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Huth v. Huth

Court of Appeals of Ohio, Eleventh District, Portage

July 22, 2019

KRESNT D. HUTH, Plaintiff-Appellee,
v.
ROBERT J. HUTH, Defendant-Appellant.

          Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations Division, Case No. 2007 DR 00548.

          Eric R. Fink, (For Plaintiff-Appellee).

          David M. Leneghan and K. Scott Carter, (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Robert J. Huth, appeals from a judgment entered by the Portage County Court of Common Pleas, Domestic Relations Division, on October 10, 2018. The judgment is affirmed in part and reversed in part, and the matter is remanded for further proceedings consistent with this opinion.

         {¶2} This matter originated in the trial court as a divorce action between appellant ("Father") and appellee, Kresnt D. Huth ("Mother), in 2007. The parties were granted a divorce on June 3, 2008, and the trial court implemented a Shared Parenting Plan for the three minor children born during the marriage. With regard to child support, the Shared Parenting Plan provided:

Father shall pay to Mother for support of the minor children the sum of $300.00 per month, plus 2% processing charge commencing April 25, 2008. An upward deviation in child support is warranted because of the time the children spend with each parent and to equalize the parties' income. If not for the upward deviation in child support, Father shall pay to Mother for the support of the minor children the sum of $78.87 per month plus 2% processing charge for a total of $80.45 per month pursuant to the attached Child Support Calculation Worksheet.

         The Shared Parenting Plan additionally provided that "all cost [sic] of school lunches, school fees, extracurricular activities, sports equipment, lessons, school supplies, yearbooks, school clothes, etc. shall be split equally between the parties."

         {¶3} Father failed to pay child support to Mother, which resulted in contempt proceedings. In 2010, Father filed a Motion for Modification of Child Support "based upon a change in the parties' financial conditions." The parties entered into an Agreed Judgment Entry on July 14, 2010, in which Mother agreed to waive the past due child support, and Father's current child support obligation was deviated to zero. Father remained obligated to pay an amount towards the children's medical care.

         {¶4} On July 21, 2014, Father filed a Motion for Reallocation of Parental Rights and Responsibilities, in which he requested to be named residential parent of two of the parties' three children. In a Motion for In-Camera Interview, Father stated that "time is of the essence in this matter as [Father] will be relocating to the State of Florida and desires to enroll the children in school in a timely fashion if possible for the upcoming school year[.]"

         {¶5} On August 28, 2015, Mother filed a Motion to Modify Child Support based upon a change in circumstances. "Specifically," she stated, "Father has changed addresses, is no longer evenly dividing any expenses, and therefore has not paid any child support in over six (6) months."

         {¶6} A hearing was held February 3, 2016, a transcript of which has not been provided on appeal. It appears undisputed, however, that Father did not attend the hearing. Father's counsel appeared, as did Mother and her counsel.

         {¶7} On February 24, 2016, the trial court issued a Judgment Entry, in which it declared the parties had agreed to be bound by the attached Amended Shared Parenting Plan and had agreed to dismiss all outstanding motions. According to the Amended Shared Parenting Plan, Father was to pay Mother $600.00 to settle her claim for prior child support and a deviated amount of $625.00 per month, commencing retroactively on November 1, 2015.

         {¶8} Father again failed to pay child support, and contempt proceedings were initiated in 2017.

         {¶9} On February 12, 2018, Father filed a Motion to Modify Child Support, alleging a change of circumstances: "Before [the February 24, 2016] Order the parties had equal parenting time, but Defendant moved to Florida. Defendant has returned from Florida and the parties are back implementing equal parenting time."

         {¶10} The trial court held an evidentiary hearing on April 9, 2018, a transcript of which has not been provided on appeal. It is apparent from the record, however, that Father disputed that the February 24, 2016 order was valid because he had not agreed to the Amended Shared Parenting Plan.

         {¶11} By judgment entry issued June 13, 2018, the trial court vacated its February 24, 2016 order and the Amended Shared Parenting Plan. The court explained as follows:

[At the hearing on April 9, 2018, ] the parties stipulated as to the calculations and accounting performed by CSEA regarding payments and arrearages subject to and conditioned upon a finding that the order of February 24, 2016, is a valid and binding order. [Father] disputed that the February order is valid.
The first witness, Ms. Judy Rice from CSEA, testified that [Father] contacted CSEA on July 26, 2016; August 19, 2016; October 20, 2016; and December 5, 2016. On each occasion ...

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