[Cite as Schilling v. Ball, 2017-Ohio-5511.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

JASON SCHILLING, : O P I N I O N 

 Plaintiff-Appellant, : 

 CASE NO. 2016-L-072

 - vs - : 

JENNIFER BALL, : 

 Defendant-Appellee. : 

Appeal from the Lake County Court of Common Pleas, Domestic/Juvenile Division, 

Case No. 2004 PR 2166. 

Judgment: Affirmed. 

Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44094 

(For Plaintiff-Appellant). 

R. Russell Kubyn, Kubyn & Ghaster, LLP, 8373 Mentor Avenue, Mentor, OH 44060 

(For Defendant-Appellee). 

Rebecca Castell, 12690 Opalocka Drive, Chesterland, OH 44026 (Guardian ad litem). 

CYNTHIA WESTCOTT RICE, P.J. 

{¶1} Appellant, Jason Shilling, appeals from the judgment of the Lake County 

Court of Common Pleas, granting a motion to modify child support, filed by appellee, 

Jennifer Ball. We affirm. 

{¶2} On May 20, 2008, the parties entered into a shared parenting plan 

regarding the allocation of parental rights and responsibilities of their minor child. 
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Pursuant to the original plan, appellee agreed to a standard parenting time/visitation 

schedule, i.e., parenting time every other Friday until Sunday, along with a Wednesday 

visit; appellee additionally had two weeks of extended time each summer. Pursuant to 

the support guidelines, appellee’s support obligation would have been $280.96 per 

month. Based upon the financial circumstances of the parties, as well as the substantial 

visitation time and expenses paid for the minor child during each party’s parenting time, 

the parties agreed the child support obligation deviated to zero. 

{¶3} On August 1, 2011, the parties modified the shared parenting schedule; 

pursuant to this agreement, the parenting schedule was reversed such that appellant 

received standard parenting (alternating weekends and one night a week) and the child 

lived with appellee at all other times. According to the worksheet, appellant would have 

been required to pay $342.22 per month; the parties, however again agreed that neither 

party would pay child support because, inter alia, they each were living and paying for 

their own separate residences and maintaining such residences was in the best interest 

of the child. 

{¶4} On July 9, 2015, appellee filed a motion to modify child support alleging a 

change of circumstance had occurred justifying the modification. The matter was heard 

on May 19, 2016; during the hearing, appellant testified he no longer had his own 

independent residence and had been living with his parents for approximately three 

years. He claimed he was looking for and expected to obtain his own residence in the 

future, but had not found one at the time of the hearing. 
 3

{¶5} On June 10, 2016, pursuant to the child support worksheet, the trial court 

ordered appellant to pay child support in the amount of $356.58 per month, retroactively 

from the date of July 9, 2015. Appellant now appeals, assigning the following as error: 

{¶6} “The trial court erred on May 26, 2016 and June 10, 2016 when it granted 

Ms. Ball’s motion to modify child support and ordered that Mr. Schilling pay child 

support to Ms. Ball given that the court granted the modification without finding a proper 

substantial change in circumstances that was not contemplated at the time of the 

issuance of the previous child support order which included an agreed deviation to 

zero.” 

{¶7} “A trial court’s decision regarding child support obligations falls within the 

discretion of the trial court and will not be disturbed save a showing of an abuse of 

discretion.” Longo v. Longo, 11th Dist. Geauga No. 2004-G-2556, 2005-Ohio-2069, 

¶62. The trial court’s application of the relevant law, however, requires this court to 

conduct a de novo review. See e.g. Manning v. Manning, 9th Dist. Wayne No. 

01CA0063, 2002 WL 347316, *1 (Mar. 6, 2002). 

{¶8} R.C. 3119.79, captioned “Change of Circumstances Requiring 

Modification of Child Support Amount,” governs the recalculation of child support. It 

provides: 

{¶9} (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 
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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} (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. 

{¶11} (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 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. 

{¶12} Appellant contends the trial court erred in granting the modification in child 

support because it failed, pursuant to R.C. 3119.79(C), to find a “substantial change of 

circumstances that was not contemplated at the time of the issuance of the original child 

support order or the last modification of the child support order * * *[.]” Id. Appellant 
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maintains the trial court was statutorily required to enter such a finding to justify the 

modification. Because the court failed to do so, its judgment must be reversed as a 

matter of law. 

{¶13} Alternatively, appellee contends the trial court did not err because the 

parties previously agreed to a zero child-support obligation and that agreement was 

reduced to an order. The modified order, however, requires appellant to pay $356.58 

per month, which is clearly more than 10 percent greater than zero. According to 

appellee, such an increase is a presumptive substantial change in circumstances that 

was not contemplated at the time of the issuance of the last agreed modification. In 

appellee’s view, the amount was sufficient to meet the statutory requirements. 

{¶14} Both parties concede that R.C. 3119.79 governs modifications of an 

existing child-support order; moreover, both parties concede that there must be a 

substantial change of circumstances that was not contemplated at the time of the 

issuance of the original child support order. Appellant maintains the trial court was 

required to make this determination without regard to the 10 percent deviation; by 

contrast, appellee argues that because the order was 10 percent greater than the 

previous order, the determination was statutorily presumed. We agree with appellee. 

{¶15} In DePalmo v. DePalmo, 78 Ohio St.3d 535 (1997), the Supreme Court of 

Ohio held that “[w]hen the court is modifying a preexisting order for the payment of child 

support, the court must apply the ten percent test established by R.C. 3113.215(B)(4) 

[now R.C. 3119.79(A) in the Child Support Guidelines and the standards set out in 

Marker v. Grimm, 65 Ohio St.3d 139 (1992).” DePalmo, supra, at paragraph two of the 

syllabus. 
 6

{¶16} The Court in DePalmo did not agree with the obligor’s argument that the 

prior order could not be modified because “circumstances at the time of the hearing 

were substantially similar to those on * * * the date of the original agreement.” Id. at 

536–537. Instead, the Court stated “[o]bviously, 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.” Id. at 540. Accordingly, and despite the previous agreements to deviate 

the amount to zero, there is no requirement that a court find a substantial change in 

circumstances beyond the 10 percent difference. 

{¶17} The statute considered in DePalmo was R.C. 3113.215, specifically, R.C. 

3113.215(B)(4). Id. at 539–540. Although this subsection has been re-codified as R.C. 

3119.79, there has been no change in the statutory requirements. Hence, the court’s 

observations in DePalmo still apply. Mossing-Landers v. Landers, 2d Dist. Montgomery 

No. 27031, 2016-Ohio-7625, ¶48. 

{¶18} Applying the foregoing to the instant case, appellant’s prior support 

obligation was zero. Pursuant to the support worksheet, appellant is required to pay 

$356.58 per month, which is clearly more than 10 percent greater than zero. The trial 

court did not err in modifying the existing order. 

{¶19} Appellant’s assignment of error lacks merit. 

{¶20} For the reasons discussed in this opinion, the judgment of the Lake 

County Court of Common Pleas, Juvenile Division, is affirmed. 
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COLLEEN MARY O’TOOLE, J., concurs, 

DIANE V. GRENDELL, J., concurs with a Concurring Opinion. 

_____________________ 

DIANE V. GRENDELL, J., concurs with a Concurring Opinion. 

{¶21} I concur in the majority’s decision to affirm the juvenile court’s judgment. 

The plain and unambiguous meaning of R.C. 3119.79(A) is that, when there is a 

deviation of more than ten percent between an existing support order and the 

recalculated amount of support, “the deviation * * * shall be considered by the court as a 

change of circumstance substantial enough to require a modification of the child support 

amount.” 

{¶22} The Ohio Supreme Court has expressly rejected the position that a 

juvenile court must find additional circumstances “not contemplated” by the parties in 

addition to the ten percent deviation: “The ten percent difference applies to the change 

in the amount of child support, not to the change in circumstances of the parents. * * * 

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.” (Emphasis sic.) 

DePalmo v. DePalmo, 78 Ohio St.3d 535, 540, 679 N.E.2d 266 (1997); compare Adams 

v. Adams, 2012-Ohio-5131, 982 N.E.2d 103 (3d Dist.), ¶ 30 (“[s]ince the parties’ entered 

into an agreement to deviate the child support obligation to zero * * *, the trial court was 

required to find more than a ten-percent deviation under R.C. 3119.79(A) * * * [and] also 

required to find a substantial change in circumstances that was not contemplated at the 
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time of the issuance of the child support order under R.C. 3119.79(C) * * * prior to 

modifying the child support order”). 

{¶23} In addition to faithfully applying the statute as written, the Ohio Supreme 

Court stated additional reasons for its holding: “The law favors settlements. However, 

the difficult issue of child support may result in agreements that are suspect. In custody 

battles, choices are made, and compromises as to child support may be reached for the 

sake of peace or as a result of unequal bargaining power or economic pressures. The 

compromises may be in the best interests of the parents but not of the child. Thus, the 

legislature has assigned the court to act as the child’s watchdog in the matter of 

support.” Id.

{¶24} The Ohio Supreme Court’s interpretation and application of the statute has 

been followed in subsequent appellate decisions. Cornell v. Cornell, 2d Dist. 

Montgomery No. 26732, 2015-Ohio-5296, ¶ 10-11; Hill v. Hill, 5th Dist. Coshocton No. 

2011 CA 0016, 2012-Ohio-1903, ¶ 20; Cameron v. Cameron, 10th Dist. Franklin No. 

04AP-687, 2005-Ohio-2435, ¶ 19-20. 

{¶25} In the present case, the appellant’s existing support obligation was zero. 

According to the support worksheet, the appellant owes $356.58 per month per child. 

The ten percent deviation has clearly been met. Neither the statute nor the Ohio 

Supreme Court require more. 

{¶26} Accordingly, I concur in the decision to affirm the juvenile court’s 

judgment.