COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67030 JOANN G. McGUIRE : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION HARRY L. McGUIRE : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Case No. D-178827 JUDGMENT: MODIFIED AND AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-AppellANT: JAMES E. POWELL 100 Courthouse Square Building 310 Lakeside Avenue, West Cleveland, Ohio 44113 For Defendant-Appellee: GEORGE GLAVINOS 24650 Center Ridge Road, Suite 210 Westlake, Ohio 44145 - 2 - O'DONNELL, J.: On September 11, 1987, plaintiff-appellant Joann McGuire and defendant-appellee Harry McGuire were divorced. The judgment entry provided for payment of support alimony to the plaintiff in the sum of $408.00 per month, and further provided, in relevant part: "*** [S]aid payments shall continue until the Plaintiff becomes employed. At that time, the support alimony shall be reduced to Two Hundred Four Dollars and No Cents ($204.00) per month, said sum includes two percent (2%) poundage and to continue for a period of seven years. ***." Also, the decree required the defendant to pay to the plaintiff the sum of $71.40 per child "*** every week for the support of the minor children ***." (Emphasis added.) On March 13, 1992, defendant filed a motion to modify alimony and child support payments. The Domestic Relations referee, after a hearing, found that on October 31, 1992, plaintiff acknowledged in an affidavit that "(she) began part- time sporadic employment during the summer of 1987 as a paralegal", and held that plaintiff was "employed", and as such, her alimony support should be reduced to $200.00 per month. The referee further found that the minor child, Tanya, (D.O.B. 3/7/75), was 18 years of age, graduated from high school on June 6, 1993, became emancipated, and that defendant's obligation to pay child support for her was terminated. Plaintiff filed objections to the referee's report, which were denied by the - 3 - trial judge. Upon receipt of notice that her alimony had been reduced and child support for Tanya had been terminated, plaintiff appealed, raising two assignments of error. I. Plaintiff's first assignment of error states: THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFF'S OBJECTIONS TO THE REFEREE'S REPORT AND RECOMMENDATION MODIFYING THE DEFENDANT'S ALIMONY OBLIGATION. The essence of plaintiff's argument is that alimony should not have been reduced because the court did not expressly retain jurisdiction to modify alimony and that her paralegal position is only part-time employment. Appellee argues that since appellant is employed, the divorce decree mandates a reduction of spousal support alimony. The first issue, then, for this court is whether support alimony should have been reduced in this case. R.C. 3105.18(E)(1) provides that if an order for payment of alimony is entered in a divorce action determined after May 2, 1986 and before January 1, 1991, the court does not have jurisdiction to modify the amount or terms of the alimony award unless the judgment entry contains a provision specifically authorizing the court to modify the amount or terms of the alimony. - 4 - Our analysis begins with the original language in the divorce decree. The order regarding support alimony contemplates a reduction when the plaintiff becomes employed and, as plaintiff correctly argues, there is no specific reservation of authority by the trial court to modify alimony payments as required by R.C. 3105.18(E)(1). We find no qualifying language to permit plaintiff's part-time, sporadic employment. The referee determined and plaintiff has acknowledged she became employed as a paralegal during the summer of 1987. These facts are not disputed. The next issue, then, for our resolution, is whether the reduction in alimony violates R.C. 3105.18(E)(1). We conclude it does not. Here, the original divorce decree contemplated and defined a reduced amount of support alimony to be paid by appellee upon the occurrence of a condition subsequent--the plaintiff's employment. The trial court's determination that plaintiff is employed does not modify the original decree, but rather enforces one of the original terms of the decree which was contemplated by the parties at the time of the divorce. Our review further reveals that the trial court ordered alimony reduced to $200 per month, for seven years, effective October, 1990, since the court had determined the defendant was in arrears on September 4, 1990. The October, 1990 date, while relevant to defendant's arrearage, predates even the filing of defendant's request to modify and fails to consider plaintiff's - 5 - reliance upon or expectation of receiving those monies. In this case, retroactive reduction constitutes substantial injustice. Accordingly, this court modifies the effective date of the reduction in alimony to February 14, 1994, when the court modified the alimony support. Defendant's obligation, therefore, is to pay $200 per month to the plaintiff for seven years commencing February, 1994, and to pay $400 per month for all previous months. This assignment of error then is granted in part and overruled in part. II. Plaintiff's second assignment of error urges: THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFF'S OBJECTIONS TO THE REFEREE'S REPORT AND RECOMMENDATION MODIFYING THE DEFENDANT'S CHILD SUPPORT OBLIGATION WITHOUT MAKING THE CHILD SUPPORT WORKSHEET A PART OF THE TRIAL COURT'S RECORD. Appellant here argues that child support should not be modified without following R.C. 3113.215, which requires the use of a worksheet in computing child support. Appellee contends that since his daughter, Tanya, is eighteen years of age, emancipated, and a high school graduate, no such worksheet is required. The issue for our determination is whether the court can terminate these payments without the use of a child support worksheet. R.C. 3113.215(E) requires: "When a court *** calculates the amount of child support that will be required to be paid, *** - 6 - the court *** shall use a worksheet ***." The terms of R.C. 3113.215 are mandatory in nature and must be followed literally in all material respects. Marker v. Grimm, (1992), 65 Ohio St.3d 139. Thus, a child support worksheet must be used when recalculating child support. Here, it is undisputed that no such worksheet was completed, but we find no error because the defendant's obligation to pay child support for Tanya terminated by operation of law. In Ohio, the age of majority is eighteen (R.C. 3109.01), and the obligation to pay child support normally terminates when a child reaches the age of eighteen. See Dudziak v. Dudziak, (1992), 81 Ohio App.3d 361. The exception to this general rule is found in R.C. 3103.03(B), which states in part, "*** the parental duty of support to children shall continue beyond the age of majority as long as the child continuously attends on a full-time basis any recognized and accredited high school." In this case, the referee made a specific finding that Tanya graduated from high school on June 6, 1993, and recommended termination of child support as of that date and the court adopted that recommendation. We therefore conclude that this case does not involve a recalculation of the amount of child support which necessitates a child support worksheet, but rather involves a statutory termination of child support which does not require such a worksheet. The law is that a termination of child support due to - 7 - emancipation, reaching the age of majority, or graduation from high school is not a recalculation of child support pursuant to R.C. 3113.215 and does not require the use of a child support worksheet. The experienced trial judge correctly applied the law, finding Tanya had graduated from high school on June 6, 1993, had earlier reached the age of eighteen and was emancipated and thus concluding that the defendant's obligation to pay child support was terminated at that time by operation of law. For these reasons, the judgment of the trial court is modified and as such is affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Domestic Relations Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J., CONCURS; JAMES D. SWEENEY, P.J., DISSENTS (See Dissenting Opinion, James D. Sweeney, P.J. attached) JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67030 JOANN G. McGUIRE : : : : PLAINTIFF-APPELLANT : D I S S E N T I N G : vs. : O P I N I O N : HARRY L. McGUIRE : : : : DEFENDANT-APPELLEE : DATE: APRIL 6, 1995 JAMES D. SWEENEY, P.J., DISSENTING IN PART: Although I am in agreement with the overall substance of the majority opinion regarding that a reduction in alimony is proper, I respectfully dissent from the majority's determination that the effective date of the reduction in alimony, from which the seven year alimony period commences, be February 14, 1994 (the date the trial court modified the alimony support) rather than October 1, 1990 (the date the trial court arrived at in reducing the alimony support). It is beyond cavil that modification of spousal support is governed by an abuse of discretion standard and the decision of the trial court will only be reversed on appellate review where that decision was unreasonable, unconscionable or arbitrary. - 10 - Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140; Leighner v. Leighner (1986), 33 Ohio App.3d 214, 515 N.E.2d 625; Ingold v. Ingold (December 15, 1994), Cuyahoga App. Nos. 66564 and 66979, unreported; R.C. 3105.18. In the present case, the trial court determined that the reduction in alimony would commence on October 1, 1990. This date was chosen because the defendant's arrearage had been determined as of September 4, 1990, and this arrearage order had not been appealed by the defendant. Absent that appeal, the referee could not tamper with that valid arrearage order by recommending a reduction in alimony prior to the date of that arrearage order, so the referee adopted a date just past the arrearage order, to wit, October 1, 1990. This appears to this writer to be a reasonable application of the trial court's discretion. Yet, the majority would adopt the reduction in alimony from February 14, 1994, on the unsupported assertion that to commence the reduction in 1990 would constitute "substantial injustice" due to "plaintiff's reliance upon or expectation of receiving those monies." This exercise in legal sophistry begs the question: did not the defendant have an equal reliance upon or expectation of receiving a reduction in alimony from the time plaintiff became employed and lasting for a period of seven years pursuant to the express language of the divorce judgment entry? This failure of the majority to not credit defendant's $200.00 per month overpayment in alimony during the term of October 1, - 3 - 1990, through February 14, 1994, to the defendant's considerable alimony arrearage represents an unwarranted windfall to the plaintiff, thereby unconscionably punishing defendant. Additionally, awarding the plaintiff such a windfall countenances and rewards the plaintiff's fraudulent action before the trial court in not reporting in a timely manner the condition (her employment) which would trigger the reduction in alimony. .