Johnson v. McConnellJohnson v. McConnell
Rendered on the 3rd day of December, 2010.
TERRY L. LEWIS, Atty. Reg. No. 0010324, 111 W. First Street, Suite 1000, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
DAVID P. MESAROS, Atty. Reg. No. 0012725, 7051 Clyo Road, Centerville, Ohio 45459
Attorney for Defendant-Appellee
FROELICH, J.
{¶ 1} Julie A. Johnson appeals from a judgment of the Montgomery County Court of Common Pleas, Domestic Relations Division, which reduced her former husband’s child support obligation, among other rulings. Johnson claims that the trial court erred in excluding Johnson’s daycare expenses in determining the modified amount of child support
I
{¶ 2} Johnson and John McConnell were married in October 2002, and one daughter was born from the marriage in June 2006. Johnson filed a Complaint for Divorce shortly after their daughter’s birth. On August 29, 2008, the trial court entered a Final Judgment and Decree of Divorce, which divided the parties’ assets, established a child support obligation of McConnell of $528 per month (plus additional payments on an arrearage), required Johnson to provide health and dental insurance, and determined how medical expenses would be divided; the parties waived spousal support.
{¶ 3} On March 11, 2009, McConnell filed a four-branch motion for an order finding Johnson in contempt and modifying visitation and child support. McConnell claimed that Johnson had failed to contact the CSEA and the court to advise them that she was now unemployed (Branch I), that his child support obligation should be reduced because Johnson no longer had work-related daycare expenses (Branch II), that visitation should be modified due to Johnson’s relocating “a considerable distance” from him (Branch III), and that he was entitled to attorney fees (Branch IV).
{¶ 4} On April 1, 2009, Johnson also filed a multi-branch motion for contempt. Branch I asserted that McConnell had failed to create a trust account for the benefit of their child and had failed to provide her (Johnson) with a year-end statement. Branch II asserted that McConnell had failed to prepare paperwork for her to sign in order to transfer her
{¶ 5} In May 2009, the parties filed an agreed entry as to several of the issues raised in their motions. McConnell withdrew his motion with respect to Johnson’s failure to notify CSEA, and Johnson withdrew her motion as to McConnell’s failure to establish a trust account, to transfer title to the vehicle, and her request for attorneys fees. The parties agreed that McConnell had overpaid child support in the amount of $1,182.48, and that his child support obligation should be lowered by $236.50 for five months to account for this overpayment.
{¶ 6} A hearing on the remaining issues was held before a magistrate on July 17, 2009, and the magistrate issued a decision on December 31, 2009. With respect to McConnell’s request for a reduction of child support, the magistrate found that Johnson’s claimed daycare expenses should not be included in the child support calculations. The magistrate reasoned that, “[w]hile mother claims that she spent between $6,000 and $7,000 annually on child care, there was insufficient income evidence to make a determination as to child care related expenses. Mother wishes that her current husband’s payment be used in the calculation of child support computation.” Using the child support computation worksheet, the magistrate calculated the child support to be $275 per month. The magistrate further ordered that the withholding amount be $39.50 ($275-$236.50) to account for the child support overage that McConnell had paid, and that McConnell pay monthly cash medical support of $65 because health insurance was not provided. The magistrate’s worksheet was attached to and incorporated into the magistrate’s decision.
{¶ 8} On May 28, 2010, the trial court overruled in part and sustained in part Johnson’s objections to the magistrate’s decision. With respect to the inclusion of daycare expenses in McConnell’s child support obligation, the trial court stated that it was “unable to determine the source of funds that paid for the daycare expenses. Therefore, the Court cannot find that plaintiff met her burden of proof regarding the payment of daycare expenses.” The court thus overruled Johnson’s objection to the exclusion of daycare expenses from the child support calculations. Consistent with the magistrate’s worksheet, the trial court reduced McConnell’s child support obligation from $528 per month to $275 per month per child. However, the court found that the adjustment to $39.50 per month based on the agreed overage was unreasonable, and it concluded that the magistrate erred in adding $65 as cash medical expense.
{¶ 9} Johnson appeals from the trial court’s judgment.
II
{¶ 10} Johnson’s sole assignment of error states:
{¶ 12} Johnson asserts that the trial court should have included her claimed daycare expenses in the calculation of child support and in completing the child support worksheet.
{¶ 13} “[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-Ohio-105. A court abuses its discretion when its decision is arbitrary, unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151.
{¶ 14} “In any action in which a court child support order is issued or modified ***, the court or agency shall calculate the amount of the obligor’s child support obligation 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.”
{¶ 15} Generally, the amount of child support that would be payable under a child support order, as calculated pursuant to the basic child support schedule and applicable worksheet through the line establishing the actual annual obligation, is rebuttably presumed
{¶ 16} Line 19 of the Child Support Worksheet set forth in
{¶ 17} Although Johnson’s primary argument is that the trial court failed to include her daycare expenses when calculating child support, Johnson appears to assert that the trial court committed reversible error by failing to complete a child support calculation worksheet. In rendering its decision modifying McConnell’s child support obligation, the magistrate completed the applicable child support worksheet and determined that “child support at guideline amount pursuant to
{¶ 18} We therefore turn to Johnson’s principal argument, namely that the trial court was required to include her child care expenses in calculating McConnell’s modified child support obligation and erred in failing to do so.
{¶ 19} Prior to the couple’s divorce in August 2008, Johnson was working and had gross income of $17,914, representing 55 percent of the couple’s income. Johnson had $7,287 in child care expenses, $3,755.67 of which was included in McConnell’s child support obligation.
{¶ 20} At the July 2009 motions hearing, Johnson testified that she became a full-time student at Sinclair Community College when the fall semester started in September 2008. She has not worked since becoming a student and expected to remain a full-time student for at least another year. Johnson uses a daycare in Enon for her daughter, and she pays $132 per week (which amounts to $6,864 per year) in daycare expenses. Johnson is required to pay for the daycare regardless of whether her daughter actually attends.
{¶ 21} On cross-examination, Johnson initially testified that she paid for her daughter’s daycare from her savings; she claimed that she had between $5,000 and $10,000
{¶ 22} Citing Varner v. Varner, 170 Ohio App.3d 448, 2007-Ohio-675, Johnson claims that the trial court was required to include her daycare expenses in calculating McConnell’s child support payment, because McConnell did not dispute the amount of her expenses, i.e., $132 per week. In Varner, both parents agreed that the cost of daycare was $180 per week, yet the trial court failed to include that amount in its child support calculations. The Ninth District reversed, holding that the trial court’s failure to include the cost of day care for the parties’ children when completing the child-support worksheet constituted an abuse of discretion.
{¶ 23} We do not find Varner to be persuasive. Unlike the present case, there was no suggestion in Varner that the parties contested the amount of child support that should have been used in the child support calculations. We do not read Varner to mean that the trial court must, in all circumstances, include the claimed cost of daycare. And, as stated above,
{¶ 24} We reached a similar conclusion in Daufel. In that case, the mother asserted that the trial court erred in failing to consider the actual daycare expenses in establishing the father’s child support obligation. The mother had claimed work-related child care expenses of $25,000 per year for the parties’ two children, representing the wages paid to a nanny who provided in-home care; no offset was made for the weeks during the summer months when the children visited with the father. The magistrate found that the claimed child care expenses were “excessive.” The magistrate reduced the adjustment to the mother’s income by half and allowed a further downward adjustment for the weeks the children were with their father. The total adjustment or deduction allowed by the magistrate was $11,347.07. The trial court agreed that the claimed expenses were excessive, and it adopted the magistrate’s decision.
{¶ 25} On appeal, we rejected the mother’s argument that the trial court abused its discretion because her child care expenses were work-related, and because neither the magistrate nor the court pointed to any evidence showing why they were excessive. We stated:
{¶ 26} “The magistrate considered the lesser amount that [the father] pays for daycare when the children are with him. Furthermore,
{¶ 27} In so stating, we made clear that a party is not entitled to automatically have all of the claimed daycare expenses included in the child support calculations and that the court may exercise its discretion in determining the appropriate amount. See, also, Wingard v. Wingard, Greene App. No. 2005-CA-09, 2005-Ohio-7066, ¶56 (affirming the trial court’s child support calculations and noting that, in completing child support worksheet, the trial court credited the father with “$3,859.20 in annual work-related child care expenses that are approved by the court,” which amounted to $80.40 less than the father had claimed).
{¶ 28} As in Daufel, the trial court in this case had the authority to exercise its discretion in determining whether to include Johnson’s claimed daycare expenses when calculating McConnell’s child support obligation. Johnson ceased her employment and, as of September 2008, has been a full-time student with no source of income. Based on her lack of income and savings, Johnson originally received State assistance with her education-related child care, resulting in daycare expenses of “almost nothing.” The record reflects that Johnson elected to obtain child care for her daughter at the cost of $132 per week, and that someone other than herself (likely her current husband) is paying that expense. Although it is undisputed that the daycare for the parties’ child costs $132 per week, the trial court was permitted to consider, within its discretion, whether Johnson was paying for the daycare from her own savings, income, or loans, and whether the amount of the daycare expense was reasonable under the circumstances.
{¶ 29} Johnson argues, however, that the trial court improperly concluded that daycare expenses did not need to be included when it could not determine the source of the
{¶ 30} In determining that it would not include Johnson’s daycare expenses, the trial court reviewed the evidence of Johnson’s daycare expenses and the source of payment of those expenses. The court then found that it “is unable to determine the source of funds that paid for the daycare expenses. Therefore, the Court cannot find that plaintiff met her burden of proof regarding the payment of daycare expenses.” Based on the trial court’s language, the court apparently found that, as a matter of law, Johnson was entitled to have her daycare expenses considered only if she could prove that she had paid for those expenses from her income or savings.
{¶ 31} We have found no authority, statutory or otherwise, requiring child care expenses to be paid directly from the parent’s income. See Saylor v. Saylor, Muskingum App. No. CT2008-0039, 2009-Ohio-3109, ¶10-12 (holding that the trial court did not abuse its discretion in using the total cost of daycare on the child support worksheet, even though child’s grandparents were currently paying all but $1,000 of the daycare costs). Although the source of funds to pay the daycare expenses may be considered by the trial court in the court’s exercise of its discretion, the fact that the parent may be receiving financial assistance from third parties for daycare expenses does not disqualify those expenses from inclusion in the child support calculation. The trial court erred when it found, as a matter of law, that Johnson had the burden of proving that she was paying any daycare expense that should be included in McConnell’s child support obligation.
{¶ 33} The assignment of error is sustained.
III
{¶ 34} The trial court’s judgment will be reversed, and the matter will be remanded for further proceedings.
WAITE, J., concurs.
GRADY, J., concurring:
{¶ 35} The court must calculate an obligor’s child support obligation in accordance with the applicable statutory worksheet.
{¶ 36} Julie A. Johnson is the sole residential parent of the parties’ minor child.
{¶ 37} The phrase “as approved by the court or agency” contemplates four determinations the court or agency must make: (1) that one of the parents incurs child care expenses, and, if so; (2) the annual amount of expenses incurred; (3) that the expense is work, employment training-, or education-related; and, (4) that the expense is reasonable in relation to the need for child care.
{¶ 38} It is undisputed that Johnson incurs child care expenses for the child of $132 per week of $6,854 annually. Johnson testified that she currently is enrolled in college, which supports a finding that the expense Johnson incurs is education-related. There is no claim that the amount of that expense is unreasonable in relation to Johnson’s need for child care.
{¶ 39} The domestic relations court declined to enter the annual child care expense Johnson incurs on line 19 because, as it found, the court could not determine the source of the funds Johnson uses to pay for her child’s daycare. The suggestion was made that those monies instead come from Johnson’s new spouse following her remarriage.
{¶ 40} The source of the funds that Johnson uses to pay the education-related child
{¶ 41} The domestic relations court nevertheless “has full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters.” In the exercise of that power, the court is authorized by line 27(a) of the
{¶ 42} The suggestion that Johnson’s new spouse pays the child care expenses Johnson incurs could permit the court to order a deviation from the amount of child support McConnell owes, on a finding that the cost of that child support is not an expense that Johnson bears personally, and that imposing an obligation on McConnell to pay a share of that cost would be inequitable. It appears that the court was concerned with that prospect when, instead, the court declined to credit Johnson with any expense at all on line 19.
{¶ 43} The problem with proceeding as it did, on the court’s finding that it could not determine the source of the funds that Johnson uses, is that on this record the court could
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Terry L. Lewis
David P. Mesaros
Hon. Denise L. Cross