[Cite as Reyna v. Reyna, 2019-Ohio-2069.]




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




NICOLE REYNA,

        PLAINTIFF-APPELLEE,                              CASE NO. 5-18-23

        v.

ANDRES E. REYNA,                                         OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                           Domestic Relations Division
                          Trial Court No. 2014-DR-00373

                                     Judgment Affirmed

                            Date of Decision:   May 28, 2019




APPEARANCES:

        Chelsea L. Meister for Appellant
Case No. 5-18-23


PRESTON, J.

      {¶1} Defendant-appellant, Andres E. Reyna (“Andres”), appeals the October

1, 2018 judgment of the Hancock County Court of Common Pleas, Domestic

Relations Division. For the reasons that follow, we affirm.

      {¶2} Andres and plaintiff-appellee, Nicole Reyna (“Nicole”), were married

on January 7, 2005. (Doc. Nos. 1, 19). Two children were born of the marriage.

(Doc. Nos. 1, 19).

      {¶3} On November 12, 2014, Nicole filed a complaint in the trial court

requesting a divorce from Andres. (Doc. No. 1). On December 9, 2014, Andres

filed his answer to Nicole’s complaint for divorce. (Doc. No. 19).

      {¶4} On August 12, 2015, the trial court granted Andres and Nicole a divorce

from each other. (Doc. No. 47). Under the terms of a shared parenting agreement

incorporated into the divorce decree, Andres agreed to pay Nicole $250 per month,

plus processing fees, in child support when private health insurance was available

or $250 per month in child support, plus processing fees, with a monthly cash

medical support order of $201.92 when private health insurance was not available.

(Id.). At the time, Andres’s actual annual child support obligation as computed

using the schedule and applicable child support worksheet was $12,546.04 when

health insurance was provided and $10,645.15 when health insurance was not

provided. (Id.). Andres and Nicole explained the substantial deviation from the


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guideline child support amount as being based on their “shared parenting

arrangements and the ability of each to financially care for the children when they

are in their respective care.” (Id.). In addition, they stated that the deviation was

justified by their agreement to share equally the “costs related to school fees, school

lunches and reasonable extracurricular activities the children participate in.” (Id.).

       {¶5} On June 1, 2017, Nicole filed a motion to review Andres’s child support

obligation. (Doc. No. 57).

       {¶6} A hearing on Nicole’s motion was held before the magistrate on August

15, 2017. (Doc. Nos. 74, 75); (Aug. 15, 2017 Tr. at 1). On February 20, 2018, the

magistrate issued her decision recommending that Andres’s child support obligation

be increased. (Doc. No. 75). Specifically, the magistrate found that the amount of

child support Andres would be required to pay as recalculated using the schedule

and applicable child support worksheet, $13,891, was more than 10 percent greater

than the amount of child support Andres was required to pay under the existing child

support order. (Id.). See R.C. 3119.79(A). The magistrate concluded that this

difference constituted a “change of circumstances substantial enough to require a

modification of * * * child support.” (Doc. No. 75). Accordingly, after applying a

23 percent deviation to Andres’s actual annual child support obligation, the

magistrate recommended that Andres be ordered to pay Nicole $909.53 per month,

plus processing fees, in child support when health insurance is provided or $749.16


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per month, plus processing fees, when health insurance is not provided, with cash

medical support of $242.75 per month. (Id.).

       {¶7} On March 5, 2018, Andres filed objections to the magistrate’s decision.

(Doc. No. 76). On April 27, 2018, Andres filed a transcript of the August 15, 2017

hearing conducted before the magistrate.          On May 29, 2018, Andres filed

supplemental objections to the magistrate’s decision. (Doc. No. 82).

       {¶8} On August 28, 2018, the trial court overruled Andres’s objections to the

magistrate’s decision. (Doc. No. 83). On October 1, 2018, the trial court filed its

judgment adopting the magistrate’s recommendations. (Doc. No. 84).

       {¶9} On October 15, 2018, Andres filed a notice of appeal. (Doc. No. 86).

He raises one assignment of error for our review.

                                Assignment of Error

       Whether the trial court erred in recalculating appellant’s child
       support order without first finding that a change in circumstances
       had occurred?

       {¶10} In his assignment of error, Andres argues that the trial court abused its

discretion by modifying his child support obligation. In particular, Andres argues

that the 10 percent difference between the amount of child support due under the

existing child support order and the amount that he would be required to pay under

the recalculated child support worksheet is not, by itself, a sufficient basis to modify

his child support obligation. (Appellant’s Brief at 7-8). According to Andres, in


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cases where the parties have previously agreed to a deviation in the amount of child

support, as he and Nicole did, the moving party must also demonstrate that since the

child support order was implemented, there has been a substantial change of

circumstances not contemplated by the parties. (Id. at 7-8). Andres contends that

Nicole failed to show that there has been a substantial change of circumstances not

contemplated by the parties at the time of their agreement. (Id. at 8-9). Thus, he

argues that the trial court was without authority to modify his child support

obligation. (Id. at 8-9).

       {¶11} Whatever merit Andres’s arguments may have, they are not properly

before this court. As indicated in the preceding paragraph, Andres’s arguments on

appeal relate to whether the trial court had the ability to modify his child support

obligation absent a showing that there had been a substantial change of

circumstances not contemplated by the parties. However, Andres did not make this

argument in his objections to the magistrate’s decision. In fact, in his objections,

Andres conceded that a modification was warranted:

       Defendant does not object to the mere fact that his child support

       should be increased because he acknowledges that he has received an

       increase in income, however, the parties’ reasons for deviating the

       original child support amount has not changed. Defendant states that

       the total deviation should remain the same, and the amount of child


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       support he be obligated to pay be increased relative to his increase in

       income * * *.

(Doc. No. 76). Furthermore, in his supplemental objections, Andres reiterated that

he was only requesting “a greater deviation based on the significant debt he is still

paying as part of the parties’ divorce settlement, as well as his significant in-kind

contributions that were not considered in the Magistrate’s Decision.” (Doc. No.

82). Finally, in its decision overruling Andres’s objections, the trial court observed

that Andres “objects to the amount of the child support order and to the percentage

of deviation determined appropriate by the Magistrate.” (Doc. No. 83). The trial

court’s understanding of Andres’s objections mirrors our own. That is, Andres

objected only to the manner in which the magistrate modified his child support

obligation; he did not raise an objection to the magistrate’s conclusion that his child

support obligation could be modified.

       {¶12} Civ.R. 53 provides:

       Except for a claim of plain error, a party shall not assign as error on

       appeal the court’s adoption of any factual finding or legal conclusion,

       whether or not specifically designated as a finding of fact or

       conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has

       objected    to    that    finding     or   conclusion     as    required

       by Civ.R. 53(D)(3)(b).


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Civ.R. 53(D)(3)(b)(iv). Therefore, because Andres assigns as error an issue that he

did not raise in his objections to the magistrate’s decision, we would be limited to

examining the trial court’s judgment for plain error.

       “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.”

Haldy v. Hoeffel, 3d Dist. Henry No. 7-17-02, 2017-Ohio-8786, ¶ 13, quoting

Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), paragraph one of the syllabus.

       {¶13} Andres does not argue that the trial court’s conclusion that his child

support obligation could be modified is plainly erroneous. “‘[T]his court will not

sua sponte undertake a plain-error analysis if [an appellant] fails to do so.’” Krill v.

Krill, 3d Dist. Defiance No. 4-13-15, 2014-Ohio-2577, ¶ 70, quoting McMaster v.

Akron Health Dept., Housing Div., 189 Ohio App.3d 222, 2010-Ohio-3851, ¶ 20

(9th Dist.).   Consequently, we need not and do not further address Andres’s

assignment of error.

       {¶14} Accordingly, Andres’s assignment of error is overruled.




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       {¶15} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ZIMMERMAN, P.J., concurs.

/jlr



SHAW, J., concurring in Judgment Only.

       {¶16} While I concur with the majority’s decision to affirm the trial court’s

judgment modifying the prior child support order, I write separately to express my

opinion that Andres sufficiently articulated his objections to the magistrate’s

decision in order to preserve this issue on appeal. Therefore, I believe this case

should be resolved on the merits instead of relying on Civ.R. 53 to issue an

affirmance on procedural grounds.

       {¶17} Andres argues on appeal that the trial court improperly modified the

parties’ agreement on child support, without first finding that a substantial change

of circumstances not contemplated by the parties has occurred, in addition to finding

that the recalculated child support worksheet amount is greater than ten percent of

the prior calculated amount and the amount previously ordered.             See R.C.

3119.79(A),(C); see also, Adams v. Adams, 3d Dist. Union No. 14-12-03, 2012-

Ohio-5131, (holding that in a case where the parties have previously agreed to a


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deviation in the amount of child support, the moving party must prove more than

the existence of a ten percent deviation to demonstrate the required substantial

change of circumstances); accord Trombley v. Trombley, 9th Dist. Medina No.

17CA0012-M, 2018-Ohio-1880.

       {¶18} In the case sub judice, the parties’ shared parenting plan, which was

incorporated into the divorce decree, stated the following:

       The present child support obligation is a deviation from the
       guideline support sheet attached hereto. This deviation is based
       on the parties’ shared parenting arrangements and the ability of
       each to financially care for the children when they are in their
       respective care. In addition, Father will be sharing equally in the
       costs related to schools fees, school lunches and reasonable
       extracurricular activities the children participate in. This
       deviation and expense sharing arrangement of the parties will be
       effective until July 1, 2016, at which time child support may be
       reviewed by the parties.

(Doc. No. 47, ¶ 10) (emphasis added). Thus, in this somewhat unique instance, the

parties specifically agreed to the initial deviation for a limited period only and

provided for the review of the deviation and financial amounts of the child support

order after one year, without restriction or reference to the court finding either a

change of circumstances or a ten percent deviation. As a result, unlike other cases

in which the trial court was asked by one of the parties to modify a prior child support

agreement pursuant to the authority of R.C. 3119.79, the trial court in this case was

essentially asked to implement the parties’ prior agreement pursuant to the express

terms of that very agreement.

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       {¶19} In such an instance, I would argue that neither the ten percent deviation

nor the substantial change of circumstance requirement is necessary to invoke the

authority of the trial court to modify this agreement because the agreement itself

already authorized review of the deviation and expense sharing arrangements of the

child support order after one year. Given that the new child support order of the

trial court is well within, and in fact below the current worksheet calculations, and

is also generally supported in the record by all of the factors cited by the trial court

in its judgment entry (including for that matter, the ten percent deviation standard

of R.C. 3119.79(A)), I would conclude that there is no abuse of discretion in the

trial court’s new order. Accordingly, I concur with the final judgment of the

majority that the trial court’s current child support order should be affirmed.




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