Wilburn v. Ferguson ( 2021 )

[Cite as Wilburn v. Ferguson, 2021-Ohio-4256.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
MARVIN WILBURN, : Case No. 21CA4
Petitioner-Appellee :
v. : DECISION AND
JUDGMENT ENTRY
CRESTA FERGUSON, ET AL., :
Respondents-Appellants. : RELEASED 12/01/2021
______________________________________________________________________
APPEARANCES:
Christopher L. Trolinger and Ronald R. Petroff, Columbus, Ohio, for appellant.
Brigham M. Anderson, Ironton, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Cresta Ferguson appeals from a judgment of the Lawrence County
Common Pleas Court, Probate/Juvenile Division, that sustained three of her four
objections and overruled one of her objections to the magistrate’s decision. The trial
court expanded the parenting time of the father Marvin Wilburn beyond that in Local
Rule 15 and adjusted Wilburn’s child support payments by 40 percent. Ferguson
contends that the trial court erred in finding that expanded visitation time is in the child’s
best interest. She also claims that the trial court failed to make findings of fact and
conclusions of law addressing factors in R.C. 3109.051(D), which constituted plain
error. Ferguson contends that the trial court erred in adjusting the child support
payments by 40 percent, instead of 10 percent. However, we find that Ferguson failed
to request findings of fact and conclusions of law under Civ.R. 52, therefore we
Lawrence App. No. 21CA4 2
presume the validity of the proceedings. We affirm the judgment to award Wilburn
extended parenting time because we find that a review of the record supports it.
Additionally, the trial court’s decision to reduce Wilburn’s child support payment was
consistent with the relevant statutory factors. The trial court set forth a finding and a
reason supporting the deviation, which was legitimate and did not represent an abuse of
discretion. We overrule Ferguson’s assignments of error and affirm the trial court’s
judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} Cresta Ferguson and Marvin Wilburn are the parents of S.P.F., born in
March 2015. Ferguson is married to Scott Ferguson, but she and Wilburn were engaged
in an on-again, off-again sexual relationship from early summer 2014 until
approximately February 2019. During that five-year period, Ferguson continued to live
with her husband, but at some point in 2017 she moved in with Wilburn for a two to
three-month period. During the first two years of the child’s life, Ferguson voluntarily
allowed Wilburn to see S.P.F. two or three times a week and Wilburn developed a
relationship with the child. In July 2016, Wilburn filed a petition for paternity but later
dismissed it. He refiled a petition for paternity and for the child’s name change in
February 2017 after Ferguson stopped allowing Wilburn to see S.P.F. DNA results
established Wilburn as the biological father of S.P.F. The court initially granted Wilburn
supervised visitation with S.P.F., but later expanded it to unsupervised visitation every
other weekend and one night a week. Wilburn’s visitation time was extended again by
two additional days on the weekends for the summer months in 2019. Wilburn filed a
proposed shared parenting plan for consideration.
Lawrence App. No. 21CA4 3
{¶3} The magistrate conducted a hearing over two days on September 27,
2019 and December 20, 2019 concerning Wilburn’s proposed shared parenting plan,
his request for the child’s name change, and the parties’ child support obligations.
{¶4} Ferguson and Wilburn both testified concerning their discussions about
their child’s name. Wilburn testified that the child was not given the name he wanted for
her and he sought to change the child’s first and last name. Ferguson testified that she
never agreed to Wilburn’s suggested name; to the contrary, she mocked it.
{¶5} Ferguson testified that she formerly worked as a nurse making
approximately $22 to $23 per hour but she was diagnosed with ovarian cancer in May
2018 and stopped working. Ferguson and her husband decided she would not return to
work and would stay home to care for the children. She underwent chemotherapy until
December 2018, and during those seven months she continued to have a sexual
relationship Wilburn.
{¶6} During the course of their on-again, off-again relationship, Ferguson had
three pregnancies with Wilburn, two that ended in miscarriages and one in the birth of
S.P.F. Ferguson testified that she believed that Wilburn should have only supervised
visits with S.P.F., even though he had ongoing unsupervised visitation for several years.
Ferguson based her concerns in part on the fact that one of Wilburn’s young children
passed away by accidental drowning 16 years earlier in 2003. Ferguson also alleged
that, during a visit with Wilburn that occurred a week before the hearing, S.P.F. was
bruised while playing hide-and-seek with two other children when she hid in a dryer that
one of the children allegedly turned on. Ferguson reported this incident to medical
professionals and Lawrence County Children’s Services several days after S.P.F.
Lawrence App. No. 21CA4 4
returned home from the visit with Wilburn. However, at the time of the hearing,
Children’s Services testified that the allegations had not been substantiated and they
were still investigating. Although S.P.F. had purportedly stated that she and another
child had hid in the dryer from a third child, the third child denied turning the dryer on or
playing hide-and-seek in the area.
{¶7} Ferguson testified that S.P.F. had been diagnosed with severe adjustment
disorder that Ferguson attributes to the child’s visits with Wilburn. Ferguson did not
introduce medical testimony or records of this alleged diagnosis into evidence. On
cross-examination Ferguson admitted to posting a video of S.P.F. on social media with
the caption, “Poor baby knows who is taking her from her family” that depicted the child
stating that “Marvin won’t let me stay with my daddy.” Ferguson testified that she tells
S.P.F. that she must go visit Marvin because the court is making her, that she has told
S.P.F. nothing about the specifics of the situation or who her biological father is, and
that S.P.F calls Wilburn “Marvin” and her husband Scott Ferguson “daddy” or “honey.”
Despite this, Ferguson contends S.P.F’s confusion is exacerbated by Wilburn, not her,
because Wilburn does not use S.P.F’s given name. However, Wilburn testified that he
uses the same abbreviated nickname that Ferguson uses for the child.
{¶8} Ferguson testified that she experienced anxiety and depression and was
prescribed at least six different medications at various times. However, she decided on
her own, without consulting her physician, to stop taking her medications. Additionally,
Ferguson testified that she turned Wilburn into the IRS because “he is evading tax
fraud. And I gave them specifics * * * I gave them plenty.” Wilburn earns approximately
$24,000 to $28,000 per year at a pizza establishment and works as a care giver at a
Lawrence App. No. 21CA4 5
behavioral center three days a week earning $11.00 per hour, plus health insurance
benefits.
{¶9} Wilburn denied that the alleged incident involving the dryer occurred. He
testified that Ferguson did not contact him about the alleged incident and that he only
learned about it about four days before the hearing when he was served with civil
protection order papers from the Lawrence County Sheriff’s Department. Wilburn
testified that the civil protection order case was dismissed that day – the day of the
hearing. Wilburn and Ferguson ceased all communications when their relationship
permanently ended in February 2019 and communicated only via My Family Wizard.
Wilburn sought shared parenting because he believed it would be in S.P.F’s best
interest. He testified that S.P.F. has a good, bonded relationship with him and she loves
being with him and other members of their family. Wilburn also testified that he had
three other children with his ex-wife and has a positive parenting relationship with her
and has always been able to co-parent with his ex-wife without issues.
{¶10} Sara Lockard testified that she currently resides with Wilburn and she has
two children, ages four and ten, who also reside with him. Lockard has witnessed
Wilburn’s positive interactions with her own children and with S.P.F.; S.P.F. enjoys
visiting Wilburn, is comfortable in the home, and does not want the visit to end. Lockard
testified that she does not have concerns about leaving her two children in Wilburn’s
care. Lockard was also served with a civil protective order concerning the alleged dryer
incident. Lockard denied that the incident ever occurred and testified that her children
were there at the time and did not report any such incident occurring.
Lawrence App. No. 21CA4 6
{¶11} Misty Adkins, Scott Ferguson’s sister and Cresta Ferguson’s sister-in-law,
testified she had been involved in picking up S.P.F. after visitations with Wilburn. She
alleged that Wilburn bruised her arm with his car door and nearly ran over her feet with
his vehicle when she came to pick up S.P.F. after a visitation. Adkins stated that she
drove to the parking lot where the exchange of S.P.F. was to occur. After tracking
Wilburn’s vehicle back and forth in the parking lot three times, she got out and opened
the side door to get S.P.F. and Wilburn sped off, catching Adkins’s arm with the door.
(Tr. 182) Wilburn testified that nobody had contacted him to inform him that Adkins
would be there to pick up S.P.F. He contended that Adkins appeared at the vehicle
without acknowledging or addressing him and opened S.P.F.’s car door.
{¶12} The magistrate found that the DNA test proved Wilburn was the biological
father of S.P.F. and her birth certificate should be changed to reflect Wilburn as the
father. However, it was in the best interest of the child not to change her name. The
magistrate found that shared parenting was in the best interest of the child and that both
Wilburn and Ferguson should be designated residential parent while the child is in their
physical custody and Ferguson should be named residential parent for school purposes.
The magistrate found Ferguson to be voluntarily underemployed with two other minor
children and Wilburn to be employed, also with two other minor children. The parties
were ordered to follow a two-week alternating parenting schedule during the school year
and alternate weeks during the summer, follow Local Rule 15 for holidays, and have
one week per year vacation with the child. Wilburn was ordered to pay child support in
the total sum of $95.69 per month, a deviation from the standard obligation by 40
percent because he was to have approximately 40 percent of the parenting time.
Lawrence App. No. 21CA4 7
{¶13} Ferguson filed objections to the magistrate’s decision. She argued that
there was an error in the child support calculation that attributed Wilburn with two other
minor children in his home, when the testimony was that he had only one other minor
child. Ferguson also objected to the magistrate’s decision to provide for shared
parenting because she contended that S.P.F. had serious emotional attachment issues
which would make shared parenting not in the child’s best interest. She also objected to
the magistrate’s decision to provide for parenting time beyond that established by Local
Rule 15. Wilburn objected to the magistrate’s decision not to change S.P.F’s last name
to Wilburn.
{¶14} The trial court overruled Wilburn’s sole objection concerning the name
change, finding it was in the child’s best interest to keep her current name. The trial
court sustained all but one of Ferguson’s objections.1 It granted her objection
concerning the number of Wilburn’s minor children, finding that Wilburn had only one
other minor child for purposes of the child support calculation. The trial court also
sustained Ferguson’s objection to shared parenting. The court stated that after “a
thorough and independent review of the record,” in reviewing the factors for shared
parenting and best interest of the child under R.C. 3109.04(F)(1) and (2), shared
parenting was not appropriate:
[T]he Court cannot find that these parents have the ability to cooperate
and make decisions jointly, with respect to the child, nor the ability to
encourage the sharing of love, affection, and contact between the child
and the other parent. Therefore, the Court finds the Respondent’s
objection to the recommendation of shared parenting well taken.
1One objection concerned a misnomer, which the trial court deemed moot by the magistrate’s prior
correction of it; it has no relevance to the appeal.
Lawrence App. No. 21CA4 8
However, as to Ferguson’s objection concerning the expanded parenting time beyond
that provided in Local Rule 15, the trial court found that expanded parenting time was in
the child’s best interest:
The Magistrate recommended the Petitioner receive parenting time in
excess of the Court’s Local Rule 15. The Court gives deference to the
Magistrate’s observation of the demeanor of the parties and witnesses.
The Court’s Local Rule states “Visitation is recognized as an extremely
important time for children to engage in activities and strengthen familial
bonds with the parent with whom they do not live. Liberal visitation
arrangements beyond the minimum set forth herein are strongly
encouraged as children face significant challenges in coping with the
parents’ adult difficulties.” Based upon independent review of the
transcript and proceedings herein, the Court finds the Respondent unlikely
to encourage any additional parent time or contact between the child and
the Petitioner. * * * Based upon the testimony in the transcript, the child
may have anxiety or attachment issues and would benefit from a schedule
that is consistent, frequent, and regular. The Court therefore finds that
parenting time in addition to the Local Rule is appropriate and in the
child’s best interest.
{¶15} Ferguson was named residential parent and Wilburn was named the non-
residential parent. During the school year, Wilburn was provided parenting time
following a two-week alternating schedule as follows: (a) Week 1 – Wednesday, 6 p.m.
to Sunday, 6 p.m. and (b) Week 2 – Wednesday, 6 p.m. to Friday, 6 p.m. During
summer the parents alternated weeks beginning on Sunday, 6 p.m. Because Wilburn
was spending approximately 40 percent of his time with the child and the parties were
splitting extra expenses, the trial court ordered that child support and cash medical
support shall be deviated by 40 percent, with Wilburn paying a monthly total of $92.12.
{¶16} Ferguson appealed.
II. ASSIGNMENTS OF ERROR
{¶17} Ferguson presents the following assignments of error:
Lawrence App. No. 21CA4 9
1. The trial court erred and abused its discretion by failing to review,
apply, or make any findings or conclusions indicating that the provisions of
R.C. 3109.12 and R.C. 3109.051(D) were considered in determining the
father’s parenting time with the minor child.
2. The trial court’s failure to make any findings or conclusions
indicating that it considered R.C. 3109.051(D) constitutes plain error.
3. The trial court erred and abused its discretion in finding that the
visitation schedule ordered is in the child’s best interest as such is against
the manifest weight of the evidence and the statutory factors contained in
R.C. 3109.051(D).
4. The trial court erred by failing to apply the adjustment contained in
R.C. 3119.051 prior to the blanket 40% deviation in child support and such
is an abuse of discretion and constitutes plain error.
5. Because the trial court failed to apply the statutory adjustment, the
trial court erred and abused its discretion by deviating the appellee’s child
support by 40%.
III. STANDARD OF REVIEW
{¶18} Appellate courts generally review “the propriety of a trial court’s
determination in a domestic relations case” under the “abuse of discretion” standard.
Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989) (abuse of discretion
standard applies to child support, custody, visitation, spousal support, and division of
marital property). Under the abuse of discretion standard of review, a reviewing court
must affirm the decision of the trial court unless it is unreasonable, arbitrary, or
unconscionable. Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 2008-
Ohio-4887, ¶ 9, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 140(1983). “ ‘[A]buse of discretion’ [is] * * * a view or action that no conscientious judge
could honestly have taken.’ ” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15
N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894
N.E.2d 671, ¶ 23. “Indeed, to show an abuse of discretion, the result must be so
Lawrence App. No. 21CA4 10
palpably and grossly violative of fact or logic that it evidences not the exercise of will but
the perversity of will, not the exercise of judgment but the defiance of judgment, not the
exercise of reason but instead passion or bias.” White v. White, 4th Dist. Gallia No.
03CA11, 2003-Ohio-6316, ¶ 25, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d
254, 256, 662 N.E.2d 1 (1996). Under this highly deferential standard of review,
appellate courts may not freely substitute their judgment for that of the trial court. In re
Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). The application of
this standard in custody and support cases is warranted because trial courts have wide
latitude in considering the evidence, and assessing the parties’ demeanor, attitude, and
credibility. See Massie v. Simmons, 4th Dist. Scioto No. 14CA3630, 2014-Ohio-5835, ¶
18, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674 N.E.2d 1159 (1997).
IV. LEGAL ANALYSIS
A. Visitation
{¶19} In her first three assignments of error, Ferguson challenges the trial
court’s award of visitation time to Wilburn greater than the time set forth in Local Rule
15. She argues that the trial court failed to make findings of fact and conclusions of law
indicating that it considered the statutory factors in its evaluation of the best interest of
the child. She contends that this failure constituted plain error and the visitation
schedule was against the manifest weight of the evidence.
{¶20} Ferguson's failure to request findings of fact and conclusions of law limits
our review in this case. “When questions of fact are tried by a court without a jury,
judgment may be general for the prevailing party unless one of the parties in writing
requests otherwise * * * in which case, the court shall state in writing the conclusions of
Lawrence App. No. 21CA4 11
fact found separately from the conclusions of law.” Civ.R. 52. The purpose of Civ.R. 52
findings of fact and conclusions of law is “ ‘to aid the appellate court in reviewing the
record and determining the validity of the basis of the trial court's judgment.’
” See Harper v. Neal, 4th Dist. Hocking No. 15CA25, 2016-Ohio-7179, ¶ 18, quoting In
re Adoption of Gibson, 23 Ohio St.3d 170, 172, 492 N.E.2d 146 (1986). In the absence
of findings of fact and conclusions of law, we presume that the trial court applied the law
correctly and will affirm its judgment if evidence in the record supports it. Harper at ¶
19; Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007-Ohio-2019, ¶ 10. As the
court explained in Pettet v. Pettet, 55 Ohio App.3d 128, 130, 562 N.E.2d 929 (5th
Dist.1988):
[W]hen separate facts are not requested by counsel and/or supplied by
the court the challenger is not entitled to be elevated to a position superior
to that he would have enjoyed had he made his request. Thus, if from an
examination of the record as a whole in the trial court there is some
evidence from which the court could have reached the ultimate
conclusions of fact which are consistent with [its] judgment the appellate
court is bound to affirm on the weight and sufficiency of the evidence. The
message should be clear: If a party wishes to challenge the * * * judgment
as being against the manifest weight of the evidence he had best secure
separate findings of fact and conclusions of law. Otherwise his already
“uphill” burden of demonstrating error becomes an almost insurmountable
“mountain.”
{¶21} Ferguson's failure to request findings of fact and conclusions of law means
that we presume the court correctly applied the law and will affirm the trial court's
judgment so long as some evidence supports it. See Martindale v. Martindale, 2017-
Ohio-9266, 102 N.E.3d 19, ¶ 22-26 (4th Dist.).
{¶22} After our review of the record in its entirety, we believe that the record
contains some competent, credible evidence, if believed, to support the trial court's
judgment.
Lawrence App. No. 21CA4 12
{¶23} R.C. 3109.051(D) provides:
In determining whether to grant parenting time to a parent * * * the court
shall consider all of the following factors:
(1) The prior interaction and interrelationships of the child with the child's
parents, siblings, and other persons related by consanguinity or affinity,
and with the person who requested companionship or visitation if that
person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the
distance between those residences, and if the person is not a parent, the
geographical location of that person's residence and the distance between
that person's residence and the child's residence;
(3) The child's and parents' available time, including, but not limited to,
each parent's employment schedule, the child's school schedule, and the
child's and the parents' holiday and vacation schedule;
(4) The age of the child;
(5) The child's adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to division
(C) of this section, regarding the wishes and concerns of the child as to
parenting time by the parent who is not the residential parent or
companionship or visitation by the grandparent, relative, or other person
who requested companionship or visitation, as to a specific parenting time
or visitation schedule, or as to other parenting time or visitation matters,
the wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with
siblings;
(9) The mental and physical health of all parties;
(10) Each parent's willingness to reschedule missed parenting time and to
facilitate the other parent's parenting time rights, and with respect to a
person who requested companionship or visitation, the willingness of that
person to reschedule missed visitation;
(11) In relation to parenting time, whether either parent previously has
been convicted of or pleaded guilty to any criminal offense involving any
act that resulted in a child being an abused child or a neglected child;
Lawrence App. No. 21CA4 13
whether either parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been determined to be
the perpetrator of the abusive or neglectful act that is the basis of the
adjudication; and whether there is reason to believe that either parent has
acted in a manner resulting in a child being an abused child or a neglected
child;
(12) In relation to requested companionship or visitation by a person other
than a parent, whether the person previously has been convicted of or
pleaded guilty to any criminal offense involving any act that resulted in a
child being an abused child or a neglected child; whether the person, in a
case in which a child has been adjudicated an abused child or a neglected
child, previously has been determined to be the perpetrator of the abusive
or neglectful act that is the basis of the adjudication; whether either parent
previously has been convicted of or pleaded guilty to a violation of section
2919.25 of the Revised Code involving a victim who at the time of the
commission of the offense was a member of the family or household that
is the subject of the current proceeding; whether either parent previously
has been convicted of an offense involving a victim who at the time of the
commission of the offense was a member of the family or household that
is the subject of the current proceeding and caused physical harm to the
victim in the commission of the offense; and whether there is reason to
believe that the person has acted in a manner resulting in a child being an
abused child or a neglected child;
(13) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent's right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to
establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other
than a parent, the wishes and concerns of the child's parents, as
expressed by them to the court;
(16) Any other factor in the best interest of the child.
{¶24} Our review of these factors and the evidence presented at the hearing
supports the trial court’s determination that it was in the child’s best interest to grant
Wilburn additional parenting time. Wilburn testified that S.P.F. had a bonded
relationship with him and enjoyed her visitations with him and his extended family
Lawrence App. No. 21CA4 14
members. Wilburn had successfully been granted additional parenting time during the
duration of the proceedings. With the exception of the alleged dryer incident, which the
magistrate, who evaluated witnesses’ demeanors, was “not convinced that said event
occurred,” Wilburn’s visitation time with S.P.F. was positive and occurred without any
adverse harmful incidents. The parties live within close vicinity, making increased
visitation with Wilburn convenient and undisruptive. Wilburn testified about his work
schedule; his time off from work matches up with the additional visitation time awarded
to him so that he can readily accommodate spending additional time with S.P.F.
Additionally, the trial court specifically considered each parent’s willingness to facilitate
the other’s parenting time as described in R.C. 3109.051(D)(10) and found that
Ferguson was “unlikely to encourage any additional parenting time or contact between
the child and [Wilburn].” Ferguson’s testimony concerning the social media posting of a
video of S.P.F. and her explanation to S.P.F. concerning court-coerced visitation
supports the trial court’s finding in this regard. Consequently, we find that the trial
court’s award of additional parenting time beyond Loc.R. 15 is supported by the record
and is not against the manifest weight of the evidence.
{¶25} We overrule Ferguson’s first, second, and third assignments of error.
B. Child Support
{¶26} In her fourth and fifth assignments of error Ferguson contends that the trial
court erred in adjusting Wilburn’s child support payments by 40 percent based upon his
increased parenting time. She argues that R.C. 3119.051(A) required the trial court to
reduce child support by only 10 percent and it abused its discretion when it deviated by
40 percent. As previously discussed, we review child support matters under an abuse-
Lawrence App. No. 21CA4 15
of-discretion standard. Cummin v. Cummin, 2015-Ohio-5482, 55 N.E.3d 467, ¶ 10 (4th
Dist.), citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989); Johnson
v. Johnson, 4th Dist. Ross No. 04CA2770, 2004-Ohio-5749, ¶ 6-9.
{¶27} R.C. 3119.051(A) provides:
(A) Except as otherwise provided in this section, a court or child support
enforcement agency calculating the amount to be paid under a child
support order shall reduce by ten per cent the amount of the annual
individual support obligation for the parent or parents when a court has
issued or is issuing a court-ordered parenting time order that equals or
exceeds ninety overnights per year. This reduction may be in addition
to the other deviations and reductions. (Emphasis added.)
The statutory language specifically states that the 10 percent reduction may be in
addition to other deviations and reductions. See also R.C. 3119.22, R.C. 3119.23, R.C.
3119.231(A) (which allow for additional deviations based upon a number of different
considerations). R.C. 3119.22 permits a court to deviate from the worksheet-calculated
amount “if, after considering the factors and criteria set forth in section 3119.23 of the
Revised Code, the court determines that the amount calculated pursuant to the basic
child support schedule and the applicable worksheet, through the line establishing the
actual annual obligation, would be unjust or inappropriate and would not be in the best
interest of the child.”
{¶28} Here the trial court found, “Due to the fact the father will be spending
approximately 40% of the time with the child and due to the split of extra expenses
detailed herein, child support and cash medical support shall be deviated by 40%.”
Thus, the trial court considered the extra amount of time spent and the manner in which
extra expenses would be split in considering a reduction by 40 percent. We find that the
trial court did not abuse its discretion in reducing the child support payment by 40
Lawrence App. No. 21CA4 16
percent because it determined that Wilburn was entitled to a deviation based upon his
increased parenting time and the manner in which other expenses were to be split.
Thus, the trial court set forth a finding and a reason supporting a deviation.
Furthermore, this is a legitimate reason and does not represent an unreasonable,
arbitrary or unconscionable decision in light of R.C. 3119.23(M) which directs the court
to consider a parent's obligation “for the support of others.” Thus, the court did not
abuse its discretion by granting Wilburn a 40 percent deviation.
{¶29} We overrule Ferguson’s fourth and fifth assignments of error.
V. CONCLUSION
{¶30} Having overruled the assignments of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Lawrence App. No. 21CA4 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Common Pleas Court, Probate/Juvenile Division, to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.