Lopez-Ruiz v. BottaLopez-Ruiz v. Botta
Rendered on February 23, 2012
The Behal Law Group LLC, Robert J. Behal and Jeffrey A. Eyerman, for appellee.
Alejandro F. Botta, pro se.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
BRYANT, J.
{¶ 1} Defendant-appellant, Alejandro F. Botta (“father“), appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, ordering on remand from this court, that father pay child support in the amount of either $633.56 per month or $557.86 per month plus $93.67, depending on whether health insurance is in effect, a downward deviation of $200 from the amount calculated under the child support guidelines. Because the trial court did not abuse its discretion in so ordering, we affirm.
{¶ 2} Father and plaintiff-appellee, Carolina Lopez-Ruiz (“mother“), married in 1997; they have one child together, born on December 16, 2000. The parties divorced in Pennsylvania in 2004, and the Pennsylvania court ordered father to pay child support. In 2005, mother moved to Columbus; father currently resides in Boston, Massachusetts.
{¶ 3} On December 5, 2006, the Pennsylvania orders governing parental rights and responsibilities were registered in Ohio, and the parties agreed to the Franklin County Juvenile Court‘s exercising jurisdiction over the matter. Lopez-Ruiz v. Botta, 10th Dist. No. 10AP-610, 2011-Ohio-2414, ¶ 3. Following several motions for contempt and to modify parental rights and responsibilities, the parties on November 13, 2009 entered into a shared parenting plan that allocated parental rights and responsibilities and resolved the motions, except for the amount of father‘s child support payments.
{¶ 4} Under the shared parenting plan, mother is the child‘s residential parent for purposes of school placement, but for all other purposes both mother and father are custodial parents when the child is in each parent‘s care. The child resides primarily with mother. During the school year, father is allocated two weekends per month, with some flexibility allowed because father resides in Boston. In the summer, the child splits his time between the parties.
{¶ 5} The parties agreed to submit affidavits to a trial court magistrate to determine the unresolved child support issue. On February 10, 2010, the magistrate issued a decision that the trial court adopted on March 3, 2010. In the decision, the magistrate determined father‘s child support payments under the statutory child support guidelines were $833.56 per month when health insurance for the child is in effect, and $757.86 per month, plus $93.66 per month for medical support, when health insurance for the child is not in effect. The magistrate agreed, in part, with father‘s contention that for a variety of reasons the court should deviate downward from the guideline amount. After analyzing the factors in
{¶ 7} On father‘s appeal, this court concluded the trial court erred when, in determining whether a downward deviation in child support was warranted, it considered the costs associated with the child‘s private schooling. As this court noted, the shared parenting plan precluded the private schooling from being a factor in calculating child support. “[U]nable to determine what weight the trial court afforded this improper consideration,” this court reversed the trial court‘s decision and remanded the matter to allow the trial court to reconsider the deviation factors without the private school tuition and costs. Lopez-Ruiz at ¶ 11. This court declined to address father‘s remaining assignments of error, reasoning that any decision would be premature. Id.
{¶ 8} On remand, the trial court reiterated many of its findings but revised its decision to expressly state that it did not consider the costs associated with the child‘s private schooling in determining the necessity for, and degree of, any deviation from the amount specified in the child support guidelines. As a result of its reconsideration, the trial court modified father‘s child support payments downward by another $100, ordering him to pay $633.56 per month when health insurance is in effect, and $557.86 per month plus $93.67 for medical support, when health insurance is not in effect.
II. Assignments of Error
{¶ 9} Father again appeals, assigning the following errors:
First Assignment of Error
Juvenile Court Erred and Abused its Discretion by not Weighing in Dr. Botta‘s Visitation Expenses for his Travel between Boston and Columbus failing to apply
Second Assignment of Error
Magistrate and Trial Court Erred and Abuse[d] its Discretion by not Considering
Third Assignment of Error
Trial Court Erred by not Considering Cost of Living Differential between Boston and Columbus Failing to Apply
Fourth Assignment of Error
Trial Court Erred and Abused its Discretion by not Considering Dr. Lopez–Ruiz Financial Benefits from Re–Marrying and Moving in with her new Husband failing to apply
Fifth Assignment of Error
Trial Court Erred by Considering Dr. Lopez–Ruiz‘s “in-Kind Contributions” in the Child Support Calculation Misunderstanding the Intention of
Sixth Assignment of Error
Trial Court Erred and Abused its Discretion by not Considering the Circumstances of the Parties and the Needs of Dr. Botta for the Purpose of Child Support Calculation Failing to Apply
Seventh Assignment of Error
Trial court did not indicate the basis for its Child Support Calculation in sufficient detail to enable a reviewing court to determine whether the award is fair, equitable, and in accordance with the law.
{¶ 10} All of father‘s assignments of error contest the amount of the downward deviation from the child support payment calculated under the guidelines, contending he is entitled to a greater deviation. Father asserts the trial court erred because it failed to consider some evidence, improperly considered other evidence, and generally neglected to indicate the basis for its decision in sufficient detail.
{¶ 11} Father‘s claims focus on the statutory deviation factors in
{¶ 12} The amount of child support calculated using the basic child support schedule and the applicable worksheet is presumed to be the appropriate amount under
{¶ 13} Where the trial court in its discretion concludes deviation from the guideline-established obligation is appropriate, the decision will not be reversed absent an
IV. First, Second, Third, Fourth, and Sixth Assignments of Error—R.C. 3119.23 Factors
{¶ 14} The trial court expressly stated it considered all of the
A. First Assignment of Error - Extraordinary Costs Associated with Parenting Time
{¶ 15} Father‘s first assignment of error claims that the trial court abused its discretion when it “failed to properly weigh in $11,000 in Appellant [sic] travel expenses” pursuant to
{¶ 16} The shared parenting plan arguably addresses father‘s transportation expenses related to the exercise of his parenting time. It allocates “transportation expenses related to the regular parenting time” so that “[i]f Father travels to visit the child in the child‘s home state, Mother shall reimburse Father the amount of $250.00 per time * * * for no more than one trip per month.” (Shared parenting plan, 4.) The shared parenting plan also provides an alternative to father‘s traveling to Columbus, stipulating that “[t]he child may be transported unaccompanied on a direct or indirect flight when and if the parties agree that the child is mature enough, so long as said travel is allowable by law in the jurisdiction and conducted in accordance with pertinent air line rules and regulations.” (Shared parenting plan, 4.) Under the shared parenting plan, “if the child
{¶ 17} To the extent the shared parenting plan left room for further discussion of father‘s travel expenses in relation to his child support payment, the evidence indicates the court explicitly addressed the subject expenses and agreed that father incurs extraordinary costs in exercising his parenting time. The court recognized the elevated costs arose because the parties reside in different states, and it acknowledged father‘s affidavit listing $13,450.25 in travel expenses related to exercising parenting time in 2009.
{¶ 18} Father presents various alternative methods of calculating his child support obligation with greater emphasis on his travel costs, asserting the trial court failed to properly “weigh in” his travel expenses. Although father‘s expenses could have been given more or less weight, no mandatory method or formula controls the trial court‘s discretion in distributing such expenses. The trial court explicitly considered the economic impact of father‘s travel, and reversal is not appropriate simply because opinions may differ about the precise evidentiary weight to be given this factor.
{¶ 19} Finally, although father indisputably spends substantial money on travel, those costs do not defray or diminish the costs associated with the child‘s day-to-day care.
B. Second Assignment of Error-Actual Needs of the Child
{¶ 20} Father‘s second assignment of error contends the trial court did not consider evidence presented pursuant to
{¶ 21} Father cites Irish v. Irish, 9th Dist. No. 09CA009577, 2010-Ohio-403, ¶ 12, to buttress his position, but Irish addresses a different issue. Irish acknowledged “[t]he trial court has discretion when considering the evidence presented relative to the [
{¶ 22} Here, by contrast, the trial court cited the proper statutory law, specifically considered the deviation factors in
{¶ 23} Father nonetheless contends the trial court should not have believed mother‘s assertions regarding, among other things, her monthly budget. Father questions mother‘s “character and credibility,” especially concerning the veracity of her affidavit. Father asserts the trial court, instead of accepting mother‘s accounting, should have based its opinion on his affidavit and statistical research. (Appellant‘s reply brief, 3.)
{¶ 24} Ordinarily, the trial court, as the trier of fact, is the sole judge of witness credibility and, as such, may believe or disbelieve all or part of any witness’ testimony. Ruben v. Ruben, 10th Dist. No. 82AP-914 (July 26, 1983). A reviewing court is not permitted to substitute its judgment for that of the trial court in ruling on witness credibility. Id.; Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223 (1994), citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984). “Mere disagreement over the credibility of witnesses or evidence is not sufficient reason to reverse a judgment.” Hills v. Patton, 3d Dist. No. 1-07-71, 2008-Ohio-1343, ¶ 22, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202.
{¶ 25} Here, the dispute is once removed from the typical challenge to credibility, because the parties agreed that the matter be submitted to the magistrate on affidavits, which are less susceptible to credibility determinations and not subject to cross-examination. The parties having agreed to that procedure, father‘s challenge to mother‘s credibility is even more difficult and, as a result, unpersuasive.
{¶ 26} Moreover, to the extent father further argues the court erred when it “decided to take the Guidelines amount as a point of departure for Child Support calculation” instead of using his evidence, his argument fails. (Appellant‘s Brief, 13.) “Whether a court is establishing an initial child support order” or “modifying an order based on agreement between parties that does not include any order for the payment of child support, the court must apply the Child Support Guidelines as required by the standards set out in Marker v. Grimm (1992), 65 Ohio St.3d 139.” DePalmo at paragraph one of the syllabus.
{¶ 27} Marker, in turn, specifies that “[a] child support computation worksheet, required to be used by a trial court in calculating the amount of an obligor‘s child support obligation in accordance with
{¶ 28} Because the trial court did not abuse its discretion in refusing to apply father‘s affidavit as dispositive of the child‘s real needs, father‘s second assignment of error is overruled.
{¶ 29} Father‘s third assignment of error contends the trial court failed to apply
{¶ 30} Contrary to father‘s contentions, the record indicates the trial court not only explicitly in general weighed the relevant evidence regarding the relative differences in the cost of living between the cities, but also considered the actual standards of living of the parties in particular. The court found that both parents “appear to maintain a middle class standard of living,” but the difference in the cost of living between Boston and Columbus, and mother‘s remarriage and shared living expenses resulted in mother‘s ability to “maintain a higher standard of living.” (Amended Decision and Entry, 7.) The court acknowledged father‘s argument that “his standard of living is significantly lower than [mother]‘s, as he is unable to purchase a car and unable to complete dental treatment,” but also noted that “he is still able to purchase several expensive electronic toys for [the child] and many memberships to attractions, all of which are in addition to the substantial travel expenses he incurs for parenting time.” (Amended Decision and Entry, 7.)
{¶ 31} In an attempt to support his assertion that the trial court failed to address adequately the differences in the parties’ cost of living, father provides an alternative child support calculation pursuant to Booth v. Booth, 44 Ohio St.3d 142 (1989), suggesting the trial court should have used his net income, as opposed to his gross income, so as to lessen the cost of living difference. In Booth, the Ohio Supreme Court responded to the trial court‘s attempt to account for the difference in cost of living between the New York City area and Guernsey County, Ohio, by calculating the father‘s child support payment based on his net income rather than gross income. In determining the trial court did not abuse its discretion in so doing, Booth highlighted the importance of recognizing the flexibility trial courts enjoy under an abuse of discretion standard, noting “it is axiomatic that a trial court must have discretion to do what is equitable upon the facts and
{¶ 32} Simply because Booth determined the trial court did not abuse its discretion when it so modified the child support formula does not mean all trial courts must, or even should, do the same. The trial court in the present case was well within its discretion to utilize the “gross income” figure set forth in the guidelines. Father‘s third assignment of error is overruled.
D. Fourth Assignment of Error-Benefits from Remarriage and Cohabitation
{¶ 33} Father‘s fourth assignment of error alleges the trial court abused its discretion by not considering the benefits mother receives from her remarriage. Father suggests the trial court admitted the magistrate erred in not considering those facts but nonetheless refused to adjust the magistrate‘s ruling to correct the error.
{¶ 34} Contrary to father‘s suggestion, the trial court indicated only that the affidavits the parties submitted to the magistrate were unclear about whether mother resides in a home she rents or her husband owns. The trial court concluded that any error the magistrate committed in finding the home was rented was harmless because, “[i]n light of all of the other evidence, the decision would not change.” (Amended Decision and Entry, 7, fn. 1.) The trial court further conducted its own inquiry into the benefits mother receives from her current living situation and recognized mother shares expenses with her husband, “does not have a housing expense,” but is responsible for expenses related to the child, her car, her insurance, some of the household expenses, and expenses related to her second child.
{¶ 35} The “crux of
{¶ 36} Father‘s fourth assignment of error is overruled.
{¶ 37} Father‘s sixth assignment of error contends the trial court abused its discretion by not considering the relative resources of the parties and father‘s own financial needs pursuant to
{¶ 38} Applying
{¶ 39} Father concedes the court “accepted” the facts surrounding his current financial circumstances, but nevertheless asserts the trial court committed an abuse of discretion in accepting the “extremely different living conditions and financial situations but not weighing them in the Child Support Calculation.” (Appellant‘s brief, 12.) As evidence of mother‘s lifestyle, father contends mother was able “to afford a $14,000 dollar car during her first month at OSU; has always been able to afford the best lawyers—even when unemployed; has lived in comfortable housing; travels to Europe twice a year; and continues to save for her retirement.” (Appellant‘s brief, 12.)
{¶ 40} Voluntary expenses of one parent can be “particularly relevant if they [are] extravagant.” Cameron at ¶ 9. The expenditures father enumerates, however, are not extravagant for mother‘s financial and familial circumstances. Moreover, in discussing the parties’ standards of living, the court considered evidence regarding father‘s own discretionary purchases. Although noting the relative standard of living for mother is higher and father‘s financial condition has caused him to forego certain expenditures, including a car and dental work, the court observed that father nevertheless spent a significant amount of money on gifts for the child.
V. Fifth Assignment of Error—In Kind Contributions
{¶ 42} Father‘s fifth assignment of error contends the trial court improperly considered mother‘s in-kind contributions in its child support calculation. Father contends the trial court‘s decision reflects a misunderstanding of the intention of
{¶ 43} Father points to no case law supporting his proposition that
VI. Seventh Assignment of Error—Basis for Decision to Deviate
{¶ 44} Father‘s seventh assignment of error asserts the trial court did not sufficiently indicate the basis for its decision to deviate downward $200 from the guideline amount. Father presumably relies on the language of
{¶ 45} Contrary to father‘s contention, the trial court not only indicated it considered all of the statutory deviation factors but also explicitly detailed its reasoning for individual determinants. In addition, the trial court specifically acknowledged father‘s request for a deviation due to the travel expenses incurred in the exercise of father‘s visitation rights, the real needs of the child, the cost of living differential, the financial benefits mother received from re-marrying, and the circumstances of the parties and needs of father.
{¶ 46} In response, father contends the failure of the trial court to sufficiently review all of the evidence presented is reflected in “[f]ixed and formulaic expressions” stating that the court or magistrate “considered the procedure required under
{¶ 47} Father appears to expect the trial court to explain how it arrived at its total deviation by assigning a value or an amount to each deviation factor, but the statute does not demand the trial court do so. To the contrary, the statute provides “no set method for a court to employ to formulate a deviation.” Cameron at ¶ 15, citing Drzal v. Drzal, 7th Dist. No. 05 CO 31, 2006-Ohio-5230, ¶ 14. Accordingly, “a trial court‘s findings in
{¶ 48} Instead, the court sufficiently fulfilled its duty by considering all relevant evidence, articulating its reasoning as to each pertinent factor, and justifying its conclusion with the reasoning it articulated. Accordingly, father‘s seventh assignment of error is overruled.
VII. Unrelated Procedural Issue
{¶ 49} Father‘s reply brief raises a new procedural issue pertaining to Loc.R. 4 and attendance at mandatory mediation conferences. The record contains no evidence regarding this matter, and father did not raise it in the trial court. Accordingly, we decline to address the issue as part of this current appeal.
VIII. Disposition
{¶ 50} Having overruled father‘s seven assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
SADLER and CONNOR, JJ., concur.