Barton v. PardiBarton v. Pardi
Rendered on September 13, 2012
Rebecca J. Barton, pro se.
Saia & Piatt, Inc., and Lisa A. Wafer, for appellee.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
DORRIAN, J.
{¶1} Plaintiff-appellant, Rebecca J. Barton, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, addressing the parties’ objections to an administrative order rendered by a Franklin County Child Support Enforcement Agency (“FCCSEA“) hearing officer recommending a recalculated amount of child support payable between the parties.
{¶2} The parties have one child togethеr, a daughter (“A.B.“), born December 30, 1995. On April 10, 1996, the FCCSEA issued an administrative order for child support in the amount of $275.61 per month, plus poundage, payable to appellant by appellee. In 2001, the FCCSEA modified this amount to $400.06 per month. In April 2005, this amount increased to $489.72 per month, and that was the order in effect at the time the present proceedings began.
{¶3} In July 2008, the FCCSEA reviewed the case and recommended a recalculated amount of $521.72 per month effective July 1, 2008. The matter was then reviewed by an administrative hearing officer, whо recommended that the recalculated child support be set at $620.24 per month, effective July 1, 2008. Both parties objected, and the domestic relations court assumed jurisdiction over the matter under
{¶4} The trial court referred the matter to a magistrate. The principal points of contention between the parties involve the proper determination of the parties’ respective incomes, the appropriatе medical and child care expenses to be applied, and the impact of tuition expenses associated with A.B.‘s enrollment in a private school, Marburn Academy, in 2005.
{¶5} After a hearing spread over four days during the period of April 26 through July 30, 2010, the magistrate rendered a decision containing findings of fact and conclusions of law. The magistrate concluded that the recalculated amount recommended by the administrative hearing officer of $620.24 was inaccurate. The magistrate reached a recalculated child support amount of $469.24 per month. Further finding that this differed by less than 10 percent from the existing child support amount of $489.72, the magistrate concluded that, pursuant to
{¶6} The magistrate then found that, although
{¶7} Appellant filed her objections to the magistrate‘s decision and recommendation on December 23, 2010. After the hearing transcripts became available, appellant filed supplemental objections on April 13, 2011, to provide additional material therefrom in support of her objections. In sum, these filings addrеssed six alleged errors in the magistrate‘s decision. First, appellant alleged that the magistrate improperly used a figure of $60,857.61 as appellee‘s annual income for 2008, and she suggested a revised figure of $66,419.69 based upon inclusion of 401(K) retirement contributions provided by his employer. Second, appellant alleged that the magistrate had underestimated appellee‘s income from his rental properties, the magistrate having used a figure of $1,747.50 as net income from these properties. Appellant suggested that appellee had not substantiated his associated expenses and should be imputed income of at least $4,468.00 and possibly as much as the gross rental receipts of $16,800.00. Third, appellant asserted that the magistrate erred by using medical insurance expense figures of $867.84 for appellant and $560.00 for appellee, rather than $1,035.58 and $516.00 respectively. Fourth, appellant alleged that the magistrate erred when she failed to apply the amount of $1,824 for appellant‘s child care expenses under the appropriate rubric in the child support worksheet. Fifth, appellant asserted that the magistrate erred by applying an improper local income tax rate (2 percent rather than 3 percent) for appellant in the child support worksheet. Sixth and finally, appellant asserted that the magistrate erred in finding that the costs of A.B.‘s attendance at Marburn Academy were contemplated at the time the 2005 order was rendered.
{¶8} Appellee‘s response to these objections conсeded the minor proposed modifications regarding health insurance expenses and tax rates. Appellee also pointed out that the magistrate had largely allowed the child care item as an expense for appellant, despite appellee‘s contention that the cited expense (tennis lessons) did not qualify, although the magistrate had reduced the amount from $1,824 to $1,459 to take into account the child care tax credit. Appellee opposed all other objectiоns to the magistrate‘s recommendations. Appellee further postulated that, with respect to his rental income, use of the higher figure suggested by appellant, even in conjunction with the conceded
{¶9} The trial court entered its decision on May 26, 2011, essentially overruling аll of appellant‘s objections to the magistrate‘s decision. The trial court found that, even after adopting some of the proposed computational corrections set forth in the objections, the variation between the existing order and the amount given in the recomputed child support worksheet would be less than 10 percent and would not support a change in support. The trial court further determined that the enrollment of A.B. in Marburn Academy did not present a substantial change in circumstances bеcause, at the time of the last child support modification in April 2005, appellant had actually expressed that she contemplated enrolling A.B. in another, substantially more expensive, private school, and therefore the increase in A.B.‘s schooling costs was contemplated at the time of the 2005 order and did not represent an unanticipated change in circumstances. The trial court therefore approved and adopted the magistrate‘s decision with some minor variations to the child support guideline caculations.
{¶10} Appellant has timely appealed and brings the following assignments of error:
I. The trial court erred and abused its discretion when it did not properly calculate the Defendant‘s 2008 child support obligation and when it did not properly calculate the Defendant‘s child support obligations for 2009 and 2010; and incorrectly concluded that the amount was not ten percent greater than the order in effect.
II. The trial court abused its discretion and committed error when it found that no change оf circumstances existed that permitted a child support deviation under
R.C. Section 3119.23 .III. The trial court committed error and abused its discretion by not considering the educational status and the tuition requirements for the minor child when it failed to recognize the evidence that established a substantial change of circumstances pursuant to
R.C. §3119.79(A) andR.C. §3119.79(C) .IV. The trial court erred and abused its discretion when it continued to allow Defendant not to provide his current residence address as required under Franklin County, Ohio Juvenile Rule 10(D) when it was aware that the Defendant acknowledged that his residence had changed.
V. The trial court erred and abused its discretion by permitting Defendant to leave the courtroom during testimony provided by Plaintiff‘s education witness and by permitting visitation matters to be discussed.
{¶11} A trial court has considerable discretion when computing child support, and that determination will not be disturbed on appeal absent an abuse of discretion on the part of the trial court. Pauley v. Pauley, 80 Ohio St.3d 386, 390 (1997). The term “abuse of discretion” signifies that the trial court‘s decision is unreasonable, arbitrary, or unсonscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When a court of appeals reviews the evidentiary conflicts underlying a support order, there is no abuse of discretion on the part of a trial court in computing support obligations where there is some competent, credible evidence supporting the court‘s decision. Ross v. Ross, 64 Ohio St.2d 203, 208 (1980).
{¶12} Ohio law requires that a trial court, when determining the amount of child support, complete a support guideline computation worksheet and include it in the trial court‘s record.1 Marker v. Grimm, 65 Ohio St.3d 139 (1992), paragraph one of the syllabus;
{¶13} Appellant‘s first assignment of error addresses the trial court‘s determinations regarding appellee‘s income, specifically appellee‘s income from his rental property. Appellant also argues that certain depоsits to appellee‘s bank accounts totaling $34,931.69 represented some concealed source of income that should have been considered when computing child support. With respect to this last item, which appellee testified resulted from rental receipts and substantial health insurance reimbursement for out-of-pocket expenses, we note that appellant did not raise this item in her objections to the magistrate‘s decision, and the issue is therefore not preserved for appеal.
{¶14} Although appellant presented various arguments before the trial court in her objections, and before the magistrate in the first instance, regarding the proper computation of appellee‘s rental income, her sole argument on appeal is that appellee did not properly substantiate the actual expenses that should be applied to offset the gross income derived from his rental units. Appellant proposes that the full gross rent for the two units in question of $16,200 ($16,800 was the figure given in the trial court) should be counted as income for child support purposes.
{¶15} In her objections to the magistrate‘s report, which found that appellee had $1,747.50 in rental income for 2008, appellant argued that the trial court should disregard some unsubstantiated expenses. These included the amount that appellee deducted from his taxes for his own work on the properties at a rate of $10 per hour, his automobile and travel expenses for traveling to and from the rental units, his undocumented cleaning and maintenance deductions, and undocumented insurance costs.
{¶16} Application of these expenses against appellee‘s rental income yielded a net rental loss in the amount of $2,487 on his 2008 tax return. The magistrate did exclude depreciation in concluding that appellee actually had positive cash flow from the rental units. The magistrate further concluded that the properties were half-owned by appellee‘s current wife. The magistrate found rental income of $3,495.00 for the two properties, divided that amount by half, and attributed $1,747.50 in rental income in 2008 to appellee. For 2009, the magistrate followed a similar computation to find rental income for appellee of $220.50.
{¶17} Appellant argued in her objections that a rental income for appellee should be included in an amount “no less than $4,468” (appellant‘s initial objections at 12), or alternatively the gross amount of $16,800. The trial court, without articulating in detail which deductions should be allowed, impliedly rejected use of the gross rental figure and stated that, even if the figure of $4,468 were applied, it would not yield an increase under the support guidelines that exceeded 10 percent. The court essentially concluded that, within the minor variations resulting from the disputed figures, this issue was moot.
{¶18} There is competent, credible evidence in the record to support the court‘s determination that some expenses must be applied to offset the gross rental receipts. Appellee testified that his actual gross rental receipts, including some vacancy periods, were $14,950 in 2008. As outlined above, the magistrate disallowed some deductions, primarily depreciation, that were proper for income tax purposes but inapplicable in computing support. This was a correct distinction. As stated by this court in Helfrich v. Helfrich, 10th Dist. No. 95APF-12-1599 (Sept. 17, 1996):
The legislature has specifically provided a definition of ordinary and necessary expenses to be applied when determining the amount of income available for child support. Further, the purposes underlying the Internal Revenue Code and the child support guidelines are vastly different. The tax code permits or denies deduction from gross income based on myriad economic and social policy concerns which have no bearing on child support. The child support guidelines, in contrast, are concerned solely with determining how much money is actually available for child support purposes. To this end, [former
R.C. 3113.215(A)(2) ] now includes nontaxable income in “gross income” for purposes of calculating child support. This recognized the economic reality that all moneyearned by a parent, irrespective of its taxability, is in fact income to that parent.
{¶19} Application of this general principle does not, however, require the court to disregard all expenses associated with rental income. The allowance of such expenses must necessarily be cоnsidered on a case-by-case basis in light of the financial context in which they arise. For example, in Tonti v. Tonti, 10th Dist. No. 03AP-494, 2004-Ohio-2529, ¶ 52-54, we allowed a deduction not only for mortgage interest and management expenses but for mortgage principal payments, despite the fact that such principal payments might more properly be considered as acquisition of a capital asset and accrue to the payor as a net gain in wealth. This was more than the magistrate allowed in the present case, in which the magistrate seems to have allowed only a mortgage interest deduction without credit for the full monthly mortgage payment.
{¶20} Despite his inability to provide some records relating to the rental properties, appellee did furnish his tax returns for relevant years and testified personally regarding the expenses of owning and managing the properties. Appellee also testified that he owned the two rental units jointly with his wife that she had in fact owned one unit as her personal residence at one time, and that the couple рurchased the second unit together. The magistrate‘s attribution of half the rental income to appellee‘s wife was supported by this credible evidence. The allowance of some, if not all, of the claimed expenses was also based on the evidence presented, and the magistrate had the discretion to weigh that evidence and draw suitable inferences. The conclusion reached by the trial court that any proposed variation from the magistrate‘s figures would not trigger a modification was not error.
{¶21} Appellant also asserts that the magistrate incorrectly allowed appellee to claim labor expenses associated with his own maintenance and repair work on the rental properties. Appellee testified that he deducted $10 per hour for his own work and that this was in fact less than the $20 per hour allowed by the tax code. Appellant contends that if this amount is allowed as a deduction from gross rental income, then logic dictates that it in turn must be recouped as self-genеrated earned income to appellee that can be included in his income for support purposes. Otherwise put, appellant protests that, if appellee is allowed to pay himself $10 per hour and count it as a deduction on the one
{¶22} Appellant‘s initial argument regarding the treatment of this deduction is sound. Any attempt to account for time and effort expended on rental properties naturally creates the inference that either a phantom deduction or phantom income will be attributed to a party. We conclude, howevеr, that any error in this respect was harmless because the amounts at issue are much smaller than proposed by appellant.
{¶23} First, we decline to take the leap requested by appellant and impute additional income to appellee based upon his capacity to engage in property maintenance. There is no indication that appellee engaged in such a business beyond that labor actually associated with maintaining his own rental properties. Second, the actuаl deductions for cleaning and repairs, the only two items under which the labor deduction would apply, were $1,548 total for both units in 2008. Taking this figure as consisting entirely of such disputed deductions for labor, we thus disregard all cleaning and repair deductions. Allowing all other deductions save depreciation, the properties together generated $5,043 in 2008 after property taxes, insurance, and mortgage interest. Appellant‘s one-half interest in the properties would result in $2,521.50 in income for support calculation purposes. This is substantially less than the $4,468 figure that the trial court concluded would not change the outcome of the proceedings, and therefore any error regarding the labor deduction is not prejudicial.
{¶24} Based upon the foregoing, we find that the trial court did not err in overruling appellant‘s objections to the magistrate‘s determinations regarding appellee‘s income, and appellant‘s first assignment of error is overruled.
{¶25} Appellant‘s second and third assignments of error both address the trial court‘s determination that enrollment of A.B. in a private school and the associated increase in school expenses were contemplated at the time of the 2005 support order and therefore did not present a substantial change in circumstances. We will therefore address these two assignments of error together. Appellant provides two intertwined
{¶26} With respect to
{¶27} We will thus only address
{¶28} Appellant points out on appeal that the last child support modification in this case became effective April 1, 2005, some six weeks beforе the e-mail cited by the trial court. Appellant also concedes in her brief, however, that she undertook extensive research and exploratory discussion with educational specialists to determine her child‘s
{¶29} Because there is some credible evidence in the record to support the trial court‘s conclusions regarding the private school expenses and the application of
{¶30} Appellant‘s fourth assignment of error asserts that the magistrate erred by failing to force appellee to provide his current residence address, which he apparently has been reluctant to disclose throughout these proceedings. Appellant‘s fifth assignment of еrror asserts that the magistrate erred by allowing appellee to leave the courtroom during some of the testimony by an expert education witness and further erred by allowing visitation between appellee and A.B. to be discussed during these proceedings. None of these issues was raised through objection before the trial court, and they are therefore not properly preserved for review in this appeal.
{¶31} For the foregoing reasons, appellant‘s five assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed.
Judgment affirmed.
BRYANT and CONNOR, JJ., concur.
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