[Cite as Sypherd v. Sypherd , 2021-Ohio-2490.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

KELI M. SYPHERD Appellee/Cross-Appellant

v. MARK SYPHERD Appellant/Cross-Appellee C.A. Nos. 29671 29679

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR 2007 10 3306

DECISION AND JOURNAL ENTRY Dated: July 21, 2021

CARR, Presiding Judge. {¶1} Appellant/Cross-Appellee, Mark S ypherd (“Father”), appeals the judgment of the Summit County Court of Common Pleas , Domestic Relations Divisio n. Appellee/CrossAppellant, Keli Jones (“Mother”) , appeals from the same order. This Court reverses and remands.

I. {¶2} Father and Mother married in 1999. Three children were born of the marriage. Father and Mother were subsequently divorced in 2008 and the tr ial court incorporated the parties’ separation agreement and shared parenting plan into the divorce decree. The parties agreed that the children would reside with Father from Monday evening to We dnesday evening each week.

The children would reside with Mot her for the remaining weekday s. On alternating weekends, Father would have parenting time from Saturday afternoon until Sunday evening. The shared parenting plan further provide d for a standard parenting time s chedule for vacations and holidays. Father was ordered to pay $625 per month in child support, in a ccord with the parties’ agreement.2

That amount reflected a downward deviation from the child suppo rt guidelines calculation based

on the amount of time t he children spent with each parent. {¶3} Thereafter, the amount of child support Father was ordered to p ay Mother was increased on a temporary basis due to Mother’s unemployment. O n October 1, 2010, however, the amount of child support reve rted to its prior level of $625 per month. {¶4} The parties have continued to s hare parental rights and respons ibilities, although the shared parenting plan has been modified on multiple occasio ns. In the years immediately following the journalization of t he divorce decree, Mother succ essfully moved to modify the shared parenting plan so that the children would reside with he r during the school week in order to alleviate difficulties caused by the midweek transition. See Sypherd v. Sypherd , 9th Dist. Summit No. 25815, 2012-Ohio-2615, ¶ 28-31. In 2014, Father suc cessfully moved for an increase in parenting time due to changes in his work schedule. {¶5} On April 11, 2018, Father filed a motion for reallocation of pa rental rights and responsibilities and a commensurate modification of child suppo rt. In support of his motion, Father alleged that the children had expressed a desire to spen d more time with him. Father asked to be designated as th e primary residentia l parent and for an i ncrease in his parenting time. {¶6} On June 25, 2018, the Summit County Child Support Enforcement A gency (“CSEA”) filed a recommendati on to modify child support. At Mo ther’s request, CSEA had

conducted an administrative revi ew of the parties’ child suppor t order earlier in the year. Mother’s request for a review preceded the filing of Father’s motion to reallocate parental rights and responsibilities. CSEA recommended that Father’s monthly child support obligation should be increased to $972.23 per month plus a processing fee. Father p romptly requested a hearing on the3

CSEA recommendation and asked that it be scheduled at the same time as the hearing on his motion to reallocate parental r ights and responsibilities. {¶7} The matter ultimately proceeded to a hearing before a magistrat e on both Father’s motion to reallocate parental rights and responsibilities as we ll as the CSEA recommendation to modify child support. The magistrate issued a decision making numerous findings. The parties reached an agreement where Fath er’s parenting time was increase d. The magistrate made two separate determinations with res pect to child support. Father was ordered to pay $774.67 per month plus a processing fee. Thi s magistrate specified that th is order was retroactive to May 1, 2018, and would remain in eff ect until January 31, 2019, pursua nt to the CSEA determination. Effective February 1, 2019, Father was ordered to pay Mother ch ild support in the amount of $399.67 plus a processing fee. The magistrate found that this second child support amount accounted for the parties’ modified shared parenting agreement. The trial court adopted the magistrate’s decision the s ame day it was issued. {¶8} Both Mother and Father filed obj ections to the magistrate’s dec ision challenging the awards of child support. Thereafter, the trial court issue d a journal entry summarily overruling the parties’ objections on the basis that there had not been a substantial change in circumstances. The trial court further ordered that “[t]he prior orders with r espect to child support and health

insurance remain in full force and effect.” {¶9} Now before this Court, Father raises two assignments of error. Mother raises three cross-assignments of error. Thi s Court rearrange s and consolid ates certain assignments of error in

order to facilitate review.4

II.

ASSIGNMENT OF ERROR I

THE COURT ABUSED ITS DISCRETION AND ERRED WHEN IT FAILED TO RECOGNIZE THAT FATHER HAD PROVEN THAT A SUBSTANTIAL CHANGE IN CIRCUMSTANCES HAD OCCURRED THAT WAS NOT CONTEMPLATED BY THE PARTIES AT THE LAST CHILD SUPPORT CALCULATION ORDER BECAUSE FATHER’S INCOME HAD SUBSTANTIALLY DECREASED BETWEEN 2008 AND 2018, WIFE’S INCOME HAD SUBSTANTIALLY INCREASED BETWEEN 2008 AND 2018, AND FATHER’S PARENTING TIME WITH THE CHILDREN HAD RECENTLY INCREASED TO A TRUE 50%-50% SHARED PARENTING TIME ARRANGEMENT.

CROSS-ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN REQUIRING A SUBSTANTIAL CHANGE IN CIRCUMSTANCES FOR AN ADMINISTRATIVE REVIEW OF CHILD SUPPORT.

CROSS-ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN FINDING OF A CHANGE IN CIRCUMSTANCES CONTAINED IN THE MAGISTRATE’S DECISION. (Sic) {¶10} In his first assignment of error, Father argues that the trial court erred when it determined that he failed to demonstrate a substantial change i n circumstances since the time of the last child support order. In her first cross-assignment of error, Mother argues that the trial court erred in concluding that a change in circumstances was necessar y for administrative review of the parties’ child support obligation. In her second assignment of error, Mother argues that even assuming arguendo that she was re quired to show a change in cir cumstances, the record reflects

that there was a substantial cha nge in circumstances since the time of the last child support order. {¶11} Generally, this Court reviews a trial court’s action with respe ct to a magistrate’s

decision for an abus e of discretion. Tabatabai v. Tabatabai , 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 17. An abuse of d iscretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 2195

(1983). “In so doing, we consider t he trial court’s action wit h reference to the nature of the underlying matter.” Tabatabai at ¶ 18. {¶12} The Ohio Revised Code provides for multiple ways in which a chi ld support obligation may be modified. One w ay is for a party to request a modification pursuant to former R.C. 3119.79, which states as follows: (A) If an obligor or obligee under a child support order reques ts that the court modify the amount of support required to be paid pursuant to th e child support order, the court shall recalculate the amount of support that w ould be required to be paid under the child support order in accordance with the sched ule and the applicable worksheet through the line establishing the actual a nnual obligation. If that amount as recalculated is more than ten per cent greater t han or more than ten per cent less than the amount of child support required to be p aid pursuant to the existing child support order, the deviation from the recalculat ed amount that would be required to be paid under the schedule and the applicable wo rksheet shall be considered by the court as a change of circu mstances substantia l enough to require a modification of the child support amount. * * (C) If the court determines that the amount of child support re quired to be paid under the child support order should be changed due to a substa ntial change of circumstances that was not cont emplated at the time of the issu ance of the original child support order or the last modification of the child suppo rt order, the court shall modify the amount of child support required to be paid under th e child support order to comply with the schedule and applicable worksheet through th e line establishing the actual annual obligation, unle ss the court determines that the amount calculated pursuant to the basic child suppor t schedule and pursuant to th e 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 [R.C. 3119.22]. {¶13} Where the original child support order resulted from an agreeme nt by the parties, R.C. 3119.79(A) must be read in concert with R.C. 3119.79(C) to determine whether a modification is proper. See Hill v. Hill , 9th Dist. Summit No. 27915, 2016-Ohio-910, ¶ 11. {¶14} A party may also request a revie w and modification of child sup port through CSEA.

See R.C. 3119.60, 3119.61 and 3119.76. A party may request an adm inistrative review of child support every 36 months from the most recent child support orde r. Ohio Adm.Code 5101:12-60-6

05.1(D). An adjustment is appropriate whe n “[t]he recommended amount of a child support obligation or a cash medical support obligation is more than te n per cent different than the existing obligation[.]” Ohio Adm .Code 5101:12-60-05(D)(1). {¶15} In this case, the matter proceeded to a hearing before a magist rate on both Father’s

motion as well as the CSEA recommendation for a modification of child support. The evidence presented at the hearing showed t hat CSEA’s administrative revi ew process had commenced prior to the time that Father filed his motion to modify parental rig hts and responsibilities. The parties were ultimately able to reach an agreement at the hearing regar ding Father’s reque st for additional parenting time. Much of the tes timony at the hearing focused o n the CSEA recommendation. The magistrate issued a decision on February 12, 2019, containing t wo separate child support modification orders based on two separate worksheets. The magi strate ordered that Father’s child support obligation would be $774.67 per month plus processing c harges from May 1, 2018, through February 1, 2019. The magistrate further ordered that Father’s child support obligation would be $399.67 per month plus processing charges starting on February 1, 2019. On the same day that the magistrate’s decisi on was issued, the trial court adopted the magistrate’s decision and

made it the order of the court pursuant to Civ.R. 53(D)(4)(e)(i ). {¶16} Both Mother and Father filed objections to the findings underpi nning the child support orders in the mag istrate’s decision. {¶17} The trial court issued an orde r dismissing the objections on Ja nuary 14, 2020. Therein, the trial court noted tha t “[t]he current order for ch ild support is $625 per month.” Instead of substantively addressing the parties’ objections to the magi strate’s decision, the trial court simply “overruled and dismissed[]” the objections on the basis that “there has not been a7

substantial change in circumstan ces.” The trial court further ordered that “[t]he prior orders with respect to child support and healt h insurance remain in full fo rce and effect.” {¶18} Under these circumstances, the trial court’s judgment must be r eversed and remanded for the trial court to address the parties’ objections . Civ.R. 53(D)(4)(d) provides, in part, that “[i]n ruling on objections, the court shall undertake an i ndependent review as to the objected matters to ascertain that the magistrate had properly determine d the factual issues and appropriately applied the law.” Here, the trial court failed t o undertake such an analysis and instead summarily overruled all of the p arties’ objections on the basis that there had not been a substantial change in circumstances. A fi nding of a substantial change in circumstances is not required for an administrative modification of child support. See Hannah v. Hannah , 8th Dist. Cuyahoga No. 103012, 2016-Ohio-1538, ¶ 17. While Mother and Father ultimate ly seek different results in this matter, they are in agreement that the trial court erred in sum marily overruling the parties’ objections. It follows that this matter must be remanded for t he trial court to address the parties’ objections in the fir st instance. {¶19} Father’s first assignment of error, as well as Mother’s first a nd second crossassignments of error , are sustained.

ASSIGNMENT OF ERROR II

THE COURT ABUSED ITS DISCRETION AND ERRED WHEN IT FAILED TO GRANT FATHER A DEVIATION IN WHICH EACH PARTY HAD 50% OF THE COMBINED INCOME TO RAISE THE CHILDREN IN EACH PARTY’S HOME SINCE THE PARTIES HAVE PARENTING TIME WITH THE CHILDREN FOR EQUAL TIME THROUGHOUT THE YEAR. {¶20} In his second assignment of error, Father argues that the trial court abused its discretion when it declined to grant him a deviation in his chi ld support obligation given that his parenting time increased pursuant to the parties’ shared parent ing plan. In light of this Court’s8

resolution of Father’s first assignment of error, as well as Mo ther’s first and second crossassignments of error, we decline to address Father’s second ass ignment of error as it has been

rendered moot. See App.R. 12(A)(1)(c).

CROSS-ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN FAILING TO ALLOCATE THE COST OF THE TRANSCRIPT OF THE HEARING, WHERE BOTH PARTIES OBJECTED TO THE MAGISTRATE’S DECISION. {¶21} In her final cross-assignment of error, Mother contends that th e trial court erred in failing to allocate the cost of the transcript between the part ies. Relying on Loc.R. 27.04 of the Summit County Court of Common Pleas , Domestic Relations Divisio n, Mother argues that

because Father benefitted from he r purchase of the transcript, the trial court s hould have required

that he share in the cos t of the transcript. {¶22} An objection to a factual finding of a magistrate, “whether or not specifically designated as a finding of fact * * *, shall be supported by a transcript of all the evidence submitted to the magistrate relevant to th at finding[.]” Civ.R. 53(D)(3) (b)(iii). “The duty to provide a transcript or affidavit to the t rial court rests with the [part y] objecting to the magistrate’s decision.”

Swartz v. Swartz , 9th Dist. Medina No. 11CA0057-M, 2011-Ohio-6685, ¶ 8. The Su mmit County Court of Common Pleas, Domestic R elations Division has enacted Loc.R. 27.04, which addresses objections to magistrate’s decisions. Loc.R. 27.04 provides, i n pertinent part: (C) If a transcript is required, a praecipe to the court report er requesting a transcript of the proceedings must be deliv ered to and acknowledged by the court reporter for the assigned judge and filed with the Clerk of Courts at the ti me of filing the objection. * * * If a praecipe to the court reporter is not fil ed at the time of filing the objection, and the objection is to any fact found by the ma gistrate, the objection may be overruled. (D) A deposit of costs to secure t he transcript must be paid to the assigned court reporter within 14 days of the filing of the objection and prae cipe to court reporter.9

If the deposit for the costs of a transcript is not made within 14 days of the filing of the objection and the praecipe t o court reporter, the objection may be overruled. {¶23} Appellate review of this issue is premature at this time. At t he conclusion of her brief in support of her objections to the magistrate’s decision , Mother requested that the trial court allocate the cost of the transcript between the parties. While the trial court made a general finding that costs were to be divided equally, it did not specifically address payment for the transcript in its journal denying the parties’ objections. We decline to add ress the issue at this time as the parties will have the opportunity to forma lly move for the allo cation of costs on remand.

III. {¶24} Father’s first assignment of error is sustained. Mother’s firs t and second crossassignments of error are also sustained. This Court declines t o address Father’s second assignment

of error as it has been rendered moot. We decline to address M other’s third cross-assignment of error as it is premature. The judgment of the Summit County Co urt of Common Pleas, Domestic

Relations Division is reversed a nd the cause remanded for furth er proceedings consistent with this

decision. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file sta mped by the Clerk of the Cour t of Appeals at which time the period10

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed equa lly to both parties.

DONNA J. CARR FOR THE COURT

HENSAL, J. TEODOSIO, J. CONCUR.

APPEARANCES: RONALD T. GATTS, Attorney at La w, for Appellant/Cross-Appellee. LESLIE GRASKE, Attorney at Law, f or Appellee/Cr oss-Appellant.