Harbeitner v. Harbeitner

I respectfully dissent in part from the majority's disposition of this case. Specifically, appellant's third, fourth and fifth assignments of error are sustainable as the referee's report was incomplete pursuant to R.C. 3113.215(B) and the Supreme Court of Ohio's decision in Marker v. Grimm (1992), 65 Ohio St.3d 139,601 N.E.2d 496. I otherwise concur in the majority's analysis of appellant's First and Second Assignments of Error.

In Marker, the court directly addressed the technical requirements of calculating child support obligations as follows:

"A child support computation worksheet, required to be used by a trial court in calculating the amount of an obligor's child support obligation in accordance with R.C. 3113.215, must actually be completed and made a part of the trial court's record." Marker, paragraph one of the syllabus.

The court explained that without the worksheet and strict compliance with the technical requirements of R.C. 3113.215, an appellate court is incapable of reviewing the modification of support adequately. Id. at 142, 601 N.E.2d at 498; see, Junke v.Junke (June 1, 1993), Cuyahoga App. No. 62461, unreported, 1993 WL 204619; Pournaras v. Pournaras (Apr. 8, 1993), Cuyahoga App. No. 62285, unreported, 1993 WL 106973. The referee herein did incorporate the computation worksheet prepared by the parties which indicates appellee's monthly child support obligation as $601.74.

Further, R.C. 3113.215(B)(1) creates a rebuttable presumption that the amount of child support calculated under the guidelines is the correct amount. Two conditions have to be met in order to deviate from this amount. First, the amount must not be in the best interest of the child, and it must be unjust and inappropriate, as determined by looking at the factors set forth in R.C. 3113.115(B)(3). R.C.3113.215(B)(1)(a). Second, findings of fact must be included to support the new determination. R.C. 3113.215(B)(1)(b). TheMarker court, therefore, emphasized not only that a completed worksheet be included in the record, but that any deviation fromthe schedule be referenced in the court's journal entry withsupporting findings of fact. Marker, paragraph three of the syllabus.

The factors to be considered when determining whether the presumably correct child support amount is unjust, inappropriate and not in the best interest of the child, as provided in R.C.3113.215(B)(3), are as follows:

"(a) Special and unusual needs of the children;

"(b) Obligations for minor or 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 times of visitation or extraordinary costs associated with visitation, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet, through line 18, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of companionship or visitation granted by court order;

"(e) Mandatory deductions from wages other than taxes, social security, or retirement in lieu of social security, including, but not limited to, union dues;

"(f) Disparity in income between parties or households;

"(g) Benefits that either parent receives from remarriage or sharing living expenses with another person;

"(h) The amount of federal, state, and local taxes actually paid by a parent or both of the parents;

"(i) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, or clothing;

"(j) Any other relevant factor * * *."

The referee, in her report dated February 26, 1992, recommended that appellee's child support obligation be $561 per month. In her July 1992 amended report, the referee recommended that the child support obligation be reduced to $408 per month after taking "judicial notice of the Ohio Child Support Schedule (OCSS)" and calculating a monthly support obligation of $601.20.

This court must presume, as required to do so by statute, that the child support calculation in the worksheet is correct, meaning appellee's child support obligation is $601.74 per month. As stated supra, the referee deviated from this amount by first recommending a child support obligation of $561 per month and then $408 per month in her July 31, 1992 report. In support of the modification and subsequent deviation, the referee stated:

"* * * Note parties' guideline worksheet which is incorporated. The parties' combined income is $34,610.77 [($8,900.00 — $2,000.00) + ($29,025.25 — $1,314.48) = $34,610.77]. The Plaintiff claims an expense of $1,110.00 annually after the tax credit for work related childcare and the Defendant claims $1,314.48 annually for medical insurance premiums. The Plaintiff [sic] earns 80% of the parties' combined income. The OCSS recommends a combined child support obligation of $7,908.00 per year for two (2) children. The Referee finds the adjusted child support obligation after work related childcare is $9,018.00 ($7,908.00 + $1,110.00 = $9,018.00). The Defendant's annual obligation is $7,14.40 for two (2) children and the Plaintiff's obligation is $1,803.60. The parties [sic] adjusted income after exchange of child support is $14,114.40 for the Plaintiff ($6,900.00 + $7,214.40) and $20,496.37 for the Defendant ($27,710.77 — $7,214.40)."

However, the referee further concluded:

"The Referee has taken the factors of O.R.C. 3109.05 (child support) and O.R.C. 3113.215(B)(3) into consideration in reaching a recommendation. The Referee finds after consideration of these factors that the above amount of support would be unjust or inappropriate to the children and Defendant where the children are pursuant to the joint provisional custody plan in the Defendant's custody and care half of the time and would not be in the best interests of the minor children where the Defendant's financial resources are reduced so as to limit his ability to care for the children. This is particularly true when Defendant has the children overnight and is the primary caretaker. Nonetheless, the Referee finds Plaintiff's expenses, including but not limited to rent and utilities for the children continue.

"Based on the foregoing, the Referee recommends that the Defendant pay to the Plaintiff $400.00 per month or $200.00 per month per child (2) in child support. * * *"

It is apparent from reading the referee's recommendation that there are no facts supporting the deviation from the child support obligation as calculated under the guidelines. The referee refers to appellee as the primary caretaker in support of the nearly $200 deviation. However, it is obvious to me that the children spend more waking hours with appellant — appellant takes care of the children on alternate weekends and, during the week, they stay with her from 6:30 a.m. to 3:30 p.m. The referee fails to explain why nearly $200 was deducted from the child support obligation, a completely unsubstantiated figure, rather than, e.g., $150 or $100. Consequently, there is no evidence in the record which supports her general conclusion that a support payment of $601.74 would restrict appellee's ability to care for the children. SeeZmudzinski v. Shaffer (Apr. 23, 1992), Cuyahoga App. No. 62494, unreported, 1992 WL 83860 (absent a supporting factual basis for child support payments, a referee's report is insufficient as a matter of law). The trial court thus arbitrarily adopted an assumption made by the referee. See Rutti v. Beal (July 30, 1992), Cuyahoga App. No. 60889, unreported, 1992 WL 181707. Further, the court did not mention the deviation in its journal entry and consequently failed to support the deviation with findings of fact in accordance with Marker. See Junke, supra, (trial court's child support determination reversed where deviation ordered to compensate father for travel expenses but no evidence was presented as to how much visitation would cost the parties, or as to whether visitation actually occurred).

The majority reviews the referee's amended report and observes that it "contains nearly three entire sheets of factual findings, single-spaced and typed, beginning at the bottom of page 2 and concluding in the middle of page 5." It then concludes, "[c]learly, the amended referee's report satisfied the requirements of Nolte [v. Nolte (1978), 60 Ohio App.2d 227, 14 O.O.3d 215, 396 N.E.2d 807], presenting facts ``[s]ufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order.'" The language found in Nolte which, in part, led to the majority's conclusion follows:

"[T]he trial judge may not render judgment unless and until he has independently analyzed the case; he is in no position to make such an analysis unless the referee's report includes astatement of the facts relevant to the issue before the court * * *

"Whenever a referee's report contains a legal conclusion butomits the facts necessary to reach that conclusion, the judgmentis voidable." (Emphasis added.) Id. at 231, 14 O.O.3d at 217,396 N.E.2d at 810-811.

The majority focuses on the length of the referee's factual findings rather than the substance of them. Just because the referee writes findings of fact over two and one-half pages long, it does not necessarily follow that these findings of fact are "relevant to the issue before the court." The issue here is whether the evidence presented to the court supported a deviation from the child support obligation calculated pursuant to statutory guidelines. Only one paragraph discusses R.C.3113.215(B)(3) and that paragraph fails to present findings of fact, as discussed supra, to support the deviation recommended and then adopted by the trial court.

To repeat, it is obvious that the trial court adopted the referee's recommendation that the statutory "presumed to be correct" child support amount be deviated from in this case. The majority's statement that "there is no evidence which would warrant a deviation from that figure calculated by the referee, using the child support worksheet mandated by statute, and contained in her amended report" is, therefore, curious under these circumstances. The majority cites that portion ofRohrbach v. Rohrbach (1988), 40 Ohio App.3d 92, 531 N.E.2d 773, which states, "neither party adduced any evidence at the hearing which would warrant a deviation from the figure derived from the objective, independent standard." The majority appears to be under the mistaken impression that no deviation occurred or it has forgotten that a deviation of nearly $200 was recommended by the referee and subsequently adopted by the trial court. The majority's final conclusion that the modification of child support to $408 per month was not against the manifest weight of the evidence is thus illogical because it finds no evidence to support a deviation from the schedule. It affirms this deviation nonetheless by overruling appellant's Third, Fourth and Fifth Assignments of Error. In light of Marker and R.C. 3113.215(B)(3) guidelines, my analysis reveals that appellant's allegation that the referee erred in recommending a deviation from the child support guidelines, and the trial court erred in adopting the recommendation is correct. I would have thus sustained appellant's Third Assignment of Error.

Appellant for her Fourth Assignment of Error claims that the trial court erred in "rubber-stamping" the referee's report. This assignment of error is sustainable based upon the ruling in the third assignment of error. If the referee's report was insufficient with regard to a proper statement of factual findings, the trial court could not conduct a de novo review of the report as required by Civ.R. 53(E)(5). See DeSantis v.Soller (1990), 70 Ohio App.3d 226, 590 N.E.2d 886 ("* * * trial court must undertake the equivalent of a de novo determination, in light of any filed objections, when independently assessing the facts and conclusions contained in the report of a referee").

Appellant's Fifth Assignment of Error is likewise sustainable as she argues that the referee's findings and conclusions were against the manifest weight of the evidence, and consequently, the trial court erred in the same respect. Since the referee's report does not contain factual information which supports the deviation, the deviation is against the weight of the evidence as child support calculations under the statute are presumed to be correct.

I accordingly dissent in part from the majority's decision.