{¶ 2} First, Mother challenges the trial court's determination of the parties' respective incomes, including the trial court's imputation of rental income for a jointly owned property, and the trial court's inclusion of rental income allegedly paid to a corporation jointly owned by the parties. We disagree because we find that the definition of "gross income" for purposes of calculating child support includes potential cash flow from any source, and that Mother's own testimony induced the trial court to include income allegedly due to the corporation in the parties' incomes.
{¶ 3} Next, Mother argues that the trial court erred in granting Father a deviation from his guideline child support obligation based upon rental income she claims belongs to the parties' corporation. Because we find that the trial court failed to make the statutorily mandated finding that the guideline child support amount was unjust, inappropriate, and not in the best interest of the minor child, we agree. Mother further argues that the trial court's justification for the deviation is against the manifest weight of the evidence. Because we find that the trial court granted Father a child support deviation equal to the entire rental income for one rental property, when the evidence only supports a finding that, at most, he is entitled to receive 49% of the rental income from that property, we agree.
{¶ 4} Next, Mother argues that the trial court's selection of an effective date for the modification of child support, other than the date of filing of her motion, is against the manifest weight of the evidence. Because we find that the trial court's selection of the December 1, 2001 effective date is based upon Mother's receipt of certain rental income, and the trial court's erroneous finding that Father is entitled to the entire rental income for that rental property, we agree.
{¶ 5} Finally, Mother alleges that the trial court improperly restricted her access to the record and denied her statutory right to have a shorthand court reporter record the proceedings below. Because we find that Mother failed to raise this argument, we decline to address it here.
{¶ 6} Based upon the foregoing, we affirm the trial court's judgment in part, reverse it in part, and remand this cause for further proceedings consistent with this opinion.
{¶ 8} Pursuant to the terms of the separation agreement, the parties each retained their respective shares (Mother 51%, and Father 49%) in Pennington Bishop Funeral Home, Inc. ("the Corporation"). The separation agreement also provided that the Corporation would continue to own certain real property, located at 3768 Gallia Street, New Boston, Ohio.
{¶ 9} This matter came before the trial court upon Mother's motion to modify child support, Mother's motion for contempt, and Father's motion to modify the separation agreement regarding payment of college expenses. The trial court conducted hearings on February 27, 2001, June 14, 2001, and July 31, 2001. On November 21, 2001, the magistrate issued a decision, finding that the parties could rent the apartment at the jointly owned 3802 Gallia Street property for $350 per month. The magistrate also found that the tenants at the 3768 Gallia Street property currently paid $350 per month in rent. Therefore, the magistrate attributed $4,200 "potential, imputed income from rental properties" to each party.
{¶ 10} Additionally, the magistrate found that based upon a change in the parties' circumstances, the prior child support deviation was no longer in the child's best interest. Therefore, the magistrate established child support at the rate of $420.78 per month, pursuant to the child support guideline worksheet. The magistrate then ordered, in relevant part, that: "* * * [Mother] shall continue to receive the rental income from the apartment above Pennington-Bishop Funeral Home [3768 Gallia Street], which is currently rented at $350.00 per month. This shall be credited as an offset and the Court FINDS this to be a Deviation from the child support guidelines and [Father] is therefore ORDERED to pay the difference being $62.53 per month, plus administrative fees totaling $63.78 per month effective December 1, 2001. Inasmuch as [Mother] has received the benefit of the rental income during the pendency of this action the Court FINDS it equitable and reasonable to begin the modified child support order effective December 1, 2001."
{¶ 11} Mother timely filed objections to the magistrate's decision. On August 5, 2003, more than two and a half years after Mother filed her objections, the trial court overruled Mother's objections and adopted the magistrate's November 21, 2001 decision. Mother appeals and raises the following assignments of error: "1. The trial court failed to correctly determine each part[y's] income as required by Ohio Revised Code
{¶ 13} In her first assignment of error, Mother contends that the trial court erred in determining the parties' respective incomes with respect to certain rental property owned jointly by the parties, and by the Corporation owned by the parties. Specifically, Mother argues that the trial court improperly included $4200 in each party's income based upon: (1) the magistrate's finding that the vacant apartment at 3802 Gallia Street, jointly owned by the parties, could be rented for $350 per month; and, (2) the magistrate's finding that the $350 per month rental income for the apartment located at 3768 Gallia Street was income to the parties, despite Mother's claims that the Corporation owns that particular property.
{¶ 14} With regard to the 3802 Gallia Street property, Mother argues that the second floor apartment had not been rented for more than three and a half years at the time of the hearings below. Because the parties had not rented the second floor apartment at 3802 Gallia Street for some time, Mother argues that the trial court erroneously imputed rental income from this property, totaling $4200 annually, to the parties. We disagree.
{¶ 15} We review child support matters under the abuse of discretion standard. Booth v. Booth (1989),
{¶ 16} For purposes of calculating child support, R.C.
{¶ 17} Here, Mother testified that the apartment on the second floor of the 3802 Gallia Street property was uninhabitable. However, Father testified that with minimal repairs, including replacement of a suspended ceiling and painting and reinstallation of the old kitchen cabinets, the parties could rent the apartment for $375 per month. Therefore, the record contains some competent, credible evidence to support the trial court's conclusion that the parties could rent the apartment for $350 per month, or $4,200 per year. Accordingly, we find that the trial court did not abuse its discretion in imputing rental income to the parties for the 3802 Gallia Street property. Furthermore, we find that the trial court's decision to impute such income was not against the manifest weight of the evidence.
{¶ 18} The record reflects that, at the time of the parties' dissolution, the Corporation owned the 3768 Gallia Street property. If that were still true, Mother would be correct in her assertion that the rent for that building would rightfully belong to the Corporation. However, we note that in questioning Mother about the ownership of the two parcels of property, Mother's counsel inquired, "So these two pieces of real estate [3768 and 3802 Gallia Street] are the only pieces of real estate that you and Mr. Bishop still own in common, is that correct?" Mother responded, "Yes." Furthermore, Mother testified that she, personally, received the $350 per month rental payment for the apartment over the funeral home, and that she intended for the entire rental income to be included as part of her annual income for purposes of the child support calculation. She now complains that the trial court attributed one-half of the income to her and one-half of the income to Father — a result that is arguably more beneficial to Mother than the position she advocated in her testimony at trial.
{¶ 19} Under the doctrine of invited error, a party may not take advantage of an error that he invited or induced the trial court to make. State v. Bey (1999),
{¶ 20} Based upon the foregoing, we find that there is some competent, credible evidence in the record to support the trial court's decision to impute rental income to the parties for the 3802 Gallia Street property, and to include one-half of the rental income for the 3768 Gallia Street property in each party's respective income. Therefore, we conclude that the trial court's decision is not against the manifest weight of the evidence, and does not constitute an abuse of discretion. Accordingly, we overrule Mother's first assignment of error.
{¶ 22} Pursuant to R.C.
{¶ 23} Here, the trial court found that the child support guideline worksheet established Father's child support obligation at $412.78 per month plus administrative fees. The trial court then ordered that Mother would continue to receive the $350 per month rental income for the 3768 Gallia Street property. Further, the trial court credited the full amount of the rental income as an offset or deviation from Father's child support obligation. The net result of the trial court's order is to require Father to pay child support of $63.53 per month, plus administrative fees — the difference between guideline child support and the $350 monthly rental income. This order constitutes a deviation from the statutorily mandated child support guideline worksheet. However, the trial court failed to make the requisite determination that the guideline support calculation was unjust, inappropriate, and not in the best interest of the parties' son as required by R.C.
{¶ 24} We address Mother's argument that the trial court's justification for the child support deviation was against the manifest weight of the evidence in conjunction with Mother's third assignment of error below.
{¶ 26} Mother is correct in her assertion that a court does not have jurisdiction to modify the terms of a property division set forth in a separation agreement by the parties to a dissolution absent an express reservation of jurisdiction. SeeColley v. Colley (1989),
{¶ 27} Here, the record reveals that the trial court did not specifically reserve jurisdiction to revisit the parties' property division. Therefore, we presume that the trial court should have allocated the income produced by the Corporation to the parties pursuant to their respective ownership of the Corporation. It appears to this court that the trial court attempted to continue the child support deviation originally instituted by the parties in their separation agreement. However, the parties' separation agreement clearly provides for a deviation based upon Mother's receipt of the rental proceeds for the 3802 Gallia Street property, not the 3768 Gallia Street proceeds the trial court relies upon here.
{¶ 28} Based upon the record before us, it is unclear exactly who is entitled to receive the rental income for the 3768 Gallia Street property. The separation agreement provides that the Corporation owns the property, and that the parties are the sole shareholders of the Corporation (Mother holding 51% of the outstanding shares, and Father owning 49% of the outstanding shares). However, Mother testified that the parties own the property in common. She also testified that she, personally, collected and retained the rental proceeds, and that by virtue of her doing so, her children could eat.
{¶ 29} Based upon the evidence presented below, it appears that, at most, Father would be entitled to receive 49% of the rental proceeds from the 3768 Gallia Street property pursuant to the parties' separation agreement. As Mother notes, for purposes of the child support calculation, the trial court equally divided the rental income between the parties, and then awarded Father an offset against his child support obligation equal to the full monthly rental income. There is simply no competent, credible evidence in the record to support such a conclusion. Hence, we find that the trial court effectively revisited the parties' property division by awarding Father an offset equaling more than twice the maximum rental income that he could anticipate to receive under the terms of the separation agreement. Because the trial court's justification for the child support deviation relies upon its erroneous finding that Father is entitled to the full monthly rental income for the 3768 Gallia Street property, we find that the trial court's justification for the deviation is against the manifest weight of the evidence. Accordingly, we sustain Mother's third assignment of error.
{¶ 31} We have previously held that a trial court has broad discretion to determine whether to make the modification of a child support order retroactive to the date of the motion to modify. Archer v. Archer (Sept. 24, 1997), Pickaway App. No. 96CA37, following Hamilton v. Hamilton (1995),
{¶ 32} Here, Mother filed her motion to modify child support on August 2, 2000. However, the trial court only made its child support order retroactive to December 1, 2001, based upon its finding that Mother "has received the benefit of the rental income during the pendency of this action." The trial court includes this finding in the same paragraph in which it granted Father a deviation of $350 per month from his child support obligation due to Mother's receipt of the rental proceeds for the 3768 Gallia Street property. Therefore, we conclude that the "rental income" the trial court uses to justify the December 1, 2001 effective date for the child support modification is the same income the trial court uses to justify the child support deviation.
{¶ 33} As we found above, there is no competent, credible evidence in the record to support the trial court's finding that Father is entitled to receive all of the rental income for the 3768 Gallia Street property. Therefore, the trial court's child support deviation is against the manifest weight of the evidence. The trial court bases its reasoning for the effective date of the child support modification upon the same unsupported finding that Father is entitled to the full rental proceeds for the 3768 Gallia Street property. We, therefore, conclude that the trial court acted arbitrarily and abused its discretion in selecting December 1, 2001 as the effective date of the child support modification. Accordingly, we sustain Mother's fourth assignment of error.
{¶ 35} Mother also argues that the trial court: (1) abused its discretion by denying her motion to have a court reporter record the proceedings below as required by R.C.
{¶ 36} The record reflects that Mother filed a motion requesting that the trial court provide a court reporter pursuant to R.C.
{¶ 37} We will not consider any error a party failed to bring to the trial court's attention at a time when the trial court could have avoided or corrected the error. Schade v. CarnegieBody Co. (1982),
Judgment Affirmed in part, Reversed in part, and remanded.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I — IV and Concurs in Judgment Only as to Assignment of Error V.
Abele, J.: Concurs in Judgment Only.