Habib v. Shikur , 2018 Ohio 2955 ( 2018 )

[Cite as Habib v. Shikur, 2018-Ohio-2955.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Mohammed Habib, :
Plaintiff-Appellant, :
No. 17AP-735
v. : (C.P.C. No. 12JU-12886)
Hawa Shikur, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on July 26, 2018
On brief: Ray J. King, for appellant. Argued: Ray J. King.
On brief: James C. Lee, for appellee. Argued: James C.
Lee.
APPEAL from Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
SADLER, J.
{¶ 1} Plaintiff-appellant, Mohammed Habib, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch, in favor of defendant-appellee, Hawa Shikur. For the reasons that follow, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties have never been married but have three minor children
together. Appellant has been paying court-ordered child support for the three minor
children since 2012. Appellant also has three children living in Ethiopia and for whom he
claims to pay court-ordered child support.
No. 17AP-735 2
{¶ 3} On March 9, 2016, pursuant to R.C. 3119.60 through 3119.71, the Franklin
County Child Support Enforcement Agency ("FCCSEA") notified the parties of a proposed
administrative adjustment to the current child support order, raising the amount of child
support to be paid by appellant to $379.39. On March 28, 2016, an Administrative
Hearing Officer ("AHO") conducted a hearing on the matter. On September 22, 2016, the
AHO issued a decision modifying appellant's child support obligation in accordance with
the administrator's recommendation.
{¶ 4} Both parties disagreed with the hearing officer's decision and requested an
adjustment court hearing. On December 22, 2016, FCCSEA moved to intervene in the
case. On January 4, 2017, a magistrate held a hearing on the parties' request for
adjustment.
{¶ 5} At the hearing before the magistrate, appellant testified that he works as a
self-employed taxi driver and that his net income for the previous year was $14,685.48.
Appellant also testified that in 2016 he paid $1,800 in court-ordered child support for his
children living in Ethiopia. Appellant acknowledged that he claimed the dependency
exemption for his three children with appellee when he filed his 2016 federal income tax
return and that he received a refund of more than $5,000.
{¶ 6} On February 15, 2017, the magistrate issued a decision in the matter. The
magistrate ordered appellant to pay child support in accordance with guidelines of
$183.78 per month for each child plus a processing charge and $38.58 per month in cash
medical support plus a processing charge. The magistrate also ordered the parties to each
pay 50 percent of the cost of medical expenses exceeding the amount paid by appellant.
The magistrate awarded the child dependency tax exemption for each of the three
children to appellee.
{¶ 7} On March 2, 2017, appellant filed the following objections to the
magistrate's decision:
1. The Magistrate failed to properly interpret O.R.C.
3119.05(A) and (B), and The Magistrate erred in her child
support worksheet wherein she provided zero deductions for
ordinary and necessary business expenses, and for Plaintiff's
child support payments to his children in Ethiopia.
2. The Magistrate erred in awarding all three (3) income tax
exemptions to Defendant.
No. 17AP-735 3
3. The Magistrate ignored the requirements of O.R.C. 3119.08.
{¶ 8} The trial court issued a decision and entry on September 29, 2017 overruling
appellant's objections and adopting the magistrate's decision. Appellant timely appealed
to this court from the trial court decision.
II. ASSIGNMENT OF ERROR
{¶ 9} Appellant assigns the following as trial court error:
The trial court erred in overruling Appellant's objections to
the Magistrate's Decision.
III. STANDARD OF REVIEW
{¶ 10} Pursuant to Juv.R. 40(D)(4)(d), "[i]f one or more objections to a
magistrate's decision are timely filed, the court shall rule on those objections. In ruling
on objections, the court shall undertake an independent review as to the objected matters
to ascertain that the magistrate has properly determined the factual issues and
appropriately applied the law." Thus, " '[a] trial court considering a party's objections to
a magistrate's decision must independently assess the facts and conclusions contained in
the magistrate's decision, thereby undertaking the equivalent of a de novo determination
in light of any filed objections.' " In re J.P., 10th Dist. No. 16AP-61, 2016-Ohio-7574, ¶ 13,
quoting In re H.D.D., 10th Dist. No. 12AP-134, 2012-Ohio-6160, ¶ 90. "Appellate courts
'generally review a trial court's adoption, denial or modification of a magistrate's decision
for an abuse of discretion.' " In re D.S., 10th Dist. No. 15AP-487, 2016-Ohio-2810, ¶ 9,
rev'd on other grounds, 152 Ohio St. 3d 109, 2017-Ohio-8289, quoting Brunetto v. Curtis,
10th Dist. No. 10AP-799, 2011-Ohio-1610, ¶ 10. "However, where the appeal from the
trial court's action on a magistrate's decision presents only a question of law, the standard
of review is de novo." In re D.S. at ¶ 9.
IV. LEGAL ANALYSIS
{¶ 11} In appellant's assignment of error, appellant challenges three distinct
aspects of the trial court's ruling: the amount of his child support obligation, the allocation
to appellee of the federal income tax deduction for the three minor children, and his
parenting time. For the reasons that follow, we find that the trial court did not err with
regard to these issues.
No. 17AP-735 4
A. Child Support
{¶ 12} Appellant claims the trial court erred when it found appellant failed to
provide necessary evidentiary support for certain business expenses allegedly incurred in
generating his self-employed income as a taxi driver and by not giving him credit for child
support payments made for his children in Ethiopia. We disagree.
{¶ 13} Appellant first contends the trial court erred when it adopted the
magistrate's determination regarding his yearly gross income. "The underlying purpose
of Ohio's child support legislation * * * is to meet the current needs of the minor child."
Harbour v. Ridgeway, 10th Dist. No. 04AP-350, 2005-Ohio-2643, ¶ 34. See also Bates
v. Bates, 10th Dist. No. 04AP-137, 2005-Ohio-3374, ¶ 21. "The starting point for
determining the proper amount of child support to be paid is parental income, defined as
gross income for those employed to full capacity or gross income plus potential income
for those not employed to full capacity." Wolf-Sabatino v. Sabatino, 10th Dist. No. 12AP-
1042, 2014-Ohio-1252, ¶ 7, citing Morrow v. Becker, 138 Ohio St. 3d 11, 2013-Ohio-4542,
¶ 11.
{¶ 14} For purposes of child support, R.C. 3119.01(C)(7) defines "[g]ross income,"
in relevant part, as follows:
"Gross income" means, except as excluded in division (C)(7)
of this section, the total of all earned and unearned income
from all sources during a calendar year, whether or not the
income is taxable, and includes * * * self-generated income.
{¶ 15} "Self-generated income" is defined in R.C. 3119.01(C)(13), in relevant part,
as "gross receipts received by a parent from self-employment, * * * minus ordinary and
necessary expenses incurred by the parent in generating the gross receipts." "Ordinary
and necessary expenses incurred in generating gross receipts" is defined in R.C.
3119.01(C)(9)(a) as "actual cash items expended by the parent or the parent's business
* * * as shown on the books of a business entity."
{¶ 16} Appellant testified to a yearly gross income of $29,149.43 from self-
employment as a taxi driver. According to appellant's records, $5,132.72 of his yearly
gross income was derived from cash transactions and $24,016.71 from credit card
transactions as reflected in a statement he received from a credit card servicing company
known as "Square." (Tr. at 42.)
No. 17AP-735 5
{¶ 17} The magistrate concluded appellant's gross receipts were "at least
$29,148.88." (Feb. 15, 2017 Mag.'s Decision at 1.) Following an independent review of
the evidence, the trial court adopted the magistrate's finding. Appellant claims that the
magistrate's finding is contrary to the only evidence in the record on the issue, appellant's
testimony and exhibits. Our review of the transcript, however, shows that when the
magistrate queried appellant regarding his self-generated income, the following exchange
took place:
MAGISTRATE RUTTAN: And can you estimate for me
approximately what percentage of your payments are made in
credit card payments versus cash?
WITNESS: Oh, almost to 98, 99, almost. Mostly – mostly its
credit card, so I'm afraid to give the wrong percentage.
MAGISTRATE RUTTAN: So if I understand correctly what
your earlier testimony was, and again, I haven't seen your
calculations. In 2016, you made $29,000.00 correct?
WITNESS: Yeah. Yes.
MAGISTRATE RUTTAN: And one of your exhibits, you
estimate how much you received in cash; is that correct?
WITNESS: Yes.
MAGISTRATE RUTTAN: And that figure was $5,000.00, -
WITNESS: Yes.
MAGISTRATE RUTTAN: - correct?
WITNESS: Yes.
MAGISTRATE RUTTAN: So you made almost a total of
$30,000.00 and by your own estimation $5,000.00 of that was
cash?
WITNESS: Yes.
MAGISTRATE RUTTAN: Which by my very rough calculation
is more than the one or two percent that would be cash,
correct?
No. 17AP-735 6
WITNESS: That – yes.
MAGISTRATE RUTTAN: Okay. So would you like – since
you've been a cab driver for 11 years –
WITNESS: Yes.
MAGISTRATE RUTTAN: - would you like to make another
stab at what percentage of your income is actually cash versus
credit card?
WITNESS: I – I don't understand. What is that again?
MAGISTRATE RUTTAN: What percentage of the payments
that you received for driving the cab are cash versus credit
card?
WITNESS: If you are asking the accurate percent, I will not be
able to do it.
(Tr. at 72-74.)
{¶ 18} It is evident from the transcript and from the magistrate's decision that the
magistrate did not find appellant's testimony regarding his yearly gross income to be
credible, particularly with regard to income derived from cash receipts. The magistrate's
decision notes appellant "presented no tax returns" to support his testimony. (Mag.'s
Decision at 2.)
{¶ 19} As the trier of fact, the magistrate was free to believe or disbelieve any
witness. In re Moore, 10th Dist. No. 06AP-970, 2007-Ohio-3995; H.R. v. L.R., 181 Ohio
App.3d 837, 2009-Ohio-1665 (10th Dist.). The trier of fact is also free to believe all, part,
or none of the testimony of each witness. Moore; H.R. See also Sims v. Dibler, 172 Ohio
App.3d 486, 2007-Ohio-3035, ¶ 44 (7th Dist.). Based on the evidence in the record, the
magistrate concluded appellant's yearly gross receipts were greater than he had related in
his testimony.
{¶ 20} With regard to appellant's business expenses, the only evidence submitted
by appellant to support his testimony regarding business expenses was a two-page exhibit
listing the type of expense incurred in one column and the corresponding monthly dollar
amount in the next column. According to appellant's exhibit, he incurred monthly
expenses of $1,223.79 in order to generate monthly gross income of $2,429.12, leaving
No. 17AP-735 7
$1,205.53 as his monthly net income and $14,463.95 as his yearly net income. The
magistrate noted appellant provided no receipts for any of the expenses listed in the
exhibit with the single exception of the $664.17 credit card fees memorialized in the
statement from Square.
{¶ 21} The trial court, in overruling appellant's objection to the amount of child
support ordered by the magistrate, expressed skepticism regarding the gross receipts and
expense figures related by appellant. The trial court stated:
Despite [appellant's] claim to have receipts to support his
summary of business expenses, [appellant] failed to bring
same to the hearing. While other "suitable" documentation
besides receipts could have been used to verify [appellant's]
business expenses, the court finds, as the Magistrate did,
[appellant] failed to provide any competent and credible
evidence to support his ordinary and necessary business
expenses. At the initial administrative hearing, the
Administrative hearing Officer also found [appellant's]
testimony regarding his income and expenses to be "not
credible as it was confusing and conflicting at best."
(Sept. 29, 2017 Trial Ct. Decision at 4.)
{¶ 22} The trial court also noted if appellant's testimony regarding his yearly gross
receipts and business expenses were to be believed, appellant's net income would be
"below Ohio's 2016 minimum wage of $16,848 annually." (Trial Ct. Decision at 4.) The
trial court further found as follows:
Many employers in Central Ohio (Target/Walmart) pay $10-
12 per hour starting wage and [appellant] could earn more
working something other than driving a taxi. The court is
suspect of [appellant's] claim of only receiving $5,000
annually in cash, which equates to roughly $100 per week, and
since he said he works six days [a week] that equates to only
an average of $16.66 per day in rides paid for in cash.
(Trial Ct. Decision at 4-5.)
{¶ 23} Based on the foregoing, we disagree with appellant's argument that the
magistrate and the trial court simply ignored credible evidence regarding legitimate
business expenses incurred by appellant. Rather, the magistrate disbelieved appellant's
testimony regarding gross receipts, particularly those derived from cash, and found that
appellant's evidence of business expenses was unsupported either by receipts or other
No. 17AP-735 8
corroborating evidence. In overruling appellant's objections, the trial court, conducting
a de novo review of the evidence, determined the evidence in the record supported the
magistrate's findings as to appellant's net yearly income for purposes of calculating
appellant's child support obligation.
{¶ 24} "The determination of gross income [for purposes of calculating child
support] is a factual finding which is reviewed using the 'some competent, credible
evidence' standard." Serra v. Serra, 10th Dist. No. 15AP-528, 2016-Ohio-950, ¶ 10, citing
Dannaher v. Newbold, 10th Dist. No. 05AP-172, 2007-Ohio-2936, ¶ 14. In reviewing the
trial court's factual findings regarding the determination of child support, we are mindful
that this court is not permitted to substitute its judgment for that of the trial court in
ruling on witness credibility. Banchefsky v. Banchefsky, 10th Dist. No. 09AP-1011, 2010-
Ohio-4267, citing Ruben v. Ruben, 10th Dist. No. 82AP-914 (July 26, 1983). In this
instance, our review of the evidence in the record reveals some competent, credible
evidence to support the trial court's determination of appellant's gross income for
purposes of calculating child support. Accordingly, we hold the trial court did not abuse
its discretion in adopting the magistrate's findings as to appellant's gross income for 2016.
B. Child Support Credit
{¶ 25} Appellant next contends the trial court failed to give appellant credit for
court-ordered payments he made for the support of his children in Ethiopia. We disagree.
{¶ 26} R.C. 3119.05(B) provides "[t]he amount of any pre-existing child support
obligation of a parent under a child support order * * * actually paid shall be deducted
from the gross income of that parent to the extent that payment under the child support
order * * * is verified by supporting documentation." (Emphasis added.) Appellant
testified he paid court-ordered child support for his three minor children in Ethiopia. The
magistrate determined appellant failed to support this claim with verified documentation.
The trial court agreed with the magistrate. We agree with the trial court.
{¶ 27} In support of his claim that he actually paid court-ordered child support for
his children in Ethiopia, appellant submitted a certified copy of an entry issued by a court
in Ethiopia dissolving appellant's marriage to one Zemmzem Mohammed and ordering
appellant to pay 1,000 Ethiopian Birr for each of his three minor children from the
marriage. (Tr., Pl.'s Ex. C.) The magistrate found appellant failed to prove he actually
No. 17AP-735 9
paid the child support ordered by the court in Ethiopia. The trial court, in overruling
appellant's objections, found as follows:
[Appellant] has three children from a prior relationship
residing in Ethiopia for whom he claims to pay court ordered
child support. See Plaintiff's Exhibit C. To effectuate his
payments, [appellant] explained that he "send[s] cash with
people, my people going to Ethiopia" who then give it to his
Ethiopian divorce lawyer (i.e. his father) who ensures the
mother of his children receive it. See Tr. at 49. He claimed to
have sent $1,8oo for his children in Ethiopia in 2016. When
questioned more about with whom he sent the money to bring
to his father in Ethiopia, [appellant] could only recall his
"friend's" first name, Angow. See Tr. at 62. The court finds
that [appellant] again failed to provide credible evidence that
he was actually making payments on his Ethiopian child
support obligation. In addition to failing to provide
documentation of proof of payment, his testimony of sending
money with "friends" was not credible. Nor was a certified
court document provided that proved what the exchange rate
of 3,000 Ethiopian birr would be or what amount was paid in
US dollars.
(Trial Ct. Decision at 6.)
{¶ 28} Our review of the record confirms the trial court's findings with regard to
appellant's alleged payments to Ethiopia. Even if this court were to accept the fact that
appellant had a legal obligation to pay some amount of child support for his children in
Ethiopia, the record does not contain any verifying documentation to support a finding
that appellant actually paid any such child support. Moreover, both the magistrate and
the trial court found appellant's story about his manner of payment lacking in credibility.
On this record, we find the trial court did not abuse its discretion when it overruled
appellant's objections to the magistrate's determination that appellant failed to prove his
entitlement to a child support credit.
{¶ 29} For the foregoing reasons, we find the trial court did not err when it
overruled appellant's objections to the magistrate's determination of his child support
obligation.
C. Parenting Time
{¶ 30} Appellant next contends the trial court erred when it overruled his objection
to the magistrate's determination of his parenting time. Appellant claims that R.C.
No. 17AP-735 10
3119.08 obligated the trial court to award him parenting time in connection with the
adjustment to child support. We disagree.
{¶ 31} R.C. 3119.08 provides "[w]henever a court issues a child support order, it
shall include in the order specific provisions for regular, holiday, vacation, parenting time,
and special visitation in accordance with section 3109.051, 3109.11, or 3109.12 of the
Revised Code or in accordance with any other applicable section of the Revised Code."
The trial court found "there is no formal request made by [appellant], either in his
objection to the Administrative Recommendation or objection to the Magistrate's
Decision, or by separate motion, for parenting time with the children." (Trial Ct. Decision
at 11.)
{¶ 32} The record shows appellant never filed a complaint seeking a determination
of parenting time pursuant to R.C. 3109.12.1 Consequently, a parenting time schedule has
never been ordered in this case. Appellant first raised the issue of his parenting time in
his objections to the magistrate's decision in this case. He did not raise the issue at any
time during the administrative proceedings nor did he raise the issue at the hearing before
the magistrate where evidence on the issue could have been submitted.
{¶ 33} Even if we were to hold that the parenting time provisions of R.C. 3109.08
are self-executing, the trial court noted "there was insufficient evidence provided for the
court to analyze the necessary factors set forth in R.C. 3109.051(D)."2 (Trial Ct. Decision
at 11-12.) In our view, the limited evidence relevant to parenting time that was introduced
at the hearing before the magistrate demonstrates appellant began exercising visitation
with the children only two or three months before the hearing. Appellant testified that he
picks the children up at school on Fridays, and they stay with him until 8:00 p.m.
Appellant acknowledged that he previously exercised no visitation with his three children
1 R.C. 3109.12(A) pertaining to "[p]arenting time, companionship or visitation rights where mother is
unmarried" provides in relevant part: "If a child is born to an unmarried woman and if the father of the child
has acknowledged the child and that acknowledgment has become final pursuant to section 2151.232, 3111.25,
or 3111.821 of the Revised Code or has been determined in an action under Chapter 3111. of the Revised Code
to be the father of the child, the father may file a complaint requesting that the court of appropriate jurisdiction
of the county in which the child resides grant him reasonable parenting time rights with the child and the
parents of the father and any relative of the father may file a complaint requesting that the court grant them
reasonable companionship or visitation rights with the child."
2 R.C. 3109.051(D) set forth a non-exhaustive list of 16 factors the court must consider in "establishing a
specific parenting time."
No. 17AP-735 11
for a period of three and one-half years, but he blamed appellee for refusing to permit him
visitation.
{¶ 34} Appellee testified that appellant does not exercise his parenting rights and
that he has spent little time with his three children. She testified appellant does not take
the children to school, he does not buy them clothes, or spend money on them outside of
the court-ordered support.
{¶ 35} In support of his objections, appellant did not seek leave from the trial court
to submit additional evidence relevant to the factors affecting parenting time. This court
has stated that " 'parental rights determinations are difficult to make and appellate courts
accord wide latitude to the trial court's consideration of evidence in these cases.' "
Hamilton v. Hamilton, 10th Dist. No. 14AP-1061, 2016-Ohio-5900, ¶ 8, quoting Faulks
v. Flynn, 4th Dist. No. 13CA568, 2014-Ohio-1610, ¶ 20. Under the circumstances of this
case and on this record, we cannot say the trial court abused its discretion when it
overruled appellant's objections to the magistrate's decision related to parenting time.
D. Tax Deduction
{¶ 36} Appellant's final challenge to the trial court's decision pertains to the
allocation of the federal income tax dependency exemption to appellee for each of the
three children. Appellant testified that he had previously claimed the exemption and that
he had received a substantial tax refund in 2016.
{¶ 37} R.C. 3119.82 provides for the designation of the federal income tax
deduction as follows:
In cases in which the parties do not agree which parent may
claim the children as dependents, the court shall consider, in
making its determination, 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 factor concerning the best interest of
the children.
{¶ 38} An appellate court reviews a trial court's decision allocating tax exemptions
for dependents under an abuse of discretion standard. Morrow at ¶ 9; Serra at ¶ 8. "An
abuse of discretion occurs where a trial court's decision is unreasonable, arbitrary, or
unconscionable." Id., citing Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
No. 17AP-735 12
{¶ 39} "The Internal Revenue Code creates a presumption in favor of the custodial
parent in the allocation of the federal income tax dependency exemption." Burns v.
Burns, 12th Dist. No. CA2011-05-050, 2012-Ohio-2850, ¶ 27, citing Pahls v. Pahls, 12th
Dist. No. CA2009-01-005, 2009-Ohio-6923, ¶ 22. When the parents disagree as to which
of them should claim a child as a dependent, the burden is on the non-residential parent
to produce competent and credible evidence to show that allocating the dependency
exemption to the non-residential parent would be in the best interests of the child. Serra
at ¶ 37. See also Meassick v. Meassick, 171 Ohio App. 3d 492, 2006-Ohio-6245, ¶ 15 (7th
Dist.).
{¶ 40} Foster v. Foster, 6th Dist. No. S-03-037, 2004-Ohio-3905, is an example of
a case where the court of appeals upheld a trial court's award of the dependency
exemption to the non-custodial parent. In that case, the Sixth District Court of Appeals
noted that the evidence showed the exemption allocation was in the best interest of the
child since the non-custodial parent would have more money to do activities with his
daughter during her visits, while awarding the custodial parent would cause no difference
in the child's standard of living. Id. at ¶ 24.
{¶ 41} Here, unlike Foster, appellant failed to produce evidence to support a
finding that it was in the best interests of the children for him to retain the right to claim
the children as dependents. As noted above, the evidence shows appellant has spent very
little time with his children over the years, and we have affirmed the trial court's judgment
regarding appellant's future parenting time. Though appellant testified he received a
substantial income tax refund for the 2016 tax year, he has not produced evidence to
establish the portion of that refund attributable to the exemptions. As the magistrate and
the trial court noted, appellant failed to provide his tax documents at the hearing. Nor
has appellant demonstrated that appellee would not also benefit from exemption, as the
record shows that appellee is actively seeking full-time employment. See Serra at ¶ 38
(fact that a non-residential parent would have received a greater tax benefit than the
residential parent does not require a trial court to allocate the dependency exemption to
the non-residential parent).
{¶ 42} "[T]he overriding concern in calculating child support is the best interest of
the child for whom support is being awarded." Bates at ¶ 21. Based on the evidence in
No. 17AP-735 13
the record, we cannot say the trial court abused its discretion in this case by affirming the
magistrate's allocation of the tax exemption to appellee as appellant failed to satisfy his
burden of proving that the best interests of the children required appellant to retain the
exemptions.
{¶ 43} Having disposed of appellant's arguments in support of his sole assignment
of error, we hold the trial court did not err when it overruled appellant's objections to the
magistrate's decision and adopted the magistrate's decision as its own. Accordingly,
appellant's assignment of error is overruled.
V. CONCLUSION
{¶ 44} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgment affirmed.
KLATT and LUPER SCHUSTER, JJ., concur.
___________________