Greathouse v. Hilliard , 2017 Ohio 2636 ( 2017 )

[Cite as Greathouse v. Hilliard, 2017-Ohio-2636.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BRETT GREATHOUSE C.A. No. 28265
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
HEATHER HILLIARD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. DR-2009-07-2051
DECISION AND JOURNAL ENTRY
Dated: May 3, 2017
TEODOSIO, Judge.
{¶1} Appellant, Heather Hilliard, appeals from the judgment entry of the Summit
County Court of Common Pleas Domestic Relations Division ruling on objections to the
magistrate’s decision. This Court affirms in part, reverses in part, and remands.
I.
{¶2} On September 16, 2015, Ms. Hilliard filed a motion that requested modification
of Appellee Brett Greathouse’s child support obligation. A hearing was conducted on January 6,
2016, and the magistrate entered a decision on January 26, 2016. The decision modified the
child support obligation from a zero monthly payment to a monthly obligation of $506.35, and
divided the tax dependency exemptions between Mr. Greathouse and Ms. Hilliard. The decision
was adopted by the trial court and Mr. Greathouse filed his objections. On May 4, 2016, the trial
court filed a judgment entry sustaining Mr. Greathouse’s objection to the modification of child
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support and setting the child support amount at zero. The entry adopted the division of the tax
dependency exemption. Ms. Hilliard now appeals, raising two assignments of error.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN OVERRULING THE MAGISTRATE’S
DECISION WHERE THE UNREBUTTED EVIDENCE ESTABLISHED THAT
THE LAST CHILD SUPPORT ORDER ALSO ESTABLISHED FATHER’S
PARENTING TIME AS STANDARD ORDER OF PARENTING TIME, AND
THAT FATHER DID NOT EXERCISE HIS PARENTING TIME SCHEDULE.
{¶3} Ms. Hilliard argues that that the trial court erred by not considering whether Mr.
Greathouse was exercising his scheduled parenting time when it sustained the objection to child
support modification. We disagree.
{¶4} “[A] trial court’s decision regarding child support obligations falls within the
discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.”
Pauly v. Pauly, 80 Ohio St.3d 386, 390 (1997). An abuse of discretion is more than an error of
judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its
ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, (1983). “While the decision to award
support is discretionary, an appellate court reviews the factual findings to support that award
under a manifest-weight-of-the-evidence standard.” Wallace v. Wallace, 195 Ohio App.3d 314,
2011-Ohio-4487, ¶ 10 (9th Dist.). Thus, we review “the record to determine whether there is
competent, credible evidence to support the trial court’s factual findings.” Id. When conducting
our review, we are mindful that the moving party had the burden of proof to show the basis for a
modification in this matter. Sterns v. Sterns, 9th Dist. Summit No. 27427, 2015–Ohio–3866, ¶ 7.
{¶5} R.C. 3119.79, which controls the modification of child support orders, provides:
(A) If an obligor or obligee under a child support order requests that the court
modify the amount of support required to be paid pursuant to the child support
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order, the court shall recalculate the amount of support that would be required to
be paid under the child support order in accordance with the schedule and
applicable worksheet through the line establishing the actual annual obligation. If
that amount as recalculated is more than ten per cent greater than or more than ten
per cent less than the amount of child support to be paid pursuant to the existing
child support order, the deviation from the recalculated amount that would be
required to be paid under the schedule and the applicable worksheet shall be
considered by the court as a change of circumstances substantial enough to
require a modification of the child support amount.
***
(C) If the court determines that the amount of child support required to be paid
under the child support order should be changed due to a substantial change of
circumstances that was not contemplated at the time of the issuance of the original
child support order or the last modification of the child support order, the court
shall modify the amount of child support be paid under the child support order to
comply with the schedule and applicable worksheet throughout the line
establishing the actual annual obligation, unless the court determines that the
amount calculated pursuant to the basic child support schedule and pursuant to the
applicable worksheet would be unjust or inappropriate and would not be in the
best interest of the child and enters in the journal the figure, determination, and
findings specified in section 3119.22 of the Revised Code.
{¶6} We have recognized that “[a] party moving for the modification of child support
must prove ‘a substantial change of circumstances that was not contemplated at the time of the
issuance of the original child support order or the last modification of the child support order.’”
Humiston v. Humiston, 9th Dist. Medina No. 04CA0076–M, 2005–Ohio–4363, ¶ 15, quoting
R.C. 3119.79(C). Where the original child support order resulted from a voluntary agreement by
the parties, R.C. 3119.79(A) must be read in conjunction with R.C. 3119.79(C) to determine
whether a modification of the order is proper. Hill v. Hill, 9th Dist. Summit No. 27169, 2016-
Ohio-910, ¶ 11. “Accordingly, in a case where the parties have previously agreed to a deviation
in the amount of child support, the moving party must prove more than the existence of a ten
percent deviation [from the statutory worksheet and schedule] to demonstrate the required
substantial change of circumstances.” Sifferlin v. Sifferlin, 9th Dist. Summit No. 27169, 2014–
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Ohio–5645, ¶ 14. Additionally, “the moving party must prove that such change of circumstances
was not contemplated by the parties when they agreed to the prior deviation.” Id.{¶7} Ms. Hilliard argues that the change in circumstances in the present matter consists
of Mr. Greathouse not exercising his parenting time schedule. Her brief to this Court states:
“The unrebutted evidence before the Magistrate establishes that Father was not exercising his
parenting time from the previous order, which ordered $0.00 in child support. Tr. At 3.” The
transcript, however, reveals only a statement by Ms. Hilliard’s attorney: “An order was filed
8/1/14 which basically gave [Mr. Greathouse] the standard order of companionship which was
alternating weekends and one evening during the week. That has never been exercised.” There
is no testimony, sworn or otherwise, from any witness in support of this argument.
{¶8} It is well established that statements of counsel do not qualify as evidence.
Corporate Exch. Bldgs. IV & V L.P. v. Franklin County Bd. of Revision, 82 Ohio St.3d 297, 299
(1998). The record in this this matter is devoid of any testimony that would support Ms.
Hilliard’s argument that Mr. Greathouse did not exercise his scheduled parenting time. Because
there was no evidence presented with regard to Mr. Greathouse exercising his parenting time, the
trial court did not err in not considering the issue. Ms. Hilliard’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN GRANTING FATHER A DEPENDENT TAX
EXEMPTION WHERE IT DENIED AN ORDER OF CHILD SUPPORT AND
THERE WAS NO EVIDENCE AS TO HOW THE CHILDREN WOULD
BENEFIT FROM THE ALLOCATION OF THE EXEMPTIONS.
{¶9} Ms. Hilliard argues the trial court erred in granting Mr. Greathouse the right to
claim a child as an exemption for income tax purposes. We agree.
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{¶10} This Court reviews a trial court’s allocation of tax dependency exemptions for an
abuse of discretion. Lawrence v. McCraw, 9th Dist. Medina No. 10CA0079–M, 2011-Ohio-
6334, ¶ 14. An abuse of discretion is more than an error of judgment; it means that the trial court
was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, (1983). When applying this standard, a reviewing court is precluded from simply
substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio
St.3d 619, 621 (1993).
{¶11} Pursuant to R.C. 3119.82, “[w]henever a court issues, or whenever it modifies,
reviews, or otherwise reconsiders a court child support order, it shall designate which parent may
claim the children who are the subject of the court child support order as dependents for federal
income tax purposes * * *.” When the parents are unable to agree as to the allocation of the
exemptions, the court is required to consider “any net tax savings, the relative financial
circumstances and needs of the parents and children, the amount of time the children spend with
each parent, the eligibility of either or both parents for the federal earned income tax credit or
other state or federal tax credit, and any other relevant fact concerning the best interest of the
children.” R.C. 3119.82.
{¶12} When there is a shared parenting plan, as there is here, “‘both parties are, in
essence, deemed to be the residential parent, thus the presumption [that the residential parent is
entitled to the tax exemption] would not apply.’” In re B.S., 9th Dist. Summit No. 26368, 2013-
Ohio-1976, ¶ 22, quoting Hall v. Hall, 3d Dist. Hardin No. 6–10–01, 2010-Ohio-4818, ¶ 49.
“‘[T]he trial court is essentially left to allocate the tax dependency exemption focusing on what
is in the best interest of the children, which includes any net tax savings for either of the
parents.’” Id.6
{¶13} This Court has noted that “the plain language of the statute does not require that
the trial court state its reasons on the record for awarding the exemption.” Streza v. Streza, 9th
Dist. Lorain No. 05CA008644, 2006–Ohio–1315, at ¶ 12. However, where “there is no evidence
in the record, in any form, that supports the trial court’s decision to allocate one exemption to
each party * * * [and thus] the record reflects that the trial court failed to consider the factors
under R .C. 3119.82, * * * it abused its discretion in simply dividing the two exemptions and
allocating one exemption to each party.” Id. at ¶ 13.
{¶14} Although Ms. Hilliard had initially agreed to share the tax dependency
exemptions with Mr. Greathouse, she argues that agreement was made with the assumption that
she would be receiving child support in return. The transcript of the hearing held before the
magistrate on January 6, 2016, indicates that while Ms. Hilliard agreed to split the dependency
exemptions, this was done in the context of a discussion where a child support modification was
presumed by both parties. In deciding when the division of tax exemptions should begin, a
discussion takes place as to whether a child support modification will take place retroactively on
the date the motion was filed, or at the first of the year. The trial court’s judgment entry further
notes that “[t]he parties agreed to split the tax dependency exemption and each claim one of the
children on their taxes.”
{¶15} While the record reflects the context of the agreement, it does not provide
evidence that supports the trial court’s decision to allocate one exemption to each party outside
of that agreement. When the trial court sustained the objection to the modification of child
support, it substantially altered the terms under which the divided tax dependency exemption was
agreed upon. Absent an agreement on the allocation of the exemptions, the trial court must
consider the factors under R.C. 3119.82. Because there is no evidence to support the trial court’s
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decision in the record, the record reflects the trial court failed to consider the necessary factors
under R.C. 3119.82 and abused its discretion in dividing the two exemptions between the Mr.
Greathouse and Ms. Hilliard. See Streza at ¶ 12.
{¶16} We note that Mr. Greathouse argues that Ms. Hilliard has waived this argument
because she failed to object to the division of exemptions in the magistrates’ decision. We do
not agree. As stated above, the division of the tax dependency exemptions was agreed upon in
the context of the child support modification. The magistrate’s decision both modified child
support and divided the exemptions pursuant to discussions that took place at the hearing before
the magistrate. In that context, Ms. Hilliard did not object to the division of exemptions. It was
only upon the trial court sustaining Mr. Greathouse’s objection to child support modification that
the division became an issue, and Ms. Hilliard has properly appealed the issue to this Court.
{¶17} Ms. Hilliard’s second assignment of error is sustained.
III.
{¶18} Ms. Hilliard’s first assignment of error is overruled. The second assignment of
error is sustained. The judgment of the Summit County Court of Common Pleas Domestic
Relations Division is affirmed in part, reversed in part, and the cause is remanded for further
proceedings consistent with this decision.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
LESLIE S. GRASKE, Attorney at Law, for Appellant.
SUSAN PRITCHARD, Attorney at Law, for Appellee.