Obar v. Obar , 2011 Ohio 1019 ( 2011 )

[Cite as Obar v. Obar , 2011-Ohio-1019.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RICHARD DON OBAR JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Julie A. Edwards, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10-COA-016
DIXIE LEE OBAR
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Ashland County Court of Common Pleas,
Domestic Relations Division,
Case No. 06-DIV-072
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 4, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
THOMAS L. MASON DIXIE LEE OBAR
Mason, Mason & Kearns P.O. Box 413
P.O. Box 345 Mount Vernon, Ohio 43050
153 West Main Street
Ashland, Ohio 44805
Ashland County, Case No. 10-COA-016 2
Hoffman, P.J.
{¶1} Plaintiff-appellant Richard Don Obar appeals the May 19, 2010 Judgment
Entry entered by the Ashland County Court of Common Pleas, Domestic Relations
Division, which ordered a deviation from the minimum child support, following this
Court’s remand. Defendant-appellee is Dixie Lee Obar.1
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and Appellee were married on October 5, 1984. Two children
were born as issue of such marriage, namely, Michael Edward Obar (DOB 4/13/93) and
Michelle, who was emancipated as of the time of the filing.
{¶3} On March 29, 2006, Appellant filed a Complaint for Divorce against
Appellee. Pursuant to Temporary Orders filed on May 15, 2006, Appellant was
designated temporary residential parent and legal custodian of the minor child and
Appellee was granted parenting time. Appellee, whose income was listed as unknown
at the time, was ordered to pay child support in the amount of $50.00/month plus
processing fee.
{¶4} Appellee filed a financial affidavit with the trial court in which she indicated
she was disabled and had no income. In a supplemental affidavit, Appellee stated, in
relevant part:
{¶5} “I was hospitalized in June, 2006 and was diagnosed as having
congestive heart failure. The cost of my current medications is $584.50 per month. I do
not know how much my medical expenses will be. In December, 2006, I was to be
hospitalized for additional tests. However, my condition worsened and I was admitted to
1
Appellee has not filed a brief in this matter.
Ashland County, Case No. 10-COA-016 3
Med Central Hospital on November 13, 2006. My doctor is considering having a
defibrillator and pacemaker implanted. I was told I have an enlarged heart and that only
a small part of it is functioning. I am now completely unable to work. I have always relied
on just being a hard worker to get by in life and now I am disabled without much I can
depend on or hope for the future.”
{¶6} The parties appeared for hearing on July 26, 2007, and advised the
magistrate they had reached an agreement as to all matters and wished to have the
matter proceed as an uncontested divorce. The parties indicated, in part, they had
agreed to enter into a shared parenting plan with regard to the minor child and no child
support would be paid by either party. However, certain events occurred which
prevented the trial court from adopting the parties' agreement. The parties had agreed
the minor son would live with Appellee in Mount Vernon. Upon discovering the minor
child was frequently absent from school and a truancy complaint had been filed against
him, Appellant removed the minor child from Appellee’s home. Appellee, in turn,
withdrew her agreement to the allocation of parental rights and responsibilities.
Additionally, Appellant, who had been awarded the marital property in the parties'
agreement, received notice of a lien being placed upon the same. Appellee had incurred
this debt and failed to disclose the fact. Finally, the trial court, in discussions with the
parties, determined the parties' agreement did not contain a final property division.
{¶7} As a result, a contested divorce trial commenced on January 31, 2008.
Appellant testified Appellee had been employed in the past in various homes doing
home health care and also had worked in assisted living. Appellant introduced Plaintiff's
Exhibit 3, which was a personal ad Appellee had placed on Yahoo in which she
Ashland County, Case No. 10-COA-016 4
represented she earned anywhere from $75,000.00 to over $99,000.00/year. Appellant
testified this representation was untrue, and the most Appellee had ever earned was
$31,000.00 or $32,000.00/year. Appellant further testified he was employed by the
Village of Perrysville, earning $1,400.00 every two weeks, before taxes. Appellant paid
$111.92 every pay period to insure the minor child.
{¶8} Appellee testified she was not employed because she had a heart
condition and her doctors would not allow her work. She testified she has
cardiomyopathy and diabetes and has been hospitalized many times since June, 2006.
On cross-examination, Appellee testified, commencing around 2000, and continuing for
four or five years, she was making over $30,000.00 a year taking care of the elderly in
their homes. Appellee further testified that she had filed for Social Security Disability
and that she received $115.00 a month from the county in disability.
{¶9} Via Judgment Entry filed January 26, 2009, the trial court designated
Appellant the residential parent and legal custodian of the minor child, and awarded
parenting time to Appellee. The trial court did not order Appellee to pay child support
based upon her “disability and the disparity in incomes between the parties' homes.”
The trial court found Appellant's PERS [Public Employees' Retirement System] was a
marital asset and awarded $8,400.00 of the fund to Appellee. The trial court ordered
Appellant to prepare and submit the final decree of divorce. The trial court issued a
Judgment Entry on February 9, 2009, which contained findings of fact and conclusions
of law. The trial court filed the Judgment Entry Decree of Divorce on April 21, 2009.
{¶10} Appellant appealed the decision to this Court, assigning as error the trial
court’s failure to order Appellee to pay child support. This Court sustained the
Ashland County, Case No. 10-COA-016 5
assignment of error, finding Appellee failed to present any medical verification or
documentation as to her physical disabilities. Obar v. Obar, Ashland App. No. 09 COA
018, 2010-Ohio-1333 at para. 36. We reversed the trial court’s decision and remanded
the matter for further proceedings.
{¶11} Upon remand, the trial court “reconsider[ed] the issue of child support
based upon the evidence introduced at the [final divorce] hearing.” May 19, 2010
Judgment Entry Regarding Child Support. The trial court granted a deviation from the
minimum child support amount of $50/month, and order Appellee to have no current
child support obligation. The trial court found “[t]here was no evidence of medical
verification of disability and therefore [Appellee’s] physical disability is not a ground for
deviating from the minimum support order.” The trial court found, however, payment of
the minimum child support order by Appellee would be unjust and inappropriate based
upon the disparity in income between the parties’ households. The trial court
memorialized its decision via Judgment Entry Regarding Child Support filed May 19,
2010.
{¶12} It is from this entry which Appellant appeals, raising as his assignments of
error:
{¶13} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
REFUSING TO ORDER THE APPELLEE, ON REMAND, TO PAY CHILD SUPPORT.
{¶14} “II. THIS ERROR IS REFLECTED IN THE RECORD IN THE JUDGMENT
ENTRY REGARDING CHILD SUPPORT DATED MAY 19, 2010.”
Ashland County, Case No. 10-COA-016 6
I & II
{¶15} Herein, Appellant contends the trial court erred, upon remand, in refusing
to order Appellee to pay child support.
{¶16} In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio
Supreme Court determined an abuse of discretion standard is the appropriate standard
of review in matters concerning child support. In order to find an abuse of discretion, we
must determine the trial court's decision was unreasonable, arbitrary or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140.
{¶17} R.C. 3113.215(B)(1) requires the trial court calculate the amount of an
obligor's child support obligation “in accordance with” the basic child support schedule
set forth in R.C. 3113.215(D), the applicable worksheet in R.C. 3113.215(E) or (F), and
other requirements of the law. R.C. 3113.215(E) and (F) both provide a sample or
“model” worksheet and each provision directs the court to “use a worksheet that is
identical in content and form” to the applicable model provided. Interpreting these
provisions, the Ohio Supreme Court has held a child support computation worksheet as
provided for in R.C. 3113.215 must actually be completed and made a part of the trial
court's record. Marker v. Grimm (1992), 65 Ohio St.3d 139, 601 N.E.2d 496, syllabus
one.
{¶18} The trial court's failure to complete its own worksheet is not erroneous as
long as the court clearly adopts one of the parties' worksheets. Anderson v. Anderson,
147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, at ¶ 85-86. However, the
adopted worksheet must be a fully completed worksheet containing all of the
Ashland County, Case No. 10-COA-016 7
information that the trial court relied upon as mandated by statute. Id. It is reversible
error for a trial court to include only a partial or incomplete worksheet in the record or to
fail to clearly adopt a worksheet. M.A.H. v. S.F., 8th Dist.No. 81544, 2003-Ohio-4049,
2003 WL 21757500, at ¶ 25-26; Brown v. Brown (Apr. 4, 2001), 9th Dist.No. 20177,
2001 WL 324391; McCoy v. McCoy (1995), 105 Ohio App.3d 651, 655, 664 N.E.2d
1012.
{¶19} We find the trial court failed to include a child support calculation
worksheet in the record. Although our review of the record reveals Appellee filed a
completed worksheet on April 16, 2008, which she attached to her post-trial brief, the
trial court did not adopt, refer to, or attach that completed worksheet to its order. Such
failure constitutes reversible error.
{¶20} Accordingly, we sustain both of Appellant's assignments of error.
{¶21} The trial court's judgment is reversed, and the case is remanded for
further proceedings.
By: Hoffman, P.J.
Edwards, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Ashland County, Case No. 10-COA-016 8
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RICHARD DON OBAR :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
DIXIE LEE OBAR :
:
Defendant-Appellee : Case No. 10-COA-016
For the reason stated in our accompanying Opinion, the trial court's judgment is
reversed and the case is remanded for further proceedings in accordance with our
Opinion and the law. Costs to Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY