Irish v. Irish

[Cite as Irish v. Irish, 2011-Ohio-3111.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
CRYSTAL IRISH C.A. No. 10CA009810
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GEORGE IRISH, JR. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 03DU062121
DECISION AND JOURNAL ENTRY
Dated: June 27, 2011
MOORE, Judge.
{¶1} Appellant, Crystal Irish, appeals from the judgment of the Lorain County Court of
Common Pleas, Domestic Relations Division. This Court reverses and remands with
instructions.
I.
{¶2} Plaintiff-Appellant, Crystal Irish (“Mother”), and Defendant-Appellee, George
Irish, Jr. (“Father”), were granted an uncontested divorce on April 2, 2004. The parties have
three unemancipated children. Pursuant to the decree of divorce, the trial court adopted a shared
parenting plan and determined that, subject to further order of the court, neither party was to pay
child support. The reasons stated in the divorce decree for not ordering child support included
the parties’ equal possession time with the children, their relatively similar incomes, Father’s
obligation to pay the cost of tuition, and Father’s additional financial contributions. At the time
of the divorce, Father earned $42,000 and Mother earned $37,500.
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{¶3} Father subsequently filed a motion seeking to terminate shared parenting and
grant him custody. Father’s motion was resolved by agreement of the parties on May 20, 2008.
Pursuant to that agreement, the court modified the shared parenting plan to alter the parties’
possession time and to provide child support to Mother.
{¶4} The court determined that Father would pay Mother $158.14 in monthly child
support, which represented an 80% deviation from the child support guidelines of $768.07. The
Child Support Computation Worksheet attached to the journal entry stated that 50% of the
deviation was due to the amount of time the children spent with their Father. The remaining
30% was not accounted for on the worksheet. The parties both signed that they had reviewed the
worksheet and agreed to it. At the time of this modification, Father’s annual income was
$45,054 and Mother’s was $26,000. The trial court expressly stated that all matters resolved by
the parties were subject to further order of the court.
{¶5} On September 5, 2008, Mother filed a motion to modify child support and for
clarification of ambiguities in the parties’ shared parenting plan. In her motion, Mother alleged
that there had been a change in circumstances and that a deviation from the child support
guidelines was no longer appropriate. While her motion was pending and prior to the hearing
before the magistrate, Mother lost her employment. At the time of the hearing on December 10,
2008, Mother was receiving unemployment compensation in the amount of $187 per week,
$9724 per year, and Father’s earnings had increased from $45,054 to $51,000 per year.
{¶6} Based on the evidence presented at the hearing, the magistrate ran a new Child
Support Computation Worksheet. She entered Father’s annual gross income as $51,000 and
Mother’s as $0.00, but she imputed $14,560.00 to Mother because the magistrate considered her
to be voluntarily unemployed. The magistrate found that the annual support obligation per
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parent varied from the previous worksheet in excess of 10%, constituting a change in
circumstance substantial enough to modify the child support amount pursuant to R.C. 3119.79.
The child support guidelines set Father’s support obligation at $919.31 per month. The
Magistrate determined that a deviation from that amount was appropriate. Specifically, she
concluded that the parties were “bound” by the May 20, 2008 journal entry which included an
80% downward deviation based, in part, on the extended parenting time spent by Father.
Accordingly, the magistrate reasoned that the only “legally relevant” change in circumstances to
warrant abandoning the agreed upon 80% deviation would be a change in parenting time.
Applying the 80% deviation, Father’s child support obligation was reduced to $183.87 per
month. The trial court adopted the magistrate’s decision.
{¶7} On January 26, 2009, Mother filed a motion pursuant to Civil Rule 60(B) to
vacate the May 20, 2008 judgment. The trial court overruled Mother’s motion. Mother appealed
both the judgment as to child support and the judgment overruling her Civ.R. 60(B) motion. The
appeals were consolidated for this Court’s review. On February 8, 2010, this Court issued a
Decision and Journal Entry in which it reversed and remanded the child support modification to
the trial court. Irish v. Irish, 9th Dist. Nos. 09CA009577 & 09CA009578, 2010-Ohio-403. This
Court concluded that the trial court erred when it deviated 80% from the child support guidelines
based on the parties’ May 20, 2008 agreement. By relying only on the agreement, the trial court
failed to consider the statutory factors for deviation set forth in R.C. 3119.23. The judgment was
reversed and the case was remanded to the trial court.
{¶8} On remand, the judge “reconsider[ed] the evidence” from the December 10, 2008
hearing, completed a new child support worksheet, and entered a judgment entry. In the
judgment entry, the judge listed each of the sixteen factors set forth in R.C. 3119.23 and each of
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the four extraordinary circumstances set forth in R.C. 3119.24. After it determined that some of
those factors were “potentially relevant” based on the evidence presented at the hearing, and
after it analyzed those factors and circumstances, the court determined that Father was entitled to
a downward deviation of 50% based on the time he has the children. In addition, he was entitled
to a $75 reduction per month for uncovered monthly healthcare expenses and a $138 reduction
for orthodontia care for one child. The final amount ordered was $257.38 per month. Mother
has appealed this decision and has argued that the magistrate should have issued an initial
decision for the trial judge to review and that deviation was not appropriate.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN NOT HAVING THE MAGISTRATE ISSUE
A DECISION AFTER THE MATTER WAS REMANDED FROM THE COURT
OF APPEALS.”
{¶9} In her first assignment of error, Mother has argued that the magistrate who heard
the evidence in the December 2008 hearing should have issued the decision, and that the judge
should have reviewed the magistrate’s decision before crafting her own order. This Court
disagrees.
{¶10} Civ.R. 53 allows the court to give a magistrate a significant range of authority, but
it places upon the court the ultimate authority and responsibility over the magistrate’s findings
and rulings. Cyr v. Cyr, 8th Dist. No. 84255, 2005-Ohio-504. The findings of fact, conclusions
of law, and other rulings of a magistrate before and during trial are all subject to the independent
review of the trial judge. Thus, a magistrate’s oversight of an issue or even an entire trial is not a
substitute for the judicial functions, but serves only as an aid to them. Even if the magistrate had
issued her own report, the trial court could not elevate that decision to the status of a judicial act
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by simply adopting it. Berthelot v. Berthelot, 9th Dist. No. 22819, 2006-Ohio-1317, at ¶22. The
trial court must issue its own order that contains the statutory findings necessary for a child
support determination. Id. Accordingly, the trial court was not in error when it entered a
judgment entry. This assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN DEVIATING FROM THE CALCULATED
CHILD SUPPORT AMOUNT.”
{¶11} In her second assignment of error, Mother has argued that trial court abused its
discretion when it deviated from the annual obligation as calculated in the Child Support
Computation Worksheet. This Court agrees.
{¶12} The trial court stated that it deviated from the annual obligation amount based on
Father’s actual parenting time and monthly healthcare expenses. Mother has argued that the
court abused its discretion in deciding to deviate from the statutory amount of childcare.
Specifically, she has argued that because of the disparity of income between the parties and her
inability to meet the basic needs of the children, the decision to deviate was not in the children’s
best interest.
{¶13} The purpose of child support is to meet the needs of the minor children. Carnes v.
Kemp, 104 Ohio St.3d 629, 2004-Ohio-7107, at ¶10, citing Park v. Ambrose (1993), 85 Ohio
App.3d 179, 183, fn. 1. Those needs include, shelter, food, clothing and ordinary medical care.
See In re Marriage of Stearns (1993), 88 Ohio App.3d 264, 275. The child support system is
designed to protect the children and their best interests. Richardson v. Ballard (1996), 113 Ohio
App.3d 552, 555. The legislature has, in effect, “assigned the court to act as the child’s
watchdog in the matter of support.” DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 540.
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{¶14} R.C. 3119.022 governs the procedures for awarding and calculating child support.
Its provisions are mandatory in nature and must be followed literally and technically in all
material aspects because, as stated previously, the overriding concern is the best interest of the
children for whom the support is being awarded. When it first awards child support, the court
must calculate the amount in accordance with the statutory schedule and the applicable
worksheet through the line establishing the “[a]ctual annual obligation.” R.C. 3119.022. The
annual obligation is the amount required to care for the children for the year and is derived from
the total incomes of the parents and the number of children. Frey v. Frey, 3d Dist. No. 5-06-36,
2007-Ohio-2991, fn 5.
{¶15} A parent may seek to modify an existing child support order pursuant to R.C.
3119.79. If a court determines that modification is warranted, it shall use the same worksheet as
it would for an original order and determine the new amount “in accordance with the schedule
and the applicable worksheet through the line establishing the actual annual obligation.” R.C.
3119.79.
{¶16} There is a rebuttable presumption that the annual obligation calculated using the
child support worksheet is the amount of child support that should be awarded. R.C. 3119.03;
see Marker v. Grimm (1992), 65 Ohio St.3d 139 (construing previous, analogous version of R.C.
3119.79). The party who seeks to rebut the presumption and asks the court to deviate has the
burden of proof. Murray v. Murray (1999), 128 Ohio App.3d 662, 671. Specifically, that party
must provide facts from which the court can determine that the actual annual obligation is unjust
or inappropriate and would not be in the children’s best interest. Id.{¶17} Two statutes provide guidance as to factors a court can consider when evaluating
the evidence offered by the party seeking a deviation. In cases where there is a shared parenting
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order, R.C. 3119.24 applies. It provides that a court may deviate from the actual annual
obligation 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 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.” R.C. 3119.24(A)(1). The statute requires the court to consider the extraordinary
circumstances of the parents in a shared parenting situation because both parties are considered
the residential parent at all times. It defines extraordinary circumstances of the parents to include
the amount of time the children spend with each parent, the ability of each parent to maintain
adequate housing for the children, and the amount of expenses each parent sustains, including
medical and dental expenses. R.C. 3119.24(B)(3). Although the court has discretion to deviate
from the annual amount as calculated in the worksheet, it must consider these circumstances to
do so.
{¶18} R.C. 3119.23 provides an additional 16 factors potentially relevant to granting
deviation. Unlike the circumstances provided in R.C. 3119.24 that the court must consider, R.C.
3119.23 sets out factors with the directive that the court may consider any of the following of
them. Those factors include
“(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 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;
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“(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;
“(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.”
{¶19} If the trial court determines that the presumption has been overcome by the
evidence, it may deviate from the annual obligation amount. R.C. 3119.22. It must, however,
enter in the journal the actual annual obligation, a determination that the amount would be unjust
or inappropriate and not in the best interests of the child, and findings to support that
determination. Id. Those findings would be expected to explain why the worksheet amount is
unjust, inappropriate and not in the best interests of the child. Berthelot at ¶24. They must also
“explain correspondingly why a downward deviation * * * would be just, appropriate and in the
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best interests of the children in the context of [the] case and the financial situation of [the]
parties.” Id.{¶20} On appeal of a trial court’s child support order, a reviewing court applies the
abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. Abuse of
discretion implies that the court’s attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶21} In this case, Mother sought to modify the child support order granted on May 20,
2008. After the case had been remanded once from this Court, the trial court judge completed a
new child support worksheet. The resulting figure of $940.76 per month for Father’s annual
obligation was more than ten percent greater than the amount of child support ordered in the May
20, 2008 order. Thus, there was a substantial change of circumstances justifying a motion to
modify. R.C. 3119.79(A); see DePalmo, 78 Ohio St.3d at 539-40.
{¶22} When the court determined that the actual annual obligation according to the
worksheet was $940.76 per month, it then chose to deviate from that amount. After reviewing
the testimony and exhibits from the December 10, 2008 magistrate’s hearing, the trial court made
the determination that ordering Father to pay the full amount “without appropriate deviations
would be unjust, unfair, inappropriate and not in the best interests of the children or the parents.”
This is not, however, the language of the statute. Although deviation in a shared parenting
situation does require a finding that the presumptive amount would be unjust, unfair, or
inappropriate to one parent, it requires a separate finding that awarding the presumptive amount
would not be in the best interest of the children. In this case, the court mistakenly determined
that it was not in the best interests “of the children or the parents.” (Emphasis added).
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{¶23} Moreover, this finding was not based on the evidence established in the hearing.
The trial court decided to deviate from the annual amount because of the amount of Father’s
parenting time and because of his monthly healthcare expenses for the children. Although
Father’s testimony led the court to conclude that both parties are on a strict budget, he did not
produce evidence that it was in the children’s best interest for the court to deviate from the
presumed child support amount given the discrepancy between their incomes.
{¶24} In addition to the threshold determination that deviation is in the children’s best
interest because of the extraordinary circumstances of the parents or other factors, there must be
factual findings to support that conclusion. In its journal entry, the trial court restated the
extraordinary circumstances set forth in R.C. 3119.24 and the factors set forth in R.C. 3119.23.
The trial court then expressly considered the extraordinary circumstances and factors it deemed
relevant based upon the evidence presented at the hearing: parenting time, ability to provide
housing, disparity of income, benefits from remarriage or shared living expenses, in-kind
contributions, and relative resources. It based its decision to deviate on the extraordinary
circumstances of parenting time and healthcare expenses.
A. Parenting Time
{¶25} Mother has argued that Father presented no evidence in support of deviation other
than that their parenting time was split 50/50. She has claimed he did not overcome the
presumption that the annual amount was correct because the disparity of their income and
relative financial resources, when coupled with the children’s needs and her inability to provide
housing, outweighed consideration of the parenting time schedule.
{¶26} The trial court determined that Father’s parenting time constituted an
extraordinary circumstance. This Court notes, however, that even though a shared parenting plan
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is involved, “no automatic credit in the support order for the time the child(ren) reside with that
parent is warranted.” Spencer v. Spencer, 5th Dist. No. 2005-CA-00263, 2006-Ohio-1913, at
¶44, citing Pauly v. Pauly (1997), 80 Ohio St.3d 386, 390. The mere fact that a factor is present
is not determinative. Mitchell v. Mitchell, 11th Dist. No. 2009-L-124, 2010-Ohio-2680, at ¶28.
{¶27} At the hearing on Mother’s motion to modify, both parties agreed that Father has
the children at least 50% of the time in accordance with the terms of the shared parenting plan.
In addition, the court heard testimony regarding the costs associated with that care, such as food
and clothing. The court concluded that the time caring directly for the children and the cost of
their clothing justified a 50% deviation. In effect, the court concluded that half of the children’s
needs were being met by Father. The trial court failed, however, to properly consider that
circumstance along with the Mother’s ability to provide adequate housing, despite express
evidence on that point.
{¶28} This Court has stated that “one cannot discount the traditional principles that
oversee all grants of child support.” Ohlemacher v. Ohlemacher, 9th Dist. No. 04CA008488,
2005-Ohio-474, at ¶34. Those traditional principles provide that each parent has a common law
duty to support the minor children by providing “necessaries” such as food, clothing, shelter, and
medical care. Kulcsar v. Petrovic (1984), 20 Ohio App.3d 104, 105. When determining the
necessary and reasonable amount of child support, a court should consider the children’s current
needs. Ohlemacher at ¶32. In support of her motion to modify, Mother presented a budget to
the trial court which reflects that she cannot meet the children’s needs at her home with the
deviation in place.
{¶29} Mother’s basic monthly budget was $2,010.00, not including credit card debt
which she claimed was incurred for the children’s expenses. Her income from unemployment
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was $748.00 per month, leaving a monthly deficit of $1262.00. The evidence of her monthly
shortfall was not in dispute. It was unreasonable for the trial court to conclude that she could
continue to provide the bare necessities for her children on this income.
{¶30} Although the trial court looked to whether Mother could maintain adequate
housing as required by R.C. 3119.24, it concluded that the “bulk of the evidence” demonstrated
that she could do so. The facts elicited at the hearing were that Mother rented a home from her
stepfather. The monthly amount of her rent was $735, which was the amount of the stepfather’s
mortgage payment. Mother testified that she had to borrow money from her mother to pay the
rent on at least one occasion. Based on her testimony, under the current support plan if she were
to only pay her mortgage payment every month, it would leave her with $13 for every other
expense associated with providing housing and raising three boys. This cannot be in the
children’s best interest.
{¶31} In the face of this testimony, the trial court noted that “no evidence was presented
that suggested [Mother’s] financial situation would cause her and her children to become
homeless due to non-payment of rent.” We conclude that it was arbitrary and unreasonable for
the court to suggest that the stepfather must evict Mother in order for her to demonstrate that she
could not provide housing. While the trial court properly noted that her stepfather owned the
house, there was no evidence that Mother did not have to pay rent or that the rent was
unreasonable. In addition, the trial court stated that she was providing for her children, in effect,
by receiving food stamps and free lunch programs from the school. Because these items can not
be considered to impute income to compute the worksheet, they should not be used to impute a
measure of providing care to her children. See R.C. 3119.01(C)(7)(a). But for these programs,
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Mother testified that she could not feed her children and that it was particularly difficult to feed
them over the weekends when she did not have access to school breakfasts and lunches.
{¶32} As for the other factors, both parents testified that they had incurred credit card
debt for childcare expenses, but neither parent submitted evidence of the particulars of those
expenses. Although Mother urged the court to take into consideration the fact that Father had
remarried, she did not focus on the fact that her boyfriend “spends the majority of time at her
house[,]” as the trial court noted. While the trial court did not err in not calculating the
additional monies potentially brought to the households by other parties, it abused its discretion
in failing to consider the Mother’s inability to meet the needs of the children while in her care. It
is not a question of equalizing incomes or satisfying standard of living requirements, but of
providing necessities for the children such as food and shelter.
B. Medical and Orthodontia Expenses
{¶33} Mother has also argued that the trial court incorrectly deviated based on the
healthcare expenses incurred by Father. This Court agrees as it pertains to medical expenses and
remands with instructions regarding the orthodontia expenses.
{¶34} The annual obligation inherently includes only ordinary medical care. R.C.
3119.05(F) provides that the court shall “issue a separate order for extraordinary medical
expenses or dental expenses, including but not limited to, orthodontia * * * and other expenses,
and may consider the expenses in adjusting a child support order.” “Extraordinary medical
expenses” include “uninsured medical expenses incurred for a child during a calendar year that
exceed one hundred dollars.” R.C. 3119.01(C)(4).
{¶35} In this case, the trial court had previously ordered Father to pay 100% of
uninsured medical expenses and 100% of extraordinary medical and dental expenses. In its
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order modifying child support, the trial court expressly considered the medical expenses Father
was paying and used them as a basis to deviate downward $75 per month. It noted that Father
paid all uninsured medical expenses and that there was “undisputed evidence” that asthma
inhaler refills for one child plus the other uncovered medical expenses for all the children
averaged $75.00 per month, or $900 per year. It did not set forth facts, however, explaining why
it was in the children’s best interest for the court to deduct this from the annual obligation, as is
required to support deviation, especially when there was uncontroverted testimony that Mother
did not have enough monthly income to provide the necessities of housing and food.
{¶36} The trial court separately considered the orthodontia payments, which are
considered an extraordinary medical expense. This Court agrees that the trial court was within
its discretion to consider this issue, and that there was a factual basis given the extra monthly
cost incurred by Father over and above ordinary medical support and the child’s need for braces.
In addition, there was testimony that Father had to pay an additional sum up front, and that
amount was not factored into the court’s analysis.
{¶37} This Court disagrees, however, with the trial court’s treatment of the expense as if
it had no end date. The record evidence reflects that the estimate for treatment was written on
November 3, 2008. The estimate reflects that a down payment of $1,078.13 was to have been
made and that treatment would continue at a fee of $138 a month for 18 months. The transcript
did not reflect that the treatments had started. It also did not limit the downward departure of
$138 to an 18-month period. Accordingly, while the trial court did not abuse its discretion when
it used this as a basis to deviate, this issue will be remanded to the trial court to modify its order
to reflect whether the payments are, in fact, being made, and to either set a finite term for the use
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of this item for deviation or to instruct the parties how to proceed when the orthodontia payments
have ended.
III.
{¶38} In this case, the judge did not commit error when she independently reviewed all
the evidence and wrote an order without first having the magistrate draft her own decision.
Mother’s first assignment of error is overruled.
{¶39} The trial court was, however, required to analyze Father’s equal time parenting
and his payment of medical expenses against Mother’s ability to provide housing, in light of the
evidence presented. It was then required to set forth the specific facts from which it concluded
that awarding the annual obligation amount was not in the children’s best interest. It was
unreasonable for the court to conclude, as it did, that it was in the best interest of the children to
deviate from the guideline and award less when Mother’s income would not allow her to pay rent
for her home.
{¶40} Mother’s second assignment of error is sustained. The case is remanded with
instructions for the trial court to enter the presumed amount of $940.76 per month (when
insurance is provided) as set forth in the worksheet and a clarification in its order as to the
beginning and duration of the orthodontia payments, which it may then use to deviate from the
presumed amount.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
BELFANCE, P. J.
CONCURS
WHITMORE, J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶41} I concur in the judgment only and write separately because I disagree with the
majority’s conclusion that, based on the record before us, Father should not be awarded any
deviation from the calculated amount of child support.
{¶42} This Court and others have routinely affirmed deviations to the calculated amount
of child support based on the nearly equal parenting time shared between a mother and father.
See, e.g., Misty R. v. Brian S., 6th Dist. No. WD-02-029, 2003-Ohio-1413, ¶19-30 (affirming the
trial court’s decision to reduce child support from the calculated amount of $800 to $500 based
on the equal parenting time shared by parents); Dunlap v. Dunlap, 9th Dist. No. 23860, 2008-
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Ohio-3201, at ¶8-10 (affirming a twenty-eight percent deviation from the calculated support
amount based on evidence that husband’s visitation time equaled twenty-nine percent of the
available time within a year). I acknowledge, however, that such a deviation is not “automatic”
in these situations. Pauly v. Pauly (1997), 80 Ohio St.3d 386, 390. Given the facts of this case,
however, I would not conclude that Father is not entitled to any degree of deviation from the
calculated amount of child support. See e.g., Clay v. Clay (July 19, 1995), 9th Dist. No. 17014,
at *3 (affirming the trial court’s decision to award a twenty-five percent deviation, even though
the parents shared “approximately equal [parenting] time” with the parties’ three children).
{¶43} When this matter was before the magistrate in the first instance, the magistrate
found Mother voluntarily unemployed and imputed an income of $14,560 to her, presumably in
light of her historical earnings of $37,500 in 2004 and $26,000 in 2007. On appeal, we
concluded that the trial court failed to make a specific factual finding of voluntary
unemployment and remanded the case. Irish v. Irish, 9th Dist. Nos. 09CA009577 &
09CA009578, 2010-Ohio-403, at ¶10 (concluding that “[a] statement that the magistrate did not
commit a legal error is not equivalent to making a specific factual finding [of voluntary
underemployment]”). On remand, however, the trial court appears to have abandoned its initial
position that Mother was voluntarily unemployed for purposes of support. Instead, the trial court
recorded Mother’s income as $9,724 based solely on her receipt of unemployment compensation
and did not make any corresponding finding of fact that she has the ability to earn more than that
amount (i.e., that she was voluntarily underemployed). The court refrained from imputing
income to Mother, but in evaluating the financial situation of the parties, determined that a
reduction in the calculated amount of support was warranted. I consider the trial court’s
decision not to impute income, but to deviate from the calculated amount of support instead, as
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an exercise within its discretion under R.C. 3119.23 and R.C. 3119.24. Though I consider the
trial court’s decision to award Husband a fifty-percent deviation based on the facts in the record
to be an abuse that discretion, I disagree with the conclusion that he is not entitled to any
deviation, as the majority concludes. Moreover, I consider the precise calculation of support and
the determination as to the degree of deviation to be matters best decided by the trial court, not
ones imposed by this Court. As much as we have stated that “[t]his Court may not ignore the
fact that a trial court is in a better position to determine the equities of a case in relation to a
shared parenting plan and the best interest of the children[,]” I believe this is what the majority
has done in its decision to dictate the exact dollar amount of support to be awarded here, rather
than simply remand this matter to the trial court for reconsideration of this issue. Hansen v.
Hansen (Jan. 28, 1998), 9th Dist. No. 2691-M, at *2.
{¶44} Additionally, I consider the trial court’s order to contain ample findings of fact to
support its decision to award a downward deviation for the uncovered prescription drug costs for
one of the children’s asthma medication and other uncovered medical expenses. The evidence
revealed that those expenses totaled nearly $900 per year, which I would conclude fits well
within the definition of “extraordinary medical expenses” under R.C. 3119.01(C)(4) (defining
that term as “any uninsured medical expenses incurred for a child during a calendar year that
exceed one hundred dollars”). Consequently, I would consider it a permissible adjustment to the
child support amount under either R.C. 3119.05(F) or R.C. 3119.24(B)(3). Accordingly, I would
not require any findings beyond that to support the trial court’s deviation in that regard. I would
reverse, however, on the basis of the indefinite nature of the orthodontia expense accounted for
in the trial court’s deviation.
{¶45} For these reasons, I concur in judgment only.
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APPEARANCES:
PAULETTE J. LILLY, Attorney at Law, for Appellant.
PATRICK D. RILEY, Attorney at Law, for Appellee.