[Cite as Holder v. Swaney, 2011-Ohio-1500.]


                                      COURT OF APPEALS
                                  COSHOCTON COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




CRAIG M. HOLDER                                  JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-

JENNIFER E. SWANEY FKA HOLDER                    Case No. 10-CA-12

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Court of Common Pleas,
                                              Case No. 02DV356



JUDGMENT:                                     Affirmed/Reversed in Part & Remanded




DATE OF JUDGMENT ENTRY:                       March 25, 2011




APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

BRIAN W. BENBOW                               ROBERT A. SKELTON
605 Market Street                             309 Main Street
Zanesville, OH 43701                          Coshocton, OH 43812
Coshocton County, Case No. 10-CA-12                                                     2

Farmer, J.

         {¶1}   On April 6, 2004, appellant, Jennifer Swaney fka Holder, and appellee,

Craig Holder, were granted a divorce. Born of issue of the marriage were two children.

Appellant was named the residential parent and legal custodian of the children, and

appellee was ordered to pay child support in the amount of $442.18 per month, per

child.

         {¶2}   On May 25, 2006, appellee filed a motion to modify allocation of uninsured

expenses and medical insurance and motion to modify child support.

         {¶3}   On May 21, 2008, the Coshocton County Child Support Enforcement

Agency (hereinafter "CCCSEA") held an administrative hearing at appellee's request to

review the child support order.      By report dated May 30, 2008, the hearing officer

recommended a modification of appellee's child support obligation to $126.97 per

month, per child.

         {¶4}   Appellant objected to the report and recommendation. On June 18, 2008,

CCCSEA filed a motion for a hearing to determine if the revised child support amount

was appropriate.

         {¶5}   A hearing was set for March 5, 2009. On same date, appellant filed a

motion to continue the hearing date as she was having a baby by cesarean section in

Utah.     The motion was granted.      On March 31, 2009, appellee filed a motion for

sanctions for the March 5, 2009 continuance.

         {¶6}   A hearing on all matters was held before a magistrate on May 6, 2009. By

decision filed September 15, 2009, the magistrate found the CCCSEA correctly

calculated the revised amount of child support and ordered the amount effective March
Coshocton County, Case No. 10-CA-12                                                     3


1, 2008.      The magistrate also granted appellee's motion for sanctions, ordering

appellant to pay $406.25 for attorney fees for failing to properly and promptly inform the

court of her unavailability to attend the hearing and failure to timely provide

documentation of the reason.

       {¶7}    On February 24, 2010, appellant filed objections to the magistrate's

decision. By judgment entry filed July 28, 2010, the trial court overruled the objections

and approved and adopted the magistrate's decision.

       {¶8}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶9}    "THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

ADOPTING THE MAGISTRATE'S DECISION AND OVERRULING THE APPELLANT'S

OBJECTIONS."

                                            I

       {¶10} Appellant claims the trial court erred in hearing the motion filed by the

CCCSEA given the fact that the CCCSEA failed to appear at the hearing, erred in

adopting the recommendation of the CCCSEA, and erred in ordering sanctions against

her.

                                 FAILURE TO APPEAR

       {¶11} During the May 6, 2009 hearing, appellant made an oral motion to dismiss

CCCSEA's motion for failure to prosecute given the fact that CCCSEA did not appear

for the hearing. The motion was denied.
Coshocton County, Case No. 10-CA-12                                                      4


       {¶12} R.C. 3119.63 governs review of court support order and states the

following:

       {¶13} "The child support enforcement agency shall review a court child support

order on the date established pursuant to section 3119.60 of the Revised Code for

formally beginning the review of the order and shall do all of the following:

       {¶14} "(A) Calculate a revised amount of child support to be paid under the court

child support order;

       {¶15} "(B) Give the obligor and obligee notice of the revised amount of child

support, of their right to request an administrative hearing on the revised amount, of the

procedures and time deadlines for requesting the hearing, and that the revised amount

of child support will be submitted to the court for inclusion in a revised court child

support order unless the obligor or obligee requests an administrative hearing on the

proposed change within fourteen days after receipt of the notice under this division;

       {¶16} "(C) Give the obligor and obligee notice that if the court child support order

contains a deviation granted under section 3119.23 or 3119.24 of the Revised Code or

if the obligor or obligee intends to request a deviation from the child support amount to

be paid under the court child support order, the obligor and obligee have a right to

request a court hearing on the revised amount of child support without first requesting

an administrative hearing and that the obligor or obligee, in order to exercise this right,

must make the request for a court hearing no later than fourteen days after receipt of

the notice;

       {¶17} "(D) If neither the obligor nor the obligee timely requests, pursuant to

division (C) of this section, an administrative or court hearing on the revised amount of
Coshocton County, Case No. 10-CA-12                                                         5


child support, submit the revised amount of child support to the court for inclusion in a

revised court child support order;

          {¶18} "(E) If the obligor or the obligee timely requests an administrative hearing

on the revised child support amount, schedule a hearing on the issue, give the obligor

and obligee notice of the date, time, and location of the hearing, conduct the hearing in

accordance with the rules adopted under section 3119.76 of the Revised Code,

redetermine at the hearing a revised amount of child support to be paid under the court

child support order, and give notice to the obligor and obligee of the revised amount of

child support, that they may request a court hearing on the revised amount, and that the

agency will submit the revised amount of child support to the court for inclusion in a

revised court child support order, if neither the obligor nor the obligee requests a court

hearing on the revised amount of child support;

          {¶19} "(F) If neither the obligor nor the obligee requests, pursuant to division (E)

of this section, a court hearing on the revised amount of child support, submit the

revised amount of child support to the court for inclusion in a revised court child support

order."

          {¶20} R.C. 3119.64 provides:

          {¶21} "If an obligor or obligee files a request for a court hearing on a revised

amount of child support to be paid under a court child support order in accordance with

section 3119.63 of the Revised Code and the rules adopted under section 3119.76 of

the Revised Code, the court shall conduct a hearing in accordance with section 3119.66

of the Revised Code."
Coshocton County, Case No. 10-CA-12                                                      6


      {¶22} Within the hearing officer's May 30, 2008 report on child support was the

following recommendation:

      {¶23} "This case is beyond the ability or capacity of the CSEA and this Hearing

Officer. The documents and information provided by both parties are contradictory and

much more discovery needs to be verified and presented to the court for a final

judgment.

      {¶24} "Therefore, this Hearing Officer is recommending the CSEA's review

remain as previously issued until such time (within the fifteen (15) day timeframe

required by the Ohio Revised Code) that either of the parties object and requests a

court hearing. Exhibits A through E are attached for the courts review, if necessary."

      {¶25} The hearing officer went on to recommend modifying appellee's child

support obligation to $126.97 per month, per child. Within the required fifteen days,

appellant as obligee sent the following letter to the CCCSEA:

      {¶26} "On June 5, 2008, I received a letter from the Coshocton County

Department of Job and Family Services Child Support Agency dated May 30, 2008

informing me of the Hearing Officer's Report and Recommendation on Case No.

02DV356. I OBJECT to this report and recommendation."

      {¶27} We fail to find that once appellant objected to the report and

recommendation thereby triggering a hearing, the CCCSEA had the burden of going

forward in defense of the child support order. Appellee as obligor was present at the

hearing and prosecuted the claim.
Coshocton County, Case No. 10-CA-12                                                    7


                   ADOPTION OF CCCSEA'S RECOMMENDATION

      {¶28} Appellant    claims   the   trial   court's   adoption   of   the   CCCSEA's

recommendation on child support was against the manifest weight of the evidence.

      {¶29} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.         We note the weight to be given to the

evidence and the credibility of the witnesses are issues for the trier of fact. State v.

Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of

fact "has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page."            Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

      {¶30} Appellant challenges the trial court's findings that appellee's income was

$20,800.00 and appellant's imputed income was $129,200.00.            See, Child Support

Calculation Worksheet, attached to CCCSEA's June 18, 2008 Motion for Hearing to

Modify Support as Exhibit E. Appellant argues it was error to impute income to her

given the fact that her direct testimony established she was last employed in January of

2009 and her tax returns indicated her income from 2007 was $10,831.00 plus taxable

interest of $237.00 plus a capital gain of $25,558.00 on the sale of her home in Utah

which was a one-time event. T. at 63-64, 110; Defendant's Exhibits 3 and 4. Appellant

further argues appellee freely admitted the $20,800.00 amount used by CCCSEA was
Coshocton County, Case No. 10-CA-12                                                       8


in error.   T. at 140.   Appellee testified his income for 2006, 2007, and 2008 was

approximately $38,000.00 per year. T. at 141.

       {¶31} In its decision filed September 15, 2009, approved and adopted by the trial

court, the magistrate found based on the evidence and arguments presented, "the

CSEA correctly calculated the revised amount of child support to be paid by the

Obligor."

       {¶32} The worksheet amount calculated for appellant's income was $129,200.00

and for appellee, it was $20,800.00 (Line 14). Clearly, appellee's income of $20,800.00

is not supported by the evidence, and the income on Line 1a should be $38,000.00.

       {¶33} As for appellant's income, her tax returns included large itemized

deductions with no or minimal income.         T. at 99; See, Tax Returns, attached to

CCCSEA's June 18, 2008 Motion for Hearing to Modify Support as Exhibits D-4(a), (b),

and (c). Also, on a 2007 loan application, she claimed to have an income of $11,000.00

per month.     T. at 93-94; See, Uniform Residential Loan Application, attached to

CCCSEA's June 18, 2008 Motion for Hearing to Modify Support as Exhibit D-1. In

December of 2006 and January of 2007, appellant had deposits to her checking

account of over $300,000.00 and $50,000.00.           T. at 98; See, Checking Account

Printouts, attached to CCCSEA's June 18, 2008 Motion for Hearing to Modify Support

as Exhibit D-3. Appellant claimed to have filed bankruptcy, but did not present any

particulars of the filing to the trial court. T. at 105-108. At times, appellant's testimony

was evasive and contradicting. We cannot find that the trial court erred in imputing

income to her.
Coshocton County, Case No. 10-CA-12                                                        9


       {¶34} However, based upon the obvious error in appellee's income, we remand

this case to the trial court for recalculation of the worksheet with appellee's income listed

as $38,000.00 on Line 1a.

                                       SANCTIONS

       {¶35} Appellant also challenges the award of sanctions against her for failing to

provide documentation to the trial court of her pregnancy, caesarean section, and

resulting illness that necessitated the March continuance.         The trial court ordered

attorney fees in the amount of $406.25 as a sanction. However, despite appellant's

concession that the trial court instructed her to provide the documentation (T. at 11),

there was no filing by the trial court ordering appellant to provide the documentation.

We therefore conclude the sanction order against appellant was inappropriate.

       {¶36} The sole assignment of error is granted in part and denied in part. The

case is remanded to the trial court for recalculation of the child support worksheet

regarding appellee's income and dismissal of the sanction order.
Coshocton County, Case No. 10-CA-12                                               10


       {¶37} The judgment of the Court of Common Pleas of Coshocton County, Ohio

is hereby affirmed in part and reversed in part.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                              s/ Sheila G. Farmer__________________




                                             _s/ W. Scott Gwin________________




                                             _s/ Patricia A. Delaney________________

                                                            JUDGES

SGF/sg 303
Coshocton County, Case No. 10-CA-12                                                11


          IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



CRAIG M. HOLDER                             :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :          JUDGMENT ENTRY
                                            :
JENNIFER E. SWANEY FKA HOLDER               :
                                            :
       Defendant-Appellant                  :          CASE NO. 10-CA-12




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

judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed in part

and reversed in part, and the matter is remanded to said court for further proceedings

consistent with this opinion. Cost to be divided equally between the parties.




                                            s/ Sheila G. Farmer__________________




                                            _s/ W. Scott Gwin________________




                                            _s/ Patricia A. Delaney________________

                                                              JUDGES
Coshocton County, Case No. 10-CA-12   12
