[Cite as Curran v. Kelly, 2012-Ohio-218.]


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

MARGARET M. CURRAN                                    C.A. No.     10CA0139-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MICHAEL E. KELLY                                      COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   97PA0151

                                 DECISION AND JOURNAL ENTRY

Dated: January 23, 2012



        CARR, Presiding Judge.

       {¶1}      Appellant, Michael E. Kelly, appeals the judgment of the Medina County Court of

Common Pleas, Domestic Relations Division, which denied his motion to terminate or reduce

the amount of his child support arrearages payment. This Court affirms.

                                                 I.

       {¶2}      In 1997, appellee, Margaret Curran, filed a complaint against Kelly to establish

paternity of a child born in 1989. Thirteen months later, Kelly acknowledged paternity. The

trial court established a child support arrearage for Kelly in the amount of $96,226.13, child

support in the amount of $951.36 per month, and an arrearage payment in the amount of $500.00

per month, plus a two percent processing fee on the whole amount. Over the years, Ms. Curran

and the Medina County Child Support Enforcement Agency (“CSEA”) filed various motions for

contempt based on Kelly’s failure to pay support and Kelly filed motions to modify the child

support and arrearage payments. On December 9, 2004, the trial court issued a judgment entry
                                                 2


ordering Kelly to pay $280.02 per month for current child support and $250.00 per month on the

arrearage.

       {¶3}     On May 23, 2008, a notice of termination of child support was filed based on the

child’s emancipation.      CSEA recommended that child support in the amount of $280.02

terminate and that Kelly pay $530.02 per month, plus processing fee, towards his accumulated

arrearage of $111,366.79. The recommended monthly arrearage payment mirrored the prior

monthly payment that had included amounts for both current child support and arrearages. On

July 29, 2008, the domestic relations court accepted CSEA’s recommendations, terminated

Kelly’s current child support obligation based on the child’s emancipation, and ordered Kelly to

pay $530.02 per month ($540.62, including a 2% processing fee) toward his $111,366.79

arrearage. Kelly did not appeal this judgment.

       {¶4}     On November 12, 2009, Kelly filed a motion to either terminate his obligation to

pay the child support arrearages or, in the alternative, to modify his monthly obligation to what

he termed the “statutory minimum payment authorized by law ($50.00/mo.).”            The matter

proceeded to hearing before the magistrate, who recommended that Kelly’s motion be denied.

The trial court adopted the magistrate’s decision the same day. Kelly filed timely objections to

the magistrate’s decision. After holding a hearing on the objections, the trial court overruled

them, reaffirmed its prior judgment adopting the magistrate’s decision, and denied Kelly’s

motion to terminate the child support arrearages or reduce his monthly obligation to $50.00.

Kelly filed a timely appeal, raising three assignments of error. We consolidate some assignments

of error to facilitate review.
                                                3


                                                II.

                                   ASSIGNMENT OR ERROR I

      THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING
      DEFENDANT-APPELLANT WAS “NOT ENTITLED” TO TERMINATE OR
      MODIFY CHILD SUPPORT ARREARAGES.

                                   ASSIGNMENT OF ERROR II

      THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING
      DEFENDANT-APPELLANT WAS “REQUIRED” TO CONTINUE PAYING
      $540.63 PER MONTH ON ARREARAGES INSTEAD OF $280.02.

      {¶5}     Kelly argues that the trial court committed plain error and/or abused its discretion

by denying his motion to terminate his arrearage obligation; reduce his monthly obligation to

$50.00; or reduce his monthly obligation to $280.02, the amount of his prior child support

payment exclusive of his arrearage payment. This Court disagrees.

      {¶6}     In cases where the matter was initially heard by a magistrate who issued a

decision to which objections were filed and disposed, “[a]ny claim of trial court error must be

based on the actions of the trial court, not on the magistrate’s findings or proposed decision.”

Mealey v. Mealey, 9th Dist. No. 95CA0093, 1996 WL 233491 (May 8, 1996). Kelly challenges

the domestic relations court’s application of R.C. 3123.14 in rendering its judgment. “An

appellate court’s review of the interpretation and application of a statute is de novo [and we may]

not give deference to a trial court’s determination [in that regard.]” In re Barberton-Norton

Mosquito Abatement Dist., 9th Dist. No. 25126, 2010-Ohio-6494, at ¶11. Accordingly, because

we must review the trial court’s application of R.C. 3123.14 to this matter de novo, we may not

consider Kelly’s argument that the trial court abused its discretion by failing to terminate or

reduce his arrearage obligation.
                                                 4


      {¶7}     In regard to Kelly’s plain error argument, the Ohio Supreme Court has held that

“in appeals of civil cases, the plain error doctrine is not favored and may be applied only in the

extremely rare case involving exceptional circumstances where error, to which no objection was

made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the

judicial process, thereby challenging the legitimacy of the underlying judicial process itself.”

Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123 (1997).

      {¶8}     R.C. 3123.14 states:

      If a child support order is terminated for any reason, the obligor under the child
      support order is or was at any time in default under the support order and, after the
      termination of the order, the obligor owes an arrearage under the order, the obligee
      may make application to the child support enforcement agency that administered
      the child support order prior to its termination or had authority to administer the
      child support order to maintain any action or proceeding on behalf of the obligee to
      obtain a judgment, execution of a judgment through any available procedure, an
      order, or other relief. If a withholding or deduction notice is issued pursuant to
      section 3121.03 of the Revised Code to collect an arrearage, the amount withheld
      or deducted from the obligor’s personal earnings, income, or accounts shall be at
      least equal to the amount that was withheld or deducted under the terminated child
      support order.

      {¶9}     Although Kelly argues that the statutory provision confers on the trial court

“limited authority” to determine the amount of an obligor’s monthly arrearage payment, he

concedes that this amount may not be less than the amount ordered under the terminated child

support order. Because the amount ordered under the terminated child support order was more

than $50.00, the trial court had no authority to grant the relief requested by Kelly, specifically a

termination of his obligation to pay off his arrearage or a reduction of his monthly payment to

$50.00. Accordingly, the trial court committed no error in this regard in denying his motion.

      {¶10}    Kelly next argues that the trial court committed plain error by failing to reduce his

monthly arrearage obligation to $280.02, the amount he previously had been ordered to pay for

his current monthly child support obligation. At the same time, however, he was ordered to pay
                                                 5


an additional $250.00 per month toward his arrearages which totaled in excess of $100,000.00.

In addition, he was ordered to pay a two percent processing fee on both amounts, so that his total

monthly obligation was $540.62.

      {¶11}    In rendering its decision, the trial court relied on this Court’s decision in Bennett

v. Bennett, 9th Dist. No. 22798, 2006-Ohio-1305, a case completely on point with the underlying

matter. In Bennett, after all the children were emancipated, the trial court ordered the father to

pay $389.80 per month towards support arrearages. After a series of challenges, the magistrate

reduced father’s monthly arrearage payment to $50.00, later increased it to $100.00, and finally

again reduced it to $50.00. After the mother challenged these orders, the trial court increased the

father’s monthly arrearage payment to its original amount of $389.80. The father appealed. This

Court held, in reliance on R.C. 3123.14, that “because Father was ordered to pay $389.80 per

month for past due support since March 2000, his arrearage support payment should remain at

$389.80.” Id. at ¶16.

      {¶12}    This case is analogous to the situation in Bennett. After his current child support

obligation terminated in 2008, Kelly was ordered to pay $530.02 per month towards his

arrearage, plus a two percent processing fee, for a total of $540.62 per month. He did not appeal

that order. More than a year later, he moved to terminate or reduce the monthly payment. Based

on this Court’s application of R.C. 3123.14 in Bennett, because Kelly previously had been

ordered to pay $540.62 per month towards his arrearage support payment at the time his current

support order terminated, his arrearage obligation should remain at $540.62 per month, and the

trial court had no authority pursuant to law to reduce his monthly payment amount.

Accordingly, the trial court did not err by failing to reduce his payment towards his arrearage to

the amount he was ordered to pay solely for current child support prior to the child’s
                                                  6


emancipation. The trial court correctly determined that Kelly was not entitled to the relief sought

as a matter of law.

      {¶13}    Kelly further implies that the trial court had the authority to refuse to impose a

processing fee and that it erred in imposing one. R.C. 3119.27(A), however, mandates that the

trial court “shall impose on the obligor under the support order a processing charge that is the

greater of two per cent of the support payment to be collected under a support order or one dollar

per month.”     It has long been recognized that an administrative agency is entitled to

compensation for assuming the risks associated with the handling and disbursement of funds in

proportion to the amount of those funds and that a two percent fee is reasonable. See Granzow v.

Bur. of Support of Montgomery Cty., 54 Ohio St.3d 35, 38 (1990). CSEA will continue to handle

and process Kelly’s arrearage payments. Moreover, Kelly has failed to argue how the imposition

of the processing fee “seriously affect[ed] the basic fairness, integrity, or public reputation of the

judicial process, thereby challenging the legitimacy of the underlying judicial process itself.”

Goldfuss, 79 Ohio St.3d at 122-123. Accordingly, the trial court did not commit plain error in

ordering Kelly to pay a two percent processing fee in addition to his arrearage payment.

      {¶14}    For the above reasons, the trial court did not err by concluding that Kelly was not

entitled to the relief sought as a matter of law. Kelly’s first and second assignments are

overruled.

                                 ASSIGNMENT OF ERROR III

      THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING DEFENDANT-
      APPELLANT DID NOT PRESENT COMPETENT, CREDIBLE EVIDENCE
      THAT WOULD ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE
      THAT HIS PAYMENT FOR CHILD SUPPORT ARREARAGES SHOULD BE
      REDUCED.
                                                 7


      {¶15}    Kelly effectively argues that the trial court’s decision was against the manifest

weight of the evidence.

      {¶16}    Because this Court’s resolution of the first and second assignments of error is

dispositive, we decline to address the third assignment of error as it has been rendered moot for

purposes of this appeal. See App.R. 12(A)(1)(c).

                                                III.

      {¶17}    Kelly’s first and second assignments of error are overruled.       We decline to

address his third assignment of error. The judgment of the Medina 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 Medina, 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(E). 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.
                                        8


      Costs taxed to Appellant.




                                            DONNA J. CARR
                                            FOR THE COURT



WHITMORE, J.
CONCURS

DICKINSON, J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

ANDREW M. KORDUBA, Attorney at Law, for Appellant.

LAWRENCE J. COURTNEY, Attorney at Law, for Appellee.
