Riepenhoff v. Riepenhoff , 64 Ohio App. 3d 135 ( 1990 )

I concur in judgment and the majority opinion, however, I write separately on the second assignment of error in an attempt to avoid future misconstruction of our assessment of the law. Clearly, this decision does not mean that earnings retained within a closely held corporate structure can never be used to compute child support under the guidelines set forth in C.P.Sup.R. 75.

The proper standard of review in support cases is whether or not the trial court abused its discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028. A mere analytical error does not constitute an abuse of discretion, but where the trial court misconstrues the letter and spirit of the law, it is clear that the court has been unreasonable and has abused its discretion. State v. CECOS International, Inc. (1988), 38 Ohio St.3d 120, 526 N.E.2d 807; Warner v. Waste Management, Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091.

Because I believe the trial court was operating under a good faith misunderstanding of the letter and spirit of the Supreme Court's child support guidelines, I concur in the reversal and remand under the facts in this case. Since many of the definitions set forth in Section III(A) of the rule seem to be working at cross-purposes with the underlying principles set forth in the preface, it is understandable that the rule becomes subject to confusion in its application.

Both R.C. 3109.05(A)(3) and the preface to the guidelines indicate that a support award should be made in keeping with the concept that the child should continue to receive the same proportion of parental income that he or she would have received had the marriage continued. Furthermore, notwithstanding the definitions set forth in the guidelines concerning the computation of income, the rule is premised upon the following general consideration set forth at C.P.Sup.R. 75, Section III(A)(3): "In general, income and expenses referenced herein should be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation." It is also important to note that the unrefuted evidence in this record indicates that the decision to retain earnings within the corporation occurred prior to the domestic difficulties that gave rise to the divorce. This is significant for several reasons.

First, there is no evidence of any subterfuge or even an implication that the plan to retain earnings was a recently developed scheme designed to avoid appellant's obligation of support. Secondly, the level of gross income available to appellant to satisfy his support obligation remains at the same level as during the marriage. Accordingly, under a support order where appellant's retained earnings were not included in "gross income", the child would continue to receive the same proportion of appellant's income that he or she would have received if the marriage continued. Accordingly, I concur in reversal under the facts of this case.