170 Ohio App. 3d 448 | Ohio Ct. App. | 2007
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *450 {¶ 1} Appellant, Jeffrey Varner, appeals the decision of the Wayne County Court of Common Pleas, which denied his motions for clarification and reconsideration and overruled his objections. This court affirms in part and reverses in part.
{¶ 3} The trial court held a hearing on appellant's claim and appellee's counterclaim on November 8, 2005. The magistrate issued his findings and decision on November 30, 2005. Both appellant and appellee filed objections to the magistrate's decision.
{¶ 4} On February 24, 2006, the trial court overruled the objections of both appellant and appellee except for the objections relating to the issues of healthcare coverage and day-care expenses, which were remanded to the magistrate for further review. On February 8, 2006, the magistrate issued a decision instructing appellant to file a copy of his proposed shared-parenting plan and allowing the parties to file supplemental trial briefs on the issues of health-care coverage and day-care expenses. The magistrate held a review hearing on March 6, 2006, and issued a decision from that hearing on March 8, 2006, recommending that the trial court adopt his prior findings and decision dated November 30, 2005. On March 9, 2006, appellant filed a motion for clarification and reconsideration and objections. On March 16, the trial court overruled appellant's motion. Appellant timely appealed the trial court's decision, setting forth four assignments of error for review.
The trial court erred in calculating the amount of child support that should be due and payable by miscalculating health insurance costs, day care costs and dental insurance costs.
{¶ 5} In his first assignment of error, appellant argues that the trial court erred in calculating the amount of child support he should receive by failing *452 to include the cost of day care for the parties' two minor children when completing the child-support worksheet.1 This court agrees.
{¶ 6} This court reviews matters involving child support under the abuse-of-discretion standard. Kellerv. Keller, 9th Dist. No. 04CA0084,
{¶ 7} The basic child-support schedule is codified at R.C.
{¶ 8} Pursuant to R.C. Chapter 3119 andMarker, a trial court must actually complete a child-support worksheet and make that completed worksheet a part of the record when it is making a child-support determination. Id. at 142, *453
{¶ 9} In the present matter, both appellant and appellee testified that the cost of day-care expenses for their two minor children was $180 per week. However, the trial court failed to include the $180 per week when completing the child-support worksheet. The trial court's failure to include the cost of day care for the parties' children when completing the child-support worksheet constitutes an abuse of discretion.Marker. Consequently, appellant's first assignment of error is sustained.
The trial court erred in ordering a deviation in child support when such deviation was not demonstrated to be in the best interest of the parties' minor children, was contrary to an agreement testified to by the parties and which left the plaintiff father, as custodial parent, unable to meet [the minor children's] daily needs.
{¶ 10} Appellant contends in his second assignment of error that the trial court erred in ordering a deviation in child support. Specifically, appellant argues that the deviation as computed by the trial court failed to allocate half of the day-care expenses for the parties' minor children to appellee. Due to this court's finding that the trial court erred in its initial computation of the parties' child-support obligations, we do not reach the merits of appellant's argument. However, appellant's second assignment of error is sustained in that the issue of whether a deviation in child support is warranted is remanded to the trial court for reconsideration upon its proper computation of child support.
The trial court erred in failing to provide plaintiff father his separate property claim and such determination by the trial court was contrary to the manifest weight of the evidence, contrary to law and an abuse of discretion.
{¶ 11} In his third assignment of error, appellant argues that the trial court erred in denying his request for a credit in the amount of $6,300 as an offset to labor he contributed to the construction of the marital residence, in the amount of $9,523 for money he contributed to the marital residence, and in the amount of $3,000 for payments appellant made on the marital residence during the pendency of the divorce. This court agrees with appellant's argument regarding the $6,300. *454
{¶ 12} The distribution of assets in a divorce proceeding is governed by R.C.
{¶ 13} This court has held that the "characterization of property as either marital or separate is a factual inquiry, and we review such characterization under a manifest weight of the evidence standard." Morris v.Morris, 9th Dist. No. 22778,
A. Appellant's separate-property claim in the amount of $6,300
{¶ 14} Appellant first argues that he is entitled to a separate property claim in the amount of $6,300 due to work he performed at the marital residence prior to the parties' marriage. Appellant did certain work, and in return, the contractor reduced the purchase price of the home by $6,300. This court agrees that appellant is entitled to a credit of $6,300 for the work he performed at the marital residence prior to the marriage.
{¶ 15} R.C.
{¶ 16} R.C.
{¶ 17} In the present matter, appellant performed worked on the marital residence before the parties were married.3 Appellee argues that appellant failed to show that the work he performed increased the value of the home by $6,300. *455 Therefore, appellee avers that the $6,300 reduction in the purchase price of the home constituted marital property. Appellant argues that the $6,300 reduction in the purchase price of the parties' marital residence is no different than if he had contributed $6,300 in cash towards the purchase of the home. Given the specific facts of this case, this court is persuaded by appellant's argument.
{¶ 18} To support her argument, appellee citesBizjak v. Bizjak, 11th Dist. No. 2004-L-083,
B. Appellant's separate-property claim in the amount of $9,523.
{¶ 19} Appellant submitted numerous exhibits showing purchases totaling $9,523. Appellant testified that the items purchased were used in construction of the marital residence. Appellant contends that the trial court erred in not declaring the $9,523 his separate property. Appellee testified that she assisted in the payment of these expenses.
{¶ 20} Pursuant to R.C.
{¶ 21} Appellant offered no evidence to support his claim that the money used to purchase the items totaling $9,523 came solely from his separate money. Therefore, the $9,523 is not traceable. Consequently, appellant's argument regarding the $9,523 fails.
C. Appellant's separate-property claim in the amount of $3,000
{¶ 22} On appeal, appellant argues that the court found that the mortgage on the marital residence was reduced by $3,000 during the pendency of the *456
divorce and that he was the only one who paid the mortgage payments during that time, so he should receive credit for doing so because he had to buy out appellee. However, the trial court characterized this as a cost of refinancing the marital residence and removing appellee from the mortgage and denied appellant's claim that this was a separate-property interest for which he should receive credit. After reviewing that record, it is clear that in his trial brief, appellant did request a $3,000 credit based upon the estimated cost of refinancing the marital residence. However, appellant failed to preserve this issue for appeal when he failed to address the magistrate's finding regarding his request in his objections to the magistrate's decision. Civ.R. 53(E)(3)(d) states that "[a] party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule." When a party fails to raise an issue in the party's objections to the magistrate's decision, it may not be raised for the first time on appeal.Carr v. Carr (Aug. 11, 1999), 9th Dist. No. 2880-M,
{¶ 23} Appellant's argument regarding his request for a credit in the amount of $6,300 is sustained. His arguments for credits in the amounts of $9,563 and $3,000 are overruled.
The trial court erred in its overall distribution of marital asset and debt, such determination being an abuse of discretion, contrary to the manifest weight of the evidence and contrary to law
{¶ 24} Appellant's fourth assignment of error is nothing more than a reiteration of his previous three assignments of error. This assignment of error is sustained in part and overruled in part consistent with this court's resolution of appellant's first three assignments of error.
Judgment affirmed in part and reversed in part, and cause remanded.
WHITMORE, P.J., and MOORE, J., concur.
