Fraelich v. ParrishFraelich v. Parrish
WHITMORE, Judge.
{¶1} Appellant Donna Parrish (“Mother”) and Appellee Michael Fraelich (“Father”) are the unmarried parents of a young son. Mother appeals from the order of the Lorain County Juvenile Court establishing child support to be paid by Father. We reverse in part and affirm in part.
I
{¶2} Mother and Father lived together but were never married. Mother terminated the relationship and Father moved out of their shared residence a few weeks after Mother informed Father that she was pregnant. Mother refused to communicate with Father throughout the pregnancy and following the birth of the child.
{¶3} Father promptly filed a complaint to establish parentage and allocate parental rights and responsibilities in the juvenile court. Genetic testing proved Father to be the biological parent of the child.
{¶4} Mother filed a motion to establish child support. Mother moved “for an [o]rder directing [Father] to pay monetary support for the parties’ child.” Mother “further move[d] for an [o]rder directing [Father] to share in the child’s uncovered birthing expenses and past care retroactive to the child’s date of birth * * *.”
{¶5} The case proceeded to trial on Father’s complaint and Mother’s motion to establish child support. The court issued a judgment entry establishing a shared parenting plan and ordering child support. The order required Father to pay child support prospectively, but did not address the issues of retroactive support and payment of uncovered birthing expenses. The order granted Father a 43% downward deviation in support based upon the fact that Father eventually would have custody 43% of the time. The court also found that the deviation was warranted based on the disparity in the parties’ incomes.
{¶6} Mother appeals from the trial court’s award of child support. She raises two assignments of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ORDER THAT THE APPELLEE/FATHER PAY CHILD SUPPORT FOR THE PERIOD STARTING FROM THE BIRTH OF THE SUBJECT CHILD ON NOVEMBER 16, 2012, TO THE DATE OF ISSUANCE OF ITS DECISION ON SEPTEMBER 26, 2014.
{¶7} In her first assignment of error, Mother argues that the trial court erred when it failed to order Father to pay child support from the child’s birth date until the date of its decision. Mother does not appeal the trial court’s failure to order payment of uncovered birthing expenses. Because the trial court did not address Mother’s motion for past child support when it disposed of the issues in Father’s complaint, Mother’s motion for retroactive support is deemed denied.
{¶8} “[A] trial court’s decision regarding child support obligations falls within the discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.” Pauly v. Pauly, 80 Ohio St.3d 386, 390 (1997), citing Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). An abuse of discretion is more than an error of judgment; it connotes a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).
{¶9} This Court has held that “it is the law of Ohio that the adjudicated natural parent of an illegitimate child has the duty to support such child from birth.” In re Adoption of Taylor, 61 Ohio App.3d 500, 503 (9th Dist.1989), citing Baugh v. Carver, 3 Ohio App.3d 139 (1st Dist.1981). Section
{¶10} Under
[The court] shall consider all relevant factors, including, but not limited to, any monetary contribution either parent of the child made to the support of the child
prior to the court issuing the order requiring the parent to pay an amount for the current support of the child.
{¶11} In this matter, Father argues that the court was within its discretion to deny retroactive child support on the basis of Mother’ derisive behavior. Father cites Mother’s deliberate lack of communication with Father regarding the child, and Mother’s apparent intentional disregard of court orders and deadlines to complete the genetic testing necessary to establish Father’s parentage.
{¶12} Father’s argument implies that a court may deny retroactive child support as a punitive measure. He fails to consider that, under these circumstances, denying support as a punitive measure punishes the child along with the offending parent. Rather than penalize the child, the court could have addressed Mother’s behavior directly through a contempt citation. We do not resolve the merits of Father’s argument here, however. Because the court failed to address Mother’s request for retroactive support in any respect, we do not know if the court in fact considered Mother’s behavior when it failed to award back support for the period prior to the determination of parentage.
{¶13} Here, the court did not state what factors it considered under
Assignment of Error Number Two
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING THE APPELLANT/FATHER A DOWNWARD DEVIATION FROM THE CHILD SUPPORT GUIDELINES IN HIS CHILD SUPPORT OBLIGATION IN
THE AMOUNT OF 43%, BASED PRIMARILY UPON THE FACT THAT ITS ORDER OF POSSESSION ULTIMATELY PLACES THE CHILD WITH HIM FOR 43% OF THE TIME.
{¶14} In her second assignment of error, Mother contends that the court erred when it granted Father a 43% downward deviation from the Ohio child support guidelines based on Father’s custodial time with the child. We disagree.
{¶15}
{¶16} The amount of child support calculated pursuant to the basic child support schedule and applicable worksheet is “rebuttably presumed to be the correct amount of child support due.”
(1) [t]he amount of time the children spend with each parent;
(2) [t]he ability of each parent to maintain adequate housing for the children;
(3) [e]ach parent’s expenses, including child care expenses, school tuition, medical expenses, dental expenses, and any other expenses the court considers relevant; [and]
(4) [a]ny other circumstances the court considers relevant.
{¶17} If the court deviates from the presumed amount of the support obligation, it shall journalize: (1) the presumed amount; (2) its determination that the amount would be unjust or inappropriate and not in the child’s best interest; and (3) findings of fact supporting its determination.
{¶18} In this matter, the trial court strictly complied with
{¶19} Mother argues that the court abused its discretion in awarding a 43% downward deviation to correspond with Father’s percentage of parenting time because the court “failed to take into account the fact that the Lorain County Standard Visitation Schedule * * * provides that the non-residential parent has the child approximately 15% of the time on a regular weekly basis and 12% of the overall time for extended vacation.” According to Mother, this means that “the non-residential parent’s normal possession time is approximately 27% of the time, without any contemplated legislative deviation.” Mother claims that the downward deviation should take into account that 27%.
{¶20} Mother’s precise argument was rejected by another appellate court in Linam v. Linam, 7th Dist. Columbiana No. 02 CO 60, 2003-Ohio-7001. In that case, the trial court made a 50% downward deviation in the father’s support obligation based on the parties’ shared parenting plan that gave them both 50% of the time with the children. The mother argued at trial that the father should have only received a 22% downward deviation because a standard visitation order gave the obligor 28% of the time with the children, and the difference between 50% and 28% is 22%. Id. at ¶ 31. The appellate court upheld the trial court’s decision as within its discretion. Id. at ¶ 32. The court explained that the mother failed to appreciate that, in addition to father spending additional time with the children, she would be spending proportionately less time with the children. Id. Accordingly, Linam found that the trial court was properly within its discretion in authorizing a 50% deviation from the presumed amount of support. Id.
{¶21} The Linam court is not alone in holding that a minute-per-minute downward deviation from the presumed amount of support is within the trial court’s discretion. Several appellate courts in this state have held that, under a shared parenting plan, a trial court does not
{¶22} Considering this authority, we affirm the juvenile court’s 43% downward deviation from the child support guidelines when Father would spend 43% of the time with the child. Although we recognize that nothing in the Revised Code requires a downward deviation based on time spent with the child, see Pauly at 389,
III
Mother’s first assignment of error is sustained. We thus remand this matter for the trial court to either calculate an award of child support retroactive to the child’s birthdate, or articulate the reasons why a retroactive award is not warranted in this case.
Mother’s second assignment of error is overruled. The downward deviation from the child support guidelines based on Father’s time with the child under a shared parenting arrangement was within the trial court’s discretion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
KENNETH R. HURLEY, Attorney at Law, for Appellant.
LINDSAY K. NICKOLLS, Attorney at Law, for Appellee.