Baraga v. McCormick

[Cite as Baraga v. McCormick, 2020-Ohio-3287.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BRIAN F. BARAGA, :
Plaintiff-Appellant, :
No. 108926
v. :
KORRI A. MCCORMICK
(F.K.A. BARAGA), :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 11, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Division of Domestic Relations
Case No. DR-11-337522
Appearances:
Robert Divizmeg, for appellant.
LARRY A. JONES, SR., J.:
Plaintiff-appellant, Brian Baraga (“Baraga”), appeals the trial court’s
modification of his child support order. Finding no merit to the appeal, we affirm.
Baraga and defendant-appellee, Korri McCormick (“McCormick”),
were divorced in 2011. They had one child together, N.B., who was born in 2009.
As part of the original divorce decree, Baraga was ordered to pay McCormick child
support in the amount of $400 a month plus a two percent processing charge.
In 2016, McCormick filed a motion to modify child support. The
parties entered into stipulations in lieu of holding an evidentiary hearing. The
matter was handled by a magistrate, who recommended granting McCormick’s
motion modifying child support upwards to $701.64 per month (plus the two
percent processing charge).
Baraga filed objections to the magistrate’s decision, claiming that
the magistrate erred in calculating both his and McCormick’s gross incomes. The
trial court overruled his objections to the magistrate’s decision and granted
McCormick’s motion to modify child support with an effective date of April 19,
2019.
It is from this order that Baraga appeals, raising one assignment of
error for our review. McCormick did not file an appellee brief.
I. The trial court erred by concluding Appellant’s income was
$77,550.00 and said determination is an abuse of discretion.
In his sole assignment of error, Baraga contends that the trial court
abused its discretion in determining that his income was $77,550 for the 2016
calendar year.
A trial court’s decision regarding child support obligations falls
within its discretion. N.W. v. M.W., 8th Dist. Cuyahoga No. 107503, 2019-Ohio-
1775, ¶ 16, citing Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). “A
trial court abuses its discretion only when it acts unreasonably, arbitrarily, or
unconscionably.” N.W. at id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983). There is no abuse of discretion where there is some
competent, credible evidence in the record to support the trial court’s decision.
Trolli v. Trolli, 8th Dist. Cuyahoga No. 101980, 2015-Ohio-4487, ¶ 29, citing
Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 94456, 2011-Ohio-2255, ¶ 24.
Baraga contends the trial court abused its discretion in computing
his income for 2016. Specifically, Baraga stated that he owns a pool maintenance
company and is therefore self-employed. He deposited all his business funds into
a bank account and paid business and personal expenses from that single account.
In 2016, Baraga deposited $152,983.40 into the account. Of that amount, he
asserted he paid out $120,317 for supplies and business-related items. Thus,
according to Baraga, his income was not that which the trial court found it to be ─
$77,550 ─ but rather $32,666.
R.C. 3119.01(C)(5)(a) defines “income” for purposes of calculating
child support as “the gross income of the parent.” R.C. 3119.01(C)(13) defines self-
generated income as:
Gross receipts received by a parent from self-employment,
proprietorship of a business, joint ownership of partnership or closely
held corporation, and rents minus ordinary and necessary expenses
incurred by the parent in generating the gross receipts.
“A court has authority to rely on information other than a tax return
in order to examine business expenses and deductions, especially if the party is
self-employed, and should consider living expenses or other personal use of
business funds with ‘sharp scrutiny of all available records to prevent avoidance of
child support.’” Hilbert v. Hilbert, 2016-Ohio-8099, 74 N.E.3d 977, ¶ 11 (12th
Dist.), quoting Marder v. Marder, 12th Dist. Clermont No. CA2007-06-069,
2008-Ohio-2500, ¶ 64.
As noted by the trial court in its judgment entry adopting the
magistrate’s decision, this court has held that when
computing income for purposes of child support, a court should pay
particular attention to the possibility that a spouse who is the sole
shareholder of a business is engaged in “creative accounting” designed
to cloak net income. Therefore, the court needs to consider all
financial data which relates to the operation of that spouse’s business.
Corrigan v. Corrigan, 8th Dist. Cuyahoga Nos. 74088 and 74094, 1999 Ohio App.
LEXIS 2182, 29 (May 13, 1999).
In this case, the magistrate determined that Baraga had a 2016 gross
annual income of $77,550 based upon the cash flow as demonstrated by his 2016
bank statements. The trial court noted that Baraga owned pool maintenance and
snow plowing businesses. The trial court found that the magistrate correctly relied
on: (1) Baraga’s deposits and expenditures in his bank account for 2016 to provide
the best determination of his income for the purposes of computing child support
and (2) his bankruptcy filing, which reflected that he earned a net income of
$5,000 a month with “gross annual income computed to be at least $80,000.”
Baraga’s 2016 bank records coupled with his bankruptcy filing show
that his income was far greater than that which he claimed. The trial court did not
err when it adopted the magistrate’s decision. We find that there was competent,
credible evidence to support the trial court’s decision and its decision was not an
abuse of discretion.
The sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
_____________________________
LARRY A. JONES, SR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
MARY EILEEN KILBANE, J., CONCUR