Meyer v. Wile

[Cite as Meyer v. Wile, 

.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Alexander A. Meyer,                               :

                Plaintiff-Appellee,               :               No. 23AP-133
                                                               (C.P.C. No. 22DR-2163)
v.                                                :
                                                             (REGULAR CALENDAR)
Ashley N. Wile,                                   :

                Defendant-Appellant.              :



                                           D E C I S I O N

                                  Rendered on December 19, 2023


                On brief: Lee S. Rosenthal, for appellee. Argued: Lee S.
                Rosenthal.

                On brief: Einstein Law, LLC, and Taylor Jones, for
                appellant. Argued: Taylor Jones.

                 APPEAL from the Franklin County Court of Common Pleas,
                             Division of Domestic Relations

JAMISON, J.
        {¶ 1} Defendant-appellant, Ashley N. Wile, appeals the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations. We affirm in part and
reverse in part for the reasons stated below.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Appellant and plaintiff-appellee, Alexander A. Meyer, were married on
July 31, 2010. One child was born prior to the marriage, and another child was born as
issue of the marriage.
        {¶ 3} On July 11, 2022, appellee filed a complaint for divorce, and attempted to
serve appellant at her address through certified mail. Appellant has lived at the same
No. 23AP-133                                                                               2


address during the pendency of this case. Certified mail service was unsuccessful, and
appellant was personally served through a process server on October 18, 2022.
       {¶ 4} Appellant did not file an answer to the complaint.
       {¶ 5} On November 30, 2022, appellee filed a notice certificate of uncontested
divorce only, listing appellant’s address. The notice certificate contained a hearing date of
February 3, 2023. On January 4, 2023, the clerk mailed the notice of the February hearing
date to the parties.
       {¶ 6} Appellee and a witness attended the February 3, 2023 hearing; appellant did
not attend. A brief hearing was conducted, and the marriage was terminated. Appellee was
awarded legal custody of the children and appellant was ordered to pay $769.90 per month
for child support.
       {¶ 7} On February 3, 2023, the agreed judgment entry/decree of divorce was
mailed to appellant. On February 24, 2023, appellant’s newly retained counsel filed a
notice of appeal and a motion to stay the proceedings in the trial court. The trial court
granted the stay on March 7, 2023.
II. ASSIGNMENTS OF ERROR
       {¶ 8} Appellant assigns the following as trial court error:
              [1.] The trial court abused its discretion by proceeding the final
              hearing without giving reasonable notice of the final hearing to
              Appellant.

              [2.] The trial court erred in issuing an Agreed Judgment
              Entry/Decree of Divorce, that was not agreed upon by
              Appellant.

              [3.] The trial court erred and abused its discretion when it
              awarded Appellee full custody of the minor children, without
              evidence of the best interest factors of the minor children as
              required under R.C. 3109.04(F)(1).

              [4.] The trial court erred when it ordered Appellant to pay child
              support to Appellee without adequate evidence.

III. STANDARD OF REVIEW
       {¶ 9} Parties are entitled to a reasonable notice of judicial proceedings and a
reasonable opportunity to be heard. Greenhouse v. Anderson, 10th Dist. No. 20AP-125,
No. 23AP-133                                                                                 3

. “The question of whether due process requirements have been met is a
question of law we review de novo.” Id. at ¶ 12.
       {¶ 10} Trial courts have broad discretion in determining custody issues, and an
abuse of discretion standard of review applies to appeals of custody matters. Baze-Sif v.
Sif, 10th Dist. No. 15AP-152, 

. The abuse of discretion standard of review is
used to review matters concerning child support. Booth v. Booth, 

 (1989).
       {¶ 11} Our role in an abuse of discretion review is not as trier of fact but “to
determine whether there is relevant, competent, and credible evidence upon which the
factfinder could base his or her judgment.” Paat v. Paat, 5th Dist. No. 15 CAF 03 0025,

, ¶ 66.
IV. LEGAL ANALYSIS
       {¶ 12} In her first assignment of error, appellant argues that she was not afforded
due process during the divorce when the trial court held a final hearing without providing
her with notice.
       {¶ 13} The Fourteenth Amendment to the United States Constitution guarantees
due process of law and “requires that a party receive reasonable notice of judicial
proceedings and a reasonable opportunity to be heard.” Shell v. Higgins, 2d Dist. No. 2017-
CA-5, 

.
       {¶ 14} Civ.R. 75(L) provides that, where a party is not represented by counsel, “the
court shall give the adverse party notice of the trial upon the merits * * * by regular mail to
the party’s last known address.” This notice requirement gives an unrepresented party the
opportunity to appear at the final hearing should he so choose.” Klein v. Cruden, 2d Dist.
No. 19952, 

.
       {¶ 15} An entry setting a final hearing date in a divorce on the court’s docket can
constitute reasonable constructive notice of the hearing. Ohio Valley Radiology Assocs.,
Inc. v. Ohio Valley Hosp. Assn., 

 (1986). We have found that “a party
receives constructive notice of a hearing by virtue of the trial court’s entry on its online
docket.” 

. A party to an action “ ‘ “has a duty to check on the proceedings
of the court to assure that he will be at the hearings or trial.” ’ ” Davidson v. West, 10th
Dist. No. 18AP-268, 

, quoting Coleman v. R&T Invest. Property, 10th
No. 23AP-133                                                                                4


Dist. No. 13AP-863, 

, quoting Ketchum v. Hoffman, 10th Dist. No.
93APE09-1270, 

, *13 (May 26, 1994).
       {¶ 16} The record reflects that a notice of an uncontested divorce final hearing set
for February 3, 2023 was mailed to appellant at her address on January 4, 2023. Even
though the initial certified mail service failed, it is apparent that appellant has resided at
the same address. There is no indication the ordinary mail service was not deliverable, and
appellant has failed to demonstrate the notice of the final hearing was not sent by the clerk.
       {¶ 17} Appellant did not appear at the hearing, and avers she did not receive notice
and was not aware of the hearing date. However, appellant was personally served with the
divorce complaint on October 18, 2022, and was therefore aware that divorce proceedings
had been initiated. This knowledge triggered appellant’s duty to “follow the progress of
their own case.” MBA Realty v. Little G, Inc., 

 (8th Dist.1996).
Appellant’s due process rights were not violated because, had she looked, the trial court’s
online docket served as constructive notice of the final hearing.
       {¶ 18} Appellant’s first assignment of error is overruled.
       {¶ 19} Appellant argues in her second assignment of error that the trial court erred
in issuing an agreed judgment entry when she did not agree to the document.
       {¶ 20} The judgment entry was prepared by appellee’s counsel and presented to the
trial court for signature at the hearing. The document is captioned as an agreed judgment
entry/decree of divorce, but the first sentence reads that appellant never filed an answer or
otherwise appeared in the matter. The second sentence acknowledges that appellee is
proceeding on an uncontested basis. There is no language suggesting that appellant agreed
to any term in the entry.
       {¶ 21} It is clear from the record that the trial court did not treat the matter as an
agreement. Appellee acknowledges that the use of the word agreed in the caption is a
mistake and harmless error.
       {¶ 22} It is clear, despite the use of the word agreed in the caption, that the
document was not an agreement between the parties. “The complete record and the intent
of the trial court, not just the caption,” determine the substance of the document. Anstaett
v. Benjamin, 1st Dist. No. C-010376, 

, ¶ 20.
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       {¶ 23} The fact that the entry is titled an agreed judgment entry is a clerical mistake,
which is “a mistake or omission, mechanical in nature and apparent on the record which
does not involve a legal decision or judgment.” (Internal quotation and citation omitted.)
Bracken v. Bracken, 6th Dist. No. H-15-008, 

. The mistake could be
remedied without a change to substantive aspects of the decree.
       {¶ 24} Appellant’s second assignment of error is overruled.
       {¶ 25} In her third assignment of error, appellant contends the trial court failed to
consider the best interest factors contained in R.C. 3109.04(F)(1).
       {¶ 26} The allocation of parental rights and responsibilities are governed by R.C.
3109.04. The trial court must determine the best interests of the children and “consider all
relevant factors, including, but not limited to, those factors set forth in R.C. 3109.04(F)(1).”
Wilk v. Wilk, 8th Dist. No. 96347, 

. “The trial court is only required
to determine what is in the best interest of the children and to ‘consider all relevant
factors.’ ” Smarrella v. Smarrella, 7th Dist. No. 14 JE 18, 

, ¶ 53, quoting
Krill v. Krill, 3d Dist. No. 4-13-15, 

.
       {¶ 27} However, in the absence of a motion, pursuant to Civ.R. 52, a trial court is
not required to make specific findings in the judgment entry. 

. An appellate
court will presume regularity in the trial, “unless the contrary is made to appear in the
record.” Tonti v. E. Bank Condominiums, L.L.C., 10th Dist. No. 07AP-388, 2007-Ohio-
6779, ¶ 26.    Therefore, we would presume that the trial court considered the R.C.
3109.04(F) factors “unless there is reason to believe the trial court did not consider those
factors.” 

.
       {¶ 28} If the record does not support the conclusion that all relevant factors were
considered, the trial court has not complied with R.C. 3109.04(F)(1).             Brammer v.
Meachem, 3d Dist. No. 9-10-43, 

.
       {¶ 29} The judgment entry contains no mention of the children’s best interests or
R.C. 3109.04. Instead, the judgment entry includes the summary statement declaring
“Plaintiff is designated residential parent and legal custodian of the minor children of the
parties, * * *. As residential parent and legal custodian, the children shall reside primarily
with Plaintiff.” (Feb. 3, 2023 Agreed Jgmt. Entry/Decree of Divorce at 2.)
No. 23AP-133                                                                               6


       {¶ 30} This court has found error where a trial court made no finding regarding a
child’s best interest. Hawkins v. Hawkins, 10th Dist. No. 79AP-404, 

 (Dec. 18, 1979). A decree of divorce should include language “that the trial court
considered the children’s best interest when it allocated parental rights and
responsibilities.” Phillips v. Phillips, 5th Dist. No. 2005CA00072, 

.
       {¶ 31} At the February 3, 2023 hearing, appellee testified about his beliefs regarding
best interest under direct examination by counsel:
               [Counsel]    Okay. And do you feel -- you have also put in
                            other -- do you feel that it’s in the best interest of
                            the children that you be awarded sole residential
                            parent and legal custodian and that the parenting
                            schedule be as set forth in this decree?

               [Appellee]   Correct.

               [Counsel]    Thank you. Also, the -- this decree provides for
                            manners    of    communication,       primarily
                            OurFamilyWizard, it provides for child support,
                            maintenance of health insurance, the
                            dependency exemption and the like, correct?

               [Appellee]   Correct.

               [Counsel]    And do you feel all of that is in the best interest
                            of the children?

               [Appellee]   Correct.

(Tr. at 6.) Appellee’s witness only acknowledged that appellee’s testimony was true and
correct.
       {¶ 32} At the conclusion of the brief hearing, the trial court stated “[b]ased on the
testimony presented, as well as my review of the file, I will grant the request for a divorce
and terminate the marriage effective today, February 3, 2023. I wish you all the best. Take
care.” (Tr. at 8.)
       {¶ 33} We find the trial court did not engage in the required best interests of the
children analysis in awarding appellee legal custody.         The trial court has a duty to
“ ‘consider’ all relevant factors,” but the record does not indicate that the trial court
evaluated each subsection under R.C. 3109.04(F)(1) and (2), either at the divorce hearing
No. 23AP-133                                                                                7


or in the judgment entry. Ayers v. Ayers, 6th Dist. No. WD-21-010, 

,
quoting D.C. v. M.M., 6th Dist. No. H-21-004, 

.
       {¶ 34} Appellant’s third assignment of error is sustained.
       {¶ 35} Appellant asserts in her fourth assignment of error that the trial court erred
when it ordered child support without any evidence.
       {¶ 36} R.C. Chapter 3119 governs child support with the underlying purpose “ ‘to
meet the current needs of the minor child.’ ” Habib v. Shikur, 10th Dist. No. 17AP-735,

, quoting Harbour v. Ridgeway, 10th Dist. No. 04AP-350, 2005-
Ohio-2643, ¶ 34. Ohio’s child support scheme presumes a child should receive the same
proportion of parental income as if the parents resided together.          Wolf-Sabatino v.
Sabatino, 10th Dist. No. 12AP-1042, 

. The first step in calculating child
support is the determination of the annual income of each parent. R.C. 3119.021(A).
       {¶ 37} When a trial court determines a parent’s income for purposes of calculating
child support, it must verify the income “with suitable documents, including, but not
limited to, paystubs, employer statements, receipts and expense vouchers related to self-
generated income, tax returns, and all supporting documentation and schedules for the tax
returns.” R.C. 3119.05(A). A trial court’s child support order issued without the necessary
financial documentation “ ‘renders the court’s order arbitrary and therefore an abuse of
discretion.’ ” (Further quotation and citation omitted.) Montgomery v. Montgomery, 3d
Dist. No. 14-14-22, 

, quoting Basham v. Basham, 3d Dist. No. 1-02-
37, 

, ¶ 6.
       {¶ 38} The Seventh District found an abuse of discretion for the trial court to deviate
child support to zero “without any evidence or findings as to the parties’ income, health
insurance, and other financial matters.” Collier v. Collier, 7th Dist. No. 17 HA 0010, 2018-
Ohio-3596, ¶ 38.
       {¶ 39} Here, the decision of the trial court is not supported by any competent,
credible evidence going to appellant’s income. Appellant never filed a financial affidavit
listing her income. The court did not review appellant’s pay stubs or tax returns.
       {¶ 40} Appellee did submit an affidavit of income stating his income, but the income
information for appellant was left blank. Appellee prepared the child support worksheet
but offered no insight regarding appellant’s income figures.
No. 23AP-133                                                                               8


       {¶ 41} A trial court’s determination of gross income is a factual finding, and is
reviewed for “ ‘some competent, credible evidence’ ” to support the finding. Dannaher v.
Newbold, 10th Dist. No. 05AP-172, 

, quoting Thomas v. Thomas, 6th
Dist. No. L-03-1267, 

.
       {¶ 42} We find there is no reliable information in the record regarding appellant’s
or appellee’s income. As a result, appellant’s income used in the child support worksheet
“was inherently inaccurate as it was processed and calculated in violation of R.C.
3109.05(A).” Rhymers v. Rhymers, 11th Dist. No. 2011-L-064, 

, ¶ 29.
“[W]e have no meaningful way to review the determination.” Lenoir v. Paschal, 2d Dist.
No. 23732, 

, ¶ 8.
       {¶ 43} It is an abuse of discretion for a court not to follow the statutorily mandated
procedure to determine child support. In re B.M., 8th Dist. No. 111905, 

.
       {¶ 44} Appellant’s fourth assignment of error is sustained.
V. CONCLUSION
       {¶ 45} Appellant was properly served with the complaint by process server and has
assigned no error to the trial court granting the parties’ divorce, therefore, the court does
not disturb the order terminating marriage.
       {¶ 46} For the reasons above, appellant’s first and second assignments of error are
overruled. Appellant’s third and fourth assignments of error are sustained. This matter is
affirmed in part and reversed in part, and is remanded to the Franklin County Court of
Common Pleas, Division of Domestic Relations to take evidence as to allocation of parental
rights and responsibilities, taking into consideration the best interest factors when making
that determination.
                                          Judgment affirmed in part and reversed in part;
                                                        cause remanded with instruction.

                           DORRIAN and BOGGS, JJ., concur.