DePalmo v. DePalmo

[This opinion has been published in Ohio Official Reports at 

78 Ohio St.3d 535

.]




                 DEPALMO, APPELLANT, v. DEPALMO, APPELLEE.
                   [Cite as DePalmo v. DePalmo, 

1997-Ohio-184

.]
Domestic relations—Child support—Court must apply Child Support Guidelines
        of R.C. 3113.215 in calculating child support obligation.
1. Whether a court is establishing an initial child support order or whether the court
        is modifying an order based on agreement between parties that does not
        include any order for the payment of child support, the court must apply the
        Child Support Guidelines as required by the standards set out in Marker v.
        Grimm (1992), 

65 Ohio St.3d 139

, 

601 N.E.2d 496

.
2. When the court is modifying a preexisting order for the payment of child support,
        the court must apply the ten percent test established by R.C. 3113.215(B)(4)
        in the Child Support Guidelines and the standards set out in Marker v.
        Grimm (1992), 

65 Ohio St. 3d 139

, 

601 N.E.2d 496

.
      (No. 96-529—Submitted February 18, 1997—Decided June 11, 1997.)
       CERTIFIED BY the Court of Appeals for Stark County, No. 95CA0224.
                                 __________________
        {¶ 1} Appellant Florence DePalmo (“Florence”) and appellee Charles
DePalmo (“Charles”) are the parents of Michael DePalmo (“Michael”). Michael
was born on June 18, 1979. At that time, Florence and Charles lived together and
cared for Michael. Florence and Charles were not married.
        {¶ 2} In 1988, Florence and Charles separated, and Michael went to live
with Charles. There was no formal agreement as to this arrangement, and no
parentage action had been brought at this time. Visitation was worked out on a
voluntary basis.
        {¶ 3} In 1990, Florence was employed full time at the Wayside Inn, earning
$4 per hour. Florence engaged in various activities with Michael, including golfing,
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baseball games, shopping, boating, and vacationing. Florence provided the money
for these activities. Florence also provided the funds for Michael to join the
YMCA, to purchase hunting gear, shoes, CDs, and a boombox.
        {¶ 4} In 1990, Charles worked at the James River Corporation, where he
made approximately $20,000 a year. Charles is the custodial parent and provided
financial support for Michael.
        {¶ 5} Allegedly, the parties began to have troubles regarding visitation. As
a result, on August 13, 1990, Florence instituted a parentage action. The resulting
judgment entry determined that Charles was indeed Michael’s father. The entry
awarded custody of Michael to Charles, and it also explicitly incorporated Charles’s
waiver of all support from Florence. The entry also formalized visitation. The
entry further stated that its orders were in the best interest of the child.
        {¶ 6} In 1992, the James River Corporation closed, and Charles went to
work for Coalfork Coalmac, where he continued to earn approximately $20,000 per
year. In 1993, Charles underwent several surgeries. As a result of the surgeries,
Charles missed time from his employment at Coalfork Coalmac. Due to the fact
that he missed work, Charles received public assistance for approximately two
months in 1993.
        {¶ 7} In 1993, the parties once again encountered visitation problems. As
a result, on August 23, 1993, Florence filed a motion seeking an order to show
cause and for custody of Michael or shared custody. Charles opposed the motions
and moved for child support.
        {¶ 8} The parties were referred to mediation. Mediation resulted in an
agreed entry. The June 2, 1994 agreed entry explicitly addressed visitation issues.
All of the other pending motions such as contempt, change of custody, and child
support, were specifically overruled in the entry, which reaffirmed the August 13,
1990 entry as remaining in effect as to custody and support.




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                                 January Term, 1997




        {¶ 9} However, on June 23, 1994, Charles, through intervening party Stark
County Department of Human Services (“Human Services”), filed a motion for
child support as he was required to do as part of his obligation for receiving public
assistance. See R.C. 5107.07. Human Services, through Charles, essentially
argued that child support must be in the best interest of the child and that the parents
cannot unilaterally agree on an amount of child support less than that called for by
the Child Support Guidelines of R.C. 3113.215. Thus, an agreement can provide
for less than the support guidelines only if the court approves the deviation pursuant
to the method set out in the Revised Code. Therefore, Human Services argued,
since the support agreed to in this case did not comport with the guidelines and no
court had approved the deviation, support should be modified to require Florence
to pay support in line with the guidelines.
        {¶ 10} Florence opposed the motion for an order for her to pay support.
Florence argued that since there was no order for her to pay child support , the test
of R.C. 3113.215(B)(4) for determining whether modification of support is
warranted did not apply. Instead, she argued, since Charles had waived support,
the proper test was the “dual-threshold” test set out in Anderkin v. Lansdell (1992),

80 Ohio App.3d 687

, 

610 N.E.2d 570

. Florence argued, pursuant to the Anderkin
test, that circumstances at the time of the hearing were substantially similar to those
on August 13, 1990, the date of the original agreement, and therefore support
should not be modified.
        {¶ 11} The case was referred to a referee, who declined to adopt Florence’s
argument. The referee found that any change in circumstances was irrelevant. The
referee determined that the only time that child support may be less than the amount
mandated by the Child Support Guidelines is when the court complies with R.C.
3113.215(B)(1)(a) and (b), citing Marker v. Grimm (1992), 

65 Ohio St. 3d 139

, 

601 N.E.2d 496

. The referee found that the August 13, 1990 agreement failed to refer
to the Child Support Guidelines or to justify any deviation pursuant to R.C.




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3113.215(B)(1)(a) and (b). Accordingly, the referee found that Charles’s waiver of
support for Michael was in contravention of Ohio law.
       {¶ 12} After computing support pursuant to the Child Support Guidelines
set out in the Revised Code, the referee recommended that Florence pay child
support in the amount of $144.53 per month. Florence filed objections to the
referee’s report.      However, the juvenile court adopted the referee’s
recommendation and ordered child support.
       {¶ 13} On appeal, Florence argued that there had been no determination that
the parties’ circumstances had changed so as to require modification of the child
support agreement. The appellate court determined that a change in circumstances
was immaterial because the lower court had not modified an order to pay child
support but had established child support for the first time. The appellate court
found that Ohio law requires that a child support order must be made pursuant to
the Child Support Guidelines, unless the court justifies deviating from the
guidelines pursuant to R.C. 3113.215(B)(1)(a) and (b). Accordingly, the appellate
court upheld the juvenile court’s holding that Florence must pay support as
governed by the Child Support Guidelines.
       {¶ 14} Thereafter, the court of appeals, finding its judgment on this issue to
be in conflict with the decision of the Twelfth District Court of Appeals in Anderkin
v. Lansdell (1992), 

80 Ohio App. 3d 687

, 

610 N.E. 2d 570

, and with the decisions
of the Third District Court of Appeals, entered an order certifying a conflict. This
cause is now before this court upon our determination that a conflict exists.
       Tzangas, Plakas & Mannos, James R. Recupero and David L. Dingwell for
appellant.
       Kimberly R. Hopwood, for appellee.
                              __________________
       LUNDBERG STRATTON, J.
       {¶ 15} The appellate court certified the following issue to us:




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                                 January Term, 1997




        “[W]hether a Trial Court may modify an existing child support arrangement
under which the custodial parent assumes sole responsibility for the support of the
children when there is no finding under the following dual threshold test:
        “(A) the supporting custodial parent’s circumstances have changed to the
extent that that parent can no longer provide the total amount reasonable for the
support of the children, or
        “(B) the noncustodial parent’s circumstances have changed substantially
and the trial court in its discretion finds it is in the best interest of the children to
receive support from that parent.”
        {¶ 16} We hold that when a trial court either establishes an initial child
support order, or modifies an existing child support order based on an agreement
under which the custodial parent assumed sole responsibility for the support of the
child, the Child Support Guidelines must be followed pursuant to the standard laid
out in Marker v. Grimm (1992), 

65 Ohio St. 3d 139

, 

601 N.E.2d 496

. We
specifically reject the dual-threshold test required by Anderkin v. Lansdell (1992),

80 Ohio App. 3d 687

, 

610 N.E.2d 570

.
        {¶ 17} On April 12, 1990, R.C. 3113.215 became effective, establishing
Child Support Guideline, which require a trial court to calculate the child support
obligation in accordance with a detailed child support schedule and worksheet
outlined in the statute. Am. Sub. H.B. No. 591. 143 Ohio Laws, Part IV, 5957,
5997. This court in Marker v. 

Grimm, supra,

 has interpreted the guidelines as
follows:
        (1)     A child support computation worksheet must actually be completed
and made a part of the trial court’s record.
        (2)     This requirement is mandatory and must be literally and technically
followed.
        (3)     Any court-ordered deviation must be supported by findings of fact
and must be journalized.




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        {¶ 18} In Marker, the trial court had not followed the guidelines, had not
completed the worksheet, and had made no specific finding that the guidelines were
“unjust or inappropriate and would not be in the best interest of the child” as
required by R.C. 3113.215(B)(3). The Marker court found that the judge was
required to strictly comply with the statute and that the amount determined under
the Child Support Guidelines was “rebuttably presumed to be the correct amount
of child support due” and must be ordered unless the court had done both of two
steps: (a) made a factual determination and set forth criteria as to why following
the guidelines would be unjust or inappropriate and not in the best interest of the
child and (b) made an actual entry in the journal of findings of fact to support that
determination.    Marker, 

65 Ohio St. 3d at 141

, 

601 N.E.2d at 498

; R.C.
3113.215(B)(1).     This court has continued to require strict compliance in
subsequent cases. See Rock v. Cabral (1993), 

67 Ohio St. 3d 108

, 

616 N.E.2d 218

.
        {¶ 19} The conflict in this case arises over what happens when there is no
existing “child support order.” In this case, the trial court’s original entry of August
13, 1990 specifically discussed child support in stating that “all support obligations
due from the plaintiff shall be waived.” Some courts have found that such a waiver
is the equivalent of a lack of a child support order. However, the referee rejected
the Anderkin test (which started with the premise that such an agreement was the
equivalent of no order), which had been proposed by Florence, finding that it was
immaterial whether or not there was a prior order.
        {¶ 20} The Anderkin court established a dual-threshold test, which requires
either that the custodial parent’s circumstances have changed to the extent that the
parent can no longer provide the total amount reasonable for support or that the
noncustodial parent’s circumstances have changed substantially and that the court
finds that it is in the best interest of the child to receive support from both parents.
The courts which follow the Anderkin test seem to focus solely on the issue of
whether a child support order is already in existence. However, we agree with the




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                                January Term, 1997




referee and find that this is a distinction without a difference and is immaterial to
whether child support should be calculated according to the statutory guidelines.
       {¶ 21} Therefore, one must look to the Marker standard in this case. The
trial court’s August 13, 1990 order stated: “IT IS ORDERED, ADJUDGED and
DECREED that the parties abide by these orders in the best interest of the child.”
(Emphasis sic.) However, the order made no finding of facts or a determination
that the application of the Child Support Guidelines would be “unjust or
inappropriate.” The entry appeared to be merely a rubber-stamping of an agreement
between the parents which waived support from Florence.             That order was
incorporated by reference in the June 2, 1994 order. The referee rejected this
approach and instead, using the Marker approach, applied the Child Support
Guidelines to the facts at hand, completed the worksheet, considered the issues
urged by the plaintiff regarding the luxuries or additional benefits she had supplied
to her son, and determined that these circumstances did not show that a support
award pursuant to the guidelines would be unjust or inappropriate. The referee
ordered that full support of the child by both parents would be in the best interest
of the child. The trial court adopted the findings of the referee, and the decision
was upheld by the court of appeals.
       {¶ 22} However, if a support order already exists, the only test to determine
whether child support shall be modified is set forth by R.C. 3113.215(B)(4):
       “If an obligor or obligee under a child support order requests the court to
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 support order in accordance with the schedule ***, and 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 that is 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 *** shall be considered by the court as a




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change of circumstance that is substantial enough to require a modification of the
amount of the child support order.” In determining the ten percent figure, the court
takes into account all other factors required by R.C. 3113.215(B)(4), such as the
court-ordered cost of health insurance. Medical needs of the child can constitute a
sufficient change of circumstances without regard to the ten percent test. If there
is a sufficient change in circumstances, the court shall require support in the amount
set by the guidelines unless that amount would be unjust or inappropriate or not in
the best interest of the child. The ten percent difference applies to the change in
the amount of child support, not to the change in circumstances of the parents. The
trial court also has the obligation to test any proposal of the parents to see if it meets
the Child Support Guidelines under the Marker standard even if the parties agree
between themselves to a different amount or agree that only one party shall assume
all support. See Martin v. Martin (1993), 

66 Ohio St. 3d 110

, 

609 N.E.2d 537

.
        {¶ 23} The law favors settlements. However, the difficult issue of child
support may result in agreements that are suspect. In custody battles, choices are
made, and compromises as to child support may be reached for the sake of peace
or as a result of unequal bargaining power or economic pressures.                    The
compromises may be in the best interests of the parents but not of the child. Thus,
the legislature has assigned the court to act as the child’s watchdog in the matter of
support. 

Id. at 115

, 

609 N.E.2d at 541

.
        {¶ 24} Obviously, when the amount of child support provided by the
noncustodial parent is zero, but the Child Support Guidelines clearly establish that
the noncustodial parent owes support, then that ten percent difference is clearly
met. Since the referee found the guidelines were not unjust or inappropriate and
were in the best interests of the child, the new amount ordered by the trial court
became the child support obligation. We find no abuse of discretion in this.
        {¶ 25} In conclusion, we find that the Fifth District Court of Appeals has
stated the law correctly. Whether a court is establishing an initial child support




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order or whether the court is modifying an order based on an agreement between
the parties that does not include an order for the payment of child support, the court
must apply the Child Support Guidelines as required by the standards set out in
Marker. When the court is modifying a preexisting order for the payment of child
support, the court must apply the ten percent test established by R.C.
3113.215(B)(4) in the Child Support Guidelines and the standards set out in
Marker.
          {¶ 26} Accordingly, we affirm the judgment of the court of appeals.
                                                                 Judgment affirmed.
          MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
                                __________________




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