Graves. v. Murillo ( 2018 )

[Cite as Graves. v. Murillo, 2018-Ohio-3229.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
AARON J. GRAVES : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellant : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
LUCIA MURILLO : Case No. 18-CA-3
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Domestic
Relations Division, Case No. 2015
DR 00020
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 10, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ELIZABETH J. ZUERCHER ANDREW S. GROSSMAN
The Zuercher Law Firm, LLC JOHN H. COUSINS IV
490 City Park Avenue, Suite D Grossman Law Offices
Columbus, Ohio 43215 32 W. Hoster Street, Suite 100
Columbus, Ohio 43215
Co-Counsel for Defendant-Appellee
SUSAN M. SURIANO
The Suriano Law Firm LLC
4200 Regent Street, Suite 200
Licking County, Case No. 18-CA-3 2
Columbus, Ohio 43219
Baldwin, J.
{¶1} Plaintiff-appellant Aaron J. Graves appeals from the December 14, 2017
Opinion of the Licking County Court of Common Pleas, Domestic Relations Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 8, 2015, appellant filed a “Complaint to Establish Father-Child
Relationship and an Allocation of Parental Rights and Responsibilities” against appellee.
In his complaint, he alleged that he was the biological father of twin girls born on June 20,
2006 and that appellee was the natural mother of the children. On March 3, 2015, the
Magistrate issued temporary orders. The temporary orders designated appellee as the
temporary residential parent and legal custodian of the children and designated appellant
as the obligor for purposes of child support. The Magistrate ordered that appellant “shall
not pay temporary child support” to appellee and stated that this constituted a downward
deviation from the child support guideline. The Magistrate found that the deviation was
warranted based on the disparity in the parties’ incomes, the relative financial resources
of the parties and appellee’s’ request that appellant not be ordered to pay child support
and that she not be reimbursed by appellant for the children’s uninsured health care costs,
day care expenses, or extracurricular activity fees.
{¶3} An Agreed Judgment Entry-Decree of Paternity was filed on March 9, 2015.
The parties entered in a Shared Parenting Plan that resolved all issues except for child
support, allocation of dependency exceptions and attorney fees. The Plan, which was
filed on February 22, 2016, states that the children will reside with appellee “at all times”
Licking County, Case No. 18-CA-3 3
subject to appellant having parenting time on Mondays and Wednesdays and every other
weekend at specified times. The Plan further states, in relevant part, as follows:
The children shall reside with Mother at all times, subject the Father’s
exercise of parenting time as follows: Father shall have parenting time
beginning Mondays after school until Tuesday mornings before school;
Wednesday after school until Thursday mornings before school; and
alternating Fridays after school until Sundays at 6:00 p.m. During summer
Break, Father’s parenting time shall begin when he is off work on his
Mondays and Wednesdays and shall end at 9:00 a.m. the following day,
unless otherwise agreed upon by the parties, and the father’s weekend shall
be from 3:30 p.m. on Friday until 9:00 a.m. on Tuesday. The summer break
shall be defined as after school the day that school lets out for the summer
until seven days prior to the school year commencing.
{¶4} A two day hearing before a Magistrate was held in July of 2016. The
following evidence was adduced at the hearing.
{¶5} Appellant Aaron J. Graves and appellee Lucia Murillo met in 2004 when
appellant became appellee’s personal trainer. At the time, appellee, who graduated in
1990 from Syracuse University with a degree in fashion design, was working at Tween
Brands, Inc. and was the Director of Casual Bottoms. At the time of hearing, appellee
was the senior Vice President of Design. She had been employed by Tween Brands,
Inc./Justice since 2002.
{¶6} Appellee had a gross annual income of $856,059.62 for the 2013 tax year,
$492,795.41 for the 2014 tax year, and $491,254.54 for the 2015 tax year. The average
Licking County, Case No. 18-CA-3 4
of the three years is approximately $613,369.00. Her 2016 income through June 25, 2016
was approximately $306,717.00. She earns a base gross income of $15,648.08 which
is paid to her every other week, for a gross annual base salary of $406,850.08.
{¶7} The children have asthma and allergies and appellee pays for their health
insurance, and any of their uninsured medical expenses, drug co-pays and any other
healthcare needs. She pays approximately $933.00 a year to cover the two children under
her employer-provided health insurance. According to appellee, appellant does not agree
with the drugs that the allergist has the children on. Appellee’s yearly expenses for the
children total approximately $38,004.00. In 2015, her work-related child care costs
totaled approximately $15,123.00. Of the $15,123.00, appellee indicated that $2,235.00
was for morning day care used exclusively by appellant. Appellee also has a
housekeeper and a dog walker. Other than her mortgage and car loan, she is debt-free.
{¶8} Appellant, who has a degree in Kinesiology from Bowling Green University,
has worked at Fitness Matters (formerly Columbus Fitness Consultants) since the fall of
2000 as a kinesiologist. Appellant is the senior therapist at Fitness Matters and his pay is
determined by the number of “touches” that he has with clients. He was paid
approximately $42.62 an hour and had a gross income of $51,631.20 for 2013 and
$53,079.20 for 2014. Appellant had total gross earnings of approximately $53, 611 for
2015. The average of the above three gross annual incomes is $52,773.73. Appellant has
been an “Uber” driver since 2015 and had gross earnings as a driver of approximately
$1,500.00 for the 2015 tax year. His average monthly household expenses totaled
$5,021.00. Of this total, $1,237.00 was for minimum credit card payments. Appellant
claimed that a majority of the purchases were incurred while the parties were residing
Licking County, Case No. 18-CA-3 5
together. He submitted an anticipated monthly budget to the trial court of $7,909.00 that
included increased costs for rental of a larger residence and purchase of newer vehicle.
He does not maintain health care coverage for the children and does not have work or
education-related child care expenses for them. He testified that he falls short every
month financially.
{¶9} At trial, Travis Timmons, the owner of Fitness Matters, testified that he
considered appellant part time because he did not work over forty hours a week and that
if appellant wanted more hours or “touches”, there “would be options for that.” Hearing
Transcript at 363-363. Timmons testified that appellant was “fully engaged” and that no
one at the firm worked exactly 40 hours a week. When asked, Timmons testified that
appellant had not come to him over the last three years and asked for more touches. He
further testified on cross-examination that appellant would accept new clients when his
schedule allowed it. According to Timmons, the busiest times were from 7:30 or 8:00,
depending on the day, until 2:30 or 3:30 at the primary physical location and from mid-
morning through 3:30 or 4:00 at Quantum, their offsite location.
{¶10} In 2015, appellant became a licensed real estate agent. He had gross
earnings or real estate commissions of $4,537.50 for the 2015 tax year and, through June
24, 2016, had earnings of $6,853.00. As of the final day of the hearing, appellant had sold
four residences and was assisting five buyers who were not exclusive clients at that time.
He had no listings as of such time.
{¶11} Appellant and appellee became romantically involved shortly after meeting
in 2004 and appellant moved into appellee’s home in 2005. Appellee had purchased the
home in Gahanna for approximately $150,000.00. Prior to moving in, appellant had been
Licking County, Case No. 18-CA-3 6
living with his mother because of significant credit card debt while he rented out a four
bedroom, two and one half bath, 1,840 square foot home that he owned in Pickerington,
Ohio. Appellant was renting out the home, but after expenses, has no net income from
the property. While appellant paid all of the utility bills for the Gahanna house, appellee
covered the other expenses.
{¶12} Approximately six months after dating, appellee became pregnant with twin
girls. The pregnancy was a high risk pregnancy and appellee, who was on bedrest for a
period of time, continued to work at home because she knew that she would be financially
responsible for the children. During such time, appellant cooked, did laundry and, along
with his father, remodeled appellee’s home for the children using material paid for by
appellee. He also did other household chores. According to appellee, appellant was very
upset about the pregnancy and stopped talking to her for two weeks. Appellee gave
appellant the option of leaving, but eventually he began speaking to her again and
proposed to appellee when she was eight months pregnant. Appellee was surprised and
confused by the proposal and the two never married. The girls were born in June of 2006.
After their birth, appellant adjusted his work schedule so that he could spend more time
with the children, particularly during appellee’s work hours.
{¶13} In 2010, appellee purchased a home in Granville, Ohio for $440,000.00 due
to its excellent school system. The house has five bedrooms, a guest bedroom and 3 1/2
bathrooms. Appellee made a down payment of about $80,000.00 or $90,000.00 and the
house was in her name only. She also spent approximately $30,000.00 on remodeling
the house. Appellant continued paying for the utilities and appellee covered the other
expenses. Appellee picked up the bill when they participated in any kind of activity or
Licking County, Case No. 18-CA-3 7
dinner and gave appellant her credit card to use for the house or groceries or necessities
for the children.
{¶14} Appellee has monthly living expenses for her and the children of
approximately $12,718.00. She buys the children clothing for both houses. During the
period from 2013 through 21015, appellee expended an average of $39,833.00 per year
on the children for child care, clothing and school and activity expenses including, but not
limited to, Irish dance lessons, horseback riding, and cheerleading. She also paid for
summer camps, lessons and swim team.
{¶15} During the time that appellant lived with appellee and their children, he
traveled together with them to Chicago, Cincinnati and other locations in Ohio and to
Florida. The parties and their children would fly, rent a car, stay in hotels, dine out at
restaurants and visit theme parks and other attractions. The family also had a country
club membership paid for by appellee that appellant could enjoy, but appellee dropped
the same a year after appellant moved out. Appellee testified that she had two cars so
that one of the cars could be used by any babysitters for transporting the children. While
the children were in daycare, they also had nannies and babysitters. They had a full time
nanny for a period after the children were born. Appellant would sometimes pick up the
children from school at 3:30 when he was off early from work, but appellee was not able
to do so as much due to work. There was also testimony that birthday parties for the
children included pony rides, gymnastics, animals from the Columbus zoo and a fire
engine and that while the family lived together, the children received significant presents
from appellee. Appellee has enrolled the children in dance lessons, competitions and
performances and in various summer camps at a cost of thousands of dollars a year. She
Licking County, Case No. 18-CA-3 8
has continued traveling with the children to Florida for vacation once or twice a year and
generally stays in her brother’s condo free of charge. In addition, appellee provides both
of the children with electronic devices for their personal use, including Kindles, laptops,
cell phones and Fitbits. They use these devices at both residences.
{¶16} Appellant moved out of the home that the parties shared in 2013. Around
two years before he moved out, appellant had gone to see an attorney and paid a
$5,000.00 retainer fee. After his move, appellant rented a 736 square foot home with two
bedrooms and one bathroom in Granville, Ohio to be near the children and in the same
school district. The two continued jointly caring for the children and started following a
parenting arrangement. He coaches them in sports and takes them camping and on bike
rides and skiing in New York every year for a couple of nights.
{¶17} There was testimony at trial that appellant’s current living expenses and
debt payments exceeded his total disposable monthly income. He often cooks for the
children when they are with him. There also was testimony that appellant had flown with
his female friend to Florida multiple times and dined out with her at expensive restaurants.
{¶18} Following the trial, both parties filed closing arguments. The Magistrate, in
a Decision filed on November 30, 2018, recommended, in part, that appellant be
designated the child support obligor but that his support obligation be deviated to zero.
Appellee filed objections and the trial court, as memorialized in an Opinion filed on
December 14, 2017, overruled the objections. Pursuant to a Judgment Entry filed on
December 14, 2017, the trial court approved and adopted the Magistrate’s Decision.
{¶19} Appellant now appeals from the December 14, 2017 Opinion, raising the
following assignment of error on appeal:
Licking County, Case No. 18-CA-3 9
{¶20} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DESIGNATED GRAVES AS THE CHILD SUPPORT OBLIGOR.”
I
{¶21} Appellant, in his sole assignment of error, argues that the trial court abused
its discretion when it designated him as the child support obligor. We disagree.
{¶22} In Booth v. Booth, 44 Ohio St. 3d 142, 541 N.E.2d 1028 (1989), the Supreme
Court of Ohio determined an abuse of discretion standard is the appropriate standard of
review in matters concerning child support. The term “abuse of discretion” connotes more
than an error of law or judgment; it implies that the court's attitude was unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140
(1983).
{¶23} Child support is generally calculated using the child support
guidelines and worksheet. R.C. 3119.03. This figure is rebuttably presumed to be
the correct amount of child support, although the trial court may deviate from that
amount. R.C. 3119.03. R.C. 3119.24 governs child support under shared parenting
orders and states the following:
(A)(1) A court that issues a shared parenting order in accordance with
section 3109.04 of the Revised Code shall order an amount of child support
to be paid under the child support order that is calculated in accordance
with the schedule and with the worksheet set forth in section 3119.022 of
the Revised Code, through the line establishing the actual annual obligation,
except that, if that amount would be unjust or inappropriate to the children
or either parent and would not be in the best interest of the child because
Licking County, Case No. 18-CA-3 10
of the extraordinary circumstances of the parents or because of any other
factors or criteria set forth in section 3119.23 of the Revised Code, the court
may deviate from that amount.
(2) The court shall consider extraordinary circumstances and other factors
or criteria if it deviates from the amount described in division (A)(1) of this
section and shall enter in the journal the amount described in division
(A)(1) of this section its determination that the amount would be unjust or
inappropriate and would not be in the best interest of the child, and
findings of fact supporting its determination.
(B) For the purposes of this section, “extraordinary circumstances of the
parents” includes all of the following:
(1) The amount of time the children spend with each parent;
(2) The ability of each parent to maintain adequate housing for the
children;
(3) Each parent's expenses, including child care expenses, school tuition,
medical expenses, dental expenses, and any other expenses the court
considers relevant;
(4) Any other circumstances the court considers relevant.
{¶24} However, when the parents’ combined gross income is greater than
$150,000 a year, as it is here, R.C. 3119.04(B) provides as follows:
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
Licking County, Case No. 18-CA-3 11
to an administrative child support order, shall determine the amount of the
obligor's 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
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.
{¶25} A court may consider any of the following factors in determining whether to
grant a deviation pursuant to R.C. 3119.23:
(A) Special and unusual needs of the children;
(B) Extraordinary obligations for minor children or obligations for
handicapped children who are not stepchildren and who are not offspring
from the marriage or relationship that is the basis of the immediate child
support determination;
(C) Other court-ordered payments;
(D) Extended parenting time or extraordinary costs associated with
parenting time, provided that this division does not authorize and shall not
be construed as authorizing any deviation from the schedule and the
Licking County, Case No. 18-CA-3 12
applicable worksheet, through the line establishing the actual annual
obligation, or any escrowing, impoundment, or withholding of child support
because of a denial of or interference with a right of parenting time granted
by court order;
(E) The obligor obtaining additional employment after a child support
order is issued in order to support a second family;
(F) The financial resources and the earning ability of the child;
(G) Disparity in income between parties or households;
(H) Benefits that either parent receives from remarriage or sharing living
expenses with another person;
(I) The amount of federal, state, and local taxes actually paid or
estimated to be paid by a parent or both of the parents;
(J) Significant in-kind contributions from a parent, including, but not
limited to, direct payment for lessons, sports equipment, schooling, or
clothing;
(K) The relative financial resources, other assets and resources, and
needs of each parent;
(L) The standard of living and circumstances of each parent and the
standard of living the child would have enjoyed had the marriage continued
or had the parents been married;
(M) The physical and emotional condition and needs of the child;
Licking County, Case No. 18-CA-3 13
(N) The need and capacity of the child for an education and the
educational opportunities that would have been available to the child had
the circumstances requiring a court order for support not arisen;
(O) The responsibility of each parent for the support of others;
(P) Any other relevant factor.
{¶26} In the case sub judice, the temporary orders entered on March 3, 2015
designated appellant as the child support obligor for purposes of temporary child support.
The Magistrate, in his Decision, recommended that the appellant remain the child support
obligor. The Magistrate, in his Decision, stated, in relevant part, as follows:
The Magistrate finds from the evidence admitted into the record that
the Defendant has been and is the parent who bears the primary
responsibility for providing the day-to-day care and maintenance of the
children. The Magistrate finds from reviewing the parties’ agreed shared
parenting plan filed on January 22, 2015, that the Plaintiff’s role in this
regard will continue.
The Magistrate further finds that the Plaintiff’s contention that the
Defendant should be ordered to essentially make him whole by reimbursing
him for the credit card charges he claimed he incurred while residing with
her is not an appropriate reason to designate the Defendant as the child
support obligor.
There are several bases for this determination. First, the Plaintiff
failed to present any documentary evidence corroborating his claim.
Second, it seems to the Magistrate that the Plaintiff voluntarily chose to
Licking County, Case No. 18-CA-3 14
make the credit card purchases he made while residing with the Defendant.
No evidence was presented establishing that the Defendant either made
him do this or expected this of him. Third, to the extent that the Plaintiff’s
claim arises out of the breakup of an unmarried couple who cohabited, the
Court does not have subject matter jurisdiction to decide the merit of such
a claim.
The Magistrate is unable to find merit to the Plaintiff’s contention that
the Defendant should be designated as the child support obligor and be
ordered to pay him child support so he can obtain and maintain a more
substantial residence and provide for the children in a manner like they are
accustomed to when they are with the Defendant. The contents of Plaintiff’s
exhibit 15 as well as the Plaintiff’s testimony regarding this exhibit and his
living circumstances lead the undersigned to find that the Plaintiff
anticipates upgrading his standard of living. Doing so, according to
Plaintiff’s exhibit 15, will result in practically doubling his monthly living
expenses.
The Plaintiff’s testimony purports to show that it would benefit the
children for him to have an enhanced standard of living, suggesting that
they are somehow deprived or disappointed to spend time in a residence
that is not comparable to the Defendant’s home. The Magistrate finds that
the overall evidence fails to establish that this is an issue or concern to the
children or the Defendant. The Magistrate further finds that it would be in
Licking County, Case No. 18-CA-3 15
the children’s best interest to see that everyone is not as fortunate to have
the same standard of living and material benefits as they do.
{¶27} After appellant filed objections, the trial court approved and adopted the
Magistrate’s Decision. The trial court, in its December 14, 2017 Opinion, noted that the
primary basis for appellant’s objection was the disparity in the parties’ income and that
appellant “asserts that in order for the children to have the same lifestyle at both homes
the Defendant should be the obligor and pay guideline support.” The trial court further
stated, in relevant part, as follows:
The Magistrate set out the basis for his determination as to who
should be the obligor and obligee at Pages 27 and 28 of his Decision. More
specifically, the Magistrate found that designating Plaintiff as the obligor
would serve the children’s best interest; that the Defendant was the parent
who bore the primary responsibility for the day to day care of the children;
and that the parental roles would remain the same under the parties’ Shared
Parenting Plan.
Further, the Magistrate found that there was no merit in Plaintiff’s
claim that the Defendant should pay on his credit card debt or that child
support should be paid to the Plaintiff in order that he could increase or
improve his standard of living.
In his Decision, the Magistrate explained that he did not find merit in
the argument that the children were somehow deprived when spending time
with the Plaintiff due to his house not being as large and (sic) the Defendant.
Moreover, the Magistrate found that it might be in the children’s best interest
Licking County, Case No. 18-CA-3 16
to observe that not everyone is fortunate enough to enjoy the same
standard of living and material benefits as they do with Defendant.
The Court could not find any case law to establish that the parent
who earns the most income should be designated the obligor for child
support purposes.
{¶28} The trial court agreed, and so does this Court, with the Magistrate’s findings
that appellee is the parent who bore the primary responsibility for the day to day care and
maintenance of the children. At trial, appellee testified that she was home for dinner
with the children on her days and that she was the parent who primarily stayed home with
them for school snow days, illnesses and doctor appointments. Appellee also pays for the
children’ health insurance and non-covered health expenses, school fees and supplies
and child care.
{¶29} Contrary to appellant’s assertion, the trial court did consider the standard of
living and disparity of income between the parties. The trial court found that there was no
evidence that the children were deprived or did not have their needs met when they were
with their father and that they slept in the same room at both houses, even though
appellee’s house was substantially larger then appellant’s and had more bedrooms, had
friends over to both houses, including overnight, and appeared to enjoy spending time at
both houses. The Appellee did all of the clothes shopping for the children and provided
the same sets of clothes and supplies for both households. There was testimony that both
houses were appropriate, safe and clean, furnished and had food for the children. There
also was testimony that both parties engaged in special activities with the children,
including vacations, and that the children had the same opportunities and routines at both
Licking County, Case No. 18-CA-3 17
houses. The children’s nanny testified that she sometimes watched them while at
appellant’s home and that appellee paid her and that the girls had the same clothes and
electronic gadgets at both houses and were appropriately cared for in both. There was
evidence that appellee paid for nearly all of the children’s’ expenses. She pays for their
health insurance coverage, any uninsured health care expenses, child care expenses
and school and activity fees. She also buys clothes for both homes. There was no
evidence that the children wanted for anything while at either house. As noted by the trial
court, “[t]here was no evidence presented that the children were somehow deprived when
they were with their father [appellant] To the contrary, the evidence showed that the girls
slept in the same room at both houses, had friends over tot both houses, and appeared
to enjoy spending time at both houses.“ The trial court further found that appellant’s
home, while smaller than appellee’s, was adequate for the needs of appellant and the
children.
{¶30} Based on the foregoing, we find that the trial court did not abuse its
discretion in designating appellant as the child support obligor. The trial court’s decision
was not arbitrary, unconscionable or unreasonable.
{¶31} Appellant’s sole assignment of error is, therefore, overruled.
{¶32} Accordingly, the judgment of the Licking County Court of Common Pleas,
Domestic Relations Division is affirmed.
By: Baldwin, J.
John Wise, P.J. and
W. Scott Gwin, J. concur.