d) to encompass “new evidence” is not only in accordance with the plain

language of the rule, but that it actually promotes judicial economy by permitting the

court to act on the most current information available to it. See Welch at ¶ 18; In re

A.S. at ¶ 14-15. They further reason that such an interpretation of the rule is not

subject to abuse by the parties because the trial court remains free to weigh the

parties’ evidence and testimony to determine if the parties’ assertions of fact are

credible. See Welch at ¶ 18 (rejecting father’s argument that all cases will now be

subject to widespread abuse, by noting that a trial court considering new evidence is

not only entitled to weigh the credibility of the evidence, but also whether the

objecting party could with reasonable diligence have presented the evidence to the

magistrate).

           {¶20} Anne also argues that any changes in Matthew’s income could have

been addressed by Matthew filing a motion to modify his child-support obligation

once the trial court had ruled on the parties’ objections and entered its final

judgment. But requiring Matthew to file a subsequent motion for modification to

reflect his changed income would not be judicially economical, would place form

over substance, and would not serve the best interest of the parties’ children. See,

e.g., Allen v. Allen, 2d Dist. Greene No. 2004 CA 32, 2005-Ohio-431, ¶ 25; Flynn v.

Flynn, 10th Dist. Franklin No. 03AP-612, 2004-Ohio-3881, ¶ 21-23; In re A.S., at ¶

16; Morrison v. Morrison, 9th Dist. Summit No. 27150, 2014-Ohio-2254, ¶ 27

(noting that the passage of time between a magistrate’s hearing can allow for a

change in circumstances that a party may properly raise through a Civ.R. 53(D)(4)(d)

motion).




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            {¶21} Here, the record reflects that Matthew proffered evidence that he

had been terminated from his job during the time between the filing of the parties’

objections and the trial court’s hearing on those objections. He testified that he could

not have anticipated his termination or presented evidence regarding his termination

to the magistrate. We conclude that the trial court erred by denying Matthew’s

motion to present additional evidence without a hearing where his proffer suggests

that he could not have produced with reasonable diligence this additional evidence

for the magistrate’s consideration. See Morrison at ¶ 25-28 (holding the trial court

erred by failing to consider wife’s additional evidence regarding her change of

employment prior to its hearing on objections). We take no position on the merits of

Matthew’s additional evidence, but simply find a hearing was warranted under the

circumstances where the trial court is required to consider, after hearing from both

Matthew and Anne, whether Matthew could not have produced with reasonable

diligence this additional evidence to the magistrate. As a result, we sustain the first

assignment of error.

                              Authority to Set Child Support

            {¶22} In his second assignment of error, Matthew argues the trial court

erred in making an order of child support before terminating his spousal-support

obligation. He contends the trial court ignored the plain language of the parties’

shared-parenting agreement, which prohibits Anne from seeking child support. We

disagree.

            {¶23} The law of contracts applies to shared-parenting plans. See

Ellsworth v. Ellsworth, 1st Dist. Hamilton No. C-970916, 1998 Ohio App. LEXIS

6225, *6 (Dec. 24, 1988) (holding that a shared-parenting plan is a contract). In

interpreting and enforcing the provisions of a shared-parenting plan, a court must



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follow the rules of contract construction and interpret the shared-parenting plan to

carry out the intent of the parties as evidenced by their contractual language. See id.,

quoting Skivolocki v. East Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 374 (1974),

paragraph one of the syllabus; see also Johnson-Wooldridge, 10th Dist. Franklin No.

00AP-1073, 2001 Ohio App. LEXIS 3319, at *16. If the terms of the shared-parenting

plan are unambiguous, the court must give them their plain, ordinary meanings. If

the terms of the shared-parenting plan are not clear, however, parole evidence is

admissible to explain the meaning of the terms. See Ellsworth at *7, citing Forstner

v. Forstner, 68 Ohio App.3d 367, 372, 588 N.E.2d 285 (11th Dist.1990); see also

Condit v. Condit, 190 Ohio App.3d 634, 638, 2010-Ohio-5202, 943 N.E.2d 1041, ¶ 11

(1st Dist.). We review de novo the trial court’s interpretation of a shared-parenting

plan. Johnson-Wooldridge at *17.

          {¶24} The parties’ shared-parenting plan provided:

           Based on the respective incomes of the parties and acknowledging

           Matthew’s payment of spousal support, at this time it is agreed that

           no child support shall be paid by either parent. Based on the

           respective incomes in each household while spousal support is

           being paid/received and the time the children will spend with each

           parent, it is agreed this is just and appropriate and in the children’s

           best interest. Effective upon the termination of spousal support,

           child support shall be calculated and effective that date of

           termination of spousal support.

          {¶25} A plain reading of the parties’ shared-parenting plan does not

support Matthew’s argument that Anne is prohibited from seeking child support

until her spousal support terminates. Instead, the shared-parenting plan expressly



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provided that, “[A]t this time, it is agreed that no child support shall be paid by either

parent.” (Emphasis added.) The plain meaning of the sentence is that no child

support would be paid at the time the plan was entered of record on December 29,

2011.

           {¶26} Furthermore, the parties’ separation agreement, which was

incorporated into their divorce decree and executed at the same time as their shared-

parenting plan, outlined three phases of spousal support. During Phases I and II,

there was a specific monetary penalty that could have been imposed on Anne had she

had sought child support. Given the absence of such a penalty once Phase II had

ended, the trial court did not err in concluding that Anne could seek child support at

that time. Because Matthew’s and Anne’s intent was discernible from the plain

language of the shared-parenting plan and the separation agreement, the trial court

also did not err by failing to consider parole evidence. We, therefore, overrule

Matthew’s second assignment of error.

                                     Conclusion

           {¶27} In conclusion, we overrule Matthew’s second assignment of error,

but we sustain his first assignment of error.        Our resolution of Matthew’s first

assignment of error has rendered moot his third, fourth, and fifth assignments of

error, in which he challenges the trial court’s calculation of his child-support

obligation, and his sixth assignment of error, in which he challenges the trial court’s

order that he pay $8,000 of Anne’s attorney fees. We, therefore, affirm the judgment

of the trial court in part, reverse it in part, and remand the matter to the trial court

for a hearing where the trial court must consider, after hearing from both Matthew

and Anne, whether Matthew could not have produced with reasonable diligence the

additional evidence to the magistrate.



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                 Judgment affirmed in part, reversed in part, and cause remanded.

CUNNINGHAM, P.J., concurs.
DEWINE, J., concurs separately.

DEWINE, J., concurring separately.

           {¶28} I concur with the majority’s disposition of the first assignment of

error based upon the plain language of Civ.R. 53(D)(4). The evidence didn’t exist

until after the magistrate’s hearing, so Matthew could not have produced it with

“reasonable diligence” for the magistrate’s consideration.

           {¶29} I also concur with the majority’s disposition of the remaining

assignments of error.


Please note:
       The court has recorded its own entry this date.




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