Tuttle v. Tuttle, Ca2006-07-176 (12-17-2007)Tuttle v. Tuttle, Ca2006-07-176 (12-17-2007)
- Reporters:
- ,
- Before:
- Young, Walsh
{¶ 1} Defendant-appellant, Lorraine Tuttle, appeals from the judgment entry and decree of divorce and judgment entry and decree of shared parenting by the Butler County Court of Common Pleas, Domestic Relations Division. For the reasons outlined below, we affirm the decision of the trial court.
{¶ 2} Appellant and plaintiff-appellee, Gary Tuttle, were married in February 1993. During their marriage, they had two children, E.T. and H.T., born August 1993 and October
{¶ 3} The shared parenting plan filed with and incorporated into the decree provided that appellant would be the primary care provider for the two children. Appellee was granted parenting time on alternating weekends and one evening each week from 5:00 p.m. to 8:00 p.m., with 24-hour notice to appellant. The shared parenting plan also directed appellee to pay child support to appellant in the amount of $841.15 per month. Further, the shared parenting plan awarded appellee the right to claim both minor children as exemptions for income tax purposes.
{¶ 4} Appellant now appeals the court‘s decree and raises a number of issues for our review. Because appellant‘s brief fails to identify specific assignments of error, we have organized the issues raised into three categories and will address them accordingly.
SHARED PARENTING
{¶ 5} Appellant asserts that the trial court erred in adopting the shared parenting plan and failed to consider the best interest of the parties’ two minor children in allocating
{¶ 6} A trial court has broad discretion with regard to domestic relations cases, and such decisions will not be overturned absent a showing that the court has abused that discretion. Daw‘s v.Flickinger, 77 Ohio St.3d 415, 429, 1997-Ohio-260. The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The primary concern of the trial court when allocating parental rights and responsibilities is the best interests of the children involved.
{¶ 7} In this case, we find no abuse of discretion with regard to the shared parenting plan or the court‘s decision to condition the designation of custodial parent on residence within the Madison School District. The record in this case reveals that the court, in its decision and order, filed May 5, 2006 and incorporated into the decree of divorce and shared parenting plan, articulated the numerous factors to be considered in allocating parental rights and responsibilities, including those factors listed in
{¶ 8} Appellant has further failed to demonstrate any abuse of discretion with regard to the court‘s decision on the issue of the custodial parent. The transcript in this case demonstrates that both parties wanted the children to be able to stay in the Madison School District where they were currently attending school. Appellant agrees that the school district is a good school district, and in the event that neither parent resides within the school district, appellant remains the custodial parent for school purposes.
{¶ 9} We find no abuse of discretion in the court‘s allocation of parental rights and responsibilities and these assignments of error are overruled.
CHILD SUPPORT AND INCOME TAX EXEMPTION
{¶ 10} Appellant asserts that the trial court erred in calculating child support with regard to the income of the parties. Appellant argues that the trial court improperly exempted appellee‘s overtime wages when calculating his gross income and improperly reduced the amount of child support based on appellant‘s receipt of spousal support. Appellant argues that the trial court also improperly attributed more income to appellant than is reliably attainable. Further, appellant asserts that the court erred in awarding appellee the right to claim the children as exemptions for income tax purposes
{¶ 11} As above, the standard of review with regard to a trial court‘s decision on matters of child support is abuse of discretion. Booth v.Booth (1989), 44 Ohio St.3d 142. The same applies to the court‘s decision with regard to the award of the right to the tax exemption. See Rotte v. Rotte, Butler App. No. CA2004-10-249, 2005-Ohio-6269.
{¶ 12}
{¶ 13} “(D) When the court or agency calculates the gross income of a parent, it shall
{¶ 14} “(1) The yearly average of all overtime, commissions, and bonuses received during the three years immediately prior to the time when the person‘s child support obligation is being computed;
{¶ 15} “(2) The total overtime, commissions, and bonuses received during the year immediately prior to the time when the person‘s child support obligation is being computed.”
{¶ 16} Additionally,
{¶ 17} After a thorough review of the record in this case and the court‘s calculations in the child support worksheet, we find no abuse of discretion in the incomes attributed to the parties or the amount of child support awarded to appellant. The evidence presented in this case demonstrated that appellee had a base pay of $57,366.40. Appellee also presented evidence of his overtime pay for the previous three years, including $16,820.07, $21,087, and $14,284.03, with the last figure being from the most recent year. Because an average income based on these three years would be $17,397.33, the trial court used the lesser amount of $14,284.03 to calculate his adjusted gross income in the child support worksheet.
{¶ 18} Finding the average of his three previous years of overtime pay to be greater
{¶ 19} Additionally, the trial court properly calculated appellant‘s income. The evidence presented at the hearing demonstrated that appellant returned to work shortly after the parties separated. At the hearing, appellant testified that she was employed at a rate of $8.87 per hour, working 24 hours per week. Appellant also testified that she was cross-training to serve as a resident assistant and earned an additional $1 per hour when working those shifts. Appellant presented a pay stub reflecting $3,371.89 earned over a period of approximately ten weeks. In using that pay stub to extrapolate appellant‘s expected annual earnings, the court found, in its decision and order, that appellant generated an annual gross income of $17,534. The court used this calculation in the child support work sheet and then adjusted appellant‘s income to reflect the $10,000 annual spousal support award. Notably, the court did not find appellant to be voluntary underemployed and did not impute any potential income. The court merely extrapolated appellant‘s demonstrated income to determine an annual expectation. The court employed the proper procedures for calculating income and properly determined child support based on those calculations. We find no abuse of discretion in the court‘s determination with regard to the income of the parties or the award of child support.
{¶ 20} We further find no abuse of discretion in the award of the tax exemption to appellee.
{¶ 21} In determining the best interest of the children], “the court shall consider * * * any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.”
{¶ 22} The record in this case demonstrates that the trial court considered the factors identified in
PROPERTY DIVISION
{¶ 23} Lastly, appellant argues that the court erred in its determination with regard to division of personal property. Appellant asserts that certain household items were inequitably distributed. However, appellant does not specifically identify any particular items except to casually reference some items of bedroom furniture and unidentified appliances, which she argues should have been excluded from the property division.
{¶ 24} Again, a court‘s decision with regard to the division of marital property will not
{¶ 25} In this case, the record reveals that the court properly divided the separate and marital property in accordance with
{¶ 26} Initially, we note that the record does not reflect that appellant objected to the court‘s method for dividing the remaining household items by alternate selection. The parties were able to make some concessions regarding division at the hearing, but were unable to agree upon a division of all of the items. We find no abuse of discretion in the court‘s method of alternate selection as it was not arbitrary, unreasonable or unconscionable. Further, because appellant has failed to sufficiently identify any particular items which she claims were inequitably distributed, we are unable to find merit to her claim. Accordingly, appellant‘s assignment of error with regard to this issue is overruled.
{¶ 27} Judgment affirmed.
YOUNG, P.J., and WALSH, J., concur.