Dobbins v. DobbinsDobbins v. Dobbins
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 5, 2020
APPEARANCES:
For Plaintiff-Appellant
STANLEY R. RUBIN
437 Market Avenue North
Canton, Ohio 44702
For Defendant-Appellee
HOLLY DAVIES
Pitinii, Davies & Cazantzes, LLC
101 Central Plaza S, Ste 1000
Canton, Ohio 44702
ΟΡΙΝΙΟΝ
{1} Plaintiff-appellant Rozsa Dobbins appeals from the November 21, 2019 Judgment Entry of the Stark County Court of Common Pleas, Family Court Division.
STATEMENT OF THE FACTS AND CASE
{2} The parties were married on December 29, 2006 and three children were born as issue of such marriage.
{3} On June 6, 2012, appellant filed a complaint for divorce against appellee. Appellee filed a counterclaim on June 15, 2012. At the time of the parties’ divorce in 2013, appellant had income in the amount of $2,292.00 per year while appellee received disability and social security benefits in the amount of $108,474.00 per year. Due to appellee‘s disability, the children received Social Security derivative benefits.
{4} The divorce decree incorporated the parties’ Separation Agreement and shared parenting plan. The parties agreed that appellant would be the residential parent. The shared parenting plan provided that “[t]he parties agreed that the child support obligation shall be deviated downwards. The grounds for the deviation were: the time allocation between each parent, each parent‘s respective ability to provide for the needs of the children while in their respective care and the derivative disability benefits received by the minor children.” Appellee was to pay child support in the amount of $1,575.00. The trial court deviated downwards from his annual obligation of $20,623.70 by $1,723.00. Appellee was also required to pay to medical insurance of $70.86 per month per child and the parties agreed that he would pay $925.00 in spousal support until April of 2014.
{6} In March of 2019, an administrative hearing before a CSEA hearing officer was held. The hearing officer, in recommendations filed on March 20, 2019, did not use the children‘s’ Social Security derivative benefits as a basis to deviate appellee‘s child support obligation downward, but gave appellee full credit despite the language in the parties’ shared parenting plan. The hearing officer recommended that appellant pay $400.33 per month in child support and $310.00 per month per cash medical support. Both parties objected to the CSEA‘s recommendations. Appellee also filed a motion to modify child support.
{7} A hearing was held on November 14, 2019 in the trial court. At the hearing, appellant testified that at the time of the shared parenting plan, she was not employed outside the home and that appellee was not either but received Social Security and private disability benefits. She testified that the children received derivative Social Security benefits and that these benefits were expressly taken into consideration in determining the amount of child support that appellee was to pay. She testified that she received $423.00 a month per child in Social Security benefits. Appellant testified that she was employed outside the home at the time of the hearing at St. Michael‘s school where she earned $10.00 an hour and worked ten hours a week during the school year. She earned $3,600.00 annually and had been employed there since 2019.
{9} Appellant‘s 2013 income tax return showed her total income as $13,539.00 which included her alimony. Her taxable income in 2018 was $475.00 from her job at St. Michael‘s.
{10} Appellant testified that the parties agreed that she would stay home with the children until they were school age. All three children attend school for a full day. Only one of the three orphaned children was still residing with appellant. Appellant has no physical or mental barriers to employment, but testified that she could not maintain employment due to needing to help the children with homework and taking care of them.
{11} Since her divorce, appellant had not applied for any full time work. The parties’ three children all are involved in athletic extra circular activities and appellee has contributed to the costs of these sports.
{12} Appellee receives both private disability in the amount of $78,000.00 and Social Security Disability in the amount of $30,474.00. Each of the children receives $411.00 a month in derivative Social Security benefits. In January of 2019, appellee requested that CSEA review his case because appellant had employment. The recommendation was that appellee pay a total of $425.72 a month in child support. Appellee asked the trial court for a downward deviation. He noted that appellant was working and that he was spending more money on food, transportation, the children‘s’ activities and other expenses. He was no longer paying spousal support. Appellee‘s private disability is expected to terminate in 12 to 15 months at latest in December of
{13} The trial court, pursuant to a Judgment Entry filed on November 21, 2019, found that a necessary change of circumstances and a ten percent (10%) change in income to warrant a modification of support. The trial court declined to impute income to appellant but adopted CSEA‘s recommendation of a support offset for the derivative benefit and granted appellee a downward deviation of support to a monthly obligation of $210.75 plus cash medical of $94.06.
{14} Appellant now appeals, raising the following assignments of error on appeal:
{15} “I. THE COURT ERRED IN NOT DEFERRING TO THE EXPRESS TERMS OF THE PARTIES’ SEPARATION AGREEMENT, WHICH REQUIRED THE CHILDREN‘S SOCIAL SECURITY DERIVATIVE BENEFITS BE USED AS A BASIS TO DEVIATE FROM THE GUIDELINE-CALCULATED AMOUNT OF CHILD SUPPORT AND NOT AS A DIRECT CREDIT AGAINST THE FATHER‘S OBLIGATION.”
{16} “II. THE TRIAL COURT ERRED IN DEVIATING FROM THE GUIDELINE-CALCULATED AMOUNT OF CHILD SUPPORT BASED ON EQUAL PARENTING TIME.”
{17} Appellant, in her first assignment of error, argues that the trial court erred in not deferring to the express terms of the parties’ separation agreement, which required the children‘s social security derivative benefits to be used as a basis to deviate from the guideline-calculated amount of child support and not as a direct credit against appellee‘s obligation.
{18} Derivative benefits inure directly to the child recipient and are the property of that child. Rigel v. Rigel, 5th Dist. Muskingum No. CT98-0021, 1999 WL 436824 (June 23, 1999). In Williams v. Williams, 88 Ohio St.3d 441, 2000-Ohio-375, 727 N.E.2d 895, the court held that the Social Security payments made to a minor because of a parent‘s disability should be set off from the disabled parent‘s child-support obligation.
{19} The trial court in this case set off the disability payments from the child support obligation. We find no err on the part of the trial court. The trial court complied with Williams and considered the best interests of the children.
{20} Appellant‘s first assignment of error is, therefore, overruled.
II
{21} Appellant, in her second assignment of error, argues that the trial court erred in deviating from the guideline-calculated amount of child support based on equal parenting time.
{23} When there is shared parenting, a trial court may not automatically deviate from the worksheet amount in order to credit an obligor for any time the child spends with that parent. Pauly v. Pauly, 80 Ohio St.3d 386, 388-389, 1997-Ohio-105, 686 N.E.2d 1108.
{24} In the case sub judice, there was evidence before the trial court that appellant did not work full-time outside the home while the children were young so that she could be involved in their education and extracurricular activities. There was also testimony that appellee‘s income came from disability and that when his private disability ran out, his income would decrease. Both parents had the children approximately 50% of the time.
{26} Appellant‘s second assignment of error is overruled.
{27} Accordingly, the judgment of the Stark County Court of Common Pleas, Family Court Division, is affirmed.
By: Baldwin, J.
Wise, John, J. concur,
Hoffman, P.J. dissents.
{28} I respectfully dissent from the majority opinion. I would sustain Appellant‘s first assignment of error.
{29} I begin by recognizing the Ohio Supreme Court held, in Williams v. Williams, 2000-Ohio-375, “A disabled parent is entitled to a full credit in his or her child support obligation for Social Security payments received by a minor child due to the parent‘s disability.” Id., at syllabus. I further recognize
{30} The original child support calculation worksheet did not give Appellee-husband any credit or deduction for the Social Security benefits received by the children. That is because, in the Separation Agreement and Shared Parenting Plan, the parties agreed to deviate downwards from the worksheet calculation based, in part, upon the derivative benefit received by the minor children. Significantly, that agreement and plan was approved and adopted by the trial court as part of its divorce decree filed April 11, 2013. I say significantly because the divorce decree was filed over 12 years after the Ohio Supreme Court issued the Williams decision. The child support order was in conflict with Williams when issued. Appellee-husband did not seek to challenge it on direct appeal. As such, I find the treatment of the children‘s derivative benefits became law of the case between these parties for calculation of any future modification of child support.
{32} Accordingly, I would sustain Appellant-wife‘s first assignment of error, vacate the trial court‘s child support order, and remand the matter to the trial court to recalculate child support.2