[Cite as Duczman v. Sorin, 2018-Ohio-3442.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

JOSEPH DUCZMAN, : O P I N I O N 

 Plaintiff-Appellant, : 

 CASE NO. 2017-L-126

 - vs - : 

MARIA SORIN, : 

 Defendant-Appellee. : 

Civil Appeal from the Lake County Court of Common Pleas, Juvenile Division. 

Case No. 2014 PR 00507. 

Judgment: Affirmed in part and reversed in part; remanded. 

James W. Reardon, Carrabine & Reardon Co., L.P.A., 7445 Center Street, Mentor, OH

44060 (For Plaintiff-Appellant). 

Jon D. Axelrod and Rochelle M. Hellier, Axelrod Law Office, 36615 Vine Street, Suite 

102, Willoughby, OH 44094 (For Defendant-Appellee). 

TIMOTHY P. CANNON, J. 

{¶1} Appellant, Joseph Duczman, appeals from the September 13, 

2017 judgment entry of the Lake County Court of Common Pleas, Juvenile 

Division. Appellant takes issue with the trial court’s child support order. For 

the following reasons, the trial court’s judgment is affirmed in part and 

reversed in part, and the matter is remanded. 
 2

{¶2} Appellant and Maria Sorin, appellee herein, are the biological 

parents of two minor children: A.D. (d.o.b. 09-17-2011) and S.D. (d.o.b. 07-

27-2013). On March 13, 2014, appellant filed a complaint in which he 

requested parenting time with the children and asked the court to order child 

support. Appellee filed an answer and counterclaim. She requested the 

complaint be dismissed and sought sole custody of the children; she further 

requested that she be named temporary and permanent residential parent 

and legal custodian of the children and that she be awarded temporary and 

permanent child support. 

{¶3} A trial to the magistrate was held on May 2, 2016. A 

magistrate’s decision was issued on May 27, 2016. Regarding child 

support, the magistrate recommended appellant pay the sum of $619.33 

per month when private health insurance is being provided for the minor 

children. To calculate the child support, the magistrate utilized appellant’s 

2014 salary of $36,953.00, which was from his business, a martial arts 

school he owned since 2014. The magistrate’s decision explained that the 

evidence established appellant’s business made an additional profit of 

$28,466.00. However, the magistrate did not include that amount in 

appellant’s gross income for purposes of calculating support, stating “the 

evidence was unrefuted that Father utilized that money to advance the 

business, i.e. paying on his business loan and health insurance premium.” 

The magistrate stated, “Father testified that the profit is used to pay the 
 3

business loan, contribute to a retirement account and purchase health 

insurance for himself.” 

{¶4} Appellee filed objections to the magistrate’s May 27, 2016 

decision. Appellee argued the trial court’s failure to include the business 

profits as gross income was contrary to law. Appellant filed a response, 

arguing appellee’s objections should be overruled because she failed to file 

a transcript of the trial to the magistrate. 

{¶5} On July 15, 2016, the trial court overruled appellee’s 

objections solely on the basis that she did not file a transcript. 

{¶6} On July 18, 2016, the trial court adopted the magistrate’s 

decision in full. Appellee did not appeal that decision. 

{¶7} On November 29, 2016, appellee filed a “Motion to Modify 

Allocation of Parental Rights and Responsibilities” due to a change in 

circumstances. In her attached affidavit, appellee averred, “it would be in 

the child’s best interest if child support were modified to accurately reflect 

the parties’ income as there has been a change.” 

{¶8} A trial to the magistrate was held on May 31, 2017. Appellant 

and appellee both testified. The following documents were entered into 

evidence: appellant’s 2015 and 2016 income tax returns; the 2015 and 2016 

tax returns for appellant’s business, Ohio Karate, LLC (“Ohio Karate”); 

appellee’s 2016 tax return; and appellee’s pay stubs for March and April 

2017. 
 4

{¶9} On June 7, 2017, appellee submitted a closing statement 

brief, arguing appellant’s income had been understated and improperly 

calculated in the first child support order. Appellee maintained appellant’s 

income “includes the wages he pays himself via regular payroll and his 

business income, which should be included in his total income calculation.” 

(Emphasis sic.) Appellant also filed a closing statement brief. He argued 

his income remained substantially similar to what it was at the time of the 

original order and that res judicata applied to the issue. 

{¶10} A magistrate’s decision was filed on June 27, 2017. 

Regarding child support, the magistrate recommended appellee’s “Motion 

to Modify Allocation of Parental Rights and Responsibilities” was well taken. 

Appellant filed objections to the magistrate’s decision on July 10, 2017. He 

filed a transcript on August 14, 2017, and supplemental objections on 

August 30, 2017. On September 13, 2017, the trial court overruled 

appellant’s objections and adopted the magistrate’s decision in full. 

{¶11} Appellant noticed a timely appeal. On appeal he asserts two 

assignments of error: 

[1.] The Juvenile Court Magistrate and Trial Court abused its 

discretion and committed prejudicial error by increasing PlaintiffAppellant’s child support obligation where there was virtually no 

change in the parties’ incomes, testimony or evidence from the child 

support determination made only months before DefendantAppellee’s Motion to Modify. 

[2.] Res judicata applies in this case where the exact same issue was 

previously decided on the exact same evidence. 

We address appellant’s assignments of error out of order. 
 5

{¶12} In his second assignment of error, appellant argues appellee’s 

request to modify the child support obligation was barred by res judicata 

because at the time of the first order the trial court determined appellant’s 

business profits would not be included in his gross income, and appellee 

failed to file a direct appeal from that order. Appellant maintains there was 

subsequently no change in the parties’ circumstances and incomes, and 

there was no new evidence presented at the second hearing. 

{¶13} The application of res judicata is a question of law and, 

therefore, is reviewed de novo. McGowan v. McDowell, 11th Dist. Portage 

No. 2008-P-0112, 2009-Ohio-5891, ¶18, citing Zamos v. Zamos, 11th Dist. 

Portage No. 2008-P-0021, 2009-Ohio-1321, ¶14. 

{¶14} Under the doctrine of res judicata, “a valid, final judgment 

rendered upon the merits bars all subsequent actions based upon any claim 

arising out of the transaction or occurrence that was the subject matter of 

the previous action.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 

(1995). Res judicata prevents “relitigation of issues already decided by a 

court or matters that should have been brought as part of a previous action.” 

Lasko v. General Motors Corp., 11th Dist. Trumbull No. 2002-T-0143, 2003-

Ohio-4103, ¶16. 

{¶15} “The application of the principles of res judicata * * * is not 

mandatory in every case.” Smith v. Ohio Edison Co., 11th Dist. Trumbull 

No. 2014-T-0093, 2015-Ohio-4540, ¶9 (citations omitted). “‘The doctrine 

may be said to adhere in legal systems as a rule of justice. Hence, the 
 6

position has been taken that the doctrine of res judicata is to be applied in 

particular situations as fairness and justice require, and that it is not to be 

applied so rigidly as to defeat the ends of justice or so as to work an 

injustice.’” Id., quoting Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 

491 (2001) (emphasis sic). Regarding child support, because domestic 

relations courts have continuing jurisdiction over child support matters, “res 

judicata should be applied with the ‘strictest of caution in order to prevent a 

chilling effect on Ohio’s legal mechanisms for periodic adjustments to childsupport orders.’” McNabb v. McNabb, 12th Dist. Warren Nos. CA2012-06-

056 & CA2012-06-057, 2013-Ohio-2158, ¶22, quoting Kiehborth v. 

Kiehborth, 169 Ohio App.3d 308, 2006-Ohio-5529, ¶15 (5th Dist.). 

{¶16} The trial court declined to apply the principles of res judicata 

to the present case. The court had continuing jurisdiction under R.C. 

3119.79(A) to modify the child support order at the request of one of the 

parties. The trial court determined there was a change in circumstances, 

and it modified the order accordingly. The record reflects the same 

magistrate presided over both hearings in this case. Although in the original 

decision the magistrate determined appellant provided “unrefuted” evidence 

the business profits were used to “advance the business,” the June 27, 2017 

magistrate’s decision acknowledges: “It is likely that the Hearing Officer 

incorrectly excluded business profits from Father’s support obligation in its 

2016 calculation and subsequent support order. Compounding that error 

by turning a blind eye to it for the sake of saving face is not in the best 
 7

interests of the minor children.” Based on the specific facts of this case, 

and because the trial court had continuing jurisdiction to modify the child 

support order, we find no error in the trial court’s decision not to apply the 

principles of res judicata in order to preserve justice for the minor children 

involved. 

{¶17} The dissent maintains this court has found res judicata 

applicable in similar cases involving child support. The cases the dissent 

references did not involve a situation wherein the magistrate explicitly 

acknowledged and addressed an error in the original order of child support. 

We recognize the correct procedure to address this error would have been 

for appellee to file a direct appeal from the trial court’s July 18, 2016 

judgment, and we acknowledge appellee did not follow that procedure. 

Under normal circumstances appellee’s arguments would have been barred 

by the doctrine of res judicata. However, this case presents exceptional 

circumstances and we find no error in the trial court’s determination that 

failure to address the error was not in the best interest of the minor children 

involved. 

{¶18} Appellant’s second assignment of error is without merit. 

{¶19} Under his first assignment of error, appellant argues the trial 

court abused its discretion when it increased his child support obligation 

because there was no substantial change in either party’s income from the 

time of the original order. 
 8

{¶20} In the second calculation, the court included the business 

profits as part of appellant’s gross income, whereas the first time it did not. 

The magistrate, after hearing further testimony regarding the business 

profits, determined it was error not to include it in the calculation. Because 

appellee did not appeal the first order, the question becomes whether the 

trial court can essentially reconsider its prior order due to a self-described 

error in exclusion of the business profits. 

{¶21} A trial court’s decision regarding child support will not be 

reversed by a reviewing court unless it is shown that the trial court abused 

its 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 the trial 

court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” 

State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, 

quoting Black’s Law Dictionary 11 (8th Ed.2004). 

{¶22} R.C. 3119.79 governs modifications of an existing child 

support order. Pursuant to R.C. 3119.79(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 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. 
 9

{¶23} R.C. 3119.79(C) further provides, in pertinent part: 

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 * * *, 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[.] 

“The ten percent difference applies to the change in the amount of child support, not to 

the change in circumstances of the parents.” DePalmo v. DePalmo, 78 Ohio St.3d 535, 

540 (1997) (emphasis sic). “The statute considered in DePalmo was R.C. 3113.215, 

specifically, R.C. 3113.215(B)(4). Although this subsection has be 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.” See Schilling v. Ball, 11th Dist. Lake No. 2016-L072, 2017-Ohio-5511, ¶17, citing DePalmo, supra, at 539-540 and Mossing-Landers v. 

Landers, 2d Dist. Montgomery No. 27031, 2016-Ohio-7625, ¶48. 

{¶24} The 2016 tax return for Ohio Karate reflects the business’s 

income was $28,446.00, after deductions. Appellant’s tax return, which 

includes the business profits and his salary from the business, reflects 

appellant’s total income of $64,607.00, and an adjusted gross income of 

$60,628.00, which is the amount the magistrate used to calculate the child 

support modification. Appellant’s original child support obligation was 

$619.33. After appellee filed for modification of the child support order, the 

recalculated amount was $907.39, reflected in the child support worksheet. 

The difference between the original amount and the recalculated amount is 

$288.06. The magistrate determined because the difference exceeds ten 
 10

percent of the original obligation, the court should modify appellant’s child 

support obligation. 

{¶25} Appellant argues the trial court was not permitted to modify 

the order because there has, in fact, been no “change in circumstances” as 

the statute requires. He contends the recalculated amount was inflated 

because the magistrate improperly included appellant’s business profits as 

gross income to calculate the support modification even though he provided 

“unrefuted evidence” at the first hearing that the business profits were used 

to make payments towards the business loan, to contribute to his retirement 

account, to purchase health insurance, and “to generally operate the 

business.” Appellant contends these expenses were “ordinary and 

necessary” and incurred to help generate gross receipts for the business, 

and, pursuant to R.C. 3119.01(C)(9)(a) and R.C. 3119.01(C)(13), they 

should be excluded from his gross income for purposes of calculating child 

support. 

{¶26} 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[.]” Gross income includes salaries and 

wages, in addition to self-generated income. Id. However, R.C. 

3119.01(C)(7) further provides, in pertinent part: “‘Gross income’ does not 

include any of the following: * * * (d) Amounts paid for mandatory deductions 

from wages such as union dues but not taxes, social security, or retirement 

in lieu of social security[.]” 
 11

{¶27} “‘Self-generated income’ means gross receipts received by a 

parent from self-employment, proprietorship of a business, * * * and rents 

minus ordinary and necessary expenses incurred by the parent in 

generating the gross receipts.’” R.C. 3119.01(C)(13). Further, “‘[o]rdinary 

and necessary expenses incurred in generating gross receipts’ means 

actual cash items expended by the parent or the parent’s business and 

includes depreciation expenses of business equipment as shown on the 

books of a business entity.” R.C. 3119.01(C)(9)(a). 

{¶28} Pursuant to R.C. 3119.05(A), the trial court is required to verify 

each parents’ “current and past income and personal earnings * * * by 

electronic means or with suitable documents, including, but not limited to, 

paystubs, employer statements, receipts and expense vouchers related to 

self-generated income, tax returns, and all supporting documentation and 

schedules for the tax returns.” “A party claiming a business expense has 

the burden of providing suitable documentation to establish the expense. A 

trial court is not required to blindly accept all of the expenses an appellant 

claims to have deducted in his tax returns as ordinary and necessary 

expenses incurred in generating gross receipts.” Ockunzzi v. Ockunzzi, 8th 

Dist. Cuyahoga No. 86785, 2006-Ohio-5741, ¶53 (citation omitted). 

{¶29} Regarding the appellant’s business expenses, the 

magistrate’s decision states: 

The evidence was sparse, at best, regarding Father’s claim that the 

business profits are ordinary and necessary business expenses that 

should be deducted from Father’s income. Father made a vague, 
 12

generalized statement, without any specific figures or supporting 

documentation that the profit was used for business expenses. 

{¶30} We note that the trial court did, in fact, allow for deduction of 

health insurance expenses. This is reflected on appellant’s 2016 personal 

tax return. We hold under the facts and circumstances of this case, it was 

not error for the magistrate and trial court to consider whether inclusion of 

the remaining business profits was appropriate when addressing the motion 

to modify. 

{¶31} We find, however, that the trial court failed to afford appellant 

due process when it modified the child support obligation without notifying 

appellant it intended to reconsider the error in the magistrate’s original 

decision. The magistrate’s June 27, 2017 decision was based on 

substantially similar evidence to its May 27, 2016 decision. In the earlier 

decision, the magistrate found appellant had provided “unrefuted” evidence 

that supported exclusion of the remaining business profits from appellant’s 

gross income. Based on the first decision, appellant justifiably had no 

reason to believe he needed to present additional or different evidence 

establishing why those profits should be excluded. 

{¶32} We reverse and remand for the trial court to hold a new 

hearing on appellee’s “Motion to Modify Allocation of Parental Rights and 

Responsibilities,” only as it pertains to a modification of the child support 

obligation. The trial court is to afford appellant the opportunity to introduce 

evidence why the business profits should not be considered as gross 

income for purposes of calculating child support. 
 13

{¶33} Appellant’s first assignment of error has merit to the extent 

discussed above. 

{¶34} For the foregoing reasons, the judgment of the Lake County 

Court of Common Pleas, Juvenile Division, is affirmed in part and reversed 

in part, and this matter is remanded for additional proceedings consistent 

with this opinion. 

COLLEEN MARY O’TOOLE, J., concurs, 

DIANE V. GRENDELL, J., concurs in part and dissents in part, with a Dissenting Opinion. 

____________________ 

DIANE V. GRENDELL, J., concurs in part and dissents in part, with a Dissenting Opinion. 

{¶35} While I concur with the majority’s determination that the trial 

court’s judgment should be reversed, the reversal should be as to the 

entirety of the judgment and no remand for a new hearing should be 

ordered. Rather, since the Motion to Modify the appellant’s child support 

obligation was barred by res judicata, the lower court’s judgment should be 

reversed and vacated and the initial support order should continue. The 

appellee failed to challenge the alleged error in the support award through 

appropriate proceedings, and, thus, the merits of her Motion were 

improperly considered.

{¶36} In the present matter, the lower court entered an award of 

child support following a consideration of appellant, Joseph Duczman’s, 
 14

personal and business income. A trial was held as to this issue, where both 

parties presented evidence and argument. The court ultimately concluded 

that the business profits were not part of Duczman’s income for the 

purposes of determining child support. Appellee, Maria Sorin, failed to 

challenge the support order through a direct appeal. Instead, she chose to 

wait four months before filing a Motion to Modify in the trial court. The 

parties then contested the exact issue that had already been litigated: 

whether Duczman’s business profits were part of his personal income for 

child support purposes.

{¶37} Generally, courts apply the well-established principle that “[a] 

valid, final judgment rendered upon the merits bars all subsequent actions 

based upon any claim arising out of the transaction or occurrence that was 

the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio 

St.3d 379, 653 N.E.2d 226 (1995), syllabus; Kalia v. Kalia, 151 Ohio App.3d 

145, 2002-Ohio-7160, 783 N.E.2d 623, ¶ 32 (11th Dist.) (res judicata 

“precludes relitigation of the same issue when there is mutuality of the 

parties and when a final decision has been rendered on the merits”). This 

principle applies in the present case, where there is no question that a final 

judgment on the merits was rendered by the trial court prior to the filing of 

the Motion to Modify. 

{¶38} The majority holds that the court did not err in proceeding to 

consideration of the merits since courts can decline to apply the doctrine of 

res judicata in child support matters when “fairness and justice require.” 
 15

However, this court has found the doctrine of res judicata to be applicable 

in similar matters involving child support. In one instance, where a party 

moved to modify child support “on the same basis” as a prior request for 

modification and “present[ed] no new evidence on how the circumstances 

were different,” this court found the matter barred by res judicata. Kean v. 

Kean, 11th Dist. Trumbull No. 2005-T-0079, 2006-Ohio-3222, ¶ 12, citing 

Petralia v. Petralia, 11th Dist. Lake No. 2002-L-047, 2003-Ohio-3867, ¶ 14-

15. 

{¶39} Similarly, in Nolan v. Nolan, 11th Dist. Geauga No. 2009-G2885, 2010-Ohio-1447, this court found that although the appellant argued 

an improper amount of income had been previously utilized to calculate 

child support, the motion to vacate was barred by operation of res judicata, 

since the same issue had already been disputed. Id. at ¶ 39-41. While the 

majority claims that these cases are distinguishable since the magistrate in 

the present matter “explicitly acknowledged and addressed an error in the 

original order of child support,” in Petralia and Nolan, the recognition that 

res judicata applied precluded consideration of whether the court’s prior 

ruling may have been made in error. It was irrelevant, then, whether the 

child support claims may have had merit. Further, the majority’s conclusion 

that the best interest of the child should prohibit application of the doctrine 

of res judicata is not a concern that is unique to the present matter, as best 

interest concerns apply in all child support matters. Nonetheless, this court 

still properly chose to apply the doctrine of res judicata in the foregoing 
 16

cases, a precedent which must be followed by this court. 

{¶40} Consistency by an appellate court is a linchpin to justice and 

fairness. By failing to apply this precedent, the majority once again 

demonstrates a dangerous lack of consistency. See Filby v. Filby, 11th Dist. 

Geauga No. 2017-G-0142, 2018-Ohio-907, ¶ 11 (Grendell, J., concurring in 

judgment only) (emphasizing the majority’s inconsistency in its 

interpretation and application of the clearly defined term “shall”). 

{¶41} Given the foregoing law and the facts of this case, fairness 

and justice require the application of the doctrine of res judicata to preclude 

relitigation of an issue that was already determined. This provides finality, 

conserves the valuable time and resources of the courts and the parties, 

and prevents parties from improperly seeking a proverbial second bite at 

the apple. See Monroe v. Forum Health, 11th Dist. Trumbull No. 2014-T0015, 2014-Ohio-3974, ¶ 56 (noting the necessity of finality in litigation). 

{¶42} To the extent that it is argued that an error made by the lower 

court necessitated abandonment of the well-established principles of res 

judicata, it must be emphasized that other remedies are available to 

address errors by the trial court. Sorin failed to avail herself of these 

options, such as filing a direct appeal which would have provided a timely 

opportunity to rectify any error without requiring an additional evidentiary 

hearing. This is the purpose of the appellate court. 
 17

{¶43} For the foregoing reasons, I dissent in part from the majority’s 

opinion and would vacate the trial court’s decision since principles of res 

judicata precluded a ruling in favor of Sorin on the Motion to Modify.