[Cite as Adams v. Adams, 2012-Ohio-5131.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

MARISSA D. ADAMS, 

 PLAINTIFF-APPELLEE, CASE NO. 14-12-03 

 v. 

MICHAEL JASON ADAMS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Union County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 04 DR 0168 

Judgment Reversed and Cause Remanded 

Date of Decision: November 5, 2012 

 

APPEARANCES: 

Anthony W. Greco for Appellant 

Rebecca J. Stumler for Appellee 
Case No. 14-12-03 

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PRESTON, J. 

{¶1} Defendant/father-appellant, Michael Jason Adams (“Jason”), appeals 

the Union County Court of Common Pleas’ decision modifying his child support 

obligation and awarding attorney’s fees and costs to plaintiff/mother-appellee, 

Marissa D. Adams. For the reasons that follow, we reverse. 

{¶2} Jason and Marissa were married on June 27, 2003. (Doc. No. 1). The 

parties had one child together prior to the marriage in 2001. (Id.). On August 23, 

2004, Marissa filed a complaint seeking divorce on the basis of extreme cruelty, 

gross neglect of duty, and incompatibility. (Id.). On September 14, 2004, Jason 

filed an answer and counterclaim for divorce. (Doc. No. 14). 

{¶3} On January 13, 2005, the trial court filed an agreed judgment 

entry/divorce decree, dividing the parties’ assets, and incorporating a shared 

parenting agreement governing their minor child. (Doc. No. 48). In pertinent part, 

the shared parenting agreement provided that despite the fact that Jason’s child 

support obligation under the Ohio Child Support Guidelines would be $334.90 per 

month, “[t]he parties have agreed to a deviation in their child support obligation so 

that neither party shall pay the other any child support.” (Id., attached). 

{¶4} On October 19, 2010, Marissa filed a motion to terminate the shared 

parenting plan, asking the trial court, in relevant part, to designate her as the 
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residential parent of the parties’ minor child and to order Jason to pay $579.38 per 

month in child support. (Doc. No. 50). 

{¶5} On December 30, 2010, Jason filed a contempt motion against 

Marissa for allegedly violating the shared parenting plan; a motion for the 

appointment of a Guardian Ad Litem (“GAL”) for the parties’ minor child; and, a 

motion for an in-camera interview of the parties’ minor child. (Doc. Nos. 64, 67-

68). 

{¶6} On February 28, 2011, the trial court appointed attorney Clifton G. 

Valentine to serve as GAL for the parties’ minor child. (Doc. No. 86). 

{¶7} On May 3, 2011, Jason filed another contempt motion against Marissa 

for allegedly violating the shared parenting plan. (Doc. No. 90). 

{¶8} On June 6, 2011, Jason filed a motion to compel Marissa to submit 

responses to his second set of interrogatories and a second request for production 

of documents. (Doc. No. 100). On that same date, the GAL submitted his report 

and recommendation, noting, in pertinent part, that “I do not believe that the 

parties will be able to demonstrate a substantial change in circumstances which is 

required to terminate the Shared Parenting Plan and award custody to one party or 

the other.” (Doc. No. 85, 101). 
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{¶9} On June 14, 2011, Marissa filed a motion to compel discovery, 

particularly as it related to documents concerning Jason’s income from the family 

trucking business. (Doc. No. 105). 

{¶10} On June 20, 2011, the parties filed a first amended shared parenting 

plan, resolving many of the issues in Marissa’s motion to terminate the original 

shared parenting plan, with the exceptions of child support, the dependency tax 

exemption, and health insurance. (Doc. No. 103); (Aug. 24, 2011 Tr. at 6, 10). 

On July 12, 2011, the trial court adopted the parties’ first amended shared 

parenting plan. (Doc. No. 111). On that same day, the hearing on Marissa’s 

motion to terminate the shared parenting plan and seeking child support was 

rescheduled to August 24, 2011 upon the parties’ oral motion. (Doc. No. 109). 

{¶11} On August 2, 2011, the parties filed an agreed judgment entry, 

dismissing with prejudice Jason’s December 30, 2010 motion for contempt; 

Jason’s December 30, 2010 motion to interview the parties’ minor child; Jason’s 

May 3, 2011 motion to show cause against Marissa for violating the agreed 

judgment entry of divorce; Jason’s June 6, 2011 motion to compel discovery; and, 

Marissa’s June 14, 2011 motion to compel discovery. (Doc. No. 113). 

{¶12} On August 23, 2011, Marissa filed a motion for a continuance of the 

motion hearing, alleging that Jason failed to comply with her discovery requests. 

(Doc. No. 114). The matter came on for hearing on August 24, 2011, at which 
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time the trial court denied Marissa’s continuance request. (Aug. 24, 2011 Tr. at 

9). 

{¶13} On August 26, 2011, the magistrate ordered the parties to submit 

proposed findings of fact and conclusions of law respecting: (1) the amount of 

Jason’s income for computation of child support; and (2) what testimony or 

exhibits presented at the hearing support those proposed findings and conclusions. 

(Doc. No. 115). Upon Jason’s motion, the magistrate subsequently modified its 

order to include proposed findings of fact and conclusions of law concerning 

Marissa’s income for purposes of the child support calculation. (Doc. Nos. 116-

117). 

{¶14} On September 26, 2011, Jason submitted post-hearing briefs 

concerning the parties’ income for child support calculation purposes and 

attorney’s fees. (Doc. Nos. 118-119). On that same day, Marissa filed her posthearing brief concerning the parties’ income for child support calculation 

purposes. (Doc. No. 120). On October 11, 2011, Marissa filed a reply brief 

concerning attorney’s fees and a rebuttal brief concerning the parties’ income for 

child support calculation purposes. (Doc. No. 123). That same day, Jason filed 

his reply brief concerning the parties’ income for child support calculation 

purposes. (Doc. No. 125). 
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{¶15} On October 19, 2011, the magistrate issued a decision, concluding, in 

relevant part, that: Marissa’s income for child support calculation purposes is 

$45,697.60/year; Jason’s income for child support calculation purposes is 

$78,723.00/year; based upon these incomes, Jason’s child support obligation to 

Marissa is $888.56/month, which is a substantial change in circumstances meriting 

a modification of the child support order; a deviated child support order in the 

amount of $696.38/month (including cash medical support and the 2% processing 

fee) would be in the minor child’s best interest when Marissa provides health 

insurance for the parties’ minor child; Jason should pay Marissa’s attorney’s fees 

of $2,036.67 and litigation expenses of $8,427.90. (Doc. No. 127). 

{¶16} On November 2, 2011, Jason filed objections to the magistrate’s 

decision, asserting, in pertinent part, that no substantial change in circumstances 

existed to support the modification of child support; the magistrate erred in 

computing the parties’ income and naming him the obligor; and, he was not put on 

notice of Marissa’s intent to seek attorney’s fees and costs as required to support 

such an award. (Doc. No. 130). 

{¶17} On December 2, 2011, the trial court overruled Jason’s objections, 

concluding that the deviation in the amount of child support, alone, constituted a 

substantial change in circumstances sufficient to modify the child support order; 

Jason did not request findings of fact and conclusions of law concerning why the 
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magistrate named him as obligor and the same was in the best interest of the 

parties’ minor considering the parties’ relative finances; and, Jason’s objections 

concerning the computation of income ought to be overruled considering his “lack 

of candor and failure to maintain or provide reliable business records of income 

and expenses * * *.” (Doc. No. 131). On January 11, 2012, the trial court filed its 

final judgment entry. (Doc. No. 133). 

{¶18} On February 1, 2012, Jason filed a notice of appeal. (Doc. No. 138). 

Jason now appeals raising five assignments of error for our review. 

Assignment of Error No. I 

The trial court erred and abused its discretion in finding that 

there was a change in circumstances warranting a modification 

of child support. 

{¶19} In his first assignment of error, Jason argues that the trial court erred 

by failing to find a change in circumstances beyond the ten percent deviation in 

child support as required to modify child support when the parties originally 

agreed to the amount of child support. 

{¶20} R.C. 3119.79 sets forth the necessary criteria and methodology for a 

trial court to modify an existing child support order as follows: 

(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 
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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. 

* * * 

(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 
Case No. 14-12-03 

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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. 

{¶21} Trial courts are given broad discretion in determining whether to 

modify existing child support orders. Woloch v. Foster, 98 Ohio App.3d 806, 810 

(2d Dist.1994). Therefore, a trial court’s decision regarding a motion to modify a 

child support order will not be overturned absent an abuse of discretion. Pauly v. 

Pauly, 80 Ohio St.3d 386, 390 (1997), citing Booth v. Booth, 44 Ohio St.3d 142, 

144 (1989). An abuse of discretion is more than a mere error in judgment; rather, 

it suggests that a decision is unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶22} The magistrate sub judice recalculated the child support obligation 

and determined that a ten-percent deviation existed from the original child support 

order and the recalculated amount. (Oct. 19, 2011 Decision, Doc. No. 127).1

 The 

magistrate further determined that the ten-percent deviation was “a change of 

circumstance substantial enough to require a modification of the child support 

 

1

 Contrary to the representations of counsel for appellee, the record does contain a copy of the original child 

support calculation worksheets from which the magistrate concluded that Jason’s previous child support 

would have been $523.34/month, absent the parties’ agreement to deviate the same to zero dollars. (Doc. 

Nos. 48, 127). 
Case No. 14-12-03 

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amount” in accordance with R.C. 3119.79(A). (Id.). Jason filed objections to the 

magistrate’s decision arguing, in relevant part, that the ten-percent deviation alone 

was not a sufficient change in circumstances necessary to modify the child support 

order since the parties had originally deviated child support to zero dollars by 

agreement. (Doc. No. 130). Jason relied upon this Court’s decision in Bonner v. 

Bonner in support of his objection. (Id.); 3d Dist. No. 14-05-26, 2005-Ohio-6173. 

The trial court overruled Jason’s objection, reasoning that the instant case was 

distinguishable from Bonner v. Bonner since the trial court herein, like the trial 

court in Banfield v. Banfield, 12th Dist. Nos. CA2010-09-066, CA2010-09-068, 

2011-Ohio-3638, ordered that the parties’ child support be deviated to zero dollars 

unlike in Bonner where the parties deviated the father-obligor’s child support 

obligation in an amount more than the calculated amount by agreement. (Dec. 2, 

2011 Journal Entry, Doc. No. 131). 

{¶23} The issue presented in this case is whether the trial court erred by 

modifying Jason’s child support obligation based upon the ten-percent deviation in 

R.C. 3119.79(A) alone. This issue, in turn, requires us to decide whether our 

decision in Bonner v. Bonner applies; we conclude that it does apply. 

{¶24} The father-appellant/obligor in Bonner v. Bonner agreed to pay child 

support in the amount of $200/week plus a processing fee, which constituted an 

upward deviation from the child support obligation under the child support 
Case No. 14-12-03 

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schedule. 2005-Ohio-6173, at ¶ 3-4. The father-appellant/obligor agreed to pay 

this same amount of child support until his youngest child turned 18 years old and 

was out of high school. Id. at ¶ 4-5. In light of the parties’ agreement concerning 

child support, we concluded that R.C. 3119.79(A) must be read in conjunction 

with R.C. 3119.79(C). Id. at ¶ 11. We specifically stated that: 

[w]here, as in the present case, a party voluntarily agrees to pay 

child support in an amount exceeding the statutory child support 

guideline schedule, a trial court granting a motion for modification 

must first find both (1) a change in circumstances, and (2) that such 

a change of circumstances ‘was not contemplated at the time of the 

issuance of the child support order.’ Id. 

We concluded in Bonner that “the circumstances surrounding the ten per cent 

deviation were ‘contemplated at the time of the issuance of the child support 

order’”; and therefore, the appellant had failed to meet the second element under 

R.C. 3119.79(C). Id. at ¶ 15. 

{¶25} This Court has followed Bonner v. Bonner on two other occasions. 

In Steggeman v. Steggeman, the parties originally agreed to deviate the motherappellee’s child support downward from $120.31/month to zero dollars/month in 

February 1998. 3d Dist. No. 8-06-23, 2007-Ohio-5482, ¶ 2. The motherappellee’s child support obligation was subsequently increased to $244.92/month 
Case No. 14-12-03 

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in October 1999 and then to $463.45/month October 2002, following two 

administrative reviews. Id. at ¶ 3. In April of 2004, the parties filed a shared 

parenting plan, which specifically provided that “[n]othing herein shall modify the 

current child support order or the allocation of the tax exemptions.” Id. at ¶ 4. 

Thereafter, in August of 2005, the mother-appellee filed a motion to modify child 

support. Id. at ¶ 5. The magistrate concluded that the mother-appellee had met 

her burden under R.C. 3119.79(A) and (C), and a modification of the existing 

child support order was appropriate. Id. The trial court adopted the magistrate’s 

decision and modified the mother-appellee’s child support to $89/month, deviating 

from the recalculated amount of $665/month in light of the significant amount of 

time the children were spending with the mother-appellee under the parties’ April 

2004 shared parenting plan. Id. at ¶ 14-15. 

{¶26} On appeal, we concluded, contrary to the magistrate, that Bonner v. 

Bonner applied since the parties agreed in the April 2004 shared parenting plan to 

continue mother-appellee’s child support obligation at the previously 

administratively-ordered amount of $463.45/month. Id. at ¶ 13-14. We further 

disagreed with the trial court’s conclusion that the mother-appellee demonstrated 

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

the issuance of the * * * last modification of the child support order” as required 

by R.C. 3119.79(C), because the changes were either insubstantial or occurred 
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prior to the parties April 2004 agreement. Id. at ¶ 16. Consequently, we reversed 

the trial court’s decision to modify the mother-appellee’s child support obligation. 

Id. at ¶ 17-18. 

{¶27} Likewise, the parties in Adams v. Sirmans were originally divorced 

in Georgia and entered into an agreement providing for joint physical custody of 

the children and for no exchange of child support. 3d Dist. No. 5-08-02, 2008-

Ohio-5400, ¶ 2. After the parties moved to Ohio several years later, the fatherappellant filed a motion to terminate the shared parenting agreement. Id. at ¶ 4. 

The magistrate overruled the motion but ordered the father-appellant to pay child 

support. Id. at ¶ 5. The trial court adopted the magistrate’s decision maintaining 

the shared parenting plan but rejected the magistrate’s decision to award motherappellee child support since the magistrate failed to impute income to motherappellee. Id. Thereafter, the magistrate entered a new decision, and the trial court 

adopted this subsequent decision. Id. The father-appellant appealed the trial 

court’s decision ordering him to pay child support. Id. 

{¶28} In light of the parties’ original agreement that no child support would 

be exchanged, this Court determined that Bonner v. Bonner applied, requiring R.C. 

3119.79(A) and (C) to be read together. Id. at ¶ 10-11. We found that the 

circumstances the trial court relied upon were contemplated at the time of the 

original order, and further that the parties’ subsequent marriages, additional 
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children, and new jobs were “not of the type [of circumstances] that would not be 

contemplated at the time the parties entered into their negotiated separation 

agreement.” Id. at ¶ 11. Since the mother-appellee failed to establish a substantial 

change in circumstances not contemplated at the time of the original child support 

order as required under R.C. 3119.79(C), we reversed the trial court’s decision to 

modify the father-appellant’s child support obligation. Id. 

{¶29} In his October 19, 2011 decision, the magistrate sub judice stated that 

the parties were divorced by an agreed judgment entry that incorporated the 

parties’ shared parenting plan. (Oct. 19, 2011Decision, Doc. No. 127). The 

magistrate then states: 

The court found that if Father was the child support obligor, he 

would pay $523.34 per month and that is [sic] Mother were obligor, 

she would pay $334.90 per month. The court further found that a 

deviation of child support to zero was in the best interest of the 

child. (Id.). 

However, the magistrate’s decision failed to note that the parties’ original, 

incorporated shared parenting plan provided the following: “[t]he parties have 

agreed to a deviation in their child support obligation so that neither party shall 

pay to the other any child support.” (Doc. No. 48, attached). It appears that the 

trial court herein, upon review of the aforementioned language in the magistrate’s 
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decision, understandably but erroneously concluded that the original child support 

order was court-ordered and distinguished this case from Bonner v. Bonner on 

that basis. While the Court of Appeals for the Twelfth Appellate District has 

distinguished our decision in Bonner v. Bonner on this same basis in Banfield, 

2011-Ohio-3638, at ¶ 23, the record here affirmatively demonstrates that the 

parties’ child support deviation to zero was by agreement. The fact that the trial 

court finds that the parties’ agreement to pay zero child support in their shared 

parenting plan is in in the best interest of the minor child, as it is required to do 

under R.C. 3109.04, does not mean the child support is “court-ordered” as the 

court in Banfield determined. The trial court in Banfield deviated the fatherobligor’s child support obligation to zero since the parties had similar incomes and 

were equally sharing parenting time and child-related expenses, not based upon an 

agreement of the parties like in Bonner and herein. 2011-Ohio-3638, at ¶ 4, 23; 

2005-Ohio-6173, at ¶ 3-4. 

{¶30} Since the parties’ entered into an agreement to deviate the child 

support obligation to zero, our decision in Bonner v. Bonner is applicable. 

Therefore, prior to modifying the child support obligation, the trial court was 

required to find more than a ten-percent deviation under R.C. 3119.79(A); the trial 

court was also required to find a substantial change in circumstances that was not 

contemplated at the time of the issuance of the child support order under R.C. 
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3119.79(C). Id. at ¶ 11. The trial court failed to make this additional finding prior 

to modifying the child support order here, and therefore, erred as a matter of law. 

Consequently, this matter must be remanded to the trial court for the trial court to 

make further findings under R.C. 3119.79(C) based upon the evidence in the 

record.2

{¶31} Jason’s first assignment of error is, therefore, sustained. 

Assignment of Error No. II 

The trial court erred and abused its discretion when it failed to 

make a findings of fact [sic] as to why defendant is designated as 

the obligor for child support purposes. 

Assignment of Error No. III 

The trial court erred and abused its discretion by ordereing [sic] 

defendant to pay child support, by not deviating child support to 

$0, or, alternatively, by not deviating by an amount which is in 

the best interest of the minor child. 

Assignment of Error No. IV 

The trial court erred and abused its discretion by not properly 

calculating both plaintiff and defendant’s income by failing to 

consider plaintiff’s consistent rental income, by failing to 

consider discrepancies in plaintiff’s many reported gross 

incomes, and by improperly imputing income to defendant for 

costs paid for defendant’s residence. 

 

2

 Nothing in our opinion should be read to require further hearings in this matter since the trial court may 

make its further finding of a substantial change in circumstances upon the available record, if appropriate. 

The cases cited herein should be helpful for purposes of making this further finding. 
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Assignment of Error No. V 

The trial court erred and abused its discretion by awarding 

plaintiff’s attorney’s fees and litigation costs. 

{¶32} In his remaining assignments of error, Jason raises issues concerning 

the trial court’s failure to make findings designating him an obligor for child 

support purposes, the trial court’s calculation of income for child support 

purposes, and the trial court’s decision to award Marissa attorney’s fees and 

litigation costs.3

 These assignments of error are all rendered moot in light of our 

conclusion that the trial court erred by modifying Jason’s child support obligation 

without making the requisite findings required under R.C. 3119.79(A) and (C). 

{¶33} Jason’s second, third, fourth, and fifth assignments of error are moot 

and will not be considered. 

{¶34} Having found error prejudicial to the appellant herein in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI and ROGERS, J.J., concur. 

/jlr 

 

3

 We note that the trial court may need to reevaluate its award of attorney’s fees and costs upon remand if it 

determines upon review of the record that no substantial change in circumstances occurred sufficient to 

modify Jason’s child support obligation.