Mohammed Habib, Plaintiff-Appellant, v. Hawa Shikur, Defendant-Appellee.
No. 17AP-735
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 26, 2018
[Cite as Habib v. Shikur, 2018-Ohio-2955.]
(C.P.C. No. 12JU-12886) (REGULAR CALENDAR)
Rendered on July 26, 2018
On brief: Ray J. King, for appellant. Argued: Ray J. King.
On brief: James C. Lee, for appellee. Argued: James C. Lee.
APPEAL from Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
SADLER, J.
{¶ 1} Plaintiff-appellant, Mohammed Habib, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in favor of defendant-appellee, Hawa Shikur. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties have never been married but have three minor children together. Appellant has been paying court-ordered child support for the three minor children since 2012. Appellant also has three children living in Ethiopia and for whom he claims to pay court-ordered child support.
{¶ 4} Both parties disagreed with the hearing officer‘s decision and requested an adjustment court hearing. On December 22, 2016, FCCSEA moved to intervene in the case. On January 4, 2017, a magistrate held a hearing on the parties’ request for adjustment.
{¶ 5} At the hearing before the magistrate, appellant testified that he works as a self-employed taxi driver and that his net income for the previous year was $14,685.48. Appellant also testified that in 2016 he paid $1,800 in court-ordered child support for his children living in Ethiopia. Appellant acknowledged that he claimed the dependency exemption for his three children with appellee when he filed his 2016 federal income tax return and that he received a refund of more than $5,000.
{¶ 6} On February 15, 2017, the magistrate issued a decision in the matter. The magistrate ordered appellant to pay child support in accordance with guidelines of $183.78 per month for each child plus a processing charge and $38.58 per month in cash medical support plus a processing charge. The magistrate also ordered the parties to each pay 50 percent of the cost of medical expenses exceeding the amount paid by appellant. The magistrate awarded the child dependency tax exemption for each of the three children to appellee.
{¶ 7} On March 2, 2017, appellant filed the following objections to the magistrate‘s decision:
- The Magistrate failed to properly interpret
O.R.C. 3119.05(A) and (B), and The Magistrate erred in her child support worksheet wherein she provided zero deductions for ordinary and necessary business expenses, and for Plaintiff‘s child support payments to his children in Ethiopia. - The Magistrate erred in awarding all three (3) income tax exemptions to Defendant.
The Magistrate ignored the requirements of O.R.C. 3119.08 .
{¶ 8} The trial court issued a decision and entry on September 29, 2017 overruling appellant‘s objections and adopting the magistrate‘s decision. Appellant timely appealed to this court from the trial court decision.
II. ASSIGNMENT OF ERROR
{¶ 9} Appellant assigns the following as trial court error:
The trial court erred in overruling Appellant‘s objections to the Magistrate‘s Decision.
III. STANDARD OF REVIEW
{¶ 10} Pursuant to Juv.R. 40(D)(4)(d), “[i]f one or more objections to a magistrate‘s decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.” Thus, ” ‘[a] trial court considering a party‘s objections to a magistrate‘s decision must independently assess the facts and conclusions contained in the magistrate‘s decision, thereby undertaking the equivalent of a de novo determination in light of any filed objections.’ ” In re J.P., 10th Dist. No. 16AP-61, 2016-Ohio-7574, ¶ 13, quoting In re H.D.D., 10th Dist. No. 12AP-134, 2012-Ohio-6160, ¶ 90. “Appellate courts ‘generally review a trial court‘s adoption, denial or modification of a magistrate‘s decision for an abuse of discretion.’ ” In re D.S., 10th Dist. No. 15AP-487, 2016-Ohio-2810, ¶ 9, rev‘d on other grounds, 152 Ohio St.3d 109, 2017-Ohio-8289, quoting Brunetto v. Curtis, 10th Dist. No. 10AP-799, 2011-Ohio-1610, ¶ 10. “However, where the appeal from the trial court‘s action on a magistrate‘s decision presents only a question of law, the standard of review is de novo.” In re D.S. at ¶ 9.
IV. LEGAL ANALYSIS
{¶ 11} In appellant‘s assignment of error, appellant challenges three distinct aspects of the trial court‘s ruling: the amount of his child support obligation, the allocation to appellee of the federal income tax deduction for the three minor children, and his parenting time. For the reasons that follow, we find that the trial court did not err with regard to these issues.
{¶ 12} Appellant claims the trial court erred when it found appellant failed to provide necessary evidentiary support for certain business expenses allegedly incurred in generating his self-employed income as a taxi driver and by not giving him credit for child support payments made for his children in Ethiopia. We disagree.
{¶ 13} Appellant first contends the trial court erred when it adopted the magistrate‘s determination regarding his yearly gross income. “The underlying purpose of Ohio‘s child support legislation * * * is to meet the current needs of the minor child.” Harbour v. Ridgeway, 10th Dist. No. 04AP-350, 2005-Ohio-2643, ¶ 34. See also Bates v. Bates, 10th Dist. No. 04AP-137, 2005-Ohio-3374, ¶ 21. “The starting point for determining the proper amount of child support to be paid is parental income, defined as gross income for those employed to full capacity or gross income plus potential income for those not employed to full capacity.” Wolf-Sabatino v. Sabatino, 10th Dist. No. 12AP-1042, 2014-Ohio-1252, ¶ 7, citing Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, ¶ 11.
{¶ 14} For purposes of child support,
“Gross income” means, except as excluded in division (C)(7) of this section, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes * * * self-generated income.
{¶ 15} “Self-generated income” is defined in
{¶ 16} Appellant testified to a yearly gross income of $29,149.43 from self-employment as a taxi driver. According to appellant‘s records, $5,132.72 of his yearly gross income was derived from cash transactions and $24,016.71 from credit card transactions as reflected in a statement he received from a credit card servicing company known as “Square.” (Tr. at 42.)
MAGISTRATE RUTTAN: And can you estimate for me approximately what percentage of your payments are made in credit card payments versus cash?
WITNESS: Oh, almost to 98, 99, almost. Mostly – mostly its credit card, so I‘m afraid to give the wrong percentage.
MAGISTRATE RUTTAN: So if I understand correctly what your earlier testimony was, and again, I haven‘t seen your calculations. In 2016, you made $29,000.00 correct?
WITNESS: Yeah. Yes.
MAGISTRATE RUTTAN: And one of your exhibits, you estimate how much you received in cash; is that correct?
WITNESS: Yes.
MAGISTRATE RUTTAN: And that figure was $5,000.00, -
WITNESS: Yes.
MAGISTRATE RUTTAN: - correct?
WITNESS: Yes.
MAGISTRATE RUTTAN: So you made almost a total of $30,000.00 and by your own estimation $5,000.00 of that was cash?
WITNESS: Yes.
MAGISTRATE RUTTAN: Which by my very rough calculation is more than the one or two percent that would be cash, correct?
WITNESS: That – yes.
MAGISTRATE RUTTAN: Okay. So would you like – since you‘ve been a cab driver for 11 years –
WITNESS: Yes.
MAGISTRATE RUTTAN: - would you like to make another stab at what percentage of your income is actually cash versus credit card?
WITNESS: I – I don‘t understand. What is that again?
MAGISTRATE RUTTAN: What percentage of the payments that you received for driving the cab are cash versus credit card?
WITNESS: If you are asking the accurate percent, I will not be able to do it.
(Tr. at 72-74.)
{¶ 18} It is evident from the transcript and from the magistrate‘s decision that the magistrate did not find appellant‘s testimony regarding his yearly gross income to be credible, particularly with regard to income derived from cash receipts. The magistrate‘s decision notes appellant “presented no tax returns” to support his testimony. (Mag.‘s Decision at 2.)
{¶ 19} As the trier of fact, the magistrate was free to believe or disbelieve any witness. In re Moore, 10th Dist. No. 06AP-970, 2007-Ohio-3995; H.R. v. L.R., 181 Ohio App.3d 837, 2009-Ohio-1665 (10th Dist.). The trier of fact is also free to believe all, part, or none of the testimony of each witness. Moore; H.R. See also Sims v. Dibler, 172 Ohio App.3d 486, 2007-Ohio-3035, ¶ 44 (7th Dist.). Based on the evidence in the record, the magistrate concluded appellant‘s yearly gross receipts were greater than he had related in his testimony.
{¶ 20} With regard to appellant‘s business expenses, the only evidence submitted by appellant to support his testimony regarding business expenses was a two-page exhibit listing the type of expense incurred in one column and the corresponding monthly dollar amount in the next column. According to appellant‘s exhibit, he incurred monthly expenses of $1,223.79 in order to generate monthly gross income of $2,429.12, leaving
{¶ 21} The trial court, in overruling appellant‘s objection to the amount of child support ordered by the magistrate, expressed skepticism regarding the gross receipts and expense figures related by appellant. The trial court stated:
Despite [appellant‘s] claim to have receipts to support his summary of business expenses, [appellant] failed to bring same to the hearing. While other “suitable” documentation besides receipts could have been used to verify [appellant‘s] business expenses, the court finds, as the Magistrate did, [appellant] failed to provide any competent and credible evidence to support his ordinary and necessary business expenses. At the initial administrative hearing, the Administrative hearing Officer also found [appellant‘s] testimony regarding his income and expenses to be “not credible as it was confusing and conflicting at best.”
(Sept. 29, 2017 Trial Ct. Decision at 4.)
{¶ 22} The trial court also noted if appellant‘s testimony regarding his yearly gross receipts and business expenses were to be believed, appellant‘s net income would be “below Ohio‘s 2016 minimum wage of $16,848 annually.” (Trial Ct. Decision at 4.) The trial court further found as follows:
Many employers in Central Ohio (Target/Walmart) pay $10-12 per hour starting wage and [appellant] could earn more working something other than driving a taxi. The court is suspect of [appellant‘s] claim of only receiving $5,000 annually in cash, which equates to roughly $100 per week, and since he said he works six days [a week] that equates to only an average of $16.66 per day in rides paid for in cash.
(Trial Ct. Decision at 4-5.)
{¶ 23} Based on the foregoing, we disagree with appellant‘s argument that the magistrate and the trial court simply ignored credible evidence regarding legitimate business expenses incurred by appellant. Rather, the magistrate disbelieved appellant‘s testimony regarding gross receipts, particularly those derived from cash, and found that appellant‘s evidence of business expenses was unsupported either by receipts or other
{¶ 24} “The determination of gross income [for purposes of calculating child support] is a factual finding which is reviewed using the ‘some competent, credible evidence’ standard.” Serra v. Serra, 10th Dist. No. 15AP-528, 2016-Ohio-950, ¶ 10, citing Dannaher v. Newbold, 10th Dist. No. 05AP-172, 2007-Ohio-2936, ¶ 14. In reviewing the trial court‘s factual findings regarding the determination of child support, we are mindful that this court is not permitted to substitute its judgment for that of the trial court in ruling on witness credibility. Banchefsky v. Banchefsky, 10th Dist. No. 09AP-1011, 2010-Ohio-4267, citing Ruben v. Ruben, 10th Dist. No. 82AP-914 (July 26, 1983). In this instance, our review of the evidence in the record reveals some competent, credible evidence to support the trial court‘s determination of appellant‘s gross income for purposes of calculating child support. Accordingly, we hold the trial court did not abuse its discretion in adopting the magistrate‘s findings as to appellant‘s gross income for 2016.
B. Child Support Credit
{¶ 25} Appellant next contends the trial court failed to give appellant credit for court-ordered payments he made for the support of his children in Ethiopia. We disagree.
{¶ 26}
{¶ 27} In support of his claim that he actually paid court-ordered child support for his children in Ethiopia, appellant submitted a certified copy of an entry issued by a court in Ethiopia dissolving appellant‘s marriage to one Zemmzem Mohammed and ordering appellant to pay 1,000 Ethiopian Birr for each of his three minor children from the marriage. (Tr., Pl.‘s Ex. C.) The magistrate found appellant failed to prove he actually
[Appellant] has three children from a prior relationship residing in Ethiopia for whom he claims to pay court ordered child support. See Plaintiff‘s Exhibit C. To effectuate his payments, [appellant] explained that he “send[s] cash with people, my people going to Ethiopia” who then give it to his Ethiopian divorce lawyer (i.e. his father) who ensures the mother of his children receive it. See Tr. at 49. He claimed to have sent $1,800 for his children in Ethiopia in 2016. When questioned more about with whom he sent the money to bring to his father in Ethiopia, [appellant] could only recall his “friend‘s” first name, Angow. See Tr. at 62. The court finds that [appellant] again failed to provide credible evidence that he was actually making payments on his Ethiopian child support obligation. In addition to failing to provide documentation of proof of payment, his testimony of sending money with “friends” was not credible. Nor was a certified court document provided that proved what the exchange rate of 3,000 Ethiopian birr would be or what amount was paid in US dollars.
(Trial Ct. Decision at 6.)
{¶ 28} Our review of the record confirms the trial court‘s findings with regard to appellant‘s alleged payments to Ethiopia. Even if this court were to accept the fact that appellant had a legal obligation to pay some amount of child support for his children in Ethiopia, the record does not contain any verifying documentation to support a finding that appellant actually paid any such child support. Moreover, both the magistrate and the trial court found appellant‘s story about his manner of payment lacking in credibility. On this record, we find the trial court did not abuse its discretion when it overruled appellant‘s objections to the magistrate‘s determination that appellant failed to prove his entitlement to a child support credit.
{¶ 29} For the foregoing reasons, we find the trial court did not err when it overruled appellant‘s objections to the magistrate‘s determination of his child support obligation.
C. Parenting Time
{¶ 30} Appellant next contends the trial court erred when it overruled his objection to the magistrate‘s determination of his parenting time. Appellant claims that
{¶ 31}
{¶ 32} The record shows appellant never filed a complaint seeking a determination of parenting time pursuant to
{¶ 33} Even if we were to hold that the parenting time provisions of
{¶ 34} Appellee testified that appellant does not exercise his parenting rights and that he has spent little time with his three children. She testified appellant does not take the children to school, he does not buy them clothes, or spend money on them outside of the court-ordered support.
{¶ 35} In support of his objections, appellant did not seek leave from the trial court to submit additional evidence relevant to the factors affecting parenting time. This court has stated that ” ‘parental rights determinations are difficult to make and appellate courts accord wide latitude to the trial court‘s consideration of evidence in these cases.’ ” Hamilton v. Hamilton, 10th Dist. No. 14AP-1061, 2016-Ohio-5900, ¶ 8, quoting Faulks v. Flynn, 4th Dist. No. 13CA568, 2014-Ohio-1610, ¶ 20. Under the circumstances of this case and on this record, we cannot say the trial court abused its discretion when it overruled appellant‘s objections to the magistrate‘s decision related to parenting time.
D. Tax Deduction
{¶ 36} Appellant‘s final challenge to the trial court‘s decision pertains to the allocation of the federal income tax dependency exemption to appellee for each of the three children. Appellant testified that he had previously claimed the exemption and that he had received a substantial tax refund in 2016.
{¶ 37}
In cases in which the parties do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
{¶ 38} An appellate court reviews a trial court‘s decision allocating tax exemptions for dependents under an abuse of discretion standard. Morrow at ¶ 9; Serra at ¶ 8. “An abuse of discretion occurs where a trial court‘s decision is unreasonable, arbitrary, or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 40} Foster v. Foster, 6th Dist. No. S-03-037, 2004-Ohio-3905, is an example of a case where the court of appeals upheld a trial court‘s award of the dependency exemption to the non-custodial parent. In that case, the Sixth District Court of Appeals noted that the evidence showed the exemption allocation was in the best interest of the child since the non-custodial parent would have more money to do activities with his daughter during her visits, while awarding the custodial parent would cause no difference in the child‘s standard of living. Id. at ¶ 24.
{¶ 41} Here, unlike Foster, appellant failed to produce evidence to support a finding that it was in the best interests of the children for him to retain the right to claim the children as dependents. As noted above, the evidence shows appellant has spent very little time with his children over the years, and we have affirmed the trial court‘s judgment regarding appellant‘s future parenting time. Though appellant testified he received a substantial income tax refund for the 2016 tax year, he has not produced evidence to establish the portion of that refund attributable to the exemptions. As the magistrate and the trial court noted, appellant failed to provide his tax documents at the hearing. Nor has appellant demonstrated that appellee would not also benefit from exemption, as the record shows that appellee is actively seeking full-time employment. See Serra at ¶ 38 (fact that a non-residential parent would have received a greater tax benefit than the residential parent does not require a trial court to allocate the dependency exemption to the non-residential parent).
{¶ 42} “[T]he overriding concern in calculating child support is the best interest of the child for whom support is being awarded.” Bates at ¶ 21. Based on the evidence in
{¶ 43} Having disposed of appellant‘s arguments in support of his sole assignment of error, we hold the trial court did not err when it overruled appellant‘s objections to the magistrate‘s decision and adopted the magistrate‘s decision as its own. Accordingly, appellant‘s assignment of error is overruled.
V. CONCLUSION
{¶ 44} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
KLATT and LUPER SCHUSTER, JJ., concur.