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Soukup v. Kirchner

Court of Appeals of Ohio, Eleventh District

June 28, 2013

GREGORY CHARLES SOUKUP, Plaintiff-Appellee,
v.
TINA D. KIRCHNER, Defendant-Appellant.

Civil Appeal from the Geauga County Court of Common Pleas, Juvenile Division, Case No. 11 CU 000176.

Gary S. Okin and Laurie A. Koerner, Dworken & Bernstein Co., L.P.A., (For Plaintiff-Appellee).

Jeffrey H. Black and Christine M. Tibaldi, (For Defendant-Appellant).

Susan K. Jankite, Susan Jankite Co., L.P.A., (Guardian ad litem).

OPINION

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Tina D. Kirchner, appeals the judgment of the Geauga County Court of Common Pleas, Juvenile Division, denying her Civ.R. 60(B) motion seeking relief from the court's child support order. In her merit brief, appellant additionally asserts assignments of error based upon the underlying child support order, though this order was never designated in nor attached to her otherwise timely notice of appeal. The issues on this appeal are whether this court has jurisdiction to consider assignments of error arising from an entry or order not designated in a timely notice of appeal, and if so, whether the court erred in establishing the commencement date and amount of its child support order. We must also decide whether the trial court abused its discretion in denying appellant's Civ.R. 60(B) motion.

{¶2} Appellant and appellee, Gregory Charles Soukup, began a relationship, though never married. Twins were born as issue of this relationship on November 4, 2004. This case commenced on September 17, 2007, in the Lake County Court of Common Pleas, Juvenile Division, when appellee filed a complaint to establish parental rights. Appellant filed an answer and counterclaim seeking, inter alia, permanent and temporary child support. The case was transferred to Geauga County on April 27, 2011. The record on appeal before this court begins on April 27, 2011, with an order setting pretrial.

{¶3} After numerous delays and a hearing on parental rights and child support, the trial court made numerous determinations which are now the subject of this appeal. First, the trial court determined that appellee was to pay child support, commencing on May 22, 2012-the date the motion for child support was filed. The trial court further found that appellee had paid $5, 700 a month to appellant directly for child support since January 2008. Immediately following the trial court's child support order, appellant filed a Civ.R. 60(B) motion, arguing, in part, that the trial court utilized the wrong commencement date.

{¶4} Appellant sets forth three assignments of error, which, as they are interrelated, will be addressed together. They state:

{¶5} [1.] The trial court committed prejudicial error and abused its discretion when it chose a date other than the date on which the first motion for child support was filed to begin a child support order to be paid by obligor to obligee.

{¶6} [2.] The trial court committed prejudicial error when it denied Defendant's (Appellant's) Motion for Relief under Civ.R. 60(B), where Appellant had a meritorious claim; namely that the child support date should have been the date of the first filing or request for child support. The Appellant is entitled to relief under one of the grounds in Civ.R. 60(B), namely mistake, inadvertence, surprise or excusable neglect and Appellant filed her Motion within a reasonable time, namely about 12 days after final judgment.

{¶7} [3.] The trial court committed prejudicial error in crediting Appellee/Father as giving paid child support to Appellant/Mother instead of deeming the monies a gift as Ohio's statutes and case law mandate since the monies were not paid through Child Support Enforcement Agency.

{¶8} In her first assignment of error, appellant contends the trial court erred in designating May 22, 2012, as the commencement date of the child support order. Appellant argues the commencement date should be October 18, 2007, the alleged date a temporary support motion was filed, but never ruled on. In her third assignment of error, appellant argues that appellee's monthly payments of $5, 700 starting in January 2008 were merely gifts. These assigned errors challenge the June 29, 2012 "[j]udgment entry to establish permanent child support order and health care orders" (the "Child Support Order).

{¶9} In her second assignment of error, appellant argues the trial court erred in failing to grant relief from the Child Support Order. Thus, the essence of appellant's argument remains unchanged: she again argues the trial court made a mistake in designating May 22, 2012, as the commencement date of the Child Support Order; this assignment merely couches the alleged error in terms of the trial court's failure to grant her Civ.R. 60(B) motion for relief from that judgment. ...


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