KYLE MICHAELS v. ASHLEY SAUNDERS
C.A. No. 14CA010604
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 10, 2015
[Cite as Michaels v. Saunders, 2015-Ohio-3172.]
HENSAL, Presiding Judge.
STATE OF OHIO COUNTY OF LORAIN ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13JG39766
Dated: August 10, 2015
HENSAL, Presiding Judge.
{¶1} Plaintiff-Appellant, Kyle M. (“Father“) appeals from the judgment of the Lorain County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} Father and Defendant-Appellee, Ashley S. (“Mother“), never married, but had two children together: K.L., born in July 2010, and A.L., born in July 2012. Father obtained legal custody of K.L. before A.L. was born. In August 2013, he sought custody of A.L. by way of a complaint for the allocation of the parties’ parental rights and responsibilities. The trial court held a custody hearing and ultimately awarded custody of A.L. to Mother. The court awarded Father standard visitation and ordered him to pay $280.32 per month in child support.
{¶3} Father now appeals from the trial court‘s judgment and raises two assignments of error for our review.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN NAMING THE DEFENDANT THE RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE PARTIES’ MINOR CHILD[.]
{¶4} In his first assignment of error, Father argues that the trial court erred by awarding Mother legal custody of A.L. We disagree.
{¶5} In determining the best interest of a child for purposes of allocating parental rights and responsibilities, a court must consider the factors listed in
{¶6} Father testified that he and Mother had a tumultuous relationship, due in large part to Mother‘s short temper. He testified that he had to call the police several times in 2010 and 2012 because Mother had either damaged his property or had acted erratically towards him. He indicated that he was concerned about A.L. remaining with Mother because Mother was mentally unstable and stopped caring for their children every time she got upset with him. According to Father, Mother told him that she was receiving treatment for a mental breakdown and threatened to suffocate their son on one occasion when she became angry. Nevertheless, he admitted that he frequently allowed Mother to care for their son, K.L. Although Father had custody of K.L., K.L. and A.L. spent most of their time together at either Father‘s or Mother‘s residence. Father claimed that he frequently allowed Mother to care for both children because it would only be for a few days at a time, and “she‘s not going to get aggravated within those two days.” According to Father, he would only be concerned with Mother watching the children for extended periods of time.
{¶7} Father‘s 13-year old cousin, his aunt, and a former neighbor of his and Mother‘s testified on his behalf. The neighbor testified that she saw Mother smoking marijuana while pregnant and always heard her yelling and the children crying. Father‘s cousin and aunt testified that Mother frequently screamed at the children and either kicked or threw objects when she became angry. Both testified that Mother sometimes neglected the children, but that Father kept his composure and made sure the children were well cared for. Even so, both admitted that they had not had the opportunity to observe Mother with the children for several months.
{¶8} Mother‘s sister and her paternal grandmother testified on her behalf. Both described Mother as a good mother who provided A.L. with a structured environment. They testified that Mother kept A.L. on a strict eating and sleeping schedule and never screamed or threw things. Both noted that Mother‘s relationship with Father caused her stress, but stated that Mother handled the stress in a healthy fashion. Additionally, they both described how much A.L. and K.L. enjoyed spending time with their cousins on Mother‘s side. Mother‘s sister, in particular, testified that she and her two young children visited Mother at least once a week so that all the children could play together.
{¶9} Mother denied that she ever screamed at her children or acted out physically when she became angry. She described herself as very patient with her children and testified that she did her best to teach them things like colors, shapes, and words. Mother testified that she kept the children on a strict eating and sleeping schedule and that she encouraged them to have a relationship with their cousins because all of the children enjoyed each other‘s company. Mother confirmed that she routinely took A.L. to the doctor and that she was up to date on all of her immunizations. Additionally, Mother stated that she was in good mental health and denied ever having suffered from a breakdown. Mother testified that she and Father had an understanding that their children should be together as much as possible, regardless of who had custody.
{¶10} Father argues that the trial court erred in its custody determination because it was not in A.L.‘s best interest to remain with Mother. He argues that the court failed to give proper weight to the harm A.L. would suffer if separated from her brother and placed “with an unstable mother.” He argues that there was a significant amount of testimony regarding Mother‘s temper
{¶11} Father‘s brief does not contain any citations to the record regarding the incident on which Mother allegedly kept K.L. from him, and the record contains sparse reference to such an incident. See
{¶12} The trial court outlined all of the best interest factors in its judgment entry and, after considering all the evidence, determined that Mother should be awarded custody of A.L. Having reviewed the record, we cannot conclude that the court abused its discretion in its custody determination. Both Mother and Father wanted to be named A.L.‘s legal custodian, and, at the time of the hearing, A.L. was too young to express her wishes or concerns to the court. See
{¶13} Father has not shown that the trial court‘s decision to award Mother custody of A.L. was arbitrary, unreasonable, or unconscionable. As such, his argument that the court erred in its custody determination lacks merit. His first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN CALCULATING CHILD SUPPORT IN THIS MATTER.
{¶14} In his second assignment of error, Father argues that the trial court erred in its child support calculation. Specifically, he argues that the court failed to afford him a deduction for the parties’ son, K.L., on line 8 of the child support worksheet. He further argues that the court erred by not imputing additional income to Mother when calculating her annual income.
{¶15} Generally, “child support is calculated using the worksheet provided in
{¶16} Line 8 of the child support worksheet allows for an adjustment of the parties’ incomes “for minor children born to * * * either parent and another parent who are living with this parent * * *.” (Emphasis added.)
[i]f other minor children who were born to the parent and a person other than the other parent who is involved in the immediate child support determination live with the parent, the court * * * shall deduct an amount from that parent‘s gross income that equals the number of such minor children times the federal income tax exemption for such children less child support received for them for the year, not exceeding the federal income tax exemption.
(Emphasis added.)
{¶17} Father argues that, because he has custody of K.L., the court erred when it did not afford him a deduction for K.L. on Line 8 of the child support worksheet.1 Yet, K.L. is the son of Father and Mother, not Father and another person. Because Line 8 of the worksheet only allows for a deduction when the child at issue is one born “to the parent and a person other than
{¶18} Next, Father argues that the court erred when it imputed income to Mother in the amount of $16,536 per year. He argues that the court should have imputed additional income to her because she admitted that she had earned $9 per hour at her last job.
{¶19} Mother testified that she held a job for five to six months before A.L. was born and that her job paid $9 per hour. She also testified, however, that she had not worked since A.L. was born. Mother stated that she currently had two job offers, but did not indicate what either of those two positions paid. There also was no testimony about her qualifications or level of education.
{¶20} As previously noted, the amount of income a trial court imputes to a voluntarily unemployed parent is a matter of discretion for the court. See Patton, 2014-Ohio-2862, at ¶ 13. The trial court determined that Mother was capable of earning minimum wage employment and imputed that amount to her. Father failed to set forth any evidence tending to show that Mother currently had an offer for a higher paying job, that there were higher paying jobs available in the area, or that Mother possessed any specific qualifications or job skills. See
III.
{¶21} Father‘s assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas, Domestic Relations Division, is affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CONCURS.
SCHAFER, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶22} I concur with the lead opinion‘s resolution of the first assignment of error. However, I respectfully dissent from its handling of the second assignment of error. Father and Mother have split parental rights and responsibilities, which required that the trial court use the
{¶23}
{¶24} I recognize that Father did not explicitly challenge the use of the sole parenting guideline worksheet in his briefing on the second assignment of error. However, he did specifically challenge the trial court‘s computation of child support, and the trial court‘s error in using the wrong worksheet constitutes plain error. Remedying such an obvious defect, as opposed to ignoring it, is consistent with this Court‘s special role in child support matters.
{¶25} Moreover, I do not believe that the lead opinion properly applies
{¶26} This allowance of deductions for children not specifically mentioned in
{¶27} But, Father is not asking for an exemption on line 8 for the child to which this support order pertains. Rather, he is seeking an exemption for a different child. The split parental rights worksheet properly contemplates that both parents receive credit for the children
{¶28} Consequently, I believe that the child support order should be reversed and the trial court should be instructed to properly give credit to Father for his responsibility over K.L. by either using the split parenting guideline worksheet or giving him a deduction for K.L. on line 8.3 Since the lead opinion fails to provide such instruction, I respectfully dissent as to the resolution of the second assignment of error.
APPEARANCES:
JEFFERY S. BROWN, Attorney at Law, for Appellant.
ROBERT CABRERA, Attorney at Law, for Appellee.