DANIELLE N. GREEN, PLAINTIFF-APPELLANT, v. RAYMOND A. TARKINGTON, DEFENDANT-APPELLEE.
CASE NO. 10-10-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
May 17, 2010
[Cite as Green v. Tarkington, 2010-Ohio-2165.]
WILLAMOWSKI, P.J.
Appeal from Mercer County Common Pleas Court Juvenile Division Trial Court No. 4-2003-034
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
APPEARANCES:
Thomas Luth, for Appellant
Martin D. Burchfield, for Appellee
{1} Although this appeal has been placed on the accelerated calendar, this court elects to issue a full opinion pursuant to Loc.R. 12(5).
{2} Plaintiff-Appellant, Danielle N. Green (“Danielle“), appeals the judgment of the Mercer County Court of Common Pleas, Juvenile Division, modifying the amount of monthly child support paid by Defendant-Appellee, Raymond A. Tarkington (“Raymond“). Danielle claims that the trial court abused its discretion when it ordered a negative deviation from the statutory guidelines without a finding that the deviation was in the best interests of the child and without a change of circumstances. For the reasons set forth below, the judgment is affirmed in part and reversed in part.
{3} Danielle and Raymond are the parents of Hayden G. Green, who was born February 18, 2003. The parents have never been married to one another.
{4} In June 2003, the trial court ratified the parties’ stipulations concerning parental rights and responsibilities. Danielle was named the residential parent and Raymond was granted companionship time consisting of three weekends every month, three weeks during the summer, and time during Christmas week and other holidays. Raymond was ordered to pay $274.08 per month child support, plus 2% poundage, and he was ordered to carry health insurance for the child through his employer. The amount of child support was
{5} On February 19, 2009, Danielle filed a request for an administrative review of child support with the Mercer County Child Support Enforcement Agency (“CSEA“). CSEA issued an Administrative Adjustment Recommendation on April 6, 2009, recommending that Raymond pay monthly support of $234.76 per month, plus 2% processing charge, based upon the child support computation worksheet.1 Neither party requested a hearing or further review, so on May 7, 2009, the trial court entered judgment adopting CSEA‘s support recommendations.
{6} However, on April 3, 2009, just prior to CSEA issuing its recommendation, Raymond filed a Motion for Modification of Residential Placement requesting that the trial court modify the residential placement of the child to him. Danielle filed her response in opposition on April 16, 2009, and the matter was scheduled for hearing in July.
{7} On July 8, 2009, the parties appeared in court stating that they had reached an agreement on all matters except child support. They stipulated that Danielle and Raymond were to enter into a shared parenting plan, with Danielle having residential placement during the school year and Raymond having
{8} The judgment entry adopting their stipulations was filed on September 24, 2009, but noted that the parties “do not have an agreement as to child support.” Shortly thereafter, the parties filed briefs and memorandum in support of their positions on child support modification and whether deviation from the prior CSEA worksheet was appropriate.
{9} On January 12, 2010, the trial court filed its judgment entry on the matter of child support. The new child support calculations included deviations based upon adjustments for increased residential time with Raymond. The trial court figured that Raymond would now have 114 days of parenting time. After doing calculations and allowing for the deviations, the trial court ordered that Raymond‘s new child support obligation was $98.04 per month, plus 2% processing fee.
{10} It is from this judgment that Danielle timely appeals, raising the following two assignments of error.
The trial court committed prejudicial error in ordering a negative deviation from the statutory amount of child support, without any evidence of the deviation being in the best interest of the child.
Second Assignment of Error
The trial court committed prejudicial error in ordering a modification of the child support order filed May 7, 2009, when no change of circumstance occurred thereafter which would warrant such modification.
{11} We review child support matters under an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. Accordingly, we will only reverse a trial court‘s judgment regarding child support matters if it is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. In order to facilitate our review of the issues, we elect to address the assignments of error in reverse order.
{12} In her second assignment of error, Danielle argues that the trial court erred in modifying the child support order because there was not a substantial change in circumstances as required by
{13} A court may only modify an existing child support order if there is a substantial change of circumstances.
{14} We find that there was a substantial change of circumstances in this case because the parties’ parental rights and responsibilities were changed from Danielle being the sole residential parent to a shared parenting agreement by stipulation of the parties, inviting the recalculation. In addition, Raymond‘s time with his son increased and the trial court‘s recalculation of child support resulted in a modification that was greater than ten percent. Danielle‘s second assignment of error is overruled.
{15} In the first assignment of error, Danielle asserts that the trial court erred because it deviated from the statutory amount calculated according to the basic child support worksheet without any finding or explanation as to how or why this deviation was in the best interest of the child. Danielle complains that the new orders only increased Raymond‘s time with the child by two days per year (allegedly from 112 to 114 days per year), yet it decreased his basic support obligation by more than 58% (from 234.76 to $97.91 per month, a reduction of $136.85 per month or approximately $1,642 annually.) Danielle maintains that a
{16} Raymond, however, contends that there was a significant increase in the amount of his parenting time because he previously only had companionship with his son for 94 days under their original agreement, not the 112 days claimed by Danielle. Furthermore, Raymond argues that the 114 days that Hayden now resides with him is a significant increase over the 76 days of visitation normally granted under “standard” visitation schedules. Although Raymond acknowledges that the trial court did not specifically state the basis for the relationship between the time with the child and the support modification, he contends that their parenting modification resulted in Hayden spending increased time with his father, which was in Hayden‘s best interests, and the support obligation should better reflect the time that the parties are spending with the child.
{17} When issuing an order of child support, the trial court must calculate the amount of support “in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of sections 3119.02 to 3119.24 of the Revised Code.” O‘Conner v. O‘Conner, 3d Dist. No. 12-09-04, 2009-Ohio-5436, ¶9. The guideline amount of child support is rebuttably presumed to be the correct amount of child support due.
{18} Similarly,
{19} However, it is not mandatory that a trial court deviate from the schedule and worksheet; a parent is not automatically entitled to a downward deviation merely because a factor may be present. Womack v. Womack, 3d Dist. No. 5-2000-24, 2001-Ohio-2146; Lopez v. Coleson, 3d Dist. No. 12-05-24, 2006-Ohio-5389, ¶9. Furthermore, a shared parenting plan does not automatically entitle a party to a set-off or credit for time spent with the children under the plan. Pauly v. Pauly, 80 Ohio St.3d at 388-90, 1997-Ohio-105, 686 N.E.2d 1108.
{21} In its final judgment entry of January 12, 2010, the trial court merely stated:
The parties stipulated to the Child Support Enforcement Agency worksheet summary which was previously filed with the court and the parties agreed that the court was to determine if any
deviation was appropriate. Counsel submitted briefs on possible deviation. The court in reviewing the consent agreement on parenting time of the parties hereby finds that father has 114 days of parenting time and mother has 238 days3 of parenting time. Father‘s parenting time exceeds the standard parenting time, therefore, father receives credit for said additional days.
The trial court then stated that Raymond‘s child support obligation would be $97.01 per month (plus processing fee), effective April 3, 2009. The judgment entry did not specify the amount calculated as the actual annual obligation; however, the child support worksheet was attached showing this amount was $2,818.65. This worksheet used the same figures for salary/income/healthcare expenses that were utilized by CSEA in its April recommendation that was adopted by the trial court in May 2009. Thereafter, the following line showed a “deviation adjustment” of “-$1,642.18.” There was no explanation for this deviation, although there were several pages following the worksheet containing computer-generated computations for various “theories for deviation of child support.” The “-$1,176.97” adjustment matched the amount computed under the third “theory.” Although the judgment entry seems to indicate that the deviation was to give “credit” for Raymond‘s additional time with the child, it did not contain any determination that the presumed worksheet amount would be unjust or
{22} Although a trial court may exercise broad discretion when determining the appropriate award of child support, its decisions must be made in compliance with the statutory guidelines and requirements. We are unable to determine whether or not several of the determinations in this judgment entry were an abuse of discretion because the record does not reflect the trial court‘s reasoning and findings as to how the decisions relate to the best interest of the child.4
{23} The trial court selected a child support deviation computation “theory” which included calculations of each party‘s parental obligations, multiplied by the percentage of time each parent had with the child, and then set off the resulting obligations after consideration of other expenses. While that may well be a reasonable method, we first need to understand the trial court‘s reasoning as to whether the initial presumed amount would be unjust or inappropriate and whether it would not be in the best interest of the child, supported by findings of fact. We note that Raymond‘s time with the child increased by approximately
{24} Furthermore, although the parties stipulated to using the worksheet summary which was previously filed with CSEA and the court, the record does not reflect the basis for many of the numbers used. For example, the worksheet lists $7592 as “other income, non-taxable” for Danielle, even though the information she provided stated that she was unemployed and her only income was $6,980 from child support (
{25} While the trial court‘s calculated deviation in Raymond‘s support obligation may or may not be a fair and appropriate amount, we cannot review that determination because the trial court did not provide the necessary information as to how it selected that particular deviation, why the presumed amount was unjust or inappropriate, and why the presumed amount was not in Hayden‘s best interest, together with findings of fact to support its determination. Therefore, we find that the trial court abused its discretion when it failed to make the mandatory statutory findings relevant to its modification of Raymond‘s child support obligations. Danielle‘s first assignment of error is sustained.
{26} Based on the above, the decision of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
SHAW and PRESTON, J.J., concur.
/jnc