Bohannon v. Lewis

[Cite as Bohannon v. Lewis, 2022-Ohio-2398.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ROBERT BOHANNON II, : APPEAL NOS. C-210316
C-210332
Plaintiff-Appellee/ : TRIAL NO. DR-1801471
Cross-Appellant
:
O P I N I O N.
VS. :
:
NYSHIA LEWIS (f.k.a. BOHANNON)
:
Defendant-Appellant/
Cross-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 13, 2022
Cordell Law, LLP, and Samuel D. Patry, for Plaintiff-Appellee/Cross-Appellant,
DeBra Law, LLC, and Ryan L. DeBra, for Defendant-Appellant/Cross-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant and cross-appellee Nyshia Lewis (“mother”) appeals the
judgment of the Hamilton County Court of Common Pleas, Domestic Relations
Division, raising two assignments of error for our review. Plaintiff-appellee and cross-
appellant Robert Bohannon II (“father”) cross-appeals from the same judgment,
raising two assignments of error of his own. For the reasons that follow, we overrule
the assignments of error and affirm the judgment of the trial court.
Facts and Procedure
{¶2} Mother and father were married in 2009 and have four minor children
together: one son and three daughters. Father filed a complaint for divorce in 2018.
A decree of divorce was entered in 2019, which named mother residential parent and
legal custodian of all four children. Father had parenting time on alternating
weekends from Friday after school or daycare until Monday morning, and on
Wednesday evenings, in addition to holiday and extended parenting time in line with
the court’s standard parenting order. Father was also ordered to pay child support in
the amount of $1,231.22 per month.
{¶3} While there has been nearly continuous conflict in this case since the complaint
for divorce was filed, the procedural events relevant to these appeals began on May 15,
2020, when father filed a motion to modify parenting time. On the same day, he filed
a “motion to show cause (contempt),” alleging that mother denied him parenting time
and withheld the children’s medical information. On June 9, 2020, mother filed a
“motion for contempt/back child support,”1 alleging father had been harassing her and
1 While the motion references child support in its title, mother did not reference the child-support
issue in the body of her motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
not abiding by the court order for parenting time. On July 28, 2020, father filed a
motion for an emergency hearing and temporary custody, and an “amended motion to
modify parenting time—motion to reallocate parental rights and responsibilities,”
asking the court to name him the residential parent and legal custodian of the children.
{¶4} Shortly after the motions were filed, the court ordered a full parenting
investigation. Patrick Magill, a social worker, conducted the investigation and issued
a report that recommended that mother maintain her status as residential parent and
legal custodian of the children. It also recommended increasing father’s parenting
time by giving him four additional overnights—Wednesdays and Thursdays following
his weekends with the children—every four weeks. The report discussed the
acrimonious nature of mother and father’s relationship and noted that the children
are “undoubtedly experiencing the effects of their parents’ conflicts.” The report
recommended that mother “should get the children into counseling as soon as
possible.”
{¶5} The court held a two-day hearing on these issues on April 13, 2021, and April
27, 2021. Mother and father each testified on their own behalf. The court also heard
testimony from the social worker, along with father’s wife, and a parent who had
observed the family’s interactions at youth football games.
{¶6} In an April 28, 2021 entry, the court granted in part father’s amended motion
to modify parenting time—motion to reallocate parental rights and responsibilities;
and denied the other motions. The court ordered that mother remain the residential
and custodial parent, but it increased father’s parenting time to “alternating weeks
from Friday after school or daycare * * * until the following Friday,” with no extended
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OHIO FIRST DISTRICT COURT OF APPEALS
time. The court also deviated father’s child-support obligation down to $0 per month
in light of the equal share of parenting time.
{¶7} Mother timely appealed, and father cross-appealed.
{¶8} In two assignments of error, mother contends that the parenting-time
modification is not in the best interest of the children, and that the child-support
deviation was an abuse of discretion.
{¶9} In two assignments of error, father contends that the court erred by denying
his motion to show cause, and in denying in his motion to reallocate custody.
{¶10} For ease of discussion, we will address these assignments out of order.
Father’s Second Assignment of Error: Child Custody
{¶11} In his second assignment of error, father contends that the trial court’s denial
of his motion to reallocate custody was inconsistent with the court’s findings because
the manifest weight of the evidence supported each of the necessary factors under R.C.
3109.04(E)(1)(a).
{¶12} A parent’s motion to modify a parenting decree is governed by R.C.
3109.04(E)(1)(a). The statute provides that the court shall not modify a decree unless:
(1) there has been a change in circumstances since the prior decree,
based on facts that have arisen since the prior decree or were unknown
by the court at the time of the prior decree;
(2) the modification is necessary to serve the best interest of the
children; and
(3) one of the conditions in R.C. 3109.04(E)(1)(a)(i)-(iii) is satisfied.
Saylor v. Saylor 1st Dist. Hamilton No. 190463, 2020-Ohio-3647, ¶ 12, citing R.C.
3109.04(E)(1)(a). The parties agree that the relevant condition under (3) is “the harm
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OHIO FIRST DISTRICT COURT OF APPEALS
likely to be caused by a change in environment is outweighed by the advantages of the
change of environment to the child.”
{¶13} “R.C. 3109.04(E)(1)(a) creates a rebuttable presumption that retaining the
residential parent designated by the prior decree is in the child’s best interest.”
Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604-605, 737 N.E.2d 551 (7th
Dist.2000).
{¶14} “ ‘Custody issues are some of the most difficult and agonizing decisions a trial
judge must make. Therefore, a trial judge must have wide latitude in considering all
the evidence before him * * * and such a decision must not be reversed absent an abuse
of discretion.’ ” Saylor at ¶ 10, quoting Kane v. Hardin, 1st Dist. Hamilton No. C-
180525, 2019-Ohio-4362, ¶ 6, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674
N.E.2d 1159 (1997). An abuse of discretion “implies that the trial court’s decision was
unreasonable or arbitrary.” Kane at ¶ 6, citing Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶15} “ ‘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.’ ” In re E.R., 1st Dist. Hamilton No. C-180615, 2019-Ohio-4491,
¶ 5, quoting Davis at 419. “The reason for this standard of review is that the trial judge
has the best opportunity to view the demeanor, attitude, and credibility of each
witness, something that does not translate well on the written page.” Davis at 418. In
this way, we “should be guided by the presumption that the trial court’s findings were
indeed correct.” Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶16} First, a change in circumstances must be found. “The change ‘must be a change
of substance, not a slight or inconsequential change.’ ” In re E.R. at ¶ 6, quoting Davis
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at 418. The change does not need to be “substantial,” but it “must be substantiated,
continuing, and have a materially adverse effect upon the child.” Id., quoting Davis at
417. A change in circumstances can be demonstrated by a “custodial parent’s
interference with a noncustodial parent’s visitation, and the parents’ inability to
communicate and cooperate.” Id. at ¶ 7 (collecting cases). This requirement is
intended to “ ‘spare children from a constant tug of war between their parents who
would file a motion for change of custody each time the parent out of custody thought
he or she could provide the children a “better” environment.’ ” Souders v. Souders, 1st
Dist. Hamilton No. C-210469, 2022-Ohio-1953, ¶ 7, citing Davis at 418, quoting Wyss
v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982).
{¶17} In its entry, the court did not make an explicit finding about a change in
circumstances, though it made several findings relevant to the determination,
including that “[m]other has withheld medical information from Father that could
have serious repercussions during his parenting time and could have negatively
impacted the child.” The court further found that “mother has routinely denied and
thwarted Father his parenting time. The excuses for these incidents are so egregious,
it appears that mother believes there are no repercussions to her behavior.”
{¶18} Testimony was presented about several instances where medical information
was not shared with father after one of their children was injured, including: an ankle
injury, a dog bite, a concussion, and a chipped tooth. Mother admitted that she did
not share discharge instructions with father about the concussion, but testified that
she did share information about the ankle injury and the dog bite. Mother also
disputed portions of the chipped-tooth incident, testifying that she had an
appointment scheduled to address the issue. Moreover, testimony was presented
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OHIO FIRST DISTRICT COURT OF APPEALS
about mother denying father his parenting time, though father also admitted missing
opportunities for parenting time in the past.
{¶19} Father argues that this evidence sufficiently demonstrates a change in
circumstances. While we do not have the benefit of an explicit determination from the
trial court on this factor, we assume that the court did find a change in circumstances
based on its findings of fact and the fact that the court’s entry concentrated on the
best-interest factors. See Nigro v. Nigro, 9th Dist. Lorain No. 04CA008461, 2004-
Ohio-6270, ¶ 6 (“[W]e find it inappropriate to require the court to use the exact phrase
‘change of circumstances.’ While the better practice would be for a court to explicitly
find a change of circumstances before delving into the issue of the best interests of the
child, we will affirm a decision where the factual findings of the court support a finding
of changed circumstances. Explicit language is preferable, but not necessary.”).
{¶20} After finding a change in circumstances, the court must determine whether a
modification is in the best interest of the children. “[T]he court shall consider all
relevant factors, including, but not limited to:”
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers * * * regarding the
child’s wishes and concerns as to the allocation of parental rights and
responsibilities concerning the child, the wishes and concerns of the
child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s parents,
siblings, and any other person who may significantly affect the child’s
best interest;
(d) The child’s adjustment to the child’s home, school, and community;
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OHIO FIRST DISTRICT COURT OF APPEALS
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a
child support order under which that parent is an obligor;
(h) Whether either parent * * * has been convicted of or pleaded guilty
to any criminal offense involving any act that resulted in a child being
an abused child or a neglected child; * * * whether either parent or any
member of the household of either parent previously has been convicted
of or pleaded guilty to any offense involving a victim who at the time of
the commission of the offense was a member of the family or household
that is the subject of the current proceeding and caused physical harm
to the victim in the commission of the offense;
(i) 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;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
R.C. 3109.04(F)(1).
{¶21} In its entry, the court set forth findings of fact regarding all of the best-interest
factors listed in R.C. 3109.04(F)(1). The court also included the recommendation of
the social worker, along with additional findings about the volatile nature of mother
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OHIO FIRST DISTRICT COURT OF APPEALS
and father’s relationship. The court noted that “Mother’s interactions with the
children around Father show that she is not looking out for their best interests.”
However, the court also noted that “Father is not consistent in exercising his regular
parenting time2 [and] creates just as much drama at interactions as Mother.” The
court found that, “[t]hese children should have and are desperate for two parents who
act like adults instead of spoiled children unable to refrain from creating drama after
drama.” We find that the testimony presented at trial supports these findings.
{¶22} While the court did not explicitly state that father failed to rebut the
presumption that retaining the residential parent designated by the prior decree is in
the child’s best interest, that is what the court ultimately found by denying father’s
motion to reallocate parental rights and responsibilities.
{¶23} Father argues that the court erred in this regard because the best-interest
findings of the court and the social worker favor father receiving custody of the
children.
{¶24} However, we find that the court’s best-interest findings and the report of the
social worker demonstrate that this case is a close call. While the findings and report
support father’s contention that his communication has been more effective and that
he is more invested in taking steps to address the mental health of the children, it also
supports the determination that mother is a dedicated parent who has, in the words of
the social worker, “provided the lion’s share of care for the children.” In addition, the
findings and report demonstrate that while mother had denied parenting time in the
2 Father testified about missing approximately four opportunities for weekday parenting time due
to his work schedule. Mother testified about an incident where a dispute about the pickup location
led to father not picking the children up, and another occasion where he returned the children
earlier than planned.
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OHIO FIRST DISTRICT COURT OF APPEALS
past, father had not been consistent in exercising his allotted parenting time. While
father has raised concerns regarding mother’s criminal history, father testified about
a pending criminal matter of his own at the time of trial. And while father raised
concerns about mother’s behavior around the children, mother testified that father
sent her a photo of himself holding a gun to his head, which she alleged he had shown
to their son. Moreover, father testified about the close quarters in his home, explaining
that when his four children stay with him, there are a total of nine children sleeping in
his four-bedroom home.
{¶25} This court cannot reverse a decision simply because we may have decided
differently. Rather, we must only determine whether the trial court abused its
discretion. Not only did the trial court include numerous findings of fact in its entry,
but it also considered the report of the social worker and two days’ worth of testimony.
The record clearly demonstrates that the court considered each of the necessary
best-interest factors and the court’s findings were supported by the record. While the
court certainly made its frustration with the parents’ behavior clear in its entry, it
nevertheless carefully analyzed and weighed the best-interest factors and ultimately
found that mother should remain the sole residential parent and legal custodial parent
of the minor children. We cannot say the court’s decision was unreasonable or
arbitrary.
{¶26} While the court did not make a specific determination regarding each of the
three factors under R.C. 3109.04(E)(1)(a), it was not an abuse of discretion for the
court to deny father’s motion to reallocate custody. Because the court’s decision is
well-supported in the record, and in light of the “rebuttable presumption” in favor of
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OHIO FIRST DISTRICT COURT OF APPEALS
the residential parent retaining custody of the children, we overrule father’s second
assignment of error.
Mother’s First Assignment of Error: Parenting Time
{¶27} In her first assignment of error, mother contends that, “[t]he trial court
decision allocating parenting time was not consistent with the best interest of the
minor children and Ohio Revised Code Section 3109.04.” We review the trial court’s
judgment on modifications to parenting time for an abuse of discretion. Souders v.
Souders, 1st Dist. Hamilton No. C-210469, 2022-Ohio-1953, ¶ 6, citing Cwik v. Cwik,
1st Dist. Hamilton No. C-090843, 2011-Ohio-463, ¶ 42. “The trial court has broad
discretion in modifying visitation rights.” In re Ross, 154 Ohio App.3d 1, 2003-Ohio-
4419, 796 N.E.2d 6, ¶ 5 (1st Dist.), citing Appleby v. Appleby, 24 Ohio St.3d 39, 492
N.E.2d 831 (1986).
{¶28} As an initial matter, we note that the trial court and the parties rely on R.C.
3109.04(E)(1)(a) for the parenting-time analysis. However, “when one parent is the
legal custodian, modifications to visitation or parenting time are not governed by R.C.
3109.04(E)(1)(a). Rather, such modifications are subject to R.C. 3109.051.” Hartman
v. Hartman, 8th Dist. Cuyahoga No. 107251, 2019-Ohio-1637, ¶ 16; Braatz v. Braatz,
85 Ohio St.3d 40, 43, 706 N.E.2d 1218 (1999), paragraph one of the syllabus (holding
the “[m]odification of visitation rights is governed by R.C. 3109.051”).
{¶29} Therefore, mother’s first assignment of error is properly analyzed under R.C.
3109.051 because a modification to visitation or parenting time for a noncustodial
parent, father, is at issue.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} In determining whether to modify parenting time, a change in circumstances
is not required.3 Braatz at paragraph two of the syllabus. Rather, the court must
determine whether the modification is in the children’s best interest, considering the
best-interest factors set forth in R.C. 3109.051(D). In re Ross, at ¶ 5, citing Braatz at
paragraph two of the syllabus. These best-interest factors include, in relevant part:
(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 * * *;
(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;
3Likewise, mother’s argument that there was no evidence about the harm caused by the change of
environment is irrelevant because R.C. 3109.051 does not include this consideration.
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OHIO FIRST DISTRICT COURT OF APPEALS
(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 any
act that resulted in a child being an abused child or a neglected
child; * * *;
***
(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;
***
(16) Any other factor in the best interest of the child.
R.C. 3109.051(D).
{¶31} While the trial court specifically analyzed the best-interest factors listed in R.C.
3109.04(F)(1) rather than R.C. 3109.051(D), courts have held that the factors set forth
in the two sections are quite similar and reliance on the factors in the wrong section is
harmless error when the trial court’s decision demonstrates consideration of the
relevant factors. See, e.g., Campana v. Campana, 7th Dist. Mahoning No. 08 MA 88,
2009-Ohio-796, ¶ 3-4 (Despite the fact that the trial court only cited and reviewed the
best-interest factors listed in the custody statute (R.C. 3109.04(F)(1)), the appellate
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OHIO FIRST DISTRICT COURT OF APPEALS
court held that “because of the detail of the court's entry,” it could “conclude that the
court considered a multitude of facts that coincide with all of the pertinent best interest
factors applicable to visitation modifications as contained in R.C. 3109.051(D).”); In
re Troyer, 188 Ohio App.3d 543, 2010-Ohio-3276, 936 N.E.2d 102, ¶ 36 (7th Dist.)
(holding trial court’s reliance on R.C. 3109.04(F)(1) factors to be harmless where trial
court’s decision “evince[d] consideration of the relevant factors”); Braden v. Braden,
11th Dist. Portage No. 2006-P-0028, 2006-Ohio-6878, ¶ 38 (holding that the two sets
of factors are “essentially the same” and affirming the parenting-time decision of the
trial court despite its reference to R.C. 3109.04 because the pertinent factors were still
considered).
{¶32} In its entry, the court considered the following best-interest factors: the wishes
of the parents; the parents’ intent to relocate; a child-support arrearage; the ages of
the children; the children’s relationship with their siblings and family; the children’s
adjustment to home, school, and community; the mental and physical health of the
parties; mother’s denial of parenting time and withholding of medical information;
and mother’s willingness to comply with the court’s orders in the future. While the
court made these best-interest findings under R.C. 3109.04(F)(1), these findings are
also pertinent to a proper best-interest analysis under R.C. 3109.051(D).
{¶33} The court also incorporated the summary and recommendation of the social
worker into its entry. In addition to recommending an increase to father’s parenting
time, the summary and recommendation included discussion about the mental and
physical health of the children pursuant to R.C. 3109.051(D)(7). See Braden at ¶ 45-
47 (relying on a home-study evaluation and guardian ad litem reports to supply
additional findings not explicitly mentioned by trial court). The court did not include
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OHIO FIRST DISTRICT COURT OF APPEALS
findings under R.C. 3109.051(D)(2), (3), (8), but both parties testified at length about
the pickup arrangements and work schedules, pursuant to R.C. 3109.051(D)(2) and
(3). And R.C. 3109.051(D)(8) is largely irrelevant to this case as the schedule provides
that the children always remain together. Moreover, “[i]t is well-established that a
laundry list of the factors is not required.” Campana at 56.
{¶34} Mother agrees that the testimony demonstrated that the parties had a strained
relationship. However, she claims that the evidence did not support such a drastic
change in the parenting-time schedule, especially when the court “placed the blame
equally upon both Mother and Father.”
{¶35} While we agree that the court found both mother and father to be at fault for
their volatile relationship, the court also found that mother was denying parenting
time and withholding medical information from father. Moreover, in line with the
social worker’s recommendations, father testified that he has taken steps to address
the children’s mental health, and was working to improve his coparenting skills. All
of this evidence was relevant in supporting the court’s determination that it is in the
children’s best interest to increase father’s parenting time.
{¶36} We do not hold that the factors in R.C. 3109.051(D) and 3109.04(F)(1) are
always interchangeable, but the record demonstrates that the court considered the
pertinent factors for this case listed in R.C. 3109.051(D).
{¶37} Based on the evidence presented, the court’s decision to increase father’s
parenting time was not an abuse of discretion. Mother’s first assignment is overruled.
Mother’s Second Assignment of Error: Child Support
{¶38} In her second assignment of error, mother argues that the court erred by
deviating father’s child-support obligation by 100 percent because it was not
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OHIO FIRST DISTRICT COURT OF APPEALS
supported by competent and credible evidence and was against the manifest weight of
the evidence. She also contends the trial court erroneously “imputed the same figures
used in the 2019 Decree of Divorce for purposes of calculating child support in the
2021 matter.”
{¶39} We will not disturb a trial court’s decision regarding child support absent an
abuse of discretion. Rummelhoff v. Rummelhoff, 1st Dist. Hamilton Nos. C-210112 and
C-210176, 2022-Ohio-1224, ¶ 18, quoting Rummelhoff v. Rummelhoff, 1st Dist.
Hamilton No. C-190355, 2020-Ohio-2928, ¶ 30, citing Booth v. Booth, 44 Ohio St.3d
142, 144, 541 N.E.2d 1028 (1989).
{¶40} First, a review of the record and of the child-support worksheet reveals that
that the income was correctly attributed to each party. Mother’s income sources match
her 2020 Form W-2 and 2020 Form 1099 exactly. Father’s income is supported by
his 2020 end-of-year paystub and Form W-2 after taking into account deductions for
nonrecurring income, which father testified about. See R.C. 3119.01(C)(12)(e) and
3119.01(C)(13) (stating that gross income does not include nonrecurring income where
nonrecurring income is income received for less than three years that the parent does
not expect to receive on a regular basis); Arcuri v. Arcuri, 1st Dist. Hamilton No.
C-990802, 2000 Ohio App. Lexis 5081, *12 (Nov. 3, 2000) (holding that nonrecurring
income was correctly excluded from gross income “because nonrecurring cash flow
cannot be considered gross income”).
{¶41} Next, mother contends that the “court’s decision to deviate Father’s child
support obligation by 100% was not supported by competent and credible evidence.”
{¶42} After determining the guideline support amount, the court may deviate from
the guideline amount if it determines that the amount “would be unjust or
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OHIO FIRST DISTRICT COURT OF APPEALS
inappropriate and therefore not be in the best interest of the child” based on the factors
in R.C. 3119.23. R.C. 3119.22. “This determination ‘must be supported by findings of
fact and must be journalized.’ ” Rummelhoff, 2022-Ohio-1224 at ¶ 19, quoting Carr v.
Blake, 1st Dist. Hamilton No. C-990174, 2000 Ohio App. LEXIS 557, * 14 (Feb. 18,
2000), citing Marker v. Grimm, 65 Ohio St.3d 139, 601 N.E.2d 496 (1992), paragraph
three of the syllabus.
{¶43} Situations like this one, where parenting time is split between two parties, are
specifically contemplated in the statute. Essentially, the statute provides that as the
obligor’s parenting time increases, the court may deviate the child-support obligation
downward. The Second District has distilled these “deviation thresholds” as follows:
(1) 90 or more overnights mandates a 10% downward adjustment to
child support without any consideration of other deviation factors (R.C.
3119.051);
(2) 91 or more overnights compels the judge to consider whether to
grant an additional downward deviation in addition to the mandatory
adjustment (R.C. 3119.231(A)); and
(3) 147 overnights triggers the requirement the trial court provide an
explanation for its decision to deny further deviation (R.C. 3119.231(B)).
Mangen v. Mangen, 2d Dist. Montgomery No. 29112, 2021-Ohio-3693, ¶ 24.
{¶44} In this case, the child-support worksheet included the 10 percent mandatory
adjustment for shared parenting on Line 19(b). Next, the court deviated downward an
additional $1,018.42 based on father’s share of parenting time being equal to or
exceeding 147 overnights per year, pursuant to R.C. 3119.231(B). The court’s entry
provided the following reasons for the deviation:
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OHIO FIRST DISTRICT COURT OF APPEALS
Father has extended parenting time and associated expenses for the
children. Father requires the deviation so as to provide for the children
in his household. The parties will each pay for academic and extra-
curricular activities for the children on his or her own time.
{¶45} This deviation was not an abuse of discretion. The parties do not dispute that
father now has more than 147 overnights with the children annually. Moreover, the
deviation is included on Line 25(b) of the child-support worksheet, which provides
that the deviation is “[f]or 3119.231 extended parenting time.” Under R.C. 3119.231,
courts have discretion to deviate for expenses associated with shared parenting. The
court’s findings provide direct support for this deviation. Mother’s second assignment
of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Father’s First Assignment of Error: Motion to Show Cause
{¶46} In father’s first assignment of error, he argues that the court erred when it
denied his “motion to show cause (contempt),” and failed to award him attorney fees.
In sum, he argues this was an abuse of discretion because the trial court wrongly
applied the unclean hands doctrine, and because the court’s own findings supported a
finding of contempt.
{¶47} This court reviews a trial court’s decision on a motion for contempt for an abuse
of discretion. Cobb v. Ortiz, 1st Dist. Hamilton No. C-200276, 2021-Ohio-2009, ¶ 8,
citing Wolf v. Wolf, 1st Dist. Hamilton No. C-090587, 2010-Ohio-2762, ¶ 4. The trial
court is empowered to “determine the kind and the character of conduct that
constitutes contempt.” Fisher v. Fisher, 7th Dist. Harrison No. 17 HA 0008, 2018-
Ohio-2477, ¶ 25, citing In re Ayer, 119 Ohio App.3d 571, 576, 695 N.E.2d 1180 (1st
Dist.1997), quoting State ex rel. Turner v. Albin, 118 Ohio St. 527, 161 N.E. 792 (1928).
“[S]ince the primary interest involved in a contempt proceeding is the authority and
proper functioning of the court, great reliance should be placed upon the discretion of
the trial judge.” Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16,
520 N.E.2d 1362 (1988).
{¶48} “To establish civil contempt, the party seeking to enforce a court order must
prove by clear and convincing evidence that a court order exists and that the
nonmoving party has not complied with the terms of that order.” Cobb at ¶ 8, citing
Mees v. Mees, 1st Dist. Hamilton No. C-150033, 2015-Ohio-5127, ¶ 11.
{¶49} In his motion, father alleged that mother denied his weekend parenting time
on several occasions, blocked all phone contact between him and the children, and
withheld medical information from him. While not raised by mother on appeal, we
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OHIO FIRST DISTRICT COURT OF APPEALS
note that the court denied mother’s “motion for contempt/back child support” in the
same entry. Like father’s motion, mother’s motion was based on father’s failure to
comply with the divorce decree, specifically regarding parenting time.
{¶50} As discussed throughout this opinion, the court found that mother had
withheld parenting time and medical information. However, it also found that father
was not consistent in exercising his regular parenting time and “create[d] just as much
drama at interactions as Mother.” The record supports these findings. Thus, it was
clear that because the court found both parties to be at fault for the conflicts in this
case, neither party should be found in contempt. In light of our highly deferential
standard of review, and because the trial court is empowered to “determine the kind
and the character of conduct that constitutes contempt,” we do not hold this to be an
abuse of discretion. See Fisher, 7th Dist. Harrison No. 17 HA 0008, 2018-Ohio-2477,
¶ 25.
{¶51} Father contends that the court erred when it discussed the unclean hands
doctrine in the “conclusions of law” section of its entry. Father argues this was
erroneous because “said defense must be raised affirmatively.”
{¶52} Even if we were to hold that it was improper for the trial court to have relied on
the unclean hands doctrine, we nevertheless hold the record amply supported the
court’s decision to deny father’s motion. See State v. Lozier, 101 Ohio St.3d 161, 2004-
Ohio-732, 803 N.E.2d 770, ¶ 46, superseded by statute on other grounds as
recognized in State v. Shannon, 11th Dist. Portage No. 2015-P-0077, 2016-Ohio-8220,
¶ 17 (“A reviewing court is not authorized to reverse a correct judgment merely because
it was reached for the wrong reason.”)
{¶53} Father’s first assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶54} For the foregoing reasons, we overrule mother’s first and second assignments
of error, along with father’s first and second assignments of error. We affirm the
judgment of the domestic relations court.
Judgment affirmed.
MYERS, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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