Gorman v. Gorman

[Cite as Gorman v. Gorman, 2013-Ohio-5643.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THEODORE GORMAN, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 JE 23
V. )
) OPINION
MICHELLE L. GORMAN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Domestic Relations Division of
Jefferson County, Ohio
Case No. 08DR82
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney Jane Hanlin
P.O. Box 1506
Steubenville, Ohio 43952
For Defendant-Appellant Attorney William R. Biviano
Huntington Bank Tower, Suite 700
108 Main Avenue SW
Warren, Ohio 44481-1010
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 18, 2013
[Cite as Gorman v. Gorman, 2013-Ohio-5643.]
DONOFRIO, J.
{¶1} Defendant-appellant, Michelle Gorman, appeals from a Jefferson
County Common Pleas Court judgment modifying child support and parenting time.
{¶2} Appellant and plaintiff-appellee, Theodore Gorman, were divorced on
September 16, 2008. They share two children, Mikayla (d.o.b. 10/7/99) and Ryan
(d.o.b. 9/4/02).
{¶3} The final decree of divorce incorporated an agreement regarding
custody and visitation. Pursuant to the agreement, appellant was designated the
residential parent and appellee was to have parenting time as set out in the
agreement. The agreement stated that when one parent was unavailable for a given
amount of time, they were to contact the other parent and offer the opportunity for
child care and the parties were to contact appellant’s parents or the children’s
babysitter when they were not available. It also set out a modified visitation schedule
for appellee during football season, as he was coaching football. And it provided that
the children would spend Christmas Eve and the night before Easter at appellant’s
house and would go with appellee at noon on Christmas Day and Easter Day. And
on Memorial Day and Labor Day weekends, appellee would have the children from
Friday until Saturday at 5:00 and appellant would have them the remainder of the
holiday. Pursuant to the divorce decree, appellee was to pay appellant $1,150 per
month in child support. Additionally, pursuant to the decree, each party was to claim
one child for income tax purposes.
{¶4} On May 11, 2012, appellee filed a motion to modify parenting time and
child support. He asserted that since the time of the divorce, he remarried, had
another child, his income decreased, and appellant’s income increased. He
requested the court grant him more liberal holiday visitation and eliminate several of
the restrictions on visitation. He requested that when the children were in his care
and he was unavailable that he be permitted to leave them with his wife instead of
contacting appellant, the children’s grandparents, or the babysitter. He also stated
that since he was no longer coaching high school football, the modified visitation
during football season should not apply. And he requested that the children have
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visitation with him on Christmas and Easter mornings on alternating years. As to
child support, appellee requested a reduction to $794.76 per month. He asserted
that his yearly income decreased from $76,766 to $72,987, while appellant’s income
increased from $85,281 to $93,457. Additionally, appellee stated he was entitled to
an adjustment in support due to the birth of his son.
{¶5} Appellant filed a response urging the court to overrule appellee’s
motion, to interview the children in chambers, and to modify the dependency
exemption granting her the right to claim both children for tax purposes.
{¶6} The trial court held a hearing on the pending matters where it heard
testimony from the parties, appellee’s wife, and the children’s counselor. It did not
interview the children. The trial court found that a modification of child support was
warranted based on a change of circumstances. It ordered that appellee’s new child
support obligation would be $900 per month. It also granted appellant’s request to
claim both children for income tax purposes. The court noted that at the hearing the
parties agreed to some of the proposed visitation modifications. The parties agreed
to appellee’s requests regarding the various restrictions on visitation and agreed that
since appellee was no longer coaching football the modified visitation during football
season need not apply. The only visitation issue left for the court to determine was
whether to allow the changes appellee requested for holidays. The court granted
these changes, which allow for the parties to alternate holiday visitations so that each
party will have the children during the “prime holiday time” on alternating years for
Easter, Memorial Day, Labor Day, Fourth of July, Thanksgiving, and Christmas.
{¶7} Appellant requested that the court enter findings of fact and conclusions
of law on all issues. The trial courted denied appellant’s request as to its decision not
to interview the children in chambers. It noted that whether to conduct an in-
chambers interview is in the court’s discretion. The court then entered its findings of
fact and conclusions of law as to child support and visitation.
{¶8} Appellant filed a timely notice of appeal on September 26, 2012.
{¶9} Appellant raises six assignments of error. Her first assignment states:
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THE TRIAL COURT ABUSED ITS DISCRETION IN
MODIFYING THE VISITATION SCHEDULE BASED UPON
NUMEROUS FINDINGS OF FACT THAT ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND UNSUPPORTED BY
THE EVIDENCE PRESENTED.
{¶10} Appellant argues that several of the trial court’s findings of fact in
support of modifying visitation were against the manifest weight of the evidence.
Appellant further contends there was no evidence that the modification of the holiday
visitation schedule was in the children’s best interest. Instead, she claims the only
evidence was that appellee’s new baby deserved to celebrate holidays with his half-
siblings. Thus, she asserts the modification was to protect the best interest of
appellee’s baby.
{¶11} We review a trial court’s decision to modify visitation for abuse of
discretion. Braatz v. Braatz, 85 Ohio St. 3d 40, 44, 706 N.E.2d 1218 (1999). Abuse
of discretion connotes more than an error of law or judgment; it implies the trial
court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶12} Judgments supported by some competent, credible evidence going to
all the material elements of the case must not be reversed, as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d
279, 376 N.E.2d 578, syllabus (1978). See, also, Gerijo, Inc. v. Fairfield, 70 Ohio
St.3d 223, 226, 638 N.E.2d 533 (1994). Reviewing courts must oblige every
reasonable presumption in favor of the lower court's judgment and finding of facts.
Gerijo, 70 Ohio St. 3d at 226 (citing Seasons Coal v. Cleveland, 10 Ohio St. 3d 77,
461 N.E.2d 1273 [1984]). In the event the evidence is susceptible to more than one
interpretation, we must construe it consistently with the lower court's judgment. Id. In
addition, the weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts. Kalain v. Smith, 25 Ohio St. 3d 157, 162, 495
N.E.2d 572 (1986). “A finding of an error of law is a legitimate ground for reversal,
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but a difference of opinion on credibility of witnesses and evidence is not.” Seasons
Coal, 10 Ohio St. 3d at 81.
{¶13} Modification of visitation rights is governed by R.C. 3109.051. Braatz,
85 Ohio St. 3d at 44-45. A trial court must consider the fifteen factors listed in R.C.
3109.051(D) and has the discretion to then determine whether or not a change in
visitation is in the best interest of the child. Id. at 45. The party moving to modify
visitation need not show a change in circumstances. Id.
{¶14} The R.C. 3109.051(D) factors are:
(1) The prior interaction and interrelationships of the child with
the child's parents, siblings, and other persons related by consanguinity
or affinity * * *;
(2) The geographical location of the residence of each parent
and the distance between those residences * * *;
(3) The child's and parents' available time, including, but not
limited to, each parent's employment schedule, the child's school
schedule, and the child's and the parents' holiday and vacation
schedule;
(4) The age of the child;
(5) The child's adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to
division (C) of this section, regarding the wishes and concerns of the
child as to parenting time by the parent who is not the residential parent
* * * or as to other parenting time or visitation matters, the wishes and
concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to
spend with siblings;
(9) The mental and physical health of all parties;
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(10) Each parent's willingness to reschedule missed parenting
time and to facilitate the other parent's parenting time rights, and with
respect to a person who requested companionship or visitation, the
willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether either parent
previously has been [convicted of or pleaded guilty to any criminal
offense involving an abused child or a neglected child or perpetrated
abuse or neglect];
(12) [Deals only with non-parents] * * *;
(13) Whether the residential parent or one of the parents subject
to a shared parenting decree has continuously and willfully denied the
other parent's right to parenting time in accordance with an order of the
court;
(14) Whether either parent has established a residence or is
planning to establish a residence outside this state;
(15) [Deals only with non-parents] * * *;
(16) Any other factor in the best interest of the child.
{¶15} In this case, the trial court made the following findings going to each of
the applicable factors. The children’s interaction with appellee, their new sibling, their
stepmother, their stepbrother, and numerous members of their stepmother’s family
provide a positive benefit for them and they enjoy those interrelationships. The
parties live within minutes of each other and, therefore, travel distance has no effect
on the parenting schedule. Since the divorce, appellee is no longer coaching
football. Consequently, he has additional time to spend with the children. The
children are considerably older than they were at the time of the divorce and both
have the ability to communicate with their parents at any time. The children have
fully adjusted to appellee’s residence with his new wife and their stepbrother. The
modification in parenting time will not result in any change to their school or
community environments. It was unnecessary to interview the children regarding the
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modifications the court found to be warranted. Neither child has any significant
health issues. The modifications proposed by appellee will allow the children to
spend additional time with their new sibling and to spend prime holiday time with both
parents. Neither party has any mental or physical health conditions that affect
parenting time. It is necessary to order a formal modification of the parenting time
because the parties have been unable to negotiate the changes in the current court
order. Neither parent has been convicted of any criminal offense that involved a child
being abused or neglected. While appellant does not continuously and willfully deny
parenting time, she fails to offer any additional time over what is provided in the court
order. Neither party plans to establish a residence outside of Ohio. The stability of
appellee’s residence and the addition of a half-sibling can only be viewed as a
positive environment for the children. The children deserve to know a full and loving
environment with each of their parents. There is no reason for the children to spend
all of the “prime” holiday time with just one parent and to do so would not be in the
children’s best interest.
{¶16} The testimony supports the trial court’s findings.
{¶17} Appellee testified that at the time of the divorce he lived alone and did
not have much of an extended family. (Tr. 11-12). Due to his situation at the time of
the divorce, he agreed to let appellant have the children on Christmas and Easter
mornings, Memorial Day, Labor Day, and during the prime time on Thanksgiving.
(Tr. 14-16). Additionally, appellee admitted that initially visitation was difficult for the
children. (Tr. 32). But now they are very comfortable in his house. (Tr. 33).
{¶18} Appellee testified that since the divorce, he has remarried and has a
new baby. (Tr. 10-11). He now lives with his wife Lynette, their baby, and his step-
son Brandon. (Tr. 12-13). Appellee submitted numerous photographs of the children
with Brandon and the baby where they all appear to be happy and enjoying each
other. (Pt. Ex. 1). He stated the children have grown close to Lynette and her
extended family members. (Tr. 17). Appellee opined that the children have adjusted
to life at his house with Lynette and the baby and are very comfortable there. (Tr. 32-
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33). He stated they talk to Lynette about school and invite friends over. (Tr. 37-38).
And he stated that when the children arrive at his house they run straight for the
baby. (Tr. 34). He testified they love the baby and coddle him. (Tr. 33-34).
Appellee opined the visitation modifications were in the children’s best interest. (Tr.
46). He further testified he wanted his children to spend some holiday time with their
new brother. (Tr. 72). And he wanted his new son to experience waking up on
Christmas morning with his siblings. (Tr. 72).
{¶19} Appellee’s wife Lynette testified next. Lynette described her time with
the children as including watching movies, visiting with her family, and having the
children’s friends to their house. (Tr. 115). She stated the children get along well
with her family and call her aunt and uncle “Aunt” and “Unc” and Mikayla named
Lynette’s mother “Nun” because she already had a “Nunny.” (Tr. 116). Lynette went
on to testify that the children love their baby brother and want to hold him as soon as
they walk in the house. (Tr. 116). She stated that Mikayla likes to carry him around
the track meets and show him to her friends. (Tr. 116-117). Lynette opined it would
be beneficial for the children to spend holidays with their baby brother and to watch
him as he grows up. (Tr. 118). She also opined that the children were well adjusted
to her and appellee’s home. (Tr. 123-124).
{¶20} Karen Lombardi is the children’s counselor. As to their relationship with
Lynette, Lombardi recalled Mikayla telling her that she appreciated Lynette’s small
acts of kindness. (Tr. 138). And as to the baby, she stated that the children speak
very affectionately about their baby brother and love him. (Tr. 139). As to visitation,
Lombardi opined that consistency in the visitation schedule was important and
traditions should be kept intact. (Tr. 140, 143). She opined that expanding the
visitation schedule was not in the children’s best interest at this time. (Tr. 156).
Lombardi, however, was unaware of what changes in visitation that appellee was
requesting. (Tr. 151).
{¶21} Appellant was the final witness. She testified that the children have
been accustomed to certain holiday traditions since they were born. (Tr. 161). She
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stated their holiday traditions center around her family and spending time with their
cousins, aunts, and uncles. (Tr. 161-162). For instance, she explained that every
Christmas the children go to church on Christmas Eve, eat the same dinner, and
wake up on Christmas morning to 30 presents each. (Tr. 162). She also testified the
children love to spend Memorial Day, Fourth of July, and Labor Day at the country
club with her and their friends. (Tr. 177). Appellant opined it was not in the children’s
best interest to change their holiday traditions and schedules. (Tr. 185). She stated
that if the children ever told her they wanted to spend more holiday time with their
baby brother she would be okay with it. (Tr. 208). Otherwise, she would never agree
that it would be in their best interest to share some of the holiday time with appellee.
(Tr. 188).
{¶22} This evidence supports the trial court’s findings of fact. Appellant
specifically takes issue with four of the court’s findings.
{¶23} The first finding she takes issue with is that the children have developed
a positive and healthy relationship with their step-brother Brandon and numerous
members of Lynette’s family. The evidence on this point, however, supports the
court’s finding. Both appellee and Lynette testified the children have adjusted to life
at their house, which includes their step-brother. Additionally, they both testified that
the children now spend time with Lynette’s family. In fact, the children refer to
Lynette’s aunt and uncle as “Aunt” and “Unc” and Mikayla took it upon herself to
name Lynette’s mother “Nun.” Additionally, appellee submitted numerous
photographs of the children spending time with Brandon and the baby and they
appear to be comfortable and enjoying themselves.
{¶24} The second finding appellant takes issue with is that the children have
fully adjusted to life at appellee’s residence. But once again, the evidence supports
this finding. Appellee testified that when the parties first divorced, visitation was
difficult. But now the children are very comfortable at his house. He stated that they
each have their own bedrooms at his house. And the first thing they want to do when
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they get there is to see their baby brother. They also invite friends over when they
are at appellee’s house.
{¶25} The third finding appellant takes issue with is that appellee has a full
and loving family environment that includes his wife, his infant son, his step-son, and
numerous members of his wife’s family, all of whom have developed a warm and
loving relationship with the children. Both appellee and Lynette testified that the
children have developed relationships with Brandon and Lynette’s extended family.
And the testimony was overwhelmingly positive regarding the children’s relationship
with their baby brother. Appellee and Lynette both testified that the first thing the
children want to do when they arrive is to hold their brother. Even the children’s
counselor, who was appellant’s witness, testified that the children love their brother
dearly.
{¶26} The last finding appellant takes issue with is that she presented no
evidence as to why appellee should not be able to develop important family traditions
with the children at this time. Appellant spent some time testifying as to why she
wished to continue the children’s traditions with her family, as they are the only
traditions the children have ever known. She also testified that she would only want
to continue the traditions in her family. She stated she would never agree that it was
in the children’s best interest to share some of the holiday time with appellee.
{¶27} As can be seen in the above discussion, each of the findings appellant
takes issue with is supported by the evidence. We cannot conclude the trial court
abused its discretion in making these findings. Therefore, appellant’s first
assignment of error is without merit.
{¶28} Appellant’s second assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN
MODIFYING THE VISITATION SCHEDULE IN THE ABSENCE OF
ANY EVIDENCE THAT SUCH A MODIFICATION WOULD BE IN THE
CHILDREN’S BEST INTERESTS.
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{¶29} Appellant argues there was no evidence that modifying the holiday
visitation schedule was in the children’s best interest.
{¶30} While there may not have been significant testimony specific to
modifying the holiday visitation schedule, the evidence, taken as a whole, supports a
finding that doing so is in the children’s best interest.
{¶31} Appellee and Lynette offered abundant testimony that the children are
happy and well-adjusted at their home. While at appellee’s house the children watch
movies, visit with Lynette’s family, invite friends over, and spend time with their baby
brother. Appellee testified that the only reason he agreed at the time of the divorce
to allow the children to spend all “prime” holiday time with appellant was because he
did not have any extended family and the children were used to spending the
holidays with appellant’s family. But in the years since the divorce, the children now
have a baby brother, a step-mother, and a step-brother. Appellee and Lynette both
opined it would be in the children’s best interest to share holidays equally between
their house and appellant’s family. Appellant testified to the contrary. But which
testimony to give more weight to was a matter for the trier of fact.
{¶32} In reviewing the court’s judgment, we are to oblige every reasonable
presumption in favor of the trial court's judgment and finding of facts. Gerijo, 70 Ohio
St.3d at 226. In doing so here, we find that the trial court’s judgment is supported by
competent credible evidence. It is important to note too that the court’s order simply
splits the holiday time equally between the parties. Under the court’s order, neither
party spends more “prime holiday time” with the children than does the other. In a
case such as this, where both parents are actively involved with the children, it is only
fair that they equally share holiday time.
{¶33} Accordingly, appellant’s second assignment of error is without merit.
{¶34} Appellant’s third assignment of error states:
THE TRIAL COURT ERRED IN FAILING TO ALLOW THE
LICENSED COUNSELOR [TO] PROVIDE EXPERT TESTIMONY ON
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WHETHER THE MODIFICATION OF THE VISITATION SCHEDULE
WAS IN THE BEST INTERESTS OF THE CHILDREN.
{¶35} In this assignment of error, appellant argues the trial court erred in
preventing Karen Lombardi, the children’s counselor, to give her opinion as to the
children’s best interests. She states that the court was not obligated to believe
Lombardi’s testimony on this issue but it was obligated to listen to it.
{¶36} A trial court has broad discretion in determining whether to admit or
exclude evidence and its decision will not be reversed absent an abuse of discretion.
State v. Mauldin, 7th Dist. No. 08-MA-92, 2010-Ohio-4192; State v. Mays, 108 Ohio
App.3d 598, 617, 671 N.E.2d 553 (1996).
{¶37} During redirect examination, appellant’s counsel asked Lombardi if it
was in the children’s best interest to modify the parenting schedule at this time. (Tr.
154). The court interrupted and asked Lombardi if she knew what the parenting
schedule was. (Tr. 154). Lombardi stated the extent of what she knew about the
visitation schedule was that the children saw appellee every Wednesday and every
other weekend. (Tr. 154). A few questions later, counsel asked Lombardi if it was in
the children’s best interest to modify or lessen the time they spent with their
grandparents on Christmas. (Tr. 155). Appellee objected and the court sustained
the objection. (Tr. 155). Lombardi subsequently testified that she did not believe that
expanding the children’s visitation was in their best interest. (Tr. 156).
{¶38} The trial court did not abuse its discretion in sustaining appellee’s
objection.
{¶39} It is important to note that Lombardi was not sure what the issue was
regarding visitation. She thought the change in visitation had to do with appellee
having more parenting time in general. (Tr. 151). And when asked about modifying
the parenting schedule, Lombardi referred to the every Wednesday and every other
weekend schedule. (Tr. 154). It does not appear that Lombardi was aware that the
only change at issue dealt with holidays.
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{¶40} Moreover, the trial court heard Lombardi’s opinion earlier in her
testimony. Appellant’s counsel specifically asked Lombardi, “would it be beneficial to
these two children, Ryan and Mikayla, to change that [the current weekly visitation] at
this time?” (Tr. 140). To which Lombardi replied, “Oh, no. I don’t think it would be
beneficial. I think that for children a consistency is the most important thing and
routine and sticking with the schedule that is already known to the child.” (Tr. 140).
Appellant’s counsel also asked Lombardi if traditions were important to children. (Tr.
143). Lombardi testified that the parties should try to keep traditions intact for the
children. (Tr. 143). Thus, the trial court did hear Lombardi’s opinion on these issues.
{¶41} For these reasons, we cannot conclude that the trial court abused its
discretion in sustaining appellee’s objection. Accordingly, appellant’s third
assignment of error is without merit.
{¶42} Appellant’s fourth assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
INTERVIEWING THE CHILDREN AS TO THEIR DESIRES.
{¶43} Appellant asserts the trial court erred in choosing not to interview the
children as she requested. She notes that at a June 4, 2012 hearing, the court
stated it would interview the children if it was required to do so. And in its findings of
fact and conclusions of law, the court found R.C. 3109.051(C) provided that the
interview was discretionary. Because the court did not conduct an interview,
appellant asserts it could not determine the existence of any factors listed in R.C.
3109.051(D).
{¶44} R.C. 3109.051(C) provides that in considering the R.C. 3109.051(D)
factors when determining parenting time matters, “the court, in its discretion, may
interview in chambers any or all involved children regarding their wishes and
concerns.” This is in contrast to R.C. 3109.04(B)(1), dealing with allocating parental
rights and responsibilities, which provides that in determining the children’s best
interest, “the court, in its discretion, may and, upon the request of either party, shall
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interview in chambers any or all of the involved children regarding their wishes and
concerns with respect to the allocation.”
{¶45} Thus, the legislature clearly granted the courts more discretion in
determining whether to interview children in cases involving visitation than in cases
involving the allocation of parental rights and responsibilities. In cases involving
visitation, whether to interview the children is left solely to the court’s discretion,
whether or not a party requests such an interview. In cases involving the allocation of
parental rights and responsibilities, however, the court must interview the children if
either party makes such a request.
{¶46} In this case, the trial court found that it was unnecessary to interview
the children regarding the modifications the court found to be warranted. The trial
court did not abuse its discretion in making this decision. The only visitation issue
that the court determined was whether to change the holiday visitation schedule.
And the court’s changes simply resulted in the children having equal holiday time with
each parent. The court likely determined that there was not a significant enough
change at issue to warrant putting the children through an interview with the court.
There is nothing in the record to demonstrate the court abused its discretion in
deciding not to interview the children.
{¶47} Accordingly, appellant’s fourth assignment of error is without merit.
{¶48} Appellant’s fifth assignment of error states:
THE TRIAL COURT ERRED IN NOT PROPERLY SETTING
FORTH A DEVIATION FROM THE STANDARD CHILD SUPPORT
GUIDELINES AND NOT ATTACHING A CHILD SUPPORT
CALCULATION WORKSHEET TO THE ORIGINAL DIVORCE
DECREE.
{¶49} Appellant asserts that instead of filling out a child support worksheet at
the time of the divorce, the parties came to an agreed amount of support and then
created a worksheet that would result in the desired child support obligation.
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{¶50} Appellant claims the trial court erred by failing to attach a child support
worksheet to the original divorce decree that calculated support and then set out a
deviation from the standard support as required by R.C. 3119.22. She asserts this
error was compounded when appellee sought to have his support obligation modified
based on his current income being less than his income as set forth in the child
support worksheet completed by the parties at the time of the divorce. Appellant
contends that appellee’s income has actually increased since 2008. But because his
2012 income is less than the income the parties assigned to him in 2008, the trial
court reduced appellee’s obligation.
{¶51} In reviewing matters concerning child support, appellate courts look at
whether the trial court abused its discretion. Booth v. Booth, 44 Ohio St. 3d 142, 144,
541 N.E.2d 1028 (1989).
{¶52} Generally, when computing an obligor’s child support obligation, a child
support computation worksheet must be completed and made a part of the trial
court’s record. Marker v. Grimm, 65 Ohio St. 3d 139, 601 N.E.2d 496 (1992), at
paragraph one of the syllabus. But in cases where the parties’ combined income
exceeds $150,000, the trial court need not rely on the child support worksheet.
Longo v. Longo, 11th Dist. Nos. 2008-G-2874, 2009-G-2901, 2010-Ohio-3045, ¶39;
Zeitler v. Zeitler, 9th Dist. No. 04CA008444, 2004-Ohio-5551, ¶8. In the present
case, at the time of the divorce, the parties’ combined annual income exceeded
$150,000. (Tr. 189-190, 194). Thus, the trial court was not required to rely on a child
support worksheet.
{¶53} Next, we must address appellant’s argument that the trial court failed to
find a deviation pursuant to R.C. 3119.22.
{¶54} R.C. 3119.22 provides for deviations from the child support worksheet:
The court may order an amount of child support that deviates
from the amount of child support that would otherwise result from the
use of the basic child support schedule and the applicable worksheet,
through the line establishing the actual annual obligation, if, after
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considering the factors and criteria set forth in section 3119.23 of the
Revised Code, the court determines that the amount calculated
pursuant to the basic child support schedule and the applicable
worksheet, through the line establishing the actual annual obligation,
would be unjust or inappropriate and would not be in the best interest of
the child.
If it deviates, the court must enter in the journal the amount of
child support calculated pursuant to the basic child support schedule
and the applicable worksheet, through the line establishing the actual
annual obligation, its determination that that amount would be unjust or
inappropriate and would not be in the best interest of the child, and
findings of fact supporting that determination.
{¶55} But when the parties to the order have a combined annual income
exceeding $150,000, the court follows a different procedure. Pursuant to R.C.
3119.04(B):
If the combined gross income of both parents is greater than one
hundred fifty thousand dollars per year, the court, with respect to a
court child support order, * * * shall determine the amount of the
obligor's child support obligation on a case-by-case basis and shall
consider the needs and the standard of living of the children who are
the subject of the child support order and of the parents. The court or
agency shall compute a basic combined child support obligation that is
no less than the obligation that would have been computed under the
basic child support schedule and applicable worksheet for a combined
gross income of one hundred fifty thousand dollars, unless the court or
agency determines that it would be unjust or inappropriate and would
not be in the best interest of the child, obligor, or obligee to order that
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amount. If the court or agency makes such a determination, it shall
enter in the journal the figure, determination, and findings.
{¶56} In this case, because the parties combined income exceeded $150,000,
the court was required to follow R.C. 3119.04 instead of R.C. 3119.22. The court did
just that. It first found that based on the basic child support schedule for a combined
income of $150,000, with credit to appellee for his new child and with appellee
providing health insurance for the children, appellee’s child support obligation would
be $794.76 per month. Thus, the court noted, in accordance with R.C. 3119.04(B),
that appellee’s support obligation should be no less than this amount. The court next
stated that if it used the extrapolation method, approved by this court for parties with
a greater combined income of $150,000 in DeBiase v. DiBiase, 7th Dist. No. 12-JE-
15, 2013-Ohio-2879, then the presumed amount of support would be $845.18 per
month. Finally, the court considered the children’s needs and standard of living as
set out in R.C. 3119.04(B). After this consideration, the court determined appellee’s
child support obligation to be $900 per month. The trial court properly followed the
applicable statute. Thus, the trial court did not err in failing to set out a deviation from
the standard support as required by R.C. 3119.22.
{¶57} Accordingly, appellant’s fifth assignment of error is without merit.
{¶58} Appellant’s sixth assignment of error states:
THE TRIAL COURT ERRED IN DEVIATING FROM THE
STANDARD CHILD SUPPORT GUIDELINES WITHOUT
CONSIDERING THE FACTORS FOR THE DEVIATION UNDER R.C.
3119.23.
{¶59} In her final assignment of error, appellant contends the trial court erred
in failing to consider R.C. 3119.23’s factors in deviating from the standard child
support guidelines. She asserts that the court should have, and failed to, consider
the benefits appellee receives from remarriage and shared living expenses, the
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disparity in income between the two households, and the standard of living and
circumstances of each parent and standard of living the children would have enjoyed
had the marriage continued. Appellant further contends that the court should have
considered the fact that in 2008, appellee was earning $64,000 per year; however,
he negotiated and agreed to have an income of $76,766 assigned to him for the
purposes of calculating child support. Appellant claims the court should have
acknowledged that appellee’s income in 2012 is closer to the income assigned to him
in 2008 than it actually was in 2008. Appellant goes on to argue that pursuant to
R.C. 3119.79, appellee was required to demonstrate a substantial change in
circumstances that was not contemplated by the parties at the time of the agreement
on child support. She asserts that an increase in income would have been
contemplated by the parties.
{¶60} R.C. 3119.23 contains a list of factors the court may consider in
determining whether to deviate from the amount of child support as computed on the
child support worksheet. These factors include the disparity in income between the
two households, the benefits appellee receives from remarriage and shared living
expenses, and the standard of living and circumstances of each parent and standard
of living the children would have enjoyed had the marriage continued. R.C.
3119.23(G)(H)(L).
{¶61} In this case, however, the trial court was not required to specifically
consider these factors. As appellee points out, this court’s decision in Cho, 7th Dist.
No. 03-MA-73, held that the trial court is not required to consider the R.C. 3119.23
factors when the parties’ combined annual income exceeds $150,000.
{¶62} In Cho, we noted R.C. 3119.02 provides that when a court calculates a
child support obligation, it must calculate the amount of the obligor's child support
obligation in accordance with the basic child support schedule, the applicable
worksheet, and the other provisions of R.C. 3119.02 to 3119.24. Id. at ¶10. We
further noted that the basic child support schedule sets child support amounts for
parties when the combined annual income is between $6,600 and $150,000. Id. We
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then pointed out that R.C. 3119.22 provides that a court can deviate from the basic
child support schedule and worksheet figure by considering the factors in R.C.
3119.23. Id. at ¶11.
{¶63} After examining the statutory language, we concluded that the basic
child support schedule did not apply because the parties’ combined annual income
exceeded $150,000. Id. at ¶12. Instead, we found that R.C. 3119.04 applied. Id. at
¶13. We then held: “Since the child support schedule does not apply in cases
involving combined yearly incomes of greater than $150,000, the trial court is not
obligated to specifically consider those [R.C. 3119.23] factors.” Id., citing Drumm v.
Drumm, 2d Dist. Nos. 16631 and 17115 (Mar. 26, 1999). Instead, we stated the trial
court was to compute the child support obligation on a case-by-case basis in
accordance with R.C. 3119.04(B). Id.
{¶64} Thus, in this case, the trial court was not required to specifically
consider the R.C. 3119.23 factors. As set out in appellant’s fifth assignment of error,
the trial court properly applied the correct child support statute.
{¶65} Appellant also contends the court erred in failing to consider R.C.
3119.79 because appellee would have been required to demonstrate a substantial
change in circumstances that was not contemplated by the parties at the time of the
agreement on child support.
{¶66} R.C. 3119.79 provides:
(A) If an obligor or obligee under a child support order requests that the
court modify the amount of support required to be paid pursuant to the
child support order, the court shall recalculate the amount of support
that would be required to be paid under the child support order in
accordance with the schedule and the applicable worksheet through the
line establishing the actual annual obligation. If that amount as
recalculated is more than ten per cent greater than or more than ten per
cent less than the amount of child support required to be paid pursuant
to the existing child support order, the deviation from the recalculated
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amount that would be required to be paid under the schedule and the
applicable worksheet shall be considered by the court as a change of
circumstance substantial enough to require a modification of the child
support amount.
***
(C) If the court determines that the amount of child support required to
be paid under the child support order should be changed due to a
substantial change of circumstances that was not contemplated at the
time of the issuance of the original child support order or the last
modification of the child support order, the court shall modify the
amount of child support required to be paid under the child support
order to comply with the schedule and the applicable worksheet through
the line establishing the actual annual obligation, unless the court
determines that the amount calculated pursuant to the basic child
support schedule and pursuant to the applicable worksheet would be
unjust or inappropriate and would not be in the best interest of the child
and enters in the journal the figure, determination, and findings
specified in section 3119.22 of the Revised Code.
{¶67} R.C. 3119.79 is inapplicable to the case at bar. As to R.C. 3119.79(A),
because the parties’ original support order was not based on the child support
worksheet, a ten-percent deviation would not necessarily be a change in
circumstances. Furthermore, R.C. 3119.79(C) references R.C. 3119.22, which, as
stated above is inapplicable in cases where the parties’ income exceeds $150,000.
Thus, the trial court was not required to consider R.C. 3119.79 in this case.
{¶68} Furthermore, even if the court was required to consider R.C. 3119.79, it
complied. The trial court, although not making specific reference to the statute, found
a significant change of circumstances. The court found there had been a change of
circumstances because appellee’s income had significantly decreased, appellant’s
income had significantly increased, and appellee had an additional child.
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{¶69} Accordingly, appellant’s sixth assignment of error is without merit.
{¶70} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, J., concurs.