[Cite as Reddy v. Reddy,
2015-Ohio-3368.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MATTHEW J. REDDY, : APPEAL NOS. C-140609
C-140678
Plaintiff-Appellant, : TRIAL NO. DR0601018
vs. : O P I N I O N.
SHELLEY E. REDDY, :
Defendant-Appellee. :
Appeals From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 21, 2015
Sebaly Shillito + Dyer and Alex S. Rodger, for Plaintiff-Appellant,
Beth I. Silverman & Associates, LLC, and Beth I. Silverman, and Ginger S. Bock Law
Office, Inc., and Ginger S. Bock, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Plaintiff-appellant Matthew J. Reddy appeals the trial court’s decision
granting defendant-appellee Shelley E. Reddy’s motion for spousal support. We find no
merit in his four assignments of error, and we affirm the trial court’s judgment.
I. Factual Background
{¶2} The record shows that the parties were divorced on April 19, 2007. They
had four children. The oldest child, Rachel, had numerous medical issues. She
functioned at a five-month level and required constant care. At the time of the divorce,
neither party received any government assistance for Rachel’s support.
{¶3} Under the terms of the decree of shared parenting, Matthew was to pay
child support of $500 per month per child. Because of his unpredictable bonuses, he
agreed to pay directly to Shelley child support equaling 20 percent of his income that
exceeded $200,000. The decree specifically stated that “[t]he parties have deviated
from the child support guidelines because Father’s income exceeds $150,000, and
because of the needs of the children and their lifestyle.”
{¶4} Under the terms of a separation agreement incorporated into the
divorce decree, Matthew was to pay Class I spousal support of $4,000 per month. Class
I support was to terminate after 72 months. When that support order terminated,
Shelley could then seek Class II spousal support.
{¶5} The divorce decree stated that “if the court is asked to exercise its
jurisdiction to order Class II support, the following circumstances shall be considered”
in determining the amount: (1) Rachel’s condition and needs, including any
improvement or deterioration in her condition, changes in her required level of care, and
increases or decreases in expenses for her care, (2) Matthew’s income and ability to pay,
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OHIO FIRST DISTRICT COURT OF APPEALS
(3) Shelley’s circumstances, including her health, employment opportunities, and the
impact of Rachel’s care requirements, (4) any government assistance available for
Rachel, including but not limited to, Social Security, and (5) any other relevant factors.
{¶6} The decree further provided that the parties had agreed that Matthew
would “pay no less than 20% of his gross income between child support and spousal
support.” The trial court was to retain jurisdiction to modify the amount and duration of
Class II support, but “in any event, the mandatory minimum level of support … shall
be binding.”
{¶7} Subsequently, Shelley filed a motion asking that Matthew be found in
contempt for failing to pay child support and spousal support. The court journalized an
entry on August 15, 2014, stating that the parties had agreed that the child-support
arrearage was $28,609 and the spousal-support arrearage was $4105.91. The entry also
stated that “[t]he child support arrearage is established pursuant to the obligation set
forth in the parties [sic] Decree of Shared Parenting, wherein Father is to pay Mother
20% of his income which exceeds $200,000 per year, as additional child support.” The
entry indicated that “the parties reached an agreement … that Father owed Mother
$28,609 pursuant to that formula.”
{¶8} Shortly before the Class I spousal support was to terminate, Shelley filed
a motion asking the trial court to “establish Class II spousal support.” The parties
presented evidence at a hearing before a magistrate.
{¶9} The evidence showed that Shelley was Rachel’s primary caregiver.
Because of the intensive amount of care that Rachel needed, Shelley was able to work
only part-time for a flexible employer and, as a result, she made about $15,840 per year.
After the divorce, Rachel and the parties started receiving some government assistance.
At the time of the hearing, Rachel was receiving $8350 annually in SSI benefits.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Additionally, Hamilton County Developmental Disabilities Services
started providing the parties with services equivalent to $34,700 annually under an
Independent Options (“IO”) wavier. Those services included in-home aides, summer
camp, medical equipment, home-accessibility modifications and respite care. Though
both parties have access to the IO resources, Shelley used the vast majority of them. The
parties did not receive any money directly under the IO waiver.
{¶11} Shelley presented evidence that the aides were generally uneducated and
unreliable. When an aide quit, Shelley was required to train a new aide for a few days to
ensure proper care for Rachel. Further, aides could not care for some of Rachel’s
specialized needs, and they did not do laundry, go to the pharmacy, or take Rachel to
medical appointments. While aides could administer medication, Shelley had to obtain
and organize the medicines.
{¶12} The evidence also showed that Rachel’s condition was deteriorating. She
had been hospitalized on several occasions, and she will need surgery in the future.
When Rachel was hospitalized, Shelley monitored her medication at the hospital to
make sure that it was “accurate.” An expert stated that “[i]t is medically necessary that
Rachel have close ongoing supervision by caregivers familiar with her condition,
administration of her multiple medications, and understand how to intervene in the
event of acute problems which occur frequently and without warning.” The magistrate
found that Shelley “continues to be the primary point person between Rachel and her
doctors, teachers, and home health aide workers.”
{¶13} The evidence also showed that Matthew makes at least $195,000 a year,
plus bonuses. In the three years preceding the hearing, he earned more than
$1,000,000. At the time of the divorce decree, he had no outstanding debt. Afterward,
he accumulated a substantial amount of debt, which he acknowledged was his personal
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OHIO FIRST DISTRICT COURT OF APPEALS
responsibility. He testified that between paying the debt, the spousal support and child
support, he had difficulty making ends meet.
{¶14} After hearing the evidence, the magistrate issued a decision with findings
of fact and conclusions of law. The magistrate discussed the provision in the divorce
decree stating that Matthew would pay no less than 20 percent of his income between
child support and spousal support. She then stated that “[i]n order for the court to
determine the percentage and amount of spousal support that is appropriate in this case,
if the Court orders Class II spousal support, the Court must know the amount of support
that will be ordered[.]” The magistrate reduced the amount of child support to $481.05
per month per child, struck the provisions in the decree requiring Matthew to pay
additional support on income exceeding $200,000, and reduced the amount of spousal
support to $1,333.33.
{¶15} The magistrate’s decision was journalized on May 8, 2014, and an entry
adopting the magistrate’s decision was journalized the same day. Shelley filed
objections on May 23, 2014, one day out of time. Matthew did not raise the issue of the
timeliness of the objections, and the trial court never specifically addressed it.
{¶16} The trial court sustained Shelley’s objections. It stated:
At issue is spousal support, particularly the spousal support
identified as “Class II” spousal support. Father, in the Separation
Agreement, agreed to pay in total, no less than $20% of his gross income
in payments to Mother divided between spousal support and child
support. When making a determination of adjustment for spousal
support, the magistrate should have kept the child support amount static
because it was not necessary, nor was it anticipated by the parties that
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OHIO FIRST DISTRICT COURT OF APPEALS
future modifications would be calculated in such a way to ensure all
future payment obligations must be exactly 20% of gross.
It is not proper for this Court to sua sponte strike the prior
approved Entry/Agreement of these parties. (There has been no credible
evidence that it is in the best interests of the children to do so.)
Shared Parenting Plan paragraph 14.2 provides “. . . the Husband
will pay no less than 20% of his gross income between child support and
spousal support…”. It is inaccurate to interpret this as Father shall pay
exactly 20%; just simply “no less than” 20%. The Court does not need to
strive to balance the child support and support amounts to exactly “20%”
of Father’s income.
(Emphasis sic.)
{¶17} Consequently, the court ordered spousal support to remain at $4000 per
month and child support to remain at $500 per month per child. The court also ordered
that the “April 15, 2014 Agreed Entry still stands as valid and enforceable.” Finally, it
stated that “[t]he language of the parties’ agreement and the Court’s statutory obligation
to decide the best interest of the children requires that the parties [sic] agreement be
upheld.” This appeal followed.
II. Timeliness of Objections
{¶18} In his first assignment of error, Matthew contends that the trial court
erred by ruling on Shelley’s objections because they were not timely filed. He argues
that because the trial court had already entered judgment on the magistrate’s decision
and no timely objections were filed, the court did not have jurisdiction to consider the
objections. This assignment of error is not well taken.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Before we reach the merits of this assignment of error, we must address
a procedural issue. After the appeal was filed, Shelley filed a motion to correct the
record under App.R. 9(E). The trial court improperly granted that motion. See Brown
v. Pollack, 8th Dist. Cuyahoga No. 85865, 2005-Ohio-6231, ¶ 24; Woodman v. Jones,
103 Ohio App.3d 577, 580,
660 N.E.2d 520 (8th Dist.1995); State v. Bullock, 5th Dist.
Perry No. CA-468,
1995 Ohio App. LEXIS 3727, *2-3 (May 11, 1995). Consequently, we
cannot consider any of the issues raised in that motion as they are not a part of the
record on appeal. See State v. Ishmail,
54 Ohio St.2d 402,
377 N.E.2d 500 (1978),
paragraph one of the syllabus; State v. Fields, 1st Dist. Hamilton No. C-090648, 2010-
Ohio-4114, ¶ 15.
{¶20} We turn now to the merits of the assignment of error. Under Civ.R.
53(D)(3)(b)(i), a party may file written objections to a magistrate’s decision within 14
days of the filing of the decision. But Civ.R. 53(D)(5) allows the court to extend the time
to file objections “for good cause shown.”
{¶21} In this case, Matthew did not bring the timeliness issue to the trial
court’s attention and waived the right to raise the issue on appeal. See Stores Realty Co.
v. Cleveland, 41 Ohio St.2d 41, 43,
322 N.E.2d 629 (1975); Werden v. Children’s Hosp.
Med. Ctr., 1st Dist. Hamilton No. C-040889,
2006-Ohio-4600, ¶ 15. Absent an
indication to the contrary in the record, we presume that the trial court found good
cause to entertain the untimely objections. See Cwik v. Cwik, 1st Dist. Hamilton No. C-
090843,
2011-Ohio-463, ¶ 84-85. Therefore, we overrule Matthew’s first assignment of
error.
III. Spousal Support
{¶22} In his second assignment of error, Matthew contends that the trial
court erred in awarding spousal support that was neither appropriate nor
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OHIO FIRST DISTRICT COURT OF APPEALS
reasonable. He argues that the trial court failed to consider the factors in R.C.
3015.18. This assignment of error is not well taken.
{¶23} R.C. 3105.18 provides that the trial court may award spousal support
as is “appropriate and reasonable.” Coors v. Maceachen, 1st Dist. Hamilton No. C-
100013, 2010-Ohio-4470, ¶ 12. In making its determination, the court must consider
the factors set forth in R.C. 3105.18(C)(1), but it should not base its determination on
any one of those factors taken in isolation. Kaechele v. Kaechele,
35 Ohio St.3d 93,
96,
518 N.E.2d 1197 (1988); Kaletta v. Kaletta, 8th Dist. Cuyahoga No. 98821, 2013-
Ohio-1667, ¶ 22. The trial court is not required to enumerate each statutory factor as
long as it considered the relevant factors. Kaletta at ¶ 22.
{¶24} The trial court has broad discretion in determining the amount and
duration of spousal support. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67,
554 N.E.2d 83
(1990);
Coors at ¶ 13. If some competent, credible evidence supports the court’s
decision, it is not an abuse of discretion. Middendorf v. Middendorf,
82 Ohio St.3d
397, 401,
696 N.E.2d 575 (1998);
Coors at ¶ 13.
{¶25} The record shows that the trial court considered the statutory factors, as
well as the factors enumerated by the parties in the separation agreement incorporated
into the divorce decree. The trial court’s decision was supported by competent, credible
evidence, including evidence showing Rachel’s need for full-time care, the responsibility
borne by Shelley for caring for Rachel, and the disparity in the parties’ incomes. Under
the circumstances, we cannot hold that the trial court abused its discretion in awarding
spousal support.
{¶26} Matthew also argues that the trial court abused its discretion in failing
to consider the changes in circumstances of the parties in relation to the mandatory
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OHIO FIRST DISTRICT COURT OF APPEALS
factors in R.C. 3105.18 and the agreed-upon factors in the parties’ separation
agreement. We find no merit in this argument.
{¶27} First, the record shows that the trial court did consider the changes in
circumstances. The trial court simply didn’t agree with the magistrate’s assessment
of those circumstances. A magistrate’s oversight of a case is an aid to the trial court’s
judicial functions, not a substitute for them. The trial court remains the “ultimate
determiner” of the case. Yantek v. Coach Builders, Ltd., 1st Dist. Hamilton No. C-
060601, 2007-Ohio-5126, ¶ 10.
{¶28} Further, the trial court did not modify spousal support. It made a
new award of Class II spousal support because Class I support had terminated per
the parties’ agreement. In the agreement, the parties did not determine the initial
amount of Class II support. Under the circumstances, we cannot say that the trial
court erred in awarding Class II spousal support, and we overrule Matthew’s second
assignment of error.
IV. Direct Payments
{¶29} In his third assignment of error, Mathew contends that the trial court
erred in enforcing an order that was contrary to R.C. 3121.44. He argues that the trial
court abused its discretion by authorizing child-support payments directly to Shelley and
not through the Child Support Enforcement Agency (“CSEA”). This assignment of error
is not well taken.
{¶30} The record shows that the decree of shared parenting required Matthew
to make payments directly to Shelley if his annual income exceeded $200,000. The
arrearage calculated in the April 15, 2014 agreed entry was based on that provision. He
argues that that provision of the shared-parenting plan was void and the trial court erred
by enforcing the April 15, 2014 agreed entry. We disagree.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} R.C. 3121.44 and 3121.45 set forth mandatory language requiring the
payment of child support to “the office of support in the department of job and family
services” and obligating the court to consider any direct payment as a gift. Lepore v.
Breidenbach, 1st Dist. Hamilton No. C-140310, 2015-Ohio-2929, ¶ 14. Some courts
have stated that the trial court has no authority to approve payments that are not paid to
CSEA. See Bowley v. Bowley, 12th Dist. Warren No. CA97-12-126,
1998 Ohio App.
LEXIS 2280, *3-4 (May 26, 1998); Starr v. Starr,
109 Ohio App.3d 116, 121,
671 N.E.2d
1097 (8th Dist.1996).
{¶32} This court has recently held that a trial court’s failure to order child
support to be paid to CSEA does not render the judgment void, but merely voidable.
Therefore, that judgment can only be attacked on direct appeal and cannot be
collaterally attacked in a separate proceeding. Lepore at ¶ 18-19. We further held that a
voidable order that has not been reversed, vacated, or set aside can be enforced in
contempt. Id. at ¶ 22-24.
{¶33} The 2007 decree of shared parenting was a final, appealable order, as
was the April 15, 2014 agreed entry. Any alleged errors contained in them should have
been raised in a direct appeal from those judgments. See Lepore at ¶ 29. Further, to the
extent that a party seeks to revisit an issue regarding a support arrearage that was
previously considered and decided by a court, the doctrine of res judicata applies. Id. at
¶ 27. Consequently, Matthew cannot now raise the issue that the past child-support
orders did not comply with the mandate of R.C. 3121.44. We overrule his third
assignment of error.
V. Modification of Child Support
{¶34} Finally, in his fourth assignment of error, Matthew contends that the
trial court erred when it found that a court may not, upon its own motion, modify child
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support. He argues that the trial court abused its discretion in vacating the magistrate’s
decision modifying child support on that basis. This assignment of error is not well
taken.
{¶35} We agree that the trial court was incorrect in stating that a court may not
modify child support on its own motion, because R.C. 3109.04(E)(2)(b) allows a court to
do so as long as the modification is in the best interest of the children. Murphy v.
Murphy, 1st Dist. Hamilton No. C-130229, 2014-Ohio-656, ¶ 38, citing Fisher v.
Hasenjager,
116 Ohio St.3d 53,
2007-Ohio-5589,
876 N.E.2d 546, ¶ 27-31.
{¶36} Nevertheless, the trial court went on to state that “[t]here has been no
credible evidence that it is in the best interest of the children to do so.” Competent,
credible evidence supported that finding. Under the circumstances, we cannot hold that
the trial court’s decision denying a modification of child support was an abuse of
discretion. Therefore, we overrule Matthew’s fourth assignment of error.
VI. Summary
{¶37} In sum, we find no reversible error in the trial court’s decision.
Consequently, we overrule Matthew’s four assignments of error and affirm the trial
court’s judgment.
Judgment affirmed.
H ENDON , P.J., concurs.
D E W INE , J., concurs in judgment only.
Please note:
The court has recorded its own entry this date.
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