[Cite as Horner v. Tarleton, 2023-Ohio-1785.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF MEDINA )

JONATHAN E. HORNER

Appellee

v.

MARY TARLETON

Appellant

C.A. No. 22CA0040-M

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF MEDINA, OHIO

CASE No. 18PA0004

DECISION AND JOURNAL ENTRY

Dated: May 30, 2023

STEVENSON, Judge.

{¶1} Defendant-Appellant, Mary Tarleton, nka Cummings (“Mother”), appeals the 

judgment of the Medina County Court of Common Pleas, Domestic Division. For the following 

reasons, this Court affirms in part, reverses in part, and remands for further proceedings. 

I.

{¶2} The parties are the parents of one minor child, B.H. In October 2018, the parties 

signed an agreed judgment entry that designated Plaintiff-Appellee, Jonathan Horner (“Father”) 

the sole residential parent and legal custodian of B.H. Mother was awarded parenting time. At 

that time, Mother had recently moved to Illinois. She was granted parenting time in Illinois the 

third week of every month, one weekend per month in the state of Ohio, and an alternating twoweek on, two-week off schedule during the summer months. The parties agreed to no exchange 

of child support. 
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{¶3} In October 2020, Mother moved to modify parenting time. While her motion was 

styled as a request to modify her parenting time, the trial court treated it as a motion to modify the 

allocation of parental rights and responsibilities between the parties because Mother requested that 

the court designate her the sole residential parent and legal custodian of B.H. Mother’s motion 

was based on Father’s alleged failure to attend to B.H.’s health, namely her vaccinations, annual 

check-ups, and diet. Mother also relied heavily on the fact that she had gotten sober and made 

positive changes to her life. 

{¶4} In January 2021, Father moved to modify child support. The following day he filed 

an emergency motion to suspend parenting time, for supervised visitation, and for a no-contact 

order between B.H. and her stepfather (“Stepfather”). The latter three motions were based on 

B.H.’s allegations of sexual abuse against Stepfather. Those allegations were later substantiated 

by the Medina County Department of Job & Family Services (“JFS”) following a forensic 

interview with B.H. As a result, JFS considered the child to be at high risk for further abuse if 

placed with Mother. 

{¶5} The Magistrate conducted a hearing on both parties’ motions. Testimony was 

adduced from both parties, four character witnesses on behalf of Mother, the investigative worker 

for JFS, and the Guardian Ad Litem (“GAL”). The Magistrate issued a decision recommending 

that Father remain the sole residential parent and legal custodian; that Mother’s motion to modify 

the allocation of parental rights and responsibilities be denied; that Father’s motion to modify 

parenting time be granted; and, that Father’s motion to modify child support be denied. The 

Magistrate modified Mother’s parenting time to the Medina County Domestic Relations Court 

Standard Long Distance Parenting Time Schedule. The new schedule was to include two 
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weekends in Medina County. It was also subject to the caveat that Stepfather was not permitted 

to have unsupervised contact with B.H. 

{¶6} The trial court adopted the Magistrate’s findings and decision the same day. 

Shortly thereafter, the trial court issued a nunc pro tunc judgment entry correcting certain 

typographical errors in its original judgment entry. 

{¶7} Mother objected to the Magistrate’s Decision. She maintained that the Magistrate 

erred as follows: 1) in finding no change in circumstances that warranted granting Mother’s motion 

to modify the allocation of parental rights; 2) in failing to address the best interest of the child; 3) 

in missing some details and failing to identify the correct child; and 4) that the Magistrate’s 

Decision and Judge’s decision conflict. 

{¶8} Father also objected to the Magistrate’s Decision. He maintained that the 

Magistrate erred as follows: 1) in citing to Case No. 21DV0033 [Ex Parte Civil Protection Order 

on behalf of B.H. against Stepfather], as the final hearing in that case had not happened by the time 

of the final hearing in this case; 2) in ordering that Stepfather may have supervised contact with 

the minor child, as opposed to no contact whatsoever; 3) by not providing time frames for Mother’s 

weekend parenting time to occur in Medina County, Ohio, and for failing to require Mother to 

provide Father with notice of when she intends to exercise her weekend parenting time; and 4) by 

finding that Father did not meet his burden of proof regarding a modification of child support.

{¶9} The trial court held a hearing on both parties’ objections. Counsel appeared and 

briefly addressed the court. The trial court overruled all of Mother’s objections, overruled Father’s 

objections in part, and sustained Father’s objections in part. 

{¶10} In its decision, the trial court addressed collectively Father’s second objection and 

Mother’s first, second, third, and fourth objections, and overruled them. The trial court adopted 
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the Magistrate’s finding that Mother failed to demonstrate that a change in circumstances had 

occurred for either B.H. or Father and that custody should remain with Father. The trial court 

agreed with the Magistrate that Father’s alleged failure to have the minor child vaccinated until 

she started school did not constitute a change in circumstances because Mother’s own testimony 

reflected that she consented to that plan. The trial court acknowledged that Mother had gotten 

sober but held that a change in Mother’s circumstances did not qualify under R.C. 

3109.04(E)(1)(a). 

{¶11} The trial court further found that the Magistrate did not err and properly considered 

the best interest factors set forth in R.C. 3109.051(D) regarding the modification of Mother’s 

parenting time. 

{¶12} The trial court sustained Father’s first objection, concluding that the Magistrate 

erred in taking judicial notice of Case No. 21DV0033, and ordered that any reference to or 

consideration of it be stricken from the record.

{¶13} The trial court sustained Father’s third objection, concluding that the Magistrate 

erred by not providing time frames for Mother’s weekend parenting time to occur in Medina 

County and for failing to require Mother to give Father adequate notice when she intends to 

exercise her weekends. The trial court set specific visitation dates and a notice requirement. 

{¶14} Regarding Father’s fourth objection, the trial court agreed that the Magistrate erred 

in finding he did not meet his burden of proof for a modification of child support and sustained the 

objection. The trial court found that a change in circumstances had occurred that was not 

contemplated by the parties when they agreed to no support, and that a zero support order was no 

longer in B.H.’s best interest. 
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{¶15} Regarding the parties’ financial information as relevant to the calculation of 

support, the trial court found that Father earns annual income of $41,600.00 but that he did not 

submit any evidence regarding other children, health insurance, or childcare costs. The court also 

found that Mother is a stay-at-home mom, that she wishes to remain as such, and that she presented 

no evidence that she is incapable of working or otherwise maintaining gainful employment. The 

court also found that she did not submit any evidence regarding other children, health insurance, 

or childcare costs. The Court further found that that Mother is voluntarily unemployed and that 

she should be imputed with full-time minimum wage income of $19,304.00. After inserting these 

figures into the child support guideline worksheet, the court calculated Mother’s child support 

obligation as $138.10 per month and imposed a child support order. 

{¶16} Mother timely appealed the trial court’s judgment and asserts two assignments of 

error for our review. 

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING 

MOTHER’S OBJECTION TO THE MAGISTRATE’S DECISION AND 

DENYING HER MOTION TO MODIFY PARENTING TIME.1 

{¶17} Mother argues the trial court should have found that a change in circumstances had 

occurred and granted her motion to reallocate the parental rights and responsibilities between the 

parties. Mother claims the evidence demonstrated that a change in circumstances had taken place 

1 As noted previously and to avoid confusion, we reiterate that Mother styled her motion 

as a motion to modify parenting time, however, her actual request was to be designated the sole 

residential parent and legal custodian of B.H. Thus, the trial court properly treated her motion as 

a motion to modify the parental rights and responsibilities between the parties. 
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for both B.H. and Father, and that it was in B.H.’s best interest to grant sole custody to her. We 

disagree. 

{¶18} This Court generally reviews a trial court's decision to adopt a magistrate's decision 

for an abuse of discretion. Tabatabai v. Tabatabai, 9th Dist. Summit No. No. 08CA0049–M, 2009-

Ohio-3139, ¶ 17. “Under this standard, we must determine whether the trial court’s decision was 

unreasonable, arbitrary, or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219 (1983). “In so doing, we consider the trial court's action with reference to the nature of the 

underlying matter.” Id. at ¶ 18. That means “we must consider * * * whether the trial court abused 

its discretion by determining that the findings of the magistrate were supported by the weight of 

the evidence.” Id. When applying the abuse of discretion standard, this Court may not substitute 

its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

{¶19} The applicable statute, R.C. 3109.04(E)(1)(a), provides in relevant part that:

The court shall not modify a prior decree allocating parental rights and 

responsibilities for the care of children unless it finds, based on facts that have 

arisen since the prior decree or that were unknown to the court at the time of the 

prior decree, that a change has occurred in the circumstances of the child, the child’s 

residential parent, or either of the parents subject to a shared parenting decree, and

that the modification is necessary to serve the best interest of the child. 

{¶20} Therefore, before a modification of parental rights and responsibilities can be made 

pursuant to R.C. 3109.04(E)(1)(a), the trial court must make a threshold finding that a change in 

circumstances has occurred since the prior order. Pirkel v. Pirkel, 9th Dist. Lorain No. 

13CA010436, 2014-Ohio-4327, ¶ 5. The change in circumstances must be substantiated, 

continuing, and have a materially adverse effect upon the child, Wyss v. Wyss, 3 Ohio App.3d 412, 

416 (10th Dist.1982), and not be slight or inconsequential. Davis v. Flickinger, 77 Ohio St.3d 415, 

417 (1987). As the parties here are not subject to shared parenting, but rather, Father is the sole 
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residential parent, the change in circumstances must be in the circumstances of B.H. or Father. 

R.C. 3109.04(E)(1)(a). 

{¶21} If the party moving to reallocate parental rights and responsibilities demonstrates 

the requisite change in circumstances, the court must then determine whether reallocating the 

parental rights and responsibilities is in the child’s best interest. Gunderman v. Gunderman, 9th 

Dist. Medina No. 08CA0067-M, 2009-Ohio-3787, ¶ 9, citing Fisher v. Hasenjager, 116 Ohio St.3d 

53, 2007-Ohio-5589, syllabus. 

{¶22} Mother lists several alleged failures on Father’s part in support of her claim that a 

change in circumstances has occurred. First, she contends that Father has not been vaccinating or 

“keeping up with” B.H. Specifically, she states B.H. did not receive any vaccinations after getting 

the Hepatis B vaccine as a baby until December 2020. Mother further claims B.H. only eats fast 

food when she is with Father, and that Father does not take her to the doctor for regular check-ups. 

{¶23} The testimony reflects that both Mother and Father agreed to wait until B.H. was 

older, had built up an immune system, and was starting school to have her fully vaccinated. Mother 

testified that she and Father agreed to ease B.H. into her vaccinations and to get the “bare 

minimum” before school. Mother did not disagree that as of the hearing the child had been fully 

vaccinated in time for the start of school. Accordingly, we conclude the trial court did not err in 

finding that Mother’s own testimony undermines her position that the child’s vaccination status 

constitutes a change in circumstances. 

{¶24} Mother does not point to any testimony in the record supporting the fact that Father 

only feeds B.H. fast food. Even if it were true, we do not agree that it constitutes a change in 

circumstances that is substantive and materially averse to the child. Wyss, 3 Ohio App.3d at 416. 

Similarly, Mother did not provide any medical records or direct us to any testimony or other 
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evidence supporting her position that B.H. was not receiving regular medical care. App.R. 

16(A)(3) requires Mother to cite to the place in the record where each error is reflected. It is not 

our duty to search the record for evidence to support her argument. Nemes v. Nemes, 9th Dist. 

Medina No. C.A. 2127-M, 1993 WL 62132 (Mar. 10, 1993), *2 citing Van Meter v. Coates, 9th 

Dist. Lorain No. 91CA005220, 1992 WL 194372 (Aug. 12, 1992), *4. 

{¶25} Next, Mother states that she has taken significant steps to change her life; that she 

has maintained her sobriety, gotten married, and accepted responsibility for her past behavior. As 

Mother is not the residential parent, a change of circumstances in her life is not relevant to the 

analysis. The trial court correctly found that this change in Mother’s circumstances, albeit 

commendable, does not qualify as the type of change contemplated by R.C. 3109.04(E)(1)(a). 

{¶26} Based on the foregoing, we conclude that the trial court did not abuse its discretion 

in denying Mother’s motion for reallocation of parental rights and responsibilities. The trial 

court’s determination that no change in circumstances occurred relating to B.H. or Father was 

supported by the facts and evidence presented at trial. Considering Mother’s failure to prove a 

change in circumstances, we need not address the best interest issue. 

{¶27} Mother’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN FINDING THAT FATHER MET HIS 

BURDEN OF PROOF REGARDING A MODIFICATION OF CHILD 

SUPPORT AND THUS AWARDED FATHER $2002 PER MONTH IN 

CHILD SUPPORT. 

2 We note that this amount is incorrect. According to the child support worksheet attached 

to the trial court’s decision, the trial court awarded Father $138.10 in child support. However, this 

discrepancy is meaningless considering our disposition of this assignment of error. 
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{¶28} In her second assignment of error, Mother argues the trial court erred in finding 

that Father met his burden of proving that a modification of child support is warranted. 

{¶29} The standard of review for this assignment of error is likewise abuse of discretion. 

A trial court's decision regarding child support obligations falls within the discretion of the trial 

court and will not be disturbed absent a showing that it is unreasonable, arbitrary, or 

unconscionable. Farmer v. Farmer, 9th Dist. Medina No. 03CA0115-M, 2004-Ohio-4449, ¶ 9. 

{¶30} Father’s counter argument is that this is not a case pertaining to child support 

modification because there was no support established in the 2018 agreed judgment entry, nor was 

there a guideline worksheet attached to it. He points out that the parties agreed specifically, 

“[t]here shall be no child support order in this matter.” In light of the “no support” order, Father 

argues that he did not have the burden of proving that a change in circumstances occurred requisite 

to modify child support because there was no child support obligation to modify. He contends that 

the trial court’s only obligation was to establish a new child support order and “calculate the 

amount of the parents’ child support and cash medical support in accordance with the basic child 

support schedule” as set forth in R.C. 3119.02. Father maintains that the trial court properly 

calculated support under the guidelines in R.C. 3119.02. 

{¶31} We agree with Father that this is not a support modification case but disagree that 

the trial court properly calculated support. This Court’s decision in Sifferlin v. Sifferlin, 9th Dist. 

Summit No. 27169, 2014-Ohio-5645, is instructive in this matter. In Sifferlin, the parties agreed 

to deviate from the guideline worksheet and that neither one would pay child support to the other. 

This Court noted as a threshold matter that:

[T]he parties agreed, not that there would be no child support order, but rather that 

neither party would be obligated to pay any child support, effectively establishing 

child support in the amount of zero dollars. We have repeatedly held that ‘a child 
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support order which requires zero support to be paid is an existing child support 

order. * * *. Accordingly, such an order is subject to modification.

(Internal citations omitted.) Id. at ¶ 7. Accord Fields v. Fields, 9th Dist. Medina No. 04CA0018-

M, 2005-Ohio-471, ¶ 11. 

{¶32} In contrast to the circumstances in Sifferlin, the parties here agreed that there would 

be “no child support order,” which this Court in Sifferlin distinguished from a zero-dollar order 

that is subject to modification. Therefore, we agree with Father that the trial court’s only obligation 

in this case was to establish a new support order, not modify support, because the language in the 

2018 agreed judgment entry does not qualify as a zero-dollar order subject to modification. 

{¶33} Accordingly, we conclude that the trial court erred in treating the parties’ original 

support order as subject to modification. Having so determined, this Court need not proceed to an 

analysis of whether Father met his burden of proving the requisite change in circumstances 

necessary to modify child support. 

{¶34} We turn now to the trial court’s actual calculation of support. Mother argues under 

this assignment of error that the trial court erred in determining that she was voluntarily 

unemployed and imputing annual income to her of $19,304.00. We agree. 

{¶35} The trial court may impute income to a parent for purposes of calculating child 

support, but only if it first makes the required finding that the parent to whom income is imputed 

is voluntarily unemployed. Misleh v. Badwan, 9th Dist. Summit No. 24185, 2009-Ohio-842, ¶ 7. 

“Voluntary unemployment is a matter to be determined by the trial court based on the unique facts 

and circumstances of each case.” Brown v. Allala, 9th Dist. Summit No. 27086, 2014-Ohio-4917, 

¶ 23, citing Rock v. Cabral, 67 Ohio St.3d 108, syllabus (1993). The burden of proof is on the 

parent who is claiming that the other is voluntarily unemployed or underemployed. Knouff v. 

Walsh–Stewart, 9th Dist. Wayne No. 09CA0075, 2010–Ohio–4063, ¶ 27. 
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{¶36} “This Court reviews a trial court's factual finding that a parent is voluntarily 

unemployed to determine if it was against the manifest weight of the evidence.” Stahl v. Stahl,

9th Dist. Summit No. 27876, 2017-Ohio-4170, ¶ 19, citing Kent v. Kent, 9th Dist. Summit No. 

25231, 2010-Ohio-6457, ¶ 10-12. 

{¶37} Here, as the parent claiming the other is voluntarily unemployed, Father had the 

burden of proof. Knouff at ¶ 27. The trial court stated “[m]other presented no evidence that she is 

incapable of working or otherwise maintaining gainful employment,” thus improperly shifting the 

burden to Mother to establish that she was incapable of working, and therefore, voluntarily 

unemployed. 

{¶38} Upon review of the record and keeping in mind Father’s burden of proof, we

conclude that Father presented absolutely no evidence that Mother is voluntarily unemployed. He 

testified as to his own income, then concluded his case in chief by simply requesting that the trial 

court calculate guideline child support on that basis alone without more. He presented no evidence 

nor made any argument whatsoever regarding Mother’s income, educational and employment 

history, or ability to work. His counsel asked him no questions in this regard nor made any request 

that the court impute income to Mother in its calculation of support. 

{¶39} During Mother’s testimony on direct examination, she stated, “I sent a message [to 

Father] stating that I would be in Ohio for business that week, and Mr. Horner did not answer me 

* * *.” (Emphasis added.) That statement indicates that she was possibly employed or working in 

some capacity. Shortly thereafter, she was asked what she would like the court to order, and in 

response said, “I would like my daughter to live with me in Illinois, and I’d like to be a stay-athome mother.” (Emphasis added.) That answer refers to the future and Mother’s hope of staying 

home with B.H. should the court grant her custody, not her current status as a stay-at-home mother. 
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However, again, despite indications from Mother that she was perhaps engaged in some sort of 

business, and merely intended to stay home, Father did not cross-examine her whatsoever on her 

past or present employment status, ability to work, or as to any of the other factors necessary to 

calculate child support. 

{¶40} Moreover, notwithstanding that the trial court mistakenly looked to Mother to carry 

the burden of proof on whether she is incapable of working, she presented no evidence whatsoever 

as to her employment history or inability to work. Her testimony is completely devoid of any 

evidence on that issue. 

{¶41} Considering the foregoing, the trial court’s finding that Mother is voluntarily 

unemployed is against the manifest weight of the evidence because there was no evidence. 

{¶42} Wherefore, we conclude that the trial court erred in treating the parties’ original 

support order as subject to modification rather than establishing a new order. The trial court also 

erred in shifting the burden to Mother to show that she was unable to work. Lastly, the trial court 

erred in finding that Mother is voluntarily unemployed and should be imputed income. Therefore, 

the trial court abused its discretion in sustaining Father’s fourth objection to the Magistrate’s 

Decision. 

{¶43} Mother’s second assignment of error is sustained. We reverse and remand for 

further proceedings. 

III

{¶44} The judgment of the Medina County Common Pleas Court, Domestic Relations 

Division is affirmed in part, reversed in part, and remanded for further proceedings consistent with 

this opinion. 
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Judgment affirmed in part,

reversed in part, and

remanded for further proceedings.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of 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 constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

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 make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

SCOT STEVENSON

FOR THE COURT

HENSAL, P. J.

CARR, J.

CONCUR.

APPEARANCES:

THOMAS L. ERB, Attorney at Law, for Appellant.

JESSICA M. TREASE, Attorney at Law, for Appellee.