Lindsey v. Lindsey , 2019 Ohio 4923 ( 2019 )

[Cite as Lindsey v. Lindsey, 2019-Ohio-4923.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
CHRISTINE LINDSEY, : OPINION
Plaintiff-Appellant/ :
Cross-Appellee, CASE NOS. 2019-G-0201
: 2019-G-0208
- vs -
:
DANIEL LINDSEY,
:
Defendant-Appellee/
Cross-Appellant. :
Appeals from the Geauga County Court of Common Pleas, Case No. 2016 DC
000693.
Judgment: Affirmed.
R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, OH 44060 (For
Plaintiff-Appellant/Cross-Appellee).
Carol A. Szczepanik, The Law Office of Carol A. Szczepanik, LLC, P.O. Box 214,
10808 Kinsman Road, Newbury, OH 44065 (For Defendant-Appellee/Cross-Appellant).
Denise Cook, 154 East Aurora Road, PMB #231, Northfield, OH 44067 (Guardian ad
litem).
MARY JANE TRAPP, J.
{¶1} Appellant/cross-appellee, Christine Lindsey (“wife”), appeals the judgment
of the Geauga County Court of Common Pleas adopting the magistrate’s decision
recommending equal, shared parenting of the parties’ child, C.L. Appellee/cross-
appellant, Daniel Lindsey (“husband”), appeals from the same judgment awarding wife
$812.17 per month child support. For the reasons discussed in this opinion, we affirm.
Facts and Procedural History
{¶2} The parties were married on September 3, 2011. They had one child
during the marriage, C.L., born June 3, 2015. On August 24, 2016, wife moved from the
marital residence with C.L. and, on September 6, 2016, she filed a complaint for
divorce. Husband subsequently filed an answer and counterclaim. Each party pleaded
incompatibility as grounds for divorce. The parties filed motions for shared parenting.
Commencing November 4, 2016, husband was afforded visitation with C.L. every
Wednesday from 4:30 p.m. to 7:00 p.m. and Saturday 9:00 am to 6:00 p.m. On March
23, 2017, an interim agreed magistrate order was filed establishing temporary parenting
time and support. The agreed entry expanded husband’s visitation to alternating
weekend visitation from Saturday at 6:00 a.m. through Sunday at 6:00 p.m. This order
also established accounts with Our Family Wizard (“OFW”), a digital means for the
parties to communicate with one another. The order required the parties to enter all
medical, education, and extracurricular activities on the OFW calendar. The court
additionally ordered each party to respond to the other’s communications within 24
hours.
{¶3} The matter came before the magistrate for final hearing on May 25, 2018
and July 13, 2018. At trial, wife testified the parties lived together for five years before
marriage. She emphasized they had experienced difficulty communicating throughout
their relationship and she did not anticipate better communication in the future. Wife
asserted husband has a history of drinking to excess and, after C.L. was born, he went
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out frequently and was barely involved with the child. She stated she moved out of the
marital home in August 2016 without alerting husband beforehand. According to wife,
husband did not contact her for nearly two weeks. After the underlying proceedings
were filed and the March 2017 order was entered, wife enrolled C.L. in gymnastics and
swimming, but failed to provide husband with a schedule. Wife also hired a private
investigator to follow husband because she allegedly feared for C.L.’s safety. She
testified husband never advised her of his and C.L.’s plans and, as a result, she
determined she had “to figure out what he was doing.” In an effort to fulfill its
obligations, the private investigation company placed a tracking device on husband’s
truck. Wife, however, discharged the private investigation service after no evidence
was found to support any concern that C.L. was in danger. Throughout her testimony,
wife was very critical of husband and his ability to properly parent C.L.
{¶4} Husband echoed wife’s testimony regarding the time they lived together
and also acknowledged the couple always had difficulty communicating. He stated,
however, that wife would not allow him to participate in C.L.’s care after the child was
born. He asserted he desired to help with the baby, but wife insisted on taking near
total control of the infant’s care. Husband denied having any issues with alcohol and
maintained that, while he did drink, this was not a subject the couple argued about
often. After the parties separated, husband acknowledged communication was even
more difficult and wife did little to cooperate with him. Husband underscored his desire
to work with wife raising C.L. in a healthy, collaborative fashion and maintained that
even though they were divorcing, their family unit, as parents, was still intact. Husband
testified he believed wife was a good mother and did not speak ill of her when he has
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C.L. Early in the proceeding, husband submitted a formal shared-parenting plan, which
provided for equal parenting time on an alternating weekly schedule. At the hearing,
however, he stated he did not wish the court to adopt that plan. While husband still
desired equal shared-parenting, he testified he approved of the 50/50 model
recommended by the guardian ad litem (“GAL”). In light of this request, husband
recognized that wife had profound anger towards him, but he believed, with time, the
parties could work out their problems and learn to communicate more effectively for
C.L.’s benefit.
{¶5} Several of husband’s friends testified on his behalf. Each stated they
have observed, with some regularity, husband with C.L. They unanimously testified that
husband and the child have a happy and connected relationship; moreover, they
testified husband is a responsible parent who effectively engages C.L. and properly
prepares the child when they go on day trips.
{¶6} Denise Cook, the GAL, testified she had been working on the case for
approximately 20 months. She testified the parties’ communication is not ideal, but not
abnormal given the circumstances of their relationship. She stated the parties parenting
skills, from her observations, are “parenting in a better way than most people are.” Ms.
Cook testified that, in her view, the parties are both intelligent and articulate people and
have the ability to communicate effectively. In fact, she maintained the parties’
communication has improved since the beginning of the case. She testified C.L.
displays no anxiety with either parent and is happy with both parents in their respective
homes. Ms. Cook found no evidence to corroborate wife’s claim that husband has an
alcohol abuse problem. In light of the foregoing, and the parties’ intention to maintain
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residences in the same area, Ms. Cook recommended a shared-parenting plan. She
stated the plan was not premised upon previous plans submitted by the parties to the
court, but upon C.L.’s best interest. Ms. Cook testified the plan she advanced proposed
equal parenting time for both wife and husband due to C.L.’s attachment to each party;
in particular, she testified wife should have parenting time from Monday morning
through Wednesday morning and husband should have time from Wednesday morning
through Friday morning, with the parties alternating weekends. Holidays and special
dates were also alternating or specifically allocated. Ms. Cook testified the parenting
plan in place at the time of the hearing was not in C.L.’s best interest. And, given the
child’s close relationship to both parents, and in consideration of the other statutory
factors, she maintained the plan she recommended would be in C.L.’s best interest.
{¶7} On October 29, 2018, the magistrate issued her decision. After
considering the relevant statutory best-interest and shared-parenting factors, the
magistrate determined the GAL’s shared-parenting recommendation was in C.L.’s best
interest. The magistrate observed that she was concerned that “without shared
parenting, [wife] will marginalize [husband’s] role as [C.L.’s] father. The magistrate
further concluded, after considering the parties’ relative economic positions, that
husband should pay wife $812.17 per month in child support. Although the magistrate
drew additional conclusions necessary to a full resolution of the case, those matters are
not relevant to the instant appeal.
{¶8} Both parties filed objections to the magistrate’s decision. Wife objected to,
inter alia, the magistrate’s adoption of the GAL’s recommended shared-parenting plan.
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And husband objected to the magistrate’s recommendation relating to his child-support
obligation.
{¶9} On February 22, 2019, the trial court issued an order overruling wife’s
objections, with the exception of an apparent typographical error indicating wife, rather
than husband should pay child support. On March 8, 2019, the trial court issued an
additional order overruling wife’s and husband’s objections with the exception of the
previously mentioned typographical error and an error which overlooked the stipulated
date of marriage. On March 11, 2019, the trial court issued a judgment adopting the
magistrate’s decision, save the previously noted modifications. In the judgment,
however, the court ordered “that the parties shall submit a Shared Parenting Plan, for
the parenting of the parties’ minor child, [C.L.], born June 3, 2015, prepared in
accordance with the Magistrate’s Decision, within 14 days of the journalization of this
Judgment.”
{¶10} On April 1, 2019, husband filed his shared parenting plan, which reflected
the GAL’s recommendation as adopted by the trial court. On April 3, 2019, wife
submitted her shared parenting plan, which was not consistent with the GAL’s
recommendation. Instead, wife filed a shared parenting plan that husband had
previously submitted. In that plan, the parties would share C.L. in week long
increments. Meanwhile, on April 5, 2019, wife filed her notice of appeal from the March
11 judgment and husband filed his notice of appeal on April 15, 2019. On the same
date, the magistrate filed her decision adopting husband’s shared parenting plan.
Although the issue of shared parenting was formally resolved by the trial court’s March
11 judgment, wife filed objections to the magistrate’s April 15 decision and requested a
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hearing. Husband filed a memorandum in opposition. On May 15, 2019, the trial court
entered judgment, adopted the magistrate’s April 15 decision. Wife subsequently filed a
notice of appeal of this judgment. We consolidated wife’s first appeal and husband’s
cross-appeal with wife’s second appeal.
{¶11} Before embarking on an analysis of the issues raised on appeal and cross
appeal, we must attempt to make some sense of the strange procedural wrangling
which took place after the March 11, 2019 judgment. The parties appeared to view the
court’s March 11 judgment as a final, appealable order. Because, however, the trial
court ordered the parties to submit a shared parenting plan in accordance with the
GAL’s recommendation, that issue was not fully and finally resolved. Thus, the notices
of appeal filed from that judgment were premature.
{¶12} On April 15, 2019, the magistrate adopted husband’s plan as it was
consistent with the trial court’s order. That order formally resolved the substantive
nature of shared parenting. As such, any objections to the magistrate’s decision were
essentially a nullity as that matter had been formerly adjudicated – all that remained
pending from that former adjudication was the submission of an actual written plan
consistent with the court’s order. The matter became final upon the trial court’s May 15,
2019 adoption of the magistrate’s April 15 decision. It is from this decision that the
underlying issues on appeal properly emanate. With this in mind, we shall proceed to
address wife’s two assignments of error. Her first assignment of error provides:
{¶13} “The trial court erred and committed an abuse of discretion, including
adopting the magistrate’s decision, in ordering 50/50 division shared parenting adopting
the unsupported proposal by the guardian ad litem in the GAL’s report and
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recommendations, even though neither party filed a proposed shared parenting plan
incorporating a 50/50 division of parenting time.”
{¶14} Under this assignment of error, wife first argues neither party submitted a
proposed shared-parenting plan incorporating a 50/50 division of parenting time and, as
a result, the trial court was without authority to order such an arrangement. We do not
agree.
Authority to Order Shared Parenting
{¶15} R.C. 3109.04(G) requires a party or parties to file a pleading or motion
seeking shared parenting to make shared parenting an issue for the trial court.
See Rymers v. Rymers, 11th Dist. Lake No. 2009-L-160, 2010-Ohio-6439, ¶24. In this
case, at the early stages of the proceedings, both parties filed motions for shared
parenting along with a proposed plan. Wife later withdrew her plan. And while
husband stated he no longer wished to proceed with his original proposal (a one-week-
on, one-week-off schedule), he repeatedly testified he still wished equal time with C.L.
To this end, during his testimony, husband stated he agreed with the GAL’s allocation of
shared parenting recommended in her plan.
{¶16} R.C. 3109.04(D)(1)(a) provides, in relevant part:
{¶17} Upon the filing of a pleading or motion by either parent or both
parents, in accordance with division (G) of this section, requesting
shared parenting and the filing of a shared parenting plan in
accordance with that division, the court shall comply with division
(D)(1)(a)(i), (ii), or (iii) of this section, whichever is applicable:
{¶18} * * *
{¶19} (ii) If each parent makes a request in the parent’s pleadings or files
a motion and each also files a separate plan, the court shall review
each plan filed to determine if either is in the best interest of the
children. If the court determines that one of the filed plans is in the
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best interest of the children, the court may approve the plan. If the
court determines that neither filed plan is in the best interest of the
children, the court may order each parent to submit appropriate
changes to the parent’s plan or both of the filed plans to meet the
court’s objections, or may select one of the filed plans and order
each parent to submit appropriate changes to the selected plan to
meet the courts objections. If changes to the plan or plans are
submitted to meet the court’s objections, and if any of the filed
plans with the changes is in the best interest of the children, the
court may approve the plan with the changes.
{¶20} Here, the magistrate and the trial court determined the GAL’s shared-
parenting-plan recommendation deemed to be in C.L.’s best interest. The magistrate
and trial court also concluded husband’s shared parenting plan should be amended to
incorporate the GAL’s recommendation. Husband moved for shared-parenting early in
the case; he testified he no longer supported the arrangement he originally proposed,
but, instead, agreed with the GAL’s arrangement. In finding the GAL’s shared-parenting
plan in C.L.’s best interest, the trial court, pursuant to R.C. 3109.04(D)(1)(a)(ii),
essentially objected to husband’s original plan and ordered the parties to submit
appropriate changes in accordance with the GAL’s recommendation. We discern
nothing problematic with the magistrate’s or the trial court’s procedure.
C.L.’s Best Interest and the Weight of the Evidence
{¶21} Wife next contends the trial court erred in adopting the magistrate’s
decision because the GAL’s recommendation was flawed and unsupported by the
evidence. Wife additionally argues that the shared-parenting plan recommended by the
magistrate is not in C.L’s best interest due to the surrounding circumstances of the
parties’ relationship and the issues identified by wife at trial.
{¶22} The General Assembly has provided that a domestic relations court shall
exercise its jurisdiction in child-custody matters in accordance with R.C. 3109.04. In re
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Poling, 64 Ohio St.3d 211, 216 (1992). Custody determinations, including those
involving shared parenting, are entrusted to the sound discretion of the trial court.
Liston v. Liston, 11th Dist. Lake No. 2011-P-0068, 2012-Ohio-3031, ¶15. In rendering its
decision, the trial court is in the best position to observe the witnesses, “which cannot
be conveyed to a reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71,
74 (1988). Moreover, given these points, we are “‘guided by the presumption that the
trial court’s findings were indeed correct.’” Id.; see also Foxhall v. Lauderdale, 11th Dist.
Portage No. 2011-P-0006, 2011-Ohio-6213, ¶26, quoting Bates-Brown v. Brown, 11th
Dist. Trumbull No. 2006-T-0089, 2007-Ohio-5203, ¶18 (“decisions involving the custody
of children are ‘accorded great deference on review’”).
{¶23} The phrase “abuse of discretion” is defined as the trial court’s “‘failure to
exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.
Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8
Ed.Rev.2001). “[W]here the issue on review has been confided to the discretion of the
trial court, the mere fact that the reviewing court would have reached a different result is
not enough, without more, to find error.” Beechler, supra, at ¶67. That is, “in determining
whether the trial court has abused its discretion, a reviewing court is not to weigh the
evidence, ‘but must ascertain from the record whether there is some competent
evidence to sustain the findings of the trial court.’” Foxhall, supra, at
¶28, quoting Clyborn v. Clyborn, 93 Ohio App.3d 192, 196 (3d Dist.1994).
{¶24} R.C. 3109.04 governs provisions for shared parenting and the allocation of
parental rights. Pursuant to R.C. 3109.04(D)(1)(b), a trial court may not approve a
shared parenting plan unless it first determines that the plan is in the best interests of
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the child. Liston v. Liston, supra, at ¶17. Specifically, R.C. 3109.04(F)(1) and (F)(2)
enumerate certain factors a court must consider in determining whether shared
parenting is in the best interests of the child. This list is nonexclusive as the trial court is
not limited to the statutory factors. Id. at ¶ 17. Though there should be some indication
in the judgment entry that the trial court consider the best interests of the child pursuant
to R.C. 3109.04(F), there is no requirement it make specific findings in its entry as to
each and every factor. Id.; see also In re S. S., 11th Dist. Geauga No. 2010-G-
2997, 2012-Ohio-120, ¶23.
{¶25} The factors found in R.C. 3109.04(F)(1) include: (a) the wishes of the
child’s parents regarding the child’s care; (b) the wishes or concerns of the child as
expressed to the court; (c) the child’s interaction and interrelationship with her parents
and any other person who may significantly affect the child’s best interest; (d) the child’s
adjustment to her home, school, and community; (e) the mental and physical health of
all persons involved; (f) the parent more likely to honor and facilitate visitation and
companionship rights approved by the court; (g) whether either parent has failed to
make all child support payments; (h) whether either parent previously has been
convicted of or pleaded guilty to any criminal offense; (i) whether the residential parent
or one of the parents subject to a shared parenting decree has continuously and willfully
denied the other parent his or her right to visitation in accordance with an order of the
court; and (j) whether either parent has established a residence, or is planning to
establish a residence, outside this state.
{¶26} The factors set forth R.C. 3109.04(F)(2) include: (a) the ability of the
parents to cooperate and make decisions jointly, with respect to the children; (b) the
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ability of each parent to encourage the sharing of love, affection, and contact between
the child and other parent; (c) the history of, or potential for, domestic abuse; (d) the
geographic proximity of the parents to one another; and (e) the recommendation of the
guardian ad litem.
{¶27} In arguing the shared parenting plan adopted by the trial court is not in
C.L.’s best interest, wife takes issue with various aspects of the magistrate’s findings.
First, wife asserts the magistrate erred in concluding a 50/50 split is in C.L.’s best
interest because, in doing so, she discounted wife’s concerns with husband’s alleged
“drinking, narcissism, ‘fits of rage,’ and other violent and abusive tendencies.”
Reviewing the testimony, we do not agree that the magistrate ignored or overlooked
wife’s concerns. Rather, the GAL testified she observed no evidence of alcohol abuse
or any erratic or unseemly behavior on behalf of husband. Further, while husband
acknowledged the parties’ relationship was somewhat tumultuous and fraught with
communication breakdowns, he categorically denied wife’s allegations. The magistrate,
in her decision, expressly found husband’s testimony credible. The magistrate was in
the best position to adjudicate credibility and we discern no error in her evaluation of
witness’ testimony.
{¶28} Next, wife asserts the magistrate abused its discretion when she found
wife limited appellee’s parenting time with C.L. Husband testified wife moved out twice.
The first time, in April of 2016, she left with C.L. while husband was attending a baseball
game. He testified she ultimately moved back into the marital home but he was unable
to see C.L. for a week during this period. After wife moved out the second time,
husband testified: “I tried to work with her because when we met [subsequent to wife
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leaving], we talked about sharing responsibilities with [C.L.]. So I would text her multiple
times, saying I want to pick her up this weekend, Saturday. Christine would limit me to a
few hours where I would have to drive, pick her up, drive her back to Chesterland, and
back again. So I essentially have, I think it was three hours, maybe two hours with
[C.L.].” The foregoing testimony supports the magistrate’s finding.
{¶29} Wife next asserts the magistrate erred in finding wife moved out of the
marital residence without telling husband. As just discussed, wife moved out twice.
The first time, wife communicated she was leaving via text message while in the
process of moving out; the second time, husband was at work and he received a text
requesting him to meet wife for coffee after work. When they met, wife stated she had
moved out. One can draw the reasonable inference from the foregoing facts that
husband was not on notice that wife was moving prior to her leaving. Although wife did
notify husband, her efforts occurred after she had made her decision and actually left
the residence. The magistrate’s finding is not error.
{¶30} Wife further takes issue with the magistrate’s finding that wife had nothing
good to say about husband during her testimony. Wife alleged husband drinks to
excess, is abusive, and was, in effect, an absentee spouse and father. These
allegations were not tempered by any positive or redeeming qualities. The magistrate’s
finding was supported by wife’s testimony.
{¶31} Next, wife asserts the magistrate incorrectly found that husband’s non-
involvement in C.L.’s care was the result of wife’s actions. Husband’s testified that
although he wished to assist in C.L.’s care as much as possible, he was regularly
13
rebuffed. The magistrate found his testimony credible and we see no basis to upset this
conclusion.
{¶32} Wife also contends the magistrate erred in finding she failed to notify
husband about a minor eye injury sustained by C.L. Wife did alert husband that the
child injured herself when the parties met to exchange C.L. The injury, however,
occurred hours earlier and wife testified she took the child to the doctor for the injury.
The magistrate’s finding that wife did not notify husband is somewhat misleading. Still,
wife did not immediately notify husband of the injury. And, given that wife thought the
injury was sufficiently serious to merit a doctor’s visit, the magistrate could reasonably
infer that immediate notification would have been proper. In this respect, the finding is
not erroneous.
{¶33} Wife argues that magistrate erred in finding there was no evidence of
abuse or violence. She points to the testimony of husband’s character witness, Jessica
Verbick, who testified wife disclosed to her that husband called her names and placed
his hands on her. Ms. Verbick provided wife with the phone number of a shelter, but
wife did not pursue the matter further. While this testimony is relevant to wife’s
allegations, it still did not substantiate the allegation. Moreover, husband denied the
allegations. While there was evidence that husband may have been verbally abusive,
the magistrate was free to believe husband’s testimony that his comportment towards
wife was, for the most part, civil. We see no error in the magistrate’s conclusion.
{¶34} Wife also cites various cases in which courts have held that shared
parenting is improper where parents cannot cooperate and make joint decisions. We
acknowledge the appropriateness of the foregoing rule under circumstances where the
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evidence demonstrates a mutual lack of cooperation that has no foreseeable likelihood
of changing. In this case, the evidence demonstrated that the parties’ communication
has progressively improved; husband explicitly desires wife’s active participation in their
mutual rearing of C.L.; and the GAL repeatedly emphasized her belief that, given the
parties’ mutual commitment to C.L.’s best interest, she believed they will continue to
improve their ability to communicate effectively. Because there was evidence that the
communication nexus has gradually and will continue to improve, it is reasonable to
infer that the parties will, with time, be able to cooperate well and engage in productive
joint decision-making.
{¶35} In reaching her recommendation, the magistrate engaged in a full and
complete analysis of the relevant R.C. 3109.04(F)(1) best interest factors. Specifically,
she noted wife’s interest in being designated the residential parent and legal custodian
of C.L. as well as husband’s desire for shared parenting with equal division of time. She
found that C.L. is “very bonded” with both parents and that C.L. is happy in each party’s
home. The magistrate found that neither party has any major medical or psychological
issues, but wife has not been supportive of husband’s relationship with C.L. Moreover,
with respect to her finding that shared parenting was in the best interest of C.L., the
magistrate considered the R.C. 3109.04(F)(2) factors. In particular, she found that the
parties have difficulty communicating, but have the capacity to communicate effectively.
Moreover, she noted that husband is making every effort to support C.L.’s relationship
with wife; and, even though wife has not been particularly supportive of husband’s
relationship with the child, she has that ability, provided she lets go of her anger and
anxiety. The magistrate found no evidence of physical abuse or violence. She further
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found the parties live in relatively close proximity to each other. Finally, the magistrate
highlighted the GAL’s recommendation of shared parenting.
{¶36} In light of the foregoing, we conclude the magistrate did not err in finding
shared parenting to be in C.L.’s best interest. We consequently hold the trial court did
not abuse its discretion in adopting the magistrate’s decision on this issue.
{¶37} Wife’s first assignment of error lacks merit.
Propriety of Adopting Revised Shared Parenting Plan
{¶38} For her second assignment of error, wife asserts:
{¶39} “The trial court erred and committed an abuse of discretion, including
adopting the magistrate’s decision, dated April 15, 2019, in issuing a shared parenting
decree which failed to properly set forth the prior magistrate’s decision and judgment
ordering a specific albeit disputed shared parenting plan recommended by the guardian
ad litem.”
{¶40} The GAL recommended midweek/weekend parenting time to proceed as
follows: wife has parenting time each Monday beginning when C.L. is returned to
school, child care, or mother’s residence no later than 9 a.m. and ending on Wednesday
when C.L. is returned to school, child care, or father’s residence no later than 9 a.m.
Husband receives the same arrangement from Wednesday and ending Friday. The
GAL further recommended each parent will receive alternating weekends. The GAL
also set forth parenting time for days of special meaning, holidays, winter break, spring
break, and summer vacation.
{¶41} A comparison of the plan submitted by husband and the plan
recommended by the GAL reveals they are substantively the same. The only real
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apparent difference between the two plans is the plan submitted by husband includes
Halloween and Valentine’s Day as holidays the parties will alternate; the GAL’s plan did
not include these holidays. We conclude, however, this inclusion is a de minimis
deviation and find no error in adopting the revised plan submitted by husband.
{¶42} Wife’s second assignment of error lacks merit.
Propriety of Amount of Spousal Support
{¶43} Husband assigns one error on cross-appeal. It provides:
{¶44} “The trial court erred in ordering that the defendant appellee-cross
appellant pay child support to the plaintiff appellant-cross appellee in the amount of
$812.17 per month commencing with the journalization of the judgment entry.”
{¶45} Under his assignment of error on cross-appeal, husband asserts the trial
court’s award of $812.17 per month in child support is overly burdensome. He contends
the amount should be downwardly deviated primarily due to the extended parenting
time he was awarded and related expenses. See R.C. 3119.23(C) (a factor that may be
considered in downwardly deviating a child-support order is “[e]xtended parenting time
or extraordinary costs associated with parenting time * * *.”)
{¶46} Former R.C. 3119.04(B) governed the trial court’s child support
computation.1 That statute provides:
{¶47} If the combined gross income of both parents is greater than one
hundred fifty thousand dollars per year, the court, with respect to a
court child support order, or the child support enforcement agency,
with respect to an administrative child support order, shall
determine the amount of the obligors child support obligation on a
case-by-case basis and shall consider the needs and the standard
of living of the children who are the subject of the child support
order and of the parents. The court or agency shall compute a
basic combined child support obligation that is no less than the
1. The amended, current version of R.C. 3119.04 became effective March 28, 2019.
17
obligation that would have been computed under the basic child
support schedule and applicable worksheet for a combined gross
income of one hundred fifty thousand dollars, unless the court or
agency determines that it would be unjust or inappropriate and
would not be in the best interest of the child, obligor, or obligee to
order that amount. If the court or agency makes such a
determination, it shall enter in the journal the figure, determination,
and findings.
{¶48} Accordingly, “when the combined gross income of the parents exceeds
$150,000, the statute requires a court to treat the issue of child support on a case-by-
case basis[.]” Longo v. Longo, 11th Dist. Geauga Nos. 2008-G-2874 and 2009-G-2901,
2010-Ohio-3045, ¶11. In so doing, however, the court must consider the needs and
standard living of the children and the parents in arriving at its conclusion. Id.{¶49} The language of the statute demonstrates a domestic court possesses
considerable discretion in setting a child support order when the parents combined
income is above $150,000. Longo, supra, at ¶12, citing Macfarlane v. Macfarlane, 8th
Dist. Cuyahoga No. 93012, 2009-Ohio-6647, at ¶17. Indeed, “the statute leaves the
determination entirely to the court’s discretion, unless the court awards less than the
amount of child support listed for combined incomes of $150,000.” (Emphasis
removed.) Cyr v. Cyr, 8th Dist. Cuyahoga No. 84255, 2005-Ohio-504, at ¶54. This court,
therefore, will not reverse the trial court’s judgment under these circumstances absent
an abuse of discretion.
{¶50} The child support computation worksheet identified husband’s annual
income as $97,656.78 and wife’s annual income as $71,921.76. Husband points out
that, when added together, husband earned 57.59% of the parties’ total income and
wife earned 42.41% of the income. Using these figures as a base, under the support
order, husband’s income will shift to $87,910.74 and wife’s will be $81,667.80. While
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these figures are significantly closer to one another, husband will still have
approximately $500 more per month than wife. This does not militate heavily in favor of
deviation.
{¶51} Moreover, husband recognizes that he did not submit any prospective
expenses he would be paying relating to the additional extended parenting time. The
trial court, accordingly, did not have any figures to consider when the calculation was
made. And, other than unspecified, albeit real, additional child-care expenses husband
will have, he does not detail any other “related expenses” or articulate how his standard
of living will be encumbered by the current order. The trial court’s order provides, inter
alia, “[t]he duty of support shall continue until further order of the Court * * *.” This
indicates the trial court reserved jurisdiction to modify the order if necessary. In this
respect, if husband can elucidate, at a future time, that his ability to pay child-care-
related expenses is compromised by the order or his standard of living has been
appreciably changed, he could move the court for a deviation. Given the facts and the
evidence before the trial court at the time of the order, however, we decline to hold the
trial court abused its discretion in ordering child support in the amount of $812.17.
{¶52} Husband’s assignment of error on cross-appeal is without merit.
{¶53} For the reasons discussed in this opinion, the judgment of the Geauga
County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P. J.,
TIMOTHY P. CANNON, J.,
concur.
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