Baire v. Baire , 102 Ohio App. 3d 50 ( 1995 )

I respectfully dissent from the decision of the majority overruling the second assignment of error, which follows the rule of In re Mathers (Mar. 26, 1993), Geauga App. No. 92-G-1707, unreported, 1993 WL 150429. Mathers held that a change of circumstances sufficient to modify a prior support order must be not only "substantial" but also one not contemplated at the time of the original, or more recent, order. That view limits the ten percent rule in R.C. 3113.215(B)(4) to a test of substantiality only. However, the statute provides that a ten percent or greater deviation from the amount of support last ordered "shall be considered by the court as a change of circumstances that is substantial enough to require a modification of the child support order." The demonstrated deviation is therefore itself a circumstantial change substantial enough to trigger modification, and it matters not whether the parties considered the premises earlier. Indeed, the ten percent rule is a policy determination by the General Assembly necessary to bring Ohio into compliance with federal mandates pertaining to child support, so it is unlikely that the court or the parties could have considered the matter when the last support order was made.

I do not fear the potential for repetitious and harassing litigation which Judge Wolff has forecast should my interpretation of the ten percent rule be followed. The modification triggered by a demonstrated deviation remains subject to the adjustment allowed at line 26 of the "Worksheet" set out at R.C. 3113.215(E), which permits the court to order a different amount of support, or none at all, if the amount derived from the Worksheet calculations "would be unjust or inappropriate and would not be in the best interest of the child or children." An amount entered upon that finding is resjudicata as between the parties on the facts concerned, and each is barred from refiling thereafter on the basis of the same record.

I would overrule the second assignment of error and affirm the judgment of the trial court.