In re I.A.G.

[Cite as In re I.A.G., 2014-Ohio-2767.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100486
IN RE: I.A.G.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU10116900
BEFORE: Rocco, J., Jones, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: June 26, 2014
-i-
ATTORNEY FOR APPELLANT, L.L.G.
Mark S. O’Brien
Heights Medical Center Building
2460 Fairmount Blvd.
Suite 301B
Cleveland Heights, OH 44106
ATTORNEY FOR APPELLEE, T.M.B.
Chisara Sandra Nwabara
3347 Central Avenue
Cleveland, OH 44115
KENNETH A. ROCCO, J.:
{¶1} Appellant L.L.G., biological father of the child I.A.G., appeals from the
juvenile court order that fixed child support to be paid to the mother, appellee T.M.B., in
the amount of $466.33 per month.
{¶2} Appellant presents six assignments of error. The first three claim that the
juvenile court considered inadmissible evidence in arriving at the amount. Appellant
argues in his fourth and fifth assignments of error that, because the evidence was
inadmissible, the amount of child support he was ordered to pay is not supported by
sufficient evidence. In his sixth assignment of error, appellant argues that the juvenile
court incorrectly completed the child support worksheet by placing his gross income
amount on the wrong line.
{¶3} Upon a review of the record supplied by appellant, this court cannot find the
juvenile court committed any reversible error. Appellant’s assignments of error,
accordingly, are overruled.
{¶4} This court previously reviewed the underlying facts of this case in In re:
I.A.G., 8th Dist. Cuyahoga No. 98088, 2012-Ohio-4403 (“In re: I.A.G. I”). The relevant
portions of that opinion state:
The father and mother are the parents of I.A.G., who was born on
November 22, 2005, in Kansas City, Missouri. The parties, who were
engaged at the time the child was born, resided together for about a year and
a half after the child’s birth until their relationship deteriorated to the point
that the mother moved to Cleveland with the child. The parties shortly
thereafter terminated their engagement.
For awhile the parties were able to have an amicable relationship regarding the
child. The father would periodically come to Cleveland to visit with the child and the
mother would bring the child to Missouri, although not often. This arrangement changed
in 2009, when the father married. According to the father, the mother refused to allow the
father’s wife to meet or have any interaction with the child. This made visitation for the
father difficult; therefore, he filed a motion for custody. In response, the mother filed a
motion for child support.
The father still lives in Missouri and is a self-employed hair stylist. He does not
have any employees; however, other hair stylists pay him rent to have a booth in his salon.
He testified that he declared personal bankruptcy in 2007. His tax returns showed his
income for 2007 income was $10,450; in 2008, $16,600; and, in 2009, $11,337. He
estimated his income for 2010 was approximately $16,000. The father has a son from a
previous relationship for whom he pays $400 per month in support without a court order.
***
The mother has two advanced degrees. She has a Masters of Labor Relations and
Human Resources, and an MBA. * * *
***
[R]ecently, [mother] was the Human Resource Manager at Hopkins Airport, but
was terminated after several months. She is currently unemployed and receives $453 per
week in unemployment. Her tax returns indicated she had a gross adjusted income of
$32,000 in 2008 and $160,000 in 2009. She is unsure of how much she made in 2010.
After the mother moved from Kansas City, the father, without a support order,
voluntarily provided support payments for the child that ranged from $100 to $300 per
month. Evidence presented at the hearing indicated he had paid the mother a total of
$10,130 from the time she left Missouri until May 2010.
Based on the evidence, the trial court issued an order in which it held the mother
would be the residential parent, with the father having liberal visitation. The trial court
also concluded for purposes of determining child support that the mother’s income was
$23,500 and that the father was making minimum wage. The court then ordered the
mother’s counsel to “prepare a child support worksheet and submit a proposed child
support entry” using the incomes the trial court had determined for each party. Because
the mother’s counsel failed to provide a worksheet, the father’s counsel prepared one and
presented it to the trial court. The trial court thereafter ordered the father to pay child
support in the amount of $65.25 per month, plus a processing fee, and to also provide
health insurance.
We will address the mother’s first and fourth assigned errors together because they
both concern the mother’s contention that the trial court erred by assigning a minimum
wage income to the father and not requiring the father to submit other documentation
other than his tax records regarding his business.
* * * We conclude the trial court’s decision to impute a minimum wage as the
father’s income is not supported by competent, credible evidence.
* * * The trial court used [the father’s tax returns] to determine that at best, the
father’s earned minimum wage amounted to $14,500. We conclude the trial court’s
imputing a minimum wage income to the father was an abuse of discretion because the
court did not have sufficient documentation of the father’s business to conclude what his
income was for purposes of computing child support.
When a parent’s income is self-generated, as the father’s income is here, the
parent’s taxable income may not equal the parent’s income as calculated for child support
purposes. Dannaher v. Newbold, 10th Dist. No. 05AP-172, 2007-Ohio-2936; Foster v.
Foster, 150 Ohio App.3d 298, 2002-Ohio-6390, 780 N.E.2d 1041,
113 (12th Dist.). The purposes underlying the Internal Revenue Code and the child
support guidelines are vastly different. Amlin v. Amlin, 2d Dist. No. 2008 CA 15,
2009-Ohio-3010, ¶ 70. The federal tax code allows deductions from gross income based
on a myriad of economic and social policy reasons that have no bearing on child support.
Id. In contrast, the child support guidelines focus on determining how much money is
actually available for child support purposes. Id.***
Father contends his salon is operated as a sole proprietorship, however, in his
answer to the mother’s interrogatories, he stated in response to interrogatory number nine:
“I am self-employed. Sole member and manager, LaRon’s Coiffures, LLC, a Missouri
limited liability company, d/b/a/ Salon LaRon, from January 2005 to present.” So there is
a question regarding what business form he is operating the salon as.
Regardless of the business form, the father obviously was required to submit
documentation in the form of receipts and expenses to his accountant for the preparation
of his tax returns. He should have likewise submitted such documentation to the court to
verify the tax returns. Without this documentation, it would be impossible to determine if
the amounts set forth on the tax documents are valid. “A trial court is not required to
blindly accept all of the expenses an appellant claims to have deducted in his tax returns
as ordinary and necessary expenses incurred in generating gross receipts.” Huelskamp v.
Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-6864, 925 N.E.2d 167, ¶ 43 (3d Dist),
quoting Ockunzzi v. Ockunzzi, 8th Dist. No. 86785, 2006-Ohio-5741, ¶ 53. Evidence was
presented that the father wrote a check to pay for GAL expenses from the salon’s
checking account. Thus, it must be determined what he is exactly listing as his expenses
as part of the Schedule C to assure he is not paying for personal debts from the Salon’s
account, which in turn would reduce his income.
Additionally, the father contends he does not pay salaries and receives rent from
stylists who rent the booths. However, on his tax returns the rental income is not set forth
in the tax return, and the returns show he is in fact paying wages that he deducts as
expenses. There may be an explanation for these discrepancies, but without additional
information, it is not clear if the rental income is included on the tax returns or paying
wages. Further, the fact that the father is able to pay $400 per month in child support to
his son from another relationship should have alerted the trial court that the father’s tax
returns may be inaccurate.
***
In the instant case, the father’s tax returns alone are not sufficient to determine his
child support obligation. We conclude the trial court abused its discretion by imputing a
minimum wage income to the father without having all of the financial information
regarding the father’s sole proprietorship. Accordingly, the mother’s first and fourth
assigned errors are sustained.
{¶5} Based upon the foregoing disposition, the case was remanded to the juvenile court for
further proceedings. The juvenile court permitted the parties to pursue additional discovery in order to
allow for the exchange of information.
{¶6} The matter proceeded to trial on July 1, 2013. Mother testified that she had been employed
temporarily at a position with an annual salary of approximately $40,000, but the position terminated in
May 2013. She stated that she would be receiving unemployment compensation in the amount of
$401.00 weekly and that she continued to seek work actively. Mother also stated that she “did the
books” for appellant’s business when they were living together in Missouri, and his income at that time
was “[r]oughly $250,000 a year.”
{¶7} Appellant testified on cross-examination by mother’s counsel. He admitted that his salon
consisted of “four booths total,” two of which were rented and one of which was available for rent. He
stated he collected from each of his renters “between $125 to $150 per week.”
{¶8} Appellant professed to be unable to provide an estimate of his annual income
from his business. The record reflects that he supplied copies to the mother of his
cancelled checks from his business account for the years 2011 and 2012.
{¶9} Appellant also offered into evidence his “financial statements” for the years
2010, 2011, and the first half of 2012. Appellant testified these statements were
prepared for him by his accountant and they reflected “income information” along with
the various categories of business expenses that he paid from his business account.
Appellant admitted that he paid over $400 a month in child support for his son, and
admitted that the Missouri court had calculated the amount of support for his son from his
2004 earnings. Appellant acknowledged he was paying I.A.G.’s mother $204 a month
for the child’s support.
{¶10} At the conclusion of trial, the record reflects the juvenile court admitted
several exhibits into evidence. These included four exhibits submitted by the mother and
three exhibits submitted by appellant.
{¶11} Mother’s exhibit No. 3 consisted of mother’s accountant’s financial figures
for appellant’s income for the years 2011 and 2012; the figures were based on appellant’s
2011 and 2012 cancelled checks and bank statements. Mother’s exhibits Nos. 5, 6, and 9
consisted of copies of appellant’s 2011 and 2012 cancelled checks and bank statements.
As previously mentioned, appellant’s exhibits B, C, and D showed appellant’s business
income and expenses for the years 2010, 2011 and the first half of 2012.
{¶12} The juvenile court’s judgment entry discussed the evidence presented at trial
and concluded that several “adjustments” to appellant’s business expenses were in order.
These included deductions for items that did not qualify as legitimate business expenses,
such as auto fuel and meals and entertainment. Adding in the “booth” rental, the court
set appellant’s annual “net income” at $37,125. 1 The court then reviewed all of
appellant’s cancelled checks that were in evidence and added an additional income of
$7,859, “giving [appellant] a total [annual] net income for child support calculation
purposes of $44,984.”2 Based upon mother’s testimony that she currently received only
unemployment benefits, the court found mother’s annual income to be $20,851 for child
support purposes.
{¶13} The juvenile court placed these calculations on the attached worksheets.
Appellant’s child support obligation as of September 3, 2013, came to $466.33 per
month.
1This figure is mathematically incorrect. The calculation amounts to
$35,725. Appellant does not present this as an issue on appeal.
2However, in entering the amount of appellant’s income, the juvenile court
transposed the numbers, therefore, the worksheet contains the figure “$44,948.”
{¶14} Appellant filed a timely appeal from the juvenile court’s judgment entry.
He presents the following six assignments of error for review.
I. The trial court committed reversible error by admitting into evidence
Appellee’s expert report, or portions thereof, as Appellee’s expert report constituted
inadmissible hearsay under Evid.R. 802.
II. The trial court committed reversible error by admitting into evidence
Appellee’s expert report, or portions thereof, as Appellee’s expert report was not
authenticated under Evid.R. 901.
III. The trial court committed reversible error by admitting into evidence
Appellee’s expert report, or portions thereof, as Appellee’s expert was not qualified as an
expert, nor was a proper foundation laid for the expert testimony contained within the
report, under Evid.R. 702.
IV. The trial court committed reversible error by determining Appellee’s income
for child support purposes to be $401 per week or $20,851 per year, as such determination
was not supported by sufficient documentation.
V. The trial court committed reversible error by determining Appellant’s income
for child support purposes to be $44,984 per year, as the method by which the trial court
arrived at this number included judgments with respect to income and expenses that were
not supported by the record on appeal.
VI. The trial court committed reversible error by including his [sic] gross income
on line 1a of its child support computation worksheet, rather than on line 2.
{¶15} Appellant’s first, second, third, and fifth assignments of error will be addressed together,
because all raise challenges to the documentary evidence that the juvenile court used to compute
Neither party objected to this error, which benefitted appellant.
appellant’s child support obligation.
{¶16} Appellant asserts that the juvenile court erred for various reasons in
admitting into evidence “appellee’s expert report”; appellant refers to mother’s exhibit
No. 3. Appellant further asserts that the court improperly relied upon this evidence.
This court disagrees.
{¶17} A trial court has broad discretion in the admission or exclusion of evidence,
and so long as such discretion is exercised in line with the rules of procedure and
evidence, its judgment will not be reversed absent a clear showing of an abuse of
discretion. Rigby v. Lake Cty., 58 Ohio St.3d 269, 569 N.E.2d 1056 (1991). In making
his assertions, appellant supposes that the juvenile court considered inadmissible
evidence. Appellate courts, however, presume that a trial court considered only relevant
and admissible evidence in a bench trial. State v. Crawford, 8th Dist. Cuyahoga No.
98605, 2013-Ohio-1659, ¶ 61; State v. Chandler, 8th Dist. Cuyahoga No. 81817,
2003-Ohio-6037, ¶ 17.
{¶18} Appellant first complains that the juvenile court relied upon hearsay when it
considered portions of mother’s exhibit No. 3. Appellant argues that mother’s exhibit
No. 3, which was based upon items he provided to mother during discovery, violated
Evid.R. 802 because those items did not qualify as “business records” and violated
Evid.R. 901 because they were not authenticated. He further argues that the exhibit
violated Evid.R. 702 because the mother’s accountant did not testify at trial.
{¶19} Evid.R. 803(6) provides in pertinent part that the following is not excluded
by the hearsay rule:
[a] * * * record, or data compilation, in any form, of acts * * * made at or near the time
by, or from information transmitted by, a person with knowledge, if kept in the course of
a regularly conducted business activity, and if it was the regular practice of that business
activity to make the memorandum, report, record, or data compilation, all as shown by the
testimony of [a] qualified witness * * * , unless the source of information or the method
or circumstances of preparation indicate lack of trustworthiness. The term “business” as
used in this paragraph includes business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for profit.
{¶20} In this case, the juvenile court made it very clear as to mother’s exhibit No. 3 that the
court would consider only “the financial figures” that appellant’s checks and bank statements reflected.
The court specifically stated several times that it would not use mother’s accountant’s report. This
court will not presume otherwise; therefore, Evid.R. 702 was not implicated.
{¶21} Appellant admitted that he provided the cancelled checks and bank statements that were
attached to mother’s exhibit No. 3. Appellant also identified the checks and statements as his, thus
providing a foundation for the admissibility of the items contained in mother’s exhibit No. 3. In effect,
therefore, he is asserting that he, “the source of the information,” was untrustworthy. He is better
served by the presumption that the juvenile court considered only admissible and relevant evidence.
Blankenship v. Vance, 5th Dist. Knox No. Case No. 2010-CA-000009, 2010-Ohio-4209, ¶ 17-19.
{¶22} A trial court’s decision regarding a child support obligation will not be
reversed on appeal absent an abuse of discretion. Pauly v. Pauly, 80 Ohio St.3d 386,
390, 686 N.E.2d 1108 (1997), citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d
1028 (1989). An abuse of discretion is more than an error of law, it connotes that the
court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983). Moreover, as long as the decision of the trial
court is supported by some competent, credible evidence, the reviewing court will not
disturb it. Masitto v. Masitto, 22 Ohio St.3d 63, 488 N.E.2d 857 (1986).
{¶23} In this case, the record supports a conclusion that the juvenile court based its
decision on the exhibits that were properly introduced into evidence, the testimony of
appellant, and the testimony of the child’s mother. Hothem v. Hothem, 5th Dist.
Coshocton No. 09 CA 20, 2010-Ohio 2400, ¶ 9. In light of appellant’s reluctance to
provide detailed information about the income his business generated, the juvenile court
arrived at its calculation of appellant’s annual obligation as of September 3, 2013, by
determining the credibility of the witnesses and then by arriving at an average based on
the admissible evidence submitted by the parties. No abuse of discretion occurred under
these circumstances presented in this case. Appellant’s first, second, third, and fifth
assignments of error are overruled.
{¶24} In his fourth assignment of error, appellant complains that mother’s
testimony about her imminent unemployment compensation was not adequate proof of
her income. This complaint also fails.
{¶25} In In re: I.A.G. I, mother appealed on the basis that the juvenile court “erred
by assigning a minimum wage income to the father and not requiring the father to submit
other documentation other than his tax records regarding his business.” Id. at ¶ 10.
Appellant filed no cross-appeal to challenge the juvenile court’s determination of
mother’s income; at that time, she was “unemployed and receive[d] $453 per week in
unemployment compensation.” Id. at ¶ 7.
{¶26} Finding merit to mother’s appeal, this court remanded the case for the court
to require appellant to submit “all of the financial information regarding [appellant’s] sole
proprietorship” in order “to determine his child support obligation.” Id. at ¶ 21
(emphasis added.) That was the scope of the remand. “If an appellate court remands a
case for a limited purpose, the trial court must accept all issues previously adjudicated as
finally settled.” Gomez v. Gomez, 7th Dist. Noble No. 10-NO-375, citing Cugini &
Capoccia Builders, Inc. v. Ciminello’s, Inc., 10th Dist. Franklin No. 06AP-210,
2006-Ohio-5787,
¶ 32.
{¶27} The juvenile court understood its obligation. According to mother’s
testimony, although she had obtained a temporary position prior to the time of the trial,
that position had terminated in May 2013. Mother testified that “in a week or two,” she
would “soon start to receive unemployment payments, as [she] did before, at $401 a week
this time it will be.”
{¶28} Therefore, mother’s income had remained relatively the same as what it was
at the time she sought review in In re: I.A.G. I. In light of the fact that the juvenile
court’s mandate was to reassess appellant’s income for purposes of child support rather
than mother’s, this court cannot find an abuse of discretion occurred. See Gomez at ¶ 22.
{¶29} Appellant’s fourth assignment of error, accordingly, is overruled.
{¶30} In his sixth assignment of error, appellant apparently argues that the juvenile
court’s worksheet contains an error that will give him “an additional tax burden.”
However, this court declines to consider his argument because his appellate brief as to
this assignment of error is incomplete; it appears that a page of argument is missing.
App.R. 12(A)(2).
{¶31} The juvenile court’s order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_____________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR