Walker v. WalkerWalker v. Walker
Linda D. Cooper, Cooper & Forbes, 166 Main Street, Painesville, OH 44077-3403 (For Defendant-Appellee).
O P I N I O N
TIMOTHY P. CANNON, J.
{¶1} Appellant, Brian Walker, appeals from the February 26, 2010 judgment entries of the Lake County Court of Common Pleas, Domestic Relations Division, overruling the objections and adopting the magistrate‘s decision.
{¶2} Appellant and appellee, Michele Walker, were married in Ashtabula County, Ohio on September 2, 2000, and one child was born as issue of the marriage: B.W., d.o.b. June 19, 2001 (“minor child“). The parties separated on January 1, 2004.
{¶3} On October 31, 2005, appellant, a Lake County, Ohio resident, filed a complaint for divorce against appellee and a motion for visitation in the Lake County Court of Common Pleas, Domestic Relations Division, case No. 05 DR 000722. Appеllee did not file an answer or counterclaim to the complaint. Rather, appellee, a Maricopa County, Arizona resident, filed for a dissolution of marriage in April 2006 in the Superior Court of Arizona, Maricopa County, case No. FC 2006-002650. On May 8, 2006, appellee filed a motion in the Lake County case to quash service аnd dismiss the action for lack of jurisdiction. On May 12, 2006, the magistrate from Lake County ordered that unless appellant filed a response to appellee‘s motion, he would recommend that appellant‘s complaint be dismissed for lack of jurisdiction and/or failure to prosecute. Appellant complied with the magistratе‘s order and filed a response on May 30, 2006.
{¶4} On August 10, 2006, appellant filed an amended complaint for divorce. Appellee did not file an answer or counterclaim to the amended complaint. On January 9, 2007, appellee filed a motion in Lake County for sanctions, reimbursement, and spousal support. It was ultimately determined that matters of custody and parenting
{¶5} Trial commenced in Lake County before the magistrate on February 26, 2007. The parties agreed that neither would receive spousal support. On March 2, 2007, the magistrate submitted his decision, recommending, inter alia, the following: appellant is entitled to be granted a divorce on the grounds of incompatibility; appellant‘s PERS pension acquired during the marriage shall be divided equally; appellee removed $10,370 from her IRA without sufficient explanation as to what she did with the proceeds, which after taxes amounted to $8,296, and appellant is thеrefore entitled to an offset credit of $4,148; appellant did not seek permission of the court before canceling appellee‘s health insurance, therefore appellant shall pay appellee $633 which represents the mammogram bill incurred by appellee after the insurance was canceled; and each party shall pay his and her own attorney fees and one half of the court costs. No objections were filed. The trial court adopted the magistrate‘s decision and entered a final divorce decree on June 15, 2007.
{¶6} On May 8, 2008, appellant filed a motion in the Ashtabula County court to transfer the child supрort matter to Lake County, stressing that the case was spread throughout three different courts (Ashtabula and Lake Counties in Ohio, and Maricopa County in Arizona). Also on that date, appellant filed a motion in Ashtabula County to modify child support. On May 19, 2008, the Ashtabula County court granted appellant‘s motion to transfer the case to Lake County.
{¶7} On June 20, 2008, appellant filed an ex parte motion to accept jurisdiction over child support in Lake County. On June 23, 2008, the Lake County court accepted jurisdiction over the child support issues.
{¶8} On March 24, 2009, appellee filed a motion to modify child support and tax exemption.
{¶9} A hearing was held before the magistrаte on May 8, 2009.
{¶10} At that hearing, appellant, through counsel, voluntarily withdrew his pending motion to modify child support. The case proceeded on appellee‘s motion to modify child support and tax exemption. The parties stipulated that appellee‘s hourly rate of pay was $17.67 and appellant‘s hourly rate of pay was $19.45.
{¶11} According to appellant, he has lived at the same address in Lake County, Ohio for over 14 years with his 13-year-old son and is a city of Painesville employee. Appellant testified that he receives a Social Security death benefit of $400 per month for his son and claimed him as a dependent on his 2008 federal tax return. Appellant claimed the minor child, B.W., as a dependent in 2006. He indicated that he has health insurance for her through his employer. Appellant stated that his parenting time with the minor child is pursuant to the parties’ November 2007 agreement in the Arizona court, permitting him to have four visitations per year. He stated that he was not able tо see the minor child two of those times due to a lack of money.
{¶12} Appellee testified that she lives with her mother and the minor child in Arizona. Appellee has been employed full-time by Solutions Staffing for the past four years, but her hours were cut to 37.5 hours per week due to economic conditions. She indicated that she has takеn the tax exemption for the minor child for the past two years.
{¶13} Pursuаnt to his November 20, 2009 decision, the magistrate determined the following: appellant‘s present child support obligation for the minor child is $479.76 per month, and his recalculated amount is $534.35, more than ten percent greater; the effective date of the modified child support order was March 24, 2009, the date appellee filed hеr motion to modify child support; there was insufficient evidence presented regarding the enumerated factors set forth in
{¶14} On December 3, 2009, appellant filed objections to the magistrate‘s decision. Appellee filed objections on December 11, 2009. A hearing on the objections was held on February 2, 2010.
{¶15} Pursuant to its February 26, 2010 judgment entries, the trial court overruled the parties’ objections and adopted the magistrate‘s decision. The trial court ordered the following: appellant shall pay child support in the amount of $534.35 per month; heаlth insurance for the minor child shall be provided by appellant; the tax dependency exemption for the minor child shall remain as set forth in the Ashtabula County court‘s June 8, 2007 order, giving appellant the right to claim the minor child as
{¶16} “[1.] The trial court erred to the prejudice of Appellant by affirming the Magistrate‘s Decision that Appellant‘s child support obligation be increased.
{¶17} “[2.] The trial cоurt erred to the prejudice of the Appellant by affirming the Magistrate‘s failure to deviate child support downward based upon the circumstances of the parties and the minor child.
{¶18} “[3.] The trial court erred to the prejudice of the Appellant by affirming the Magistrate‘s failure to modify the tax dependency exemption so thаt Appellant be entitled to claim the minor child.”
{¶19} In his first assignment of error, appellant argues that the trial court erred by adopting the magistrate‘s decision, thereby increasing his child support obligation. Appellant stresses that appellee failed to provide competent, credible evidence regarding day cаre expenses and that the increase in child support is not warranted.
{¶20} A trial court‘s decision regarding child support will not be reversed by a reviewing court unless it is shown that the trial court abused its discretion. Pauly v. Pauly (1997), 80 Ohio St.3d 386, 390, citing Booth v. Booth (1989), 44 Ohio St.3d 142, 144. An abuse of discretion is the trial court‘s “‘failure to exercise sound, reasonable, and legal decision-making.‘” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, at ¶62, quoting Black‘s Law Dictionary (8 Ed.Rev.2004) 11.
{¶21} This court, in Mitchell v. Mitchell, 11th Dist. No. 2009-L-124, 2010-Ohio-2680, at ¶20-21, recently stated:
{¶22} “The purpose оf child support is to meet the needs of the minor children. Carnes v. Kemp, 104 Ohio St.3d 629, 2004-Ohio-7107, at ¶10. (Citations omitted.) ‘Generally, courts must use the Ohio Child Support Guidelines in ascertaining the appropriate level of child support. (***) However, a court may deviate from these guidelines at its discretion after considering the statutory factors delineated in
{¶23} “’
{¶24}
{¶25} “If an obligor or obligee under a child support order requests that the court modify the amount of support required to be paid pursuant to the child support order, the court shall recalculаte the amount of support that would be required to be paid
{¶26} In the case at bar, at the May 8, 2009 hearing, appellee indicated that the minor child is in day care after school and during summer due to her work schedule. She testified with regard to her work-related child care expenses for the minor child. Appellee alsо testified with respect to Exhibit D, which recited the day care rates for 2008. She stated that the rates had not increased for 2009. Appellee also produced her day care credit schedule for her tax return from 2007. The only testimony appellant had to rebut the foregoing was that he did not know if the minor child was in day care.
{¶27} We determine that appellee satisfied her burden that she incurred permitted day care expenses. As such, the trial court did not abuse its discretion in granting appellee‘s motion to modify child support.
{¶28} Appellant‘s first assignment of error is without merit.
{¶29} In his second assignment of error, appellant contends that the trial court erred by adоpting the magistrate‘s decision not to deviate child support downward based upon the circumstances of the parties and the minor child. Appellant alleges that
{¶30} “[U]nder
{¶31} In the instant case, appellant requested a deviation based on his travel expenses in his motion to modify child support; however, at the May 8, 2009 hearing before the magistrate, appellant, through counsel, voluntarily withdrew his pending motion to modify child support, and the matter proceeded on appellee‘s mоtion to modify child support and tax exemption. Further, we note that in the November 15, 2007 judgment entry of the Arizona court, the parties were ordered to equally divide the cost of the minor child‘s air travel. The Lake County magistrate, in his November 20, 2009 decision, and the Lake County court, in its February 26, 2010 judgment entry, made reference to the parties’ equal split of the minor child‘s transportation costs in determining not to deviate from the statutory child support calculation. Thus, because the parties were equally sharing the transportation costs, the failure to deviate does not constitute an abuse of discretion.
{¶32} Appellant‘s second assignment of error is without merit.
{¶33} In his third assignment of error, appellant maintains that the trial court erred by adopting the magistrate‘s decision not to modify the tax dependency exemption so that he would be entitled to claim the exemption for the minor child more often than once every third year.
{¶34}
{¶35} “Whenever a court issues, or whenever it modifies, reviews, or othеrwise reconsiders a court child support order, it shall designate which parent may claim the children who are the subject of the court child support order as dependents for federal income tax purposes as set forth in section 151 of the ‘Internal Revenue Code of 1986,’ 100 Stat. 2085, 26 U.S.C. 1, as amended. *** If the parties do not agrеe, the court, in its order, may permit the parent who is not the residential parent and legal custodian to claim the children as dependents for federal income tax purposes only if the court determines that this furthers the best interest of the children ***. In cases in which the parties do not agree which parent may claim the сhildren as dependents, the court shall consider, in making its determination, 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.”
{¶36} Although appellant maintains the trial court erred in its decision, we again note that he withdrew his motion. Appellant fails to show any evidence in the transcripts or magistrate‘s decision that would support a modification of the tax exemption. We do not find appellant affirmatively demonstrated that the trial court abused its discretion by
{¶37} Appellant‘s third assignment of error is without merit.
{¶38} Fоr the foregoing reasons, appellant‘s assignments of error are not well-taken. The judgment of the Lake County Court of Common Pleas, Domestic Relations Division, is affirmed.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.