In re D.E.W.
O P I N I O N
Rendered on the 14th day of August, 2009.
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MICHELLE J. GEARHARDT, Atty. Reg. No. 0023329, Dungan & LeFevre Co., LPA, 210 West Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellant, Thomas S. Ward
FRANK J. PATRIZIO, Atty. Reg. No. 0055468, McCulloch Felger Fite & Gutmann Co., LPA, 123 Market Street, P. O. Box 910, Piqua, Ohio 45356
Attorney for Defendant-Appellee, Jennifer Rue
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HARSHA, J. (by assignment)
{¶ 1} Thomas S. Ward appeals an order modifying his child support obligation in the context of a shared parenting plan. He claims he is entitled to credit for the same expenses the children‘s mother received and an offset of his
I. Facts
{¶ 2} Thomas S. Ward and Jennifer Rue have three minor children, D.E.W., J.L.W., and P.O.W. In 2006, the Miami County Juvenile Court issued a Judgment Decree of Shared Parenting, which provided that the parties would share their time with their children equally, i.e. each parent having the children 50% of the time. The Shared Parenting Plan also provided that Ward‘s child support obligation was $108.81 per month for the three children. Subsequently, the parties agreed to increase Ward‘s child support obligation to $261.65 per month for the three children.
{¶ 3} In 2007, the Miami County Child Support Enforcement Agency ( “CSEA“) filed a “Submission for Review Hearing Pursuant to
{¶ 4} Following two days of hearings, the Juvenile Court Magistrate issued a decision that provides:
{¶ 5} “* * *
{¶ 6} “22. Taking into account the reasons for deviation set forth in
{¶ 7} “23. Due to the length of time this has been pending in the administrative and the court modification process, it is necessary to calculate the support twice taking into account the changes in day care costs over the past several months and can be anticipated through the next school year.
{¶ 8} “24. Effective October 1, 2007, the day that the administrative modification would have been effective, Father‘s support obligation should be $311.09 per month for three children, plus two percent administrative fee for a total of $317.31. This is more than a ten percent deviation from the previous child support order of $261.65 per month for three children and thus qualifies for a change of circumstancеs.
{¶ 9} “25. In completing a child support calculation for the next year, that beginning October 1, 2008, the child support would be $306.41 per month for three children. This is a de minimis change of $4.68 per month and does not constitute a change of circumstances.1
{¶ 10} “* * *”
{¶ 12} “* * * The parents have a parenting time allocation which results in a 50/50 share in time where each parent is considered the residential parent. A deviation is appropriate in accordance with
II. Assignment of Error
{¶ 14} Ward presents the following “Statement of Issues” rather than an Assignment of Error:
{¶ 15} “THE TRIAL COURT ERRED IN OVERRULING THE MAGISTRATE‘S SEVENTY-TWO PERCENT (72%) DEVIATION FROM THE CHILD SUPPORT COMPUTATION IN THAT SAID DEVIATION IS REQUIRED BY STATUE [sic] IN ORDER TO COMPLY WITH THE STATUTORY REQUIREMENTS THAT THE EXPENSES OF EACH OF THE PARENT [sic] BE CONSIDERED IN COMPUTING CHILD SUPPORT IN A SHARED PARENTING CONTEXT AND SAID COMPUTATION VIOLATES THE EQUAL PROTECTION CLAUSE OF THE OHIO CONSTITUTION.”
{¶ 16} According to Ward, the trial court “determined what Appellant Ward‘s child support obligation to Appellee Rue would be and then reduced same by the percentage of time Appellant Ward expended with his children, i.e. fifty-two percent (52%). The gross error in computing child support in this manner is that same is violative of the statute [sic] mandate in that only the expenses that Appellеe Rue incurs in raising the children was considered by the Court. Appellant Ward respectfully submits that he also has expenses in raising the children. Consequently, the only equitable way to compute child support in a fifty/fifty (50/50) shared parenting arrangement where the parent‘s [sic] income are comparable is to offset each parties‘s child support obligation to the other. Same satisfies the statutory mandate that both parties’ expenses in rearing the children be
{¶ 17} The basic thrust of Ward‘s argument is that the trial court erred in not using an offset approach to calculating Ward‘s support obligation. He claims this is so because a shared parenting support computation that uses a sole residential parent model, combined with a deviation bаsed upon the amount of parenting time, does not give equal credit to both parties for their parenting expenses.
III. Standard of Review
{¶ 18} “In accordance with Civ.R. 53, the trial court must conduct an independent review of the facts and conclusions contained in the magistrate‘s report and enter its own judgment.” Dayton v. Whiting (1996), 110 Ohio App.3d 115, 118. Thus, the trial court‘s standard of review of a magistrate‘s decision is de novo.
{¶ 19} Claims of trial court error must be based on the actions taken by the trial court itself, rather than the magistrate‘s findings or proposed decision. When an appellate court reviews a trial court‘s adoption of a magistrate‘s decision, it uses an abuse of discretion standard. Thus, an appellate court must affirm the judgment unless it appears that the trial court‘s actions were unconscionable, arbitrary, or unreasonable. Proctor v. Proctor (1988), 48 Ohio App.3d 55, 60-61. Presumptions of validity and deference to a trial court as an independent fact-finder are embodied in the abuse of discretion standard. Whiting, supra.
{¶ 20} “An abuse of discretion means more than an error of law or judgment; it implies that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When
IV. Offset v. Deviation
{¶ 21} Ward relies primarily upon Weddell v. Weddell (June 29, 1994), Montgomery App. No. 14274, to support his argument that the trial court should have used an offset approach in calculating child support. In Weddell we held an “obligor” parent in a shared parenting context is entitled to have his child support obligation during the time the obligor acts as the residential parent “considerеd as spent on the child, and therefore * * * not part of the child support order.” Focusing upon
{¶ 22} However, the Supreme Court of Ohio has rejected the Weddell analysis. In Pauley v. Pauley, 80 Ohio St.3d 386, 1997-Ohio-105, the Court held that former
V. Credit for Parenting Expenses
{¶ 23} Ward also argues that in making a 52% deviation, the trial court failed to consider his expenses for “necessities” and based its deviation solely upon the percentage of time he acted in a residential capacity. Ward contends although Rue got credit for all her рarenting expenses, he did not.
{¶ 24}
{¶ 25} “(A)(1) A court that issues a shared parenting order in accordance with
{¶ 26} “(2) The court shall consider extraordinary circumstances and other factors or criteria if it deviates from the amount described in division (A)(1) of this section and shall enter in the journal the amount described in division (A)(1) of this section its determination that the amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting its determination.
{¶ 27} “(B) For the purposes of this section, ‘extraordinary circumstances of the parents’ includes all of the following:
{¶ 28} “(1) The amount of time the children spend with each parent;
{¶ 29} “(2) The ability of each parent tо maintain adequate housing for the children;
{¶ 30} “(3) Each parent‘s expenses, including child care expenses, school tuition, medical expenses, dental expenses, and any other expenses the court considers relevant;
{¶ 31} “(4) Any other circumstances the court considers relevant.”
{¶ 32} Ward specifically directs our attention to
{¶ 34} As we already noted, there is no automatic right to any “offset” in these sections. Instead, under
{¶ 35} The parties stipulated that Ward‘s annual gross income is $46,000.00, while Rue‘s is $41,000.00. On each worksheet, Ward‘s income was adjusted for annual court-ordered support he pays for another child ($3,804.84), and for the amount of local income taxes he pays ($920.00), leaving him with an adjusted annual gross income of $41,275.16. Rue‘s gross income was adjusted by her local income taxes ($820.00), resulting in an adjusted annual gross income of $40,180.00. The juvenile court determined that the parties’ basic combined child support obligation is $16,702.96 on each worksheet, that Ward‘s annual obligation is $8,463.39, and that Rue‘s annual obligation is $8,239.57.
{¶ 37} In its journal entry, the juvenile court made the determination that “[t]he full child support obligations of $1,111.08 per month and $1,272.43 per month for the time periods discussed above are unjust, inappropriate and not in the children‘s best interest.” (The juvеnile court computed those amounts by dividing Ward‘s actual annual obligation on each sheet by twelve.)
{¶ 38} Finally, the juvenile court made a finding of fact supporting that determination. Citing in part
{¶ 39} Although Ward contends that his expenses in caring for his children were not considered by the juvenile court as
{¶ 40} Further, Ward did not file a Civ.R. 52 request for findings of fact and conclusions of law. Civ.R. 52 states: “When questions of fact are tried by a court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise * * * *in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law. ” The failure to request findings of fact and conclusions of law ordinarily results in a waiver of the right to challenge the trial court‘s lack of an еxplicit finding concerning the issue. See Paulus v. Bartrug (1996), 109 Ohio App.3d 796; Wangugi v. Wangugi (Apr. 12, 2000), Ross App. No. 2531; Ruby v. Ruby (Aug. 11, 1999), Coshocton App. No. 99CA4. When a party fails to request findings of fact and conclusions of law, we must presume the regularity of the trial court proceedings.
{¶ 41} Here, the record reflects that Rue‘s expenses for the children exceed Ward‘s. Moreover, Ward did not provide evidence of his own “child care expenses, school tuition, medical expenses, dental expenses, and any other expenses,” such that a 72% deviation is “mandated.” In fact, the trial court overruled Ward‘s motion to divide the childcare expenses еqually, but he did not appeal that issue.
{¶ 42} We acknowledge that the underlying premise in Ward‘s argument has a logical underpinning. In a shared parenting context where each parent has the children 50% of the time and each parent has nearly the same income and expenses, the final child support obligations should be nearly the same, i.e. result in a de facto offset . But hеre, Ward has failed to establish his expenses were the same as Rue‘s.
{¶ 43} Finally, Ward argues that the sole residential child support worksheet gives a credit to the primary residential parent for necessary household expenses.
{¶ 44} When we look at the child support worksheet, it appears that Ward‘s ultimate financial obligation equals about half of Rue‘s costs for day care and insurance after crediting Ward for his insurance expense. By giving appellant a 52% deviation, the trial court has made the parties’ obligations essentially equal, which is the purpose behind shared рarenting and the result Ward is seeking. In other words, the total documented expenses from lines 19 and 20 for both parents are $14,701.10 (mother‘s $14,057.86 + father‘s $643.24). Dividing that sum by two results in an annual obligation of $7,340.55, compared to the court‘s annual support order of $7,329.12. In light of this fact, we find neither a statutory nor constitutional violation exists in the absence of some specific evidence in the record to thе contrary.
{¶ 45} There being no abuse of discretion, we overrule Ward‘s “Statement of Issues” and affirm the judgment of the juvenile court.
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BROGAN, J. and FROELICH, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Michelle J. Gearhardt
Frank J. Patrizio
Hon. W. McGregor Dixon, Jr.