NORMAN A. KOVACH v. WENDY L. LEWIS
Case No. 11-COA-018
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 29, 2012
2012-Ohio-1512
Hon. Patricia A. Delaney, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Juvenile Division, Case No. 20840160. JUDGMENT: AFFIRMED.
For Appellant: BRENT L. ENGLISH, M.K. Ferguson Plaza, Suite 470, 1500 W. 3rd St., Cleveland, OH 44113-1422
For Appellee: DEBORAH E. WOODWARD, 1130 E. Main St., #187, Ashland, OH 44805
{1} Defendant-Appellant Wendy L. Lewis (“Mother“) appeals the May 19, 2011 judgment entry of the Ashland County Court of Common Pleas, Juvenile Division. Plaintiff-Appellee is Norman A. Kovach (“Father“).
FACTS AND PROCEDURAL HISTORY
{2} Mother and Father were in a romantic relationship and one child was born of the relationship on January 9, 2008. Mother alleged that before she became pregnant and after the birth of their child, Father orally agreed to pay one-half of the uninsured birth expenses. The parties’ relationship ended in June 2008.
{3} On September 12, 2008, Father filed a Complaint to Establish Parental Rights with a Plan for Shared Parenting requesting the trial court to enter a Shared Parenting order. By judgment on December 8, 2008, the parties agreed Father was the father of the child. The trial court set the matter for further proceedings to determine the allocation of parental rights and responsibilities.
{4} A hearing was held on March 2, 2009 on Father‘s Complaint for Parental Rights. At the time of the hearing, both parents were employed. Father was a STNA at Keystone Pointe and worked 37 1/2 hours per week, earning $9.75 per hour. Mother was a registered nurse and worked in disease management. She earned approximately $60,000 per year.
{5} The trial court issued its judgment on May 14, 2009. The trial court found it was in the best interests of the child that the court order shared parenting. Mother and Father were named the residential parents and legal custodians of the child. The trial court modified Father‘s proposed Shared Parenting Plan for the best
{6} The trial court ordered Father to pay $23.23 per week in child support.
{7} On July 23, 2009, Mother filed a pro se letter with the trial court requesting modification of the May 14, 2009 judgment entry as to the Parenting Schedule, Father‘s home environment, and child support. In her request for modification of the Parenting Schedule, Mother stated Father had obtained new employment on July 7, 2009. Father worked as a corrections officer with the North Central Community Institution located in Marion, Ohio. His work hours were from 10:00 p.m. to 6:00 a.m., with Wednesdays and Thursdays off.
{8} Based on the May 14, 2009 judgment entry, the trial court issued a Shared Parenting Decree and Plan on July 31, 2009. The Parenting Schedule and child support stated above were included in the Decree and Plan. Mother did not appeal the July 31, 2009 judgment.
{9} Mother submitted another pro se letter to the trial court on August 10, 2009 requesting modification of the Parenting Schedule.
{10} On January 15, 2010, Mother, through counsel, filed a Motion for Order requiring Father to pay half of the uninsured birth expenses and a Motion to Modify
{11} While Mother‘s motions were pending before the trial court, on February 10, 2010, Mother was charged with one count of child endangerment, a first-degree misdemeanor. Mother was charged after Mother left the two-year old child in her car while she was in the Ashland Wal-Mart for 29 minutes and 42 seconds. State of Ohio v. Wendy Lewis, 192 Ohio App.3d 153, 2011-Ohio-187 (5th Dist.), ¶ 6. A passerby notified the police when she observed the child alone in the vehicle crying loudly. Id. at 2. A jury found Mother guilty as charged. Id. at ¶ 11. Mother appealed the decision to this court and we affirmed. Id.
{12} Father filed a Motion to Modify Allocation of Parental Rights and Responsibilities on March 5, 2010. Father asked that he be designated the sole residential parent.
{13} The trial court held a hearing on the motions on July 12, 2010. At the hearing, Mother requested the trial court not terminate the Shared Parenting Plan, but modify the Plan to take into consideration the parties’ work schedules to determine the Parenting Schedule.
{14} The following evidence was adduced at the hearing. On January 21, 2010, Mother was laid off from her job and was now receiving unemployment in the amount of $1,700 per month. Mother received additional income from boarding and showing horses. Mother owns her home and the child has his own bedroom at the home.
{16} Mother testified her uninsured birth expenses were $5,402.08, which she has paid in full. Mother stated she and Father agreed to share in the birth expenses and Father has not paid his share.
{17} The trial court issued its decision on May 19, 2011. The trial court denied the motions to terminate the Shared Parenting Decree and Plan. Instead, the trial court modified the Plan incorporated into the Decree to have Father with the child from Tuesday at 6:00 p.m. to Friday at 6:00 p.m. on week two of his scheduled weeks. The trial court then calculated child support as $80.70 using the Child Support Computation Worksheet. The trial court deviated from the worksheet to set child support obligations of the parents at zero because the parents were with the child for an equal amount of time.
{18} The trial court also denied Mother‘s motion for birth expenses. The trial court found the evidence presented by Mother did not establish there was an agreement between the parties for Father to pay one-half the expenses. The trial
{19} It is from this decision Mother now appeals.
ASSIGNMENTS OF ERROR
{20} Mother raises three Assignments of Error:
{21} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER APPELLANT‘S REQUEST TO MAXIMIZE THE PARTIES’ SON‘S CONTACT WITH EACH OF HIS PARENTS BY ACCOUNTING FOR THEIR RESPECTIVE WORK SCHEDULES.
{22} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND APPLIED THE WRONG STATUTE TO COMPUTE CHILD SUPPORT IN THIS CASE.
{23} “III. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT‘S CLAIM FOR ONE-HALF OF THE UNINSURED BIRTH EXPENSES SHE INCURRED FOR THEIR SON HAD BEEN WAIVED OR WAS BARRED BY THE DOCTRINE OF LACHES.”
ANALYSIS
I.
{24} Mother argues in her first Assignment of Error the trial court erred when it modified the Shared Parenting Decree and Plan without taking into consideration the parties’ working schedules. She specifically argues the modification made by the trial court was not in the child‘s best interests because Father works nights. We disagree that the trial court erred.
{26} In this case, the trial court did not modify the designation of the residential parent. The trial court modified the allocation of parenting time. “The allocation of parenting time is a ‘term’ of a shared parenting plan[.]” Bishop v. Bishop, 4th Dist. No. 08CA44, 2009-Ohio-4537, ¶ 35 citing Herdman v. Herdman, 3rd Dist. No. 9-08-32, 2009-Ohio-303, ¶ 6. Pursuant to
{27}
- The wishes of the child‘s parents regarding the child‘s care;
- If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child‘s wishes and concerns as
to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; - The child‘s interaction and interrelationship with the child‘s parents, siblings, and any other person who may significantly affect the child‘s best interest;
- The child‘s adjustment to the child‘s home, school, and community;
- The mental and physical health of all persons involved in the situation;
- The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
- Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
- Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child * * *;
- Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
- Whether either parent has established a residence, or is planning to establish a residence, outside this state.
{29} A trial court enjoys broad discretion in custody proceedings. Cossin v. Holley, 5th Dist. No. 2006 CA 0014, 2007-Ohio-5258, ¶ 28 citing Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus. It has been held the appellate court reviews the merits of a trial court‘s modification of the terms of the Shared Parenting Plan through
{30} In modifying the Parenting Schedule to give Father an additional day with the child, the trial court made the following findings. The trial court found there had been a change of circumstances since the July 31, 2009 Shared Parenting Decree in that Mother had been charged with child endangerment in regard to this child. As to best interests, the trial court found there was no change of environment for the child because the child spent approximately half time with each parent.
{32} Upon review, we find no abuse of discretion in the trial court‘s determination there was a change in circumstances and it was in the best interests of the child to modify the Shared Parenting Plan and Decree as to the Parenting Schedule.
{33} Mother‘s first Assignment of Error is overruled.
II.
{34} Mother argues in her second Assignment of Error the trial court abused its discretion and applied the incorrect statute in computing child support. We disagree.
{36} A trial court has broad discretion related to the calculation of child support, and, absent an abuse of discretion, an appellate court will not disturb a child support order. Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997).
{37} The amount of child support calculated using the child support guidelines and worksheet is rebuttably presumed to be the correct amount of child support, although the trial court may deviate from that amount.
{38} Mother argues the trial court erred by utilizing
{39} We find any error by the trial court with the application of
{40}
{41}
{42} Under the Worksheet, the trial court calculated Father‘s child support obligation to be $4,196 per year. Mother‘s child support obligation was $2,956 per year. Mother argues the trial court erred in failing to consider Mother‘s local income taxes and giving Father credit for health insurance for the child and payment of child support to another child. Regardless of the trial court‘s calculations, the result in this case is that the trial court deviated from the Worksheet calculations considering the factors listed in
{43} Accordingly, we find the trial court did not abuse its discretion in calculating the amount of child support.
{44} Mother‘s second Assignment of Error is overruled.
III.
{45} Mother argues in her final Assignment of Error the trial court erred in denying her motion for Father to pay one-half of the birth expenses.
{46} Father filed a Complaint to Establish Parental Rights on September 12, 2008.
(A) The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.
* * *
(C) Except as otherwise provided in this section, the judgment or order may contain, at the request of a party and if not prohibited under federal law, any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the payment of all or any part of the reasonable expenses of the mother‘s pregnancy and confinement, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. * * *
{48} Mother filed her motion for birth expenses on January 15, 2010. Her motion is silent as to
{49} In the May 19, 2011 Opinion and Judgment Entry, the trial court found the evidence failed to establish there was an oral agreement to pay the birth expenses. There was no evidence Mother sought reimbursement from Father prior to filing the motion. The trial court also determined Mother waived her claim and/or the claim was barred by the doctrine of laches.
{50} The Ohio Supreme Court described the doctrine of waiver as follows:
A waiver is a voluntary relinquishment of a known right. State ex rel. Athens Cty. Bd. of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors, 75 Ohio St.3d 611, 616, 665 N.E.2d 202 (1996). It applies generally to all personal rights and privileges. Id., citing Sanitary Commercial Serv., Inc. v. Shank, 57 Ohio St.3d 178, 180, 566 N.E.2d 1215 (1991). Waiver assumes one has an opportunity to choose between either relinquishing or enforcing of the right. A waiver may be enforced by the person who had a duty to
perform and who changed his or her position as a result of the waiver. Andrews v. State Teachers Retirement Sys. Bd. (1980), 62 Ohio St.2d 202, 205, 16 O.O.3d 240, 242, 404 N.E.2d 747.
Chubb v. Ohio Bur. Of Workers’ Comp., 81 Ohio St.3d 275, 690 N.E.2d 1267 (1998).
{51} Laches has been defined by the Ohio Supreme Court as “an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party.” Connin v. Bailey, 15 Ohio St.3d 34, 35, 472 N.E.2d 328 (1984) quoting Smith v. Smith, 168 Ohio St. 447, 156 N.E.2d 113 (1959). Delay in asserting a right does not of itself constitute laches. Zartman v. Swad, 5th Dist. No. 02CA86, 2003-Ohio-4140, ¶ 51, citing Connin, supra, at 35-36. The decision of a trial court concerning the application of the equitable doctrine of laches will not be reversed on appeal in the absence of an abuse of discretion. Payne v. Cartee, 111 Ohio App.3d 580, 590, 676 N.E.2d 946 (4th Dist.1996).
{52} Issues of waiver and laches are “fact-driven.” Riley v. Riley, 5th Dist. No. 2005-CA-27, 2006-Ohio-3572, ¶ 27, citing Dodley v. Jackson, 10th Dist. No. 05AP11, 2005-Ohio-5490.
{53} In order for there to be a breach of an oral agreement, the party must first establish the existence of an agreement. The trial court found there was no evidence, other than Mother‘s testimony, of an oral agreement between Mother and Father for payment of the uninsured birth expenses. A judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). As found by the trial court, there was no evidence other than Mother‘s testimony of the existence of an agreement. The trial court is in the best position to determine the credibility of the witnesses.
{54} Finally, considering the doctrine of waiver and laches under
{55} We find the trial court‘s decision was supported by the evidence and was not an abuse of discretion.
{56} Mother‘s third Assignment of Error is overruled.
{57} The judgment of the Ashland County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
PAD:kgb
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
NORMAN A. KOVACH v. WENDY L. LEWIS
Case No. 11-COA-018
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
2012-Ohio-1512
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion on file, the judgment of the Ashland County Court of Common Pleas, Juvenile Division is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN