Sapinsley v. Sapinsley

Decision Date23 March 2007
Docket NumberNo. C-060371.,C-060371.
Citation869 N.E.2d 702,171 Ohio App.3d 74,2007 Ohio 1320
PartiesSAPINSLEY, n.k.a. Sarver, Appellant, v. SAPINSLEY, Appellee.
CourtOhio Court of Appeals

Moskowitz & Moskovitz and James H. Moskowitz, Cincinnati, for appellant.

Statman, Harris & Eyrich, L.L.C., and Alan J. Statman, for appellee.

DINKELACKER, Judge.

{¶ 1} Plaintiff-appellant, Carol Sapinsley, n.k.a Carol Sarver, appeals from the trial court's order denying her motion to modify child support. We reverse the trial court's judgment.

{¶ 2} When Sarver and defendant-appellee, Thomas Sapinsley, were divorced in 2002, they agreed to a shared-parenting plan, which included a child-support work-sheet. The parties agreed that they had comparable incomes, equal shares of parenting time, and separate responsibility for the children's expenses. Under this agreement, $100,000 of income was imputed to Sarver, since she had not been employed since 2001. The parties also agreed that it would be in the children's best interest for neither party to pay child support, and thus, that they would deviate from the guideline amount to provide zero child support.

{¶ 3} Subsequently, Sarver filed a motion to modify child support in which she alleged that a substantial change of circumstances had occurred since the time of the decree. She contended that the $100,000 of income she had expected to receive per year from Oldfield Pump, a business in which she owned a substantial interest, had never materialized because Oldfield was not generating enough income to compensate her.

{¶ 4} The parties agreed to bifurcated proceedings before the trial court. Under this agreement, the only issue the court would consider at an initial hearing was whether a change of circumstances had occurred that would permit the court to modify the child-support order. Then, if it determined that a change of circumstances had occurred, the parties would present evidence at a later hearing on the amount of child support the court should order. Following the first hearing, the trial court journalized an entry stating that no change of circumstances had occurred and dismissing Sarver's motion to modify.

{¶ 5} Sarver appealed to this court. We held that the trial court erred by failing to "strictly comply with the terms of R.C. 3119.79 by completing a child-support worksheet and including it in the record." We reversed its judgment and remanded the cause for further proceedings.1

{¶ 6} On remand, the trial court amended its prior entry to add a child-support worksheet. In that worksheet, it listed Sapinsley's income as $110,000 and Sarver's income as $100,000. It provided for a deviation from the child support due under the worksheet and set child support at zero. This appeal followed.

{¶ 7} Sarver presents four assignments of error for review. In her first assignment of error, she contends that the trial court erred when it found that a change of circumstances had not occurred. She argues that the ten-percent test in R.C. 3119.79(A) is the only test that a court can use to determine whether a change of circumstances had occurred that would permit modification of a child-support order. She further argues that she met the ten-percent test, and, therefore, a change of circumstances had occurred. Because we agree that she showed a change of circumstances under the ten-percent rule, we find that this assignment of error is well taken.

{¶ 8} Generally, decisions regarding child support lie within the trial court's discretion. An appellate court will not reverse the trial court's decision absent an abuse of discretion.2 But the court's discretion is not unfettered. The statutory child-support guidelines are mandatory and must be followed literally and technically in all material respects.3

{¶ 9} When modifying an existing child-support order, a trial court must find that a change of circumstances has occurred.4 R.C. 3119.79(A) provides that "[i]f 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."

{¶ 10} The appropriate method for calculating whether the ten-percent requirement has been met is to take the existing child-support worksheet underlying the support order and substitute the parties' new financial information for that contained in the worksheet, employing the same calculations as those used for the original order. If the amount as recalculated is more than ten percent greater or ten percent less that the amount of support due under the existing order, it constitutes a change of circumstances substantial enough to require a modification of the child-support order.5

{¶ 11} First, we reject Sarver's contention that meeting the ten-percent test is the only way to show a change of circumstances. The statute itself provides that a court may modify child support when it finds one of the following: (1) a ten-percent deviation from the previous child-support order, (2) a support amount that does not meet the child's medical needs, or (3) a substantial change of circumstances that was not contemplated at the time of the original child-support order.6 Each provides an independent basis permitting modification of an existing child-support order.7

{¶ 12} This court has recognized this principle without specifically stating so. In Thompson v. Boivin,8 we held that the husband failed to meet the ten-percent test and was not entitled to a reduction in child support on that basis.9 But we went on to hold that the trial court erred in dismissing the husband's motion to reduce child support "without affording him an opportunity to present evidence as to any change in circumstances, other than the ten-percent rule of R.C. 3119.79(A), that would justify a reduction in his child-support obligation."10

{¶ 13} Therefore, we hold that the trial court did not err in looking to see whether another change of circumstances had occurred beyond that involved in the ten-percent rule, although practically it does not make much difference in this case. We turn now to Sarver's argument that she has satisfied the ten-percent test.

{¶ 14} R.C. 3119.79(A) requires the court to recalculate the amount of support using the parties' new financial information "through the line establishing the actual obligation," which is line 23a on the child-support worksheet. Then the statute states that the court must determine if the amount on line 23a is more than ten percent more or less "than the amount of child support required to be paid pursuant to the existing child support order," which would be set forth on line 25 of the original child-support worksheet.11

{¶ 15} We realize that comparing line 23a of the new worksheet to line 25 of the old worksheet is comparing apples to oranges, but we must follow the statute's plain language.12 We also realize that when a court sets a zero-support order, a change of circumstances can occur anytime, and that the parties agree to such an order at their peril.

{¶ 16} The Ohio Supreme Court has recognized this fact. It stated, "Obviously, when the amount of child support provided by the noncustodial parent is zero, but the Child Support Guidelines clearly establish that the noncustodial parent owes support, then that ten percent difference is clearly met."13 This reasoning would apply in a shared-parenting case as well.

{¶ 17} In this case, the actual annual obligation on line 23a of the new worksheet was $11,403. The existing annual child-support order on line 25 of the previous worksheet was zero. More than a ten-percent difference existed between these two figures. Therefore, the trial court erred in finding that Sarver had failed to show a change of circumstances, and we sustain her first assignment of error.

{¶ 18} In her second assignment of error, Sarver contends that the trial court abused its discretion by failing to follow the statutory guidelines in R.C. 3119.01(C)(11) when it imputed income to her. She raised this same assignment of error in the previous appeal. We overruled it, stating that "the trial court made findings, supported in the record, that Sarver had been voluntarily unemployed for 11 months prior to executing the agreed shared-parenting plan, and that she had remained voluntarily unemployed until the time of the hearing."14 Because this issue has already been determined, it is res judicata.15 Therefore, we overrule Sarver's second assignment of error.

{¶ 19} In her third assignment of error, Sarver contends that the trial court erred by failing to include Sapinsley's monthly car allowance as income in calculating child support. She argues that the court must include in the calculation all earned and unearned income from all sources during a calendar year, whether or not the income is taxable. This assignment of error is well taken.

{¶ 20} In a case involving shared parenting, the trial court calculates child support using the worksheet set forth in R.C 3119.022.16 That worksheet begins its calculations with the parties' annual gross income. R.C. 3119.01(C)(7) defines "gross income" as "the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable."

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