Getreu v. Getreu

[Cite as Getreu v. Getreu, 2021-Ohio-2761.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
ROBERT L. GETREU : Hon. Craig R. Baldwin, P. J.
: Hon. W. Scott Gwin, J.
Petitioner-Appellant : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2020 CA 00083
NINA M. GETREU :
:
Petitioner-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Domestic Relations
Divison, Case No. 2012 DR 01063
JUDGMENT: Affirmed in part; Reversed and Remanded
in part
DATE OF JUDGMENT ENTRY: August 11, 2021
APPEARANCES:
For Petitioner-Appellant For Petitioner-Appellee
CHRISTOPHER L. TROLINGER DOUGLAS B. DOUGHERTY
Trolinger Law Offices, LLC 3010 Hayden Road
503 S. High Street, Ste. 201 Columbus, OH 43235
Columbus, OH 43215
Licking County, Case No. 2020 CA 00083 2
Gwin, J.,
{¶1} Appellant appeals the December 11, 2020 judgment entry of the Licking
County Court of Common Pleas, Domestic Relations Division.
Facts & Procedural History
{¶2} Appellant Robert Getreu (“Father”) and appellee Nina Getreu (“Mother”)
filed a petition for dissolution of marriage on August 24, 2012. The parties also executed
a separation agreement and shared parenting plan. According to the shared parenting
plan and separation agreement, the parties agreed that the appropriate amount of child
support was $300 per month, per child. The trial court issued a final decree of dissolution
of marriage on October 16, 2012. Father’s child support for the parties’ older child
terminated by order on September 21, 2018, because the child attained the age of
majority. The parties currently have one child under the age of majority, J.G.
{¶3} Father filed a motion for change of parental rights and responsibilities with
regards to J.G. on April 12, 2019. The magistrate dismissed Father’s motion in January
of 2020, after the parties failed to submit documentation as ordered by the magistrate in
December of 2019.
{¶4} On April 2, 2020, Father filed a second motion for termination or
modification of shared parenting decree that contained a motion to modify child support.
Mother filed a motion to modify and/or increase child support on May 6, 2020. The parties
filed numerous discovery motions.
{¶5} The parties submitted and the trial court signed an agreed judgment entry
on November 30, 2020. The parties agreed to maintain the shared parenting plan. The
Licking County, Case No. 2020 CA 00083 3
issues that remained contested were: child support modification, summer parenting time,
and tax exemption.
{¶6} The matter was set for hearing in front of the magistrate on December 2,
2020. At the start of the hearing, the trial court noted that the magistrate had a scheduling
conflict, so the trial judge would be doing the hearing, even though he had a meeting
during the afternoon and the parties would have “limited time.”
{¶7} The court inquired of the parties as to insurance, income, and other issues
related to child support exemptions. Father stated he made $85,300.89 per year as a
Columbus firefighter, with average bonuses for the previous three years of $11,229.71.
Mother testified she is a sales associate at Marshall’s, making $11.82 per hour. She
stated she does not work forty hours per week, but makes less than full-time minimum
wage. There is no mental or physical disability that prevents Mother from working. The
court also questioned the parties about the tax exemption issue.
{¶8} Father testified as to the parties’ disagreement about the summer vacation
schedule. Father stated that while Mother would like to have nine days for travel, Father
“feels that a week is long enough.” The trial court questioned Father as to whether he
would agree to nine days if Father would have first choice of vacation dates and Mother
would have to notify him in advance of her chosen dates. Father “strongly feel[s] that a
week’s a long enough period of time.”
{¶9} Father stated he believes Mother has more income than she testified to
because on several vehicle credit applications, she wrote she is an office manager for her
boyfriend, working for Plain City Homes, and making anywhere from $52,000 to $72,000
per year. Additionally, Father testified to text messages Mother sent to Father in
Licking County, Case No. 2020 CA 00083 4
September and October of 2017 that said, “we are with clients right now” and “we are out
showing houses.”
{¶10} Father introduced numerous exhibits, including credit card statements of
Mother, bank account statements of Mother, a business checking account for Plain City
Homes that Mother had access to, and several applications Mother made for car loans.
Father testified about the exhibits, including a summary document he made.
{¶11} Mother submitted a loan application to Chrysler Capital on February 20,
2020, stating she worked as an office manager for ReMax for two years and made
$62,000 per year. Mother made an application on February 12, 2018 to Chrysler Capital
for a different vehicle. She stated she worked for Transaction Realty as an office manager
making $72,000 per year.
{¶12} On cross-examination, Mother confirmed that she signed the February 20,
2020 application and made the statements under oath, subject to penalty of perjury.
Mother’s boyfriend was the co-applicant on the lease; Mother stated her boyfriend makes
the payments on that vehicle. Mother next confirmed that she signed the February 2018
loan application and when asked if she stated her salary was $72,000, she stated, “I said
that for the credit, yes.” Mother also stated she signed an application for credit in 2016
stating she made $52,000 per year and a 2017 lease application for an apartment where
she stated she made $72,000 per year. When asked about each of these salaries and
jobs listed on the applications, Mother’ response was “that’s what is says” or “that’s what
I wrote.”
{¶13} Mother testified as to the deposits in her checking account that exceeded
her income from employment. Mother stated she had several large deposits that were
Licking County, Case No. 2020 CA 00083 5
not from her employment: one from Progressive Casualty Insurance on April 1, 2020 to
replace a vehicle that was flooded ($7,560.04); a deposit of $1,200 from the IRS for
COVID relief funds; and $7,211 from the IRS for a yearly tax refund.
{¶14} Mother is listed as an owner on the Plain City Homes account that was
opened in 2015. Mother signed the documents to dissolve Plain City Homes in
September of 2020. Mother testified she did not access the money her boyfriend
deposited into the Plain City Homes account.
{¶15} Carrie Campbell (“Campbell”) is a benefit recovery specialist for Licking
County Department of Job and Family Services. Mother receives food assistance and
Medicaid from DJFS; both are income-based programs. Campbell received complaints
in both March and July of 2020 from an anonymous source that Mother was committing
welfare fraud by not reporting all of her income. She reviewed documents, including a
1099, Mother’s bank records, Mother’s lease application, Mother’s applications for vehicle
loans, and Mother’s credit card statements. The person reporting the alleged fraud
provided DJFS with these documents. Campbell also received and reviewed Exhibit 12,
a spreadsheet summarizing Mother’s payments on all accounts, which Father testified to
creating. Campbell also checked other sources in her investigation, including social
media and BMV records. After considering all of the documents submitted, Campbell
found no fraud, and closed the case against Mother.
{¶16} Campbell testified it is not unusual for people to lie about their income when
they are trying to obtain credit cards or car loans. Campbell stated she would not find
that someone committed welfare fraud simply because they lied when applying for a
Licking County, Case No. 2020 CA 00083 6
vehicle loan, because DJFS has different rules and regulations than a credit card or
vehicle loan company does.
{¶17} Antonio Giordano (“Giordano”) is Mother’s boyfriend. He has a real estate
license. Plain City LLC was created because Giordano was going to open up an office in
Plain City. Mother was going to get her real estate license and they were going to work
together in that office. However, no money was generated from the company and Mother
never obtained her real estate license. In 2019, Giordano received a 1099 (Exhibit UU)
for compensation in the amount of $169,765.95. Giordano put this money into the Plain
City Homes account. Giordano testified that Mother did not use the Plain City account;
all of the deposits and withdrawals were his. Giordano also stated he has made most of
the payments on the credit cards he and Mother have together, with the exception of
some small charges Mother made that came directly out of her PNC account.
{¶18} On cross-examination, Giordano confirmed that Mother had access to the
Plain City account at all times. Additionally, she had access to and was an authorized
user on three joint credit cards.
{¶19} The trial court issued a judgment entry on December 11, 2020. The trial
court reviewed the evidence submitted by Father as follows: evidence of transactions
(credit cards) of Mother that far exceeds her income; Mother’s banking records that
appear to show deposits greater than her income; banking records for Plain City Homes
showing significant withdrawals and deposits from the business account; exhibits showing
that Mother claimed to have greater income than she reported to the IRS; and a text
message appearing to suggest Mother was employed at Plain City Homes.
Licking County, Case No. 2020 CA 00083 7
{¶20} The trial court then reviewed the evidence and testimony submitted by
Mother. This included the testimony of Campbell, the testimony of Giordano, and
Mother’s own testimony.
{¶21} The trial court found the evidence failed to establish that Mother had any
unreported income, though the trial court acknowledged Mother appears to be living
beyond her means.
{¶22} The trial court designated Father as the obligor for purposes of child
support. The trial court determined Father’s income for child support purposes was
$96,530.51, which is his annual salary as a firefighter for the City of Columbus, plus an
average of his last three years of bonuses. As to Mother’s income, the trial court found
she is employed at Marshall’s Department Store, earning less than full-time minimum
wage. The trial court imputed minimum wage of $18,096 to Mother.
{¶23} The trial court adjusted the child support figure for the $4,500 per year
Father pays to provide health insurance for the child.
{¶24} As to deviations, the trial court found Father has overnight parenting time
which exceeds ninety (90) days; thus, Father is entitled to an automatic 10% deviation.
The court then granted an additional deviation on line 25a of the child support worksheet,
reducing Father’s support obligation by $76.29 per month. The trial court found the
additional deviation was “just, appropriate, and in the child’s best interest and the reason
for the deviation is the extended parenting time and support provided by Father.”
{¶25} The trial court concluded as follows: Father, as child support obligor, should
pay Mother $700.42 per month (which includes a 2% processing fee); the parties could
Licking County, Case No. 2020 CA 00083 8
claim the child for tax purposes every other year; and the parties could each take the child
on a 9-day summer vacation each year, with notification requirements.
{¶26} Father appeals the December 11, 2020 judgment entry of the Licking
County Court of Common Pleas, Domestic Relations Division, and assigns the following
as error:
{¶27} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO IMPUTE APPROPRIATE INCOME IN CONSIDERATION OF THE
PROVISIONS OF R.C. 3119.01(C)(17)(a) TO APPELLEE FOR PURPOSES OF CHILD
SUPPORT.
{¶28} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS
IMPUTATION OF INCOME TO APPELLEE AS TO THE AMOUNT FOR PURPOSES OF
CHILD SUPPORT AS SUCH WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶29} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ARBITRARILY DETERMINING THE AMOUNT OF DEVIATION IN CHILD SUPPORT
FOR APPELLANT-OBLIGOR INSTEAD OF APPLYING THE STATUTORY FACTORS.
{¶30} “IV. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND
VIOLATED APPELLANT’S DUE PROCESS RIGHTS BY LIMITING THE
PRESENTATION OF EVIDENCE TO THIRTY (30) MINUTES WITHOUT NOTIFICATION
PRIOR TO THE DAY OF TRIAL.
{¶31} “V. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND
VIOLATED APPELLANT’S DUE PROCESS RIGHTS BY LIMITING CROSS-
EXAMINATION TO ONLY THREE (3) QUESTIONS PER WITNESS.”
Licking County, Case No. 2020 CA 00083 9
I., II.
{¶32} In his first two assignments of error, Father contends the trial court abused
its discretion in determining Mother’s income for child support purposes, and that the trial
court’s determination of Mother’s income is against the manifest weight of the evidence.
We agree in part, and disagree in part.
{¶33} In Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989), the Ohio
Supreme Court determined an abuse of discretion standard is the appropriate standard
of review in matters concerning child support. In order to find an abuse of discretion, we
must determine the trial court’s decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶34} Furthermore, as an appellate court, we are not the trier of fact. Our role is
to determine whether there is some competent and credible evidence supporting the
judgment rendered by the trial court. Myers. v Garson, 66 Ohio St.3d 610, 614 N.E.2d
742 (1993). Accordingly, a judgment supported by competent and credible evidence will
not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶35} Issues relating to the credibility of the witnesses and the weight to be given
the evidence are primarily for the trier of fact. “The underlying rationale of giving
deference to the findings of the trial court rests with the knowledge that the trial judge is
best able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of the proferred
testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).
Licking County, Case No. 2020 CA 00083 10
{¶36} To calculate the amount of child support owed, the trial court must
determine the annual income of each parent. Weisgarber v. Weisgarber, 5th Dist. Stark
No. 2015CA00158, 2016-Ohio-676. In calculating income, a trial court is permitted to
impute income to a parent when the parent is voluntarily underemployed. R.C.
3119.01(C)(9)(b); R.C. 3119.01(C)(17). “In determining if an individual is voluntarily
underemployed or unemployed, the court must determine not only whether the change
was voluntary, but also whether it was made with due regard to the obligor’s income-
producing abilities and his or her duty to provide for the continuing needs of the child.”
Farrell v. Farrell, 5th Dist. Licking No. 2008-CA-0080, 2009-Ohio-1341. The parent
claiming that his or her former spouse is voluntarily underemployed has the burden of
proof. Carpenter v. Carpenter, 5th Dist. Tuscarawas No. 2019 AP 04 0013, 2019-Ohio-
4709.
{¶37} In regards to child support, “income” consists of the sum of the gross income
of the person and any “potential income” of the person if voluntarily underemployed. R.C.
3119.01(C)(9)(b). Potential income includes imputed income that a trial court determines
the parent would have earned if fully employed based upon the factors set forth in R.C.
3119.01(C)(17)(a)(i)-(xi). Whether a person is voluntarily underemployed and the amount
of income to be imputed “are matters to be determined by the trial court based upon the
facts and circumstances of each case.” Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d
218 (1993).
{¶38} In the first portion of his argument, Father argues that the trial court’s
determination to impute full-time minimum wage to Mother was against the manifest
Licking County, Case No. 2020 CA 00083 11
weight of the evidence when Mother testified she earns $11.82 per hour, and there was
no disability which would prevent her from working full-time. We agree.
{¶39} During the hearing, Mother testified that she is a sale associate at
Marshall’s, making $11.82 per hour. She stated she does not work forty hours per week,
but has no mental or physical disability preventing her from working full-time. This
testimony is undisputed. Thus, it is clear from the undisputed testimony that the amount
of $24,585.60 ($11.82 x 40 hours per week) should be imputed to Mother. However, the
trial court imputed only full-time minimum wage to Mother. We find there is not competent
and credible evidence to support the trial court’s determination.
{¶40} Mother cites to the three cases similarly cited by the trial court in its
determination that full-time minimum wage should be imputed to Mother. We find these
cases unpersuasive as applied to the facts in this case.
{¶41} In Borer v. Borer, the Third District affirmed the trial court’s imputation of
full-time minimum wage income when the Wife testified that the hourly salary from her
cleaning business was less than minimum wage and Husband presented no evidence as
to what income could have been imputed to a person who operated a cleaning business.
Additionally, the Husband in Borer filed a consent agreement in which he agreed the
Wife’s income from the cleaning business was less than minimum wage. No such
circumstances exist in this case. There was no consent agreement, and Mother
specifically testified she earned an hourly wage higher than minimum wage. In Boyer v.
Boyer, 5th Dist. Licking No. 94 CA 53, 1994 WL 728235, we affirmed the trial court’s
imputation of minimum wage income because the Wife specifically testified she made
less than minimum wage, and because the Husband failed to provide a transcript of a
Licking County, Case No. 2020 CA 00083 12
significant portion of the hearing. In this case, Mother testified her hourly income was
more than minimum wage, and the transcript of the full hearing was provided to this Court.
Finally, in Combs v. Combs, 5th Dist. Stark No. 2008 CA 00169, 2009-Ohio-1683, the
issue was whether the trial court appropriately considered the factors for spousal support.
This case deals only with child support.
{¶42} In the second portion of his argument, Father contends the trial court’s
determination of Mother’s income was against the manifest weight of the evidence
because there was evidence in the record to support the imputation of a higher income
to Mother. Father cites to: a February 20, 2020 application to Chrysler Capital stating
she worked as an office manager for Remax making $62,000 per year; a February 12,
2018 application to Chrysler Capital stating she worked for Transaction Realty as an
officer manager making $72,000 per year; a 2017 application to lease an apartment
Mother made stating she made $72,000 per year; a text Mother sent to Father in 2017
stating she was working with Giordano; records showing that Mother had access to
approximately $175,000 in the Plain City business account; credit card statements of
Mother showing she made charges in excess of her income; and bank records showing
Mother had deposits in her checking account in excess of her income.
{¶43} Mother and Giordano testified she did not deposit or withdraw funds from
the Plain City Homes account, and that the initial $169,765 deposit came directly from
Giordano. Additionally, Mother testified that several large deposits into her checking
account were one-time deposits, including COVID relief funds, a large tax refund, and an
insurance check for a destroyed vehicle.
Licking County, Case No. 2020 CA 00083 13
{¶44} Mother confirmed that she signed the applications for credit and application
for lease that listed her income as above $62,000. When asked about these documents,
Mother’s response was “that’s what it says” or “that’s what I wrote.” Mother also testified
that she had no unreported income other than her Marshall’s salary. Campbell testified
that no welfare fraud existed and Mother’s income was what she claimed it to be.
{¶45} While this Court may not have come to the same conclusion as the trial
court on the credibility of the witnesses based upon Mother’s conflicting testimony that
she had no income other than Marshall’s and her admission that she signed several credit
applications stating her income was higher, the law is clear that a reviewing court should
not reverse a decision simply because it holds a different opinion concerning the
credibility of the witnesses and evidence submitted before the trial court. Brennan v.
Brennan, 5th Dist. Muskingum No. CT2020-0047, 2021-Ohio-1865; Geary v. Geary, 5th
Dist. Delaware No. 14CAF050033, 2015-Ohio-259. The trial court based its decision on
what was essentially a credibility call between Father, Mother, Campbell, and Giordano.
A trial court may believe all, part, or none of the testimony of any witness who appears
before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d 438 (4th Dist. 1998).
Accordingly, we find the trial court did not commit error when it did not impute income
higher than $24,585.60 to Mother.
{¶46} Father’s first and second assignments of error are sustained in part, and
overruled in part. We find the trial court committed error in only imputing full-time
minimum wage to Mother instead of $24,585.60. However, we find the trial court did not
commit error in its determination that Mother’s income should be imputed at a number
higher than $24,585.60.
Licking County, Case No. 2020 CA 00083 14
III.
{¶47} In his third assignment of error, Father contends the trial court erred and
abused its discretion by failing to apply the statutory factors in determining the amount of
deviation in child support. We agree with Father.
{¶48} When issuing an order of child support, the trial court must calculate the
amount of support “in accordance with the basic child support schedule, the applicable
worksheet, and the other provisions of Chapter 3119.” R.C. 3119.02. The child support
amount that results from the use of the basic worksheet is presumed to be the correct
amount of child support due. R.C. 3119.03. However, under R.C. 3119.22, a court may
deviate from the guideline amount of child support, if, after consideration of the factors
set forth in R.C. 3119.23, the court determines that the guideline amount “would be unjust
or inappropriate and therefore not in the best interest of the child.” R.C. 3119.22. The
trial court is vested with the discretion to determine when and whether to grant a deviation
from the guideline child support amount. Caleshu v. Caleshu, 10th Dist. Franklin No.
19AP-742, 2020-Ohio-4075; Bible v. Bible, 5th Dist. Coshocton No. 2018CA0001, 2018-
Ohio-5147.
{¶49} R.C. 3119.231(A) provides that “if court-ordered parenting time exceeds
ninety overnights per year, the court shall consider whether to grant a deviation pursuant
to R.C. 3119.22 of the Revised Code for the reason set forth in division (C) of section
3119.23 of the Revised Code. This deviation is in addition to any adjustments provided
under division (A) of section 3119.051 of the Revised Code.”
{¶50} R.C. 3119.051(A) states as follows:
Licking County, Case No. 2020 CA 00083 15
Except as otherwise provided in this section, a court or child support
enforcement agency calculating the amount to be paid under a child support
order shall reduce by ten percent the amount of the annual individual
support obligation for the parent or parents when a court has issued or is
issuing a court-ordered parenting time order that equals or exceeds ninety
overnights per year. This reduction may be in addition to the other
deviations and reductions.
{¶51} In this case, Father is entitled to an automatic 10% deviation because he
has more than 90 overnights visits with the child. R.C. 3119.50(A); Glover v. Canann,
11th Dist. Trumbull No. 2020-T-0081, 2021-Ohio-2641. If the obligor enjoys more than
147 overnights per year, as Father does here, the guidelines provide that the court will
consider a deviation in addition to the R.C. 3119.051 deviation. R.C. 3119.231(B). In
reviewing whether a deviation is appropriate, the trial court considers whether the
calculated amount is inappropriate or unjust and not in the best interests of the child by
applying the relevant factors contained in R.C. 3119.23, and, in the case of shared
parenting, consider any extraordinary circumstances of the parents or other factors
contained in R.C. 3119.23. R.C. 3119.24; Glover v. Canann, 11th Dist. Trumbull No.
2020-T-0081, 2021-Ohio-2641.
{¶52} Pursuant to the child support worksheet, Father’s annual support obligation
without deviation was $10,173 per year. This amount was reduced by the R.C. 3119.051
automatic 10% deviation of $1,017.30 in lines 19-22 of the worksheet, leaving an adjusted
child support obligation of $9,155.70 per year, or $762.98 per month. The court then
granted an additional deviation on line 25a of the child support worksheet, reducing
Licking County, Case No. 2020 CA 00083 16
Father’s support obligation by $76.29 per month. In the judgment entry, the trial court
found the additional deviation was “just, appropriate, and in the child’s best interest and
the reason for the deviation is the extended parenting time and support provided by
Father.”
{¶53} Pursuant to sections R.C. 3119.231(A), R.C. 3119.22, and R.C. 3119.24, in
determining whether a deviation is appropriate and the amount of the deviation in a
shared parenting case, the trial court considers whether the calculated amount is
inappropriate or unjust and not in the best interest of the child by applying the relevant
factors in R.C. 3119.23 and the extraordinary circumstances in R.C. 3119.24. Glover v.
Canann, 11th Dist. Trumbull No. 2020-T-0081, 2021-Ohio-2641; Caleshu v. Caleshu,
10th Dist. Franklin No. 19AP-742, 2020-Ohio-4075; Bradley v. Hill, 5th Dist. Delaware No.
19 CAF 10 0053, 2020-Ohio-2682.
{¶54} In this case, the trial court did not state whether or how it considered the
relevant factors in R.C. 3119.23 or the extraordinary circumstances in R.C. 3119.24 in its
judgment entry and did not include any facts to support how it arrived at the additional
10% deviation. At the hearing, the trial court stated the following:
It’ll be a hundred eighty-two, I’ll give her a hundred eight – well, actually I’ll
give the obligor the extra days, so I’ll make him a hundred and eighty-three
days. . . I’m going to have him the standard ninety days, I’ll give him
additional time; it’s about ten percent for additional deviation based on what
we do. So he’ll get an additional deviation on parenting time from the child
support above the ninety days…The standard deviation is ninety days and
then so we basically have an agreement, Judge Wright and I, that we would
Licking County, Case No. 2020 CA 00083 17
do fifty percent would go up to another ten percent on that. So, yes, it’ll
wind up being the standard one * * *.”
{¶55} Based upon the lack of discussion of the factors and/or extraordinary
circumstances in the judgment entry and the statement by the trial court at the hearing
that an obligor who has more than 147 overnights is given a “standard” 10% additional
deviation, we find the trial court committed error in its determination of the amount of
additional deviation. The statutory language provides that, unlike the automatic or
standard deviation of 10% contained in R.C. 3119.051, the additional deviation is not
standard. The additional deviation should be based upon the facts and circumstances of
each case, taking into consideration the factors and circumstances as contained in R.C.
3119.23, R.C. 3119.231, and R.C. 3119.24, such that this Court can conduct a meaningful
review as to whether the trial court abused its discretion in determining whether to deviate
and in determining the deviation amount.
{¶56} Mother argues that Father simply failed to meet his burden of proof for a
higher downward deviation. We first note that since the trial court did not indicate which
factors and/or extraordinary circumstances it considered in its decision and simply stated
the 10% deviation was a “standard” deviation agreed to by the judges in the court, it did
not review the evidence other than to determine that Father’s parenting time exceeded
147 overnights. Father did present evidence, such as the financial assistance Mother
received from her boyfriend, and requested the trial court grant a 20% deviation.
Additionally, as evidenced by the transcript, due to the limited time the trial court allotted
for the hearing, Father was unable to present additional evidence regarding the deviation
factors other than in a written closing argument.
Licking County, Case No. 2020 CA 00083 18
{¶57} Based on the foregoing, Father’s third assignment of error is sustained.
IV.
{¶58} In his fourth assignment of error, Father contends the trial court erred,
abused its discretion, and violated his due process rights by limiting the presentation of
evidence.
{¶59} With respect to due process, in civil proceedings, due process requires
notice and a meaningful opportunity to be heard. State v. Hayden, 96 Ohio St.3d 211,
2002-Ohio-4169, 773 N.E.2d 502.
{¶60} Trial courts are given great deference in controlling their dockets, and
therefore, a reviewing court uses an abuse of discretion standard when reviewing a trial
court’s requirements in this area. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078(1981).
{¶61} This matter was set for hearing in front of a magistrate. However, at the
start of the hearing, the trial court stated the magistrate had a medical scheduling conflict,
so the trial judge would be doing the hearing, even though he had a meeting during the
afternoon and the parties would have “limited time.”
{¶62} At the beginning of Father’s case, counsel for Father asked the trial court
how much time he had. The trial court stated he would “give you as much time as I can,
I’ve got to take a break though at 2:00 to take this other meeting, so * * *.” Counsel for
Father responded, “I understand. I will march right through this as fast as I can.” The
trial court responded, “Like I said, the other option was to reschedule this for * * *
whenever.” After Father presented his case, the trial court took a break for a meeting.
Licking County, Case No. 2020 CA 00083 19
When the hearing resumed, the trial court limited Mother’s counsel to thirty minutes to
present her evidence.
{¶63} While counsel for Father made brief statements about the time limitation
imposed by the trial court, such as when the trial court asked him if he had any other
exhibits and he said, “I don’t know. I haven’t had time to --,” counsel for Father never
asked the trial court to continue the hearing, and never objected to the time limitation
imposed by the trial court. A party waives and may not raise on appeal any error which
arises during the trial court proceedings if that party fails to bring the error to the court’s
attention, by objection or otherwise, at a time when the trial court could avoid or correct
the error. Lowder v. Domingo, 5th Dist. Stark No. 2016CA00043, 2017-Ohio-1241, citing
Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997).
{¶64} Although we find the imposition by the trial judge of such a limited time
period on both parties in this case concerning, Father did not appropriately object to the
time limitation imposed by the trial court.
{¶65} Additionally, time limitations on evidence have been upheld where a party
has not identified what additional evidence the party would have offered or how that
evidence could have changed the trial court’s judgment. Balliett v. Horan, 5th Dist.
Ashland No. 97 COA 01204, 1998 WL 429843; In re A.L., 8th Dist. Cuyahoga No. 99040,
2013-Ohio-5120; Mathewson v. Mathewson, 2nd Dist. Greene No. 05-CA-035, 2007-
Ohio-574. As this Court has previously stated, “it is basic to appellate practice that error,
in the form of excluded testimony, is not reviewable unless there has been a proffer of the
excluded testimony or the content of such testimony is apparent from the circumstances.”
Balliett v. Horan, 5th Dist. Ashland No. 97 COA 01204, 1998 WL 429843; Richter v.
Licking County, Case No. 2020 CA 00083 20
Richter, 5th Dist. Licking No. 15-CA-24, 2016-Ohio-400. Father has not explained, at the
trial level or on appeal, what his additional evidence would have consisted of or how it
would have changed the trial court’s decision, nor is this evidence apparent from the
record in the instant case.
{¶66} Father cites Readnower v. Readnower, 162 Ohio App.3d 347, 2005-Ohio-
3661, 833 N.E.2d 752 (2nd Dist. Greene) in support of his argument. We find Readnower
distinguishable from the instant case. In Readnower, counsel for the appellant objected
to the time limitations imposed by the trial court and made a proffer as to what the
witnesses the appellant was not permitted to call (including the appellant herself and an
expert witness on business valuation) would have testified to, and how this additional
evidence may have impacted the trial court’s decision. Id. In this case, counsel for Father
did not appropriately object to the time limitation, made no proffer, and did not state either
at the trial court level or on appeal what additional evidence he sought to introduce, or
how this evidence may have impacted the trial court’s decision.
{¶67} Father’s fourth assignment of error is overruled.
V.
{¶68} Father argues the trial court violated his due process rights by limiting cross-
examination to only three questions per witness.
{¶69} With respect to due process, in civil proceedings, due process requires
notice and a meaningful opportunity to be heard. State v. Hayden, 96 Ohio St.3d 211,
2002-Ohio-4169, 773 N.E.2d 502.
{¶70} Generally, the trial court has broad discretion in imposing limits on the scope
of cross-examination. State v. Green, 66 Ohio St.3d 141, 609 N.E.2d 1253 (1993). An
Licking County, Case No. 2020 CA 00083 21
appellate court will not interfere with a trial court’s decision about the scope of cross-
examination absent an abuse of discretion. Westfall v. Aultman Hosp., 5th Dist. Stark
No. 2015CA00223, 2017-Ohio-1250. While a trial court does have the discretion to limit
questioning of witnesses if the “probative value is substantially outweighed by
considerations of undue delay, or needless presentation of cumulative evidence”
pursuant to Evidence Rule 403(B), cross-examination of a witness is an important right
and the subject matter, rather than the time, should constitute the limitation. Farmers
Nat’l Bank of Springfield v. Frazier, 13 Ohio App. 245 (2nd Dist. 1920).
{¶71} In this case, the trial court informed Father he would be limited to three
questions upon cross-examination of Campbell, Giordano, and Mother. However, Father
called Mother upon cross-examination during his presentation of evidence.
{¶72} We find it concerning that the trial court limited Father’s counsel to only
three cross-examination questions per witness, particularly because the restriction had
no relation to the substance of the cross-examination questions themselves.
{¶73} However, each time after the trial court informed counsel for Father he could
ask three questions of each witness on cross-examination, trial counsel did not object.
Instead, counsel stated, “Okay,” or “all right.” A party waives and may not raise on appeal
any error which arises during the trial court proceedings if that party fails to bring the error
to the court’s attention, by objection or otherwise, at a time when the trial court could avoid
or correct the error. Lowder v. Domingo, 5th Dist. Stark No. 2016CA00043, 2017-Ohio-
1241, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997).
{¶74} Additionally, unlike in the cases cited by appellant, counsel for Father did
not identify or proffer what questions he was precluded from asking, nor how Father was
Licking County, Case No. 2020 CA 00083 22
prejudiced by the limitation. See Balliett v. Horan, 5th Dist. Ashland No. 97 COA 01204,
1998 WL 429843. Father has not explained, at the trial level or in his brief on appeal,
what further questions he sought to ask the witnesses upon cross-examination.
{¶75} Father’s fifth assignment of error is overruled.
{¶76} Based on the foregoing, Father’s first and second assignments of error are
sustained in part and overruled in part. Father’s third assignment of error is sustained.
Father’s fourth and fifth assignments of error are overruled.
{¶77} The December 11, 2020 judgment entry of the Licking County Court of
Common Pleas, Domestic Relations Division, is affirmed in part and reversed and
remanded in part for proceedings consistent with this opinion.
By Gwin, J.,
Baldwin, P.J., and
Delaney, J., concur