[Cite as Frey v. Frey, 2009-Ohio-5275.]




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




RICK FREY,

        PLAINTIFF-APPELLANT,                              CASE NO. 5-09-11

        v.

KIMBERLY FREY, nka NIGH,                                  OPINION

        DEFENDANT-APPELLEE.




                Appeal from Hancock County Common Pleas Court
                           Domestic Relations Division
                          Trial Court No. 2001 DR 287

                                      Judgment Reversed

                            Date of Decision:   October 5, 2009




APPEARANCES:

        Kevin P. Collins for Appellant

        William E. Clark for Appellee
Case No. 5-09-11



SHAW, J.

      {¶1} Plaintiff-Appellant Rick Frey (“Rick”) appeals from the March 17,

2009 Judgment Entry of the Court of Common Pleas of Hancock County, Ohio,

Domestic Relations Division.

      {¶2} Rick and Kimberly Frey nka Nigh (“Kimberly”) are the parents of

three children: Ashley Frey (DOB: June 7, 1996), Austin Frey (DOB: Nov. 1,

1997), and Chelsea Frey (DOB: Apr. 5, 1998), (hereinafter Ashley, Austin, and

Chelsea Frey collectively referred to as “the children”). In May 2002, Rick and

Kimberly divorced.

      {¶3} The original divorce decree provided that Rick would be the

residential parent of the children. The original divorce decree also did not provide

for the payment of child support by either party. After the entry of the original

divorce decree, Kimberly moved to reallocate parental rights in January 2003.

The magistrate denied Kimberly’s motion.

      {¶4} In May 2004, Kimberly again moved to modify parenting time, the

designation of residential parent, and moved for a review of child support. In May

2005, the magistrate granted Kimberly’s motion to modify parenting time, finding

that modification of the parenting time schedule was in the best interests of the

children and ordering that Kimberly's weekly overnight visits be switched from

Wednesday night to Thursday night; that Kimberly care for the children on


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Saturday's while Rick worked; that Rick ensure that both he and Kimberly are on

the children's school contact list; and, that Kimberly pay no child support to Rick

based on the parties’ incomes. In determining child support, the magistrate

identified Father as the residential parent on the child support calculation

worksheet and concluded that Mother should not be required to pay him child

support.

       {¶5} Thereafter, Kimberly filed a motion for clarification and

reconsideration, alleging that the magistrate failed to address her request that Rick

pay her child support and requesting reconsideration of the magistrate's order

requiring her to care for the children on the Saturdays while Rick worked.

Subsequently, the trial court granted the part of Kimberly’s motion requesting

clarification of the child support issue and remanded to the magistrate, but denied

the portion of her motion requesting reconsideration of the relevant Saturday

parenting time.

       {¶6} In June 2005, the magistrate issued a supplemental order, in which it

designated Kimberly as the residential parent and obligee on the child support

worksheet for purposes of calculating child support, which yielded a guideline

child support figure of $1,013.68 per month owed by Rick. In doing so, the

magistrate noted that the figures used in its May 2005 calculation worksheet and

its June 2005 calculation worksheet were identical and that the only difference was



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the designation of Father as the nonresidential parent and obligor on the June 2005

calculation worksheet instead of Mother.

       {¶7} The magistrate then deviated from the guideline support amount

pursuant to R.C. 3119.22 and R.C. 3119.23, finding that Kimberly's income was

“not sufficient to cover what she expends on the children”; that Kimberly’s new

husband provided financial assistance; that the children would be with Kimberly

“a majority of the time when school is out of session and a significant portion of

the time when school is in session”; that “[g]iven the significant amount of time

each parent spends with the children, a guideline support figure would not be

appropriate”; and, that requiring Rick to pay guideline support “would be

burdensome and contrary to the best interests of the children.” Consequently, the

magistrate ordered Rick to pay Kimberly one-hundred dollars a month, per child,

plus processing fees.

       {¶8} In September 2005, Rick filed written objections to the magistrate’s

May 2005 order and June 2005 supplemental order. In May 2006, the trial court

overruled Rick’s objections to the magistrate's May 2005 order and June 2005

supplemental order. In July 2006, the trial court adopted the magistrate’s May

2005 order and June 2005 supplemental order requiring Rick to pay Kimberly

child support.




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       {¶9} Rick then appealed the July 2006 decision to this Court arguing that

the trial court erred in ordering him to pay child support. Frey v. Frey, 3rd Dist.

No. 5-06-36, 2007-Ohio-2991. Specifically, Rick argued that because he was

designated as residential parent, the children resided primarily with him, and the

divorce decree did not provide a shared parenting plan, that he should be not be

required to pay child support. Additionally, Rick raised the issues of whether the

parties were actually subject to a residential parent agreement or a shared

parenting agreement, and if he was the residential parent, could he be ordered to

pay child support.

       {¶10} This Court concluded that Rick was the residential parent, as no

shared parenting order was in place and a shared parenting order had never been

requested. This Court also concluded that the trial court erred by designating

Kimberly as the residential parent on the child support calculation worksheet and

by then ordering Rick to pay child support without finding that it was in the best

interest of the children. This Court then remanded the matter to the trial court

“with instruction to determine if ordering Father to pay Mother child support is in

the best interest of the children and, if so, to designate Father as the residential

parent in calculating the pertinent child support worksheet.” Frey v. Frey, 2007-

Ohio-2991, at ¶37.




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      {¶11} After the remand, on May 12, 2008, the magistrate issued a decision

in which the magistrate found that ordering Rick to pay child support was in the

best interest of the children. It does not appear that any additional evidence was

taken prior to the issuance of the magistrate’s decision. Rick filed objections to

the magistrate’s decision on May 21, 2008. On March 17, 2009, the trial court

adopted the magistrate’s decision.

      {¶12} Rick now appeals, asserting three assignments of error.

                   ASSIGNMENT OF ERROR I
      THE TRIAL COURT ERRED TO THE PREJUDICE OF
      PLAINTIFF-APPELLANT    BY   MODIFYING CHILD
      SUPPORT WITHOUT EVIDENCE SUFFICIENT TO
      ESTABLISH A CHANGE IN CIRCUMSTANCES.

                  ASSIGNMENT OF ERROR II
      THE TRIAL COURT ERRED TO THE PREJUDICE OF
      PLAINTIFF-APPELLANT BY FINDING THE CHILDREN’S
      BEST INTERESTS WERE SERVED BY ORDERING
      PLAINTIFF-APPELLANT, THE RESIDENTIAL PARENT,
      TO PAY CHILD SUPPORT TO THE NONRESIDENTIAL
      PARENT.

                  ASSIGNMENT OF ERROR III
      THE TRIAL COURT ERRED TO THE PREJUDICE OF
      PLAINTIFF-APPELLANT BY EMPLOYING THE WRONG
      STANDARD FOR REVIEWING THE MAGISTRATE’S
      DECISION.

      {¶13} In his first assignment of error, Rick argues that the trial court erred

by modifying the child support order without evidence establishing a change in




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circumstances. As an initial matter, we note that child support modification is

governed by R.C. 3119.79, which provides as follows:

      (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.

      (B) In determining the recalculated support amount that
      would be required to be paid under the child support order for
      purposes of determining whether that recalculated amount 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 court shall
      consider, in addition to all other factors required by law to be
      considered, the cost of health insurance the obligor, the obligee,
      or both the obligor and the obligee have been ordered to obtain
      for the children specified in the order. Additionally, if an obligor
      or obligee under a child support order requests that the court
      modify the support amount required to be paid pursuant to the
      child support order and if the court determines that the amount
      of support does not adequately meet the medical needs of the
      child, the inadequate coverage shall be considered by the court
      as a change of circumstance that is substantial enough to require
      a modification of the amount of the child support order.

      (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


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      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 enters in the journal the figure,
      determination, and findings specified in section 3119.22 of the
      Revised Code.

       {¶14} Accordingly, a court may only modify an existing child support order

if there is a change of circumstances that is substantial enough to require a

modification in the child support amount. R.C. 3119.79. See also, Ayers v. Haas,

3rd Dist. No. 15-07-13, 2008-Ohio-2405. If, upon recalculation, the new child

support amount deviates from the existing order by at least ten percent, that

deviation will be considered a change in circumstances warranting a modification

of the child support amount. Bentley v. Bentley, 3rd Dist. No. 9-04-09, 2004-Ohio-

5100, ¶ 8. It has long been the law in Ohio that “changes in the circumstances of

the parties that may be considered must be material and not purposely brought

about by the complaining party, and must be considered on the basis that the

judgment sought to be modified was justified and proper when made.” Nash v.

Nash (1945), 77 Ohio App. 155, 32 O.O. 409, 65 N.E.2d 728, paragraph two of the

syllabus.




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       {¶15} In the present case, the trial court made no determination on whether

there had been a change of circumstances, sufficient to warrant a modification in

the child support order. It does not appear, from the record before this Court, that

either the magistrate or the trial court ever addressed the issue of whether a change

in circumstances not contemplated at the time of the original divorce decree

occurred.

       {¶16} Moreover, upon our independent review of the record, we cannot

find that a change in circumstances occurred, from those circumstances

contemplated at the time of the original divorce decree that would support the

present modification. It does not appear that the amount of time the children spent

with either parent changed significantly from the time of the original divorce

decree.     Although Kimberly’s weekly evening parenting time changed from

Wednesday to Thursday, the amount of that time did not change. Also, Kimberly

began watching the children on Saturdays when Rick worked. This was clearly

contemplated at the time of the original divorce decree and Rick’s work schedule

did not change substantially. Moreover, Kimberly’s work schedule did not change

from the time of the original decree to the time of the proposed modification.

Kimberly did not have steady employment at either point in time.

       {¶17} Additionally, upon reviewing the record, we cannot find anything

else in the record that would support a finding of a substantial change in



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circumstances. Accordingly, Rick’s first assignment of error is sustained. Because

our resolution of the first assignment of error is dispositive of this appeal, we find

the remaining two assignments of error are rendered moot.

       {¶18} Based on the foregoing, the March 17, 2009 Judgment Entry of the

Court of Common Pleas of Hancock County, Ohio, Domestic Relations Division

is reversed.

                                                                Judgment Reversed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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