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Family Law – Child Support Modification Case
By admin | February 17, 2010
Irish v. Irish
2010-Ohio-403
Ninth District Court of Appeals
Lorain County
-Child Support
Mother/Appellant and Father/Appellee were granted an uncontested divorce on April 2, 2004. Pursuant to the Decree of Divorce, the Trial Court (“TC”) adopted a shared parenting plan and, subject to further order of the court, no child support was to be paid to either party. Reasons for the nonpayment of child support were enumerated in the Decree. At the time of the divorce, Father earned $42,000 while Mother earned $37,500.
In June of 2007, Father filed a motion to terminate shared parenting and for custody. Father’s motion was resolved by agreement of the parties. The parenting time schedule was altered and, due to Father’s increase in income to $42,054 and Mother’s decrease in income to $26,000, the parties agreed Father would pay Mother $158.14 in child support which represented an 80% deviation from the guidelines.
On September 5, 2008, Mother filed a motion to modify child support and for clarification of the ambiguities in the parties’ SPP. At the time of the hearing, Mother’s only source of income was unemployment compensation totaling $187 per week and Father’s income had increased to $51,000. After finding the requisite 10% change in circumstances, the magistrate determined, pursuant to the guidelines, that Father’s support obligation was $919.31 per month.
Despite Mother having demonstrated a change in circumstances (income decreasing from $26k to <10k), the Magistrate determined that because the parties had previously agreed to an 80% deviation that Mother’s substantial change in her economic situation was nonetheless not a legally relevant change in circumstances. The Magistrate applied an 80% deviation to the new child support order. The TC affirmed the Magistrate’s decision. Mother appealed.
In her first assignment of error, Mother contends that the TC erred in imputing income to her. In her second assignment of error, Mother argues the TC erred in deviating 80% from the child support guidelines. The Court of Appeals agreed with Mother in both assignments of error.
From the Opinion:
1st Assignment of Error
A trial court may impute income to a parent for purposes of calculating child support if it first makes the required finding that the parent to whom income is imputed is either voluntarily unemployed or voluntarily underemployed. Misleh v. Badwan, 9th Dist. No. 24693, 2009-Ohio-6949, at ¶7. See, also, Ramskogler v. Falkner, 9th Dist. No. 22886, 2006-Ohio-1556, at ¶13. (stating that the Supreme Court of Ohio has determined that R.C. 3119.01 must be complied with literally and further holding that the trial court must explicitly make a finding of voluntary un- or underemployment before imputing income). Thus, as our cases hold that the trial court is required to explicitly make a finding of voluntary under- or unemployment, if the trial court does not make that finding, it has incorrectly applied the law. Our review of the trial court’s application of the law is de novo. In re V.S., 9th Dist. No. 22632, 2005-Ohio-6324, at ¶6.
Here, the magistrate stated that she “considers [Mother] to be voluntarily unemployed[.]” However, the trial court found “[t]hat the Magistrate did not err in finding [Mother] to be voluntarily underemployed[.]” While the implication of the trial court’s statement is that it is finding Mother to be voluntarily underemployed, the statement nonetheless falls short of the explicit finding required by this Court’s jurisprudence. See, e.g., Misleh v. Badwan, 9th Dist. No. 24185, 2009-Ohio-842, at ¶¶6-8; Musci v. Musci, 9th Dist. No. 23088, 2006-Ohio-5882, at ¶17. A statement that the magistrate did not commit a legal error is not equivalent to making a specific factual finding. Musci at ¶17. Accordingly, we determine that the trial court committed reversible error because it incorrectly applied the law when it failed to make the express finding that Mother was voluntarily unemployed. Mother’s first assignment of error is sustained.
2d Assignment of Error
When modifying an existing child support order, the trial court must complete a child support worksheet and schedule. R.C. 3119.79(A). The resulting support obligation is rebuttably presumed correct. R.C. 3119.03. The trial court may enter a final support order that deviates from the amount as calculated in the worksheet and schedule if the trial court: (1) finds that the amount calculated is unjust or inappropriate; (2) finds that the amount calculated does not conform to the child’s best interest, and; (3) states findings of fact supporting the deviation from the amount calculated. (Citations omitted.) Maiorana v. Maiorana, 9th Dist. No. 08CA0016-M,
2008-Ohio-6179, at ¶7. The trial court must consider [those factors enumenrated in R.C. 3119.23 when determining whether a deviation is appropriate]. The trial court has discretion when considering the evidence presented relative [R.C. 3119.23]. However, because the trial court does not have the discretion to ignore those factors, it commits an error of law if it fails to consider the factors enumerated in R.C. 3119.23 for which evidence has been presented at trial. After determining that there was a change in circumstances warranting a modification of child support and the revised amount of child support payable to Mother pursuant to the child support guidelines, the court was then required to consider the above statutory factors in determining whether deviation from the presumptive guideline support was appropriate. R.C. 3119.22. However, in our review of the record, while there was evidence presented pertaining to many of the financial factors expressly contained in the statute, it is apparent that the magistrate and the trial court essentially found that the prior agreement to deviate was determinative of whether deviation was appropriate rather than considering the matter anew in light of all of the relevant statutory factors. Significantly, the magistrate concluded that the only “legally relevant” circumstance requiring re-evaluation of the 80% deviation would be a change in parenting time. The magistrate reasoned that because the parties had based the deviation upon Father’s extended parenting time and the parties’ parenting time had not changed1, it would be “clearly unjust, unfair, and not in the best interests of the children” to eliminate the 80% downward deviation. The trial court determined “[t]hat the Magistrate did not err in finding that the near eighty (80) percent downward deviation remains applicable due to the fact that no change in parenting time exists between the May 20, 2008 agreed journal entry and the present.” The trial court also found that “the Magistrate did not err in finding that the extended parenting time exercised by father continues and that it would be unjust, unfair, and not in the best interests of the children to not deviate from the child support worksheet guidelines.”
The record reflects that evidence was offered concerning numerous statutory considerations, including: (1) extended parenting time or extraordinary costs associated with parenting time; (2) disparity in income between parties or households; (3) benefits that either parent receives from remarriage or sharing living expenses with another person; (4) significant in-kind contributions from a parent; (5) the relative financial resources, other assets and resources, and needs of each parent; (6) the standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married. See R.C. 3119.23(D), (G)-(H), (J)-(L).
Mother provided unrebutted evidence that she had lost her job and was receiving unemployment compensation. Pursuant to the child support guideline worksheet, Mother’s annual unemployment income placed her at the federal poverty level. By contrast, Father’s income had increased. In addition, Father had remarried and his spouse was also employed and receiving child support for her child from a prior marriage. Notwithstanding the evidence presented related to many of the above factors, the court below determined that it was appropriate to center its analysis on the fact that the parties had previously agreed to a child support deviation in 2008 and that the children spend equal if not more time with Father. It concluded that it was in the minor children’s best interest “to maintain the integrity of the parties’ agreement” and thus to deviate to the same extent as previously agreed.
Although extended parenting time is one factor that the trial court must consider in evaluating whether guideline support is unjust, inappropriate, and not in the children’s best interest, we conclude that the trial court’s reasoning was flawed. Instead of considering extended parenting time in conjunction with the other enumerated factors, the trial court focused upon the parties’ prior agreement to deviate, in essence finding that because the parties had a prior agreement to deviate that was purportedly based upon equalized parenting time, it should hold the parties to their agreement. However, in focusing on the parties’ prior agreement and prior circumstances, the trial court failed to consider the parties’ present circumstances in conjunction with the statutory factors. Whether the parties have a prior contractual obligation to deviate is not among the specific factors set forth in R.C. 3119.23. As is evident by the factors enumerated in the statute, the inquiry is not whether it is fair to hold parties to a prior bargain; rather, the inquiry requires the court to evaluate all of the factors in light of the current circumstances of the parties. Thus, notwithstanding a prior agreement that took into account extended parenting time, in determining whether to deviate from the presumptive guideline support, extended parenting time was only one of many factors that the trial court was required to consider in evaluating the parties current circumstances. See R.C. 3119.23(A)-(P). Here, the trial court essentially focused on the parties’ prior agreement as being determinative of whether deviation was appropriate, notwithstanding the fact that Mother was living at poverty level and unable to meet the children’s needs and Father arguably had sufficient income to meet his needs. Further, many of the enumerated factors concern the relative financial circumstances of the parties and the needs of the children, thereby evidencing legislative intent to comprehensively consider the relative financial and economic situation of the parties. R.C. 3119.23(D)-(L), (O). For example, the statute requires the trial court to consider the physical needs of the children and the standard of living of each parent and the standard of living the children would have enjoyed had the marriage continued. R.C. 3119.23(M), (L). In the case at bar, it does not appear that the court gave due consideration to all of the relevant financial factors expressly enumerated in the statute. The record reflects a striking difference between Mother’s financial circumstances at the time of the May 2008 agreement and her financial situation at the time of the hearing, as well as a striking difference between Mother and Father’s incomes at the time of the hearing. Further, there was evidence that Mother was not able to adequately meet the needs of the children while in her home and that she was incurring credit card debt to subsist.
We acknowledge that in addition to the primary emphasis upon the parties’ prior agreement to deviate, the trial court made reference to additional expenses incurred by the Father. While these expenses can appropriately factor into the court’s analysis, we find that the court considered the prior deviation agreement and Father’s expenses to the exclusion of other specifically enumerated factors for which evidence was produced at trial. We further observe that the evidence adduced at the hearing revealed that both Mother and Father were making additional financial contributions to the children such as the purchase of uniforms or payment of extracurricular activities. For example, Mother testified that she had paid or would be paying fees for basketball, Cub Scouts, and band. Father also testified that he has paid some amounts for school field trips and Cub Scouts. Further, there was no evidence that Father was making any additional contribution to tuition for preschool, as was the case when the parties initially executed their separation agreement. Father did have an additional monthly expense of $138 for eighteen months after an initial down payment of $1070 for orthodontia, which he was obligated to pay pursuant to the parties’ shared parenting plan. In addition, because Father had remarried and elected to provide his spouse with medical insurance coverage there was no additional cost to cover the children. Father estimated that his monthly out-of-pocket expenses for the children’s healthcare were $75. Thus, although there was consideration of Father’s additional expenditures, we find that the trial court did not evaluate that factor along with the other factors it was required to consider as made relevant by the evidence.
{¶13}
After determining that there was a change in circumstances warranting a
modification of child support and the revised amount of child support payable to Mother
pursuant to the child support guidelines, the court was then required to consider the above
statutory factors in determining whether deviation from the presumptive guideline support was
appropriate. R.C. 3119.22. However, in our review of the record, while there was evidence
presented pertaining to many of the financial factors expressly contained in the statute, it is
apparent that the magistrate and the trial court essentially found that the prior agreement to
deviate was determinative of whether deviation was appropriate rather than considering the
matter anew in light of all of the relevant statutory factors. Significantly, the magistrate
concluded that the only “legally relevant” circumstance requiring re-evaluation of the 80%
deviation would be a change in parenting time. The magistrate reasoned that because the parties
had based the deviation upon Father’s extended parenting time and the parties’ parenting time
had not changed 1, it would be “clearly unjust, unfair, and not in the best interests of the children” to eliminate the 80% downward deviation. The trial court determined “[t]hat the Magistrate did not err in finding that the near eighty (80) percent downward deviation remains applicable due to
the fact that no change in parenting time exists between the May 20, 2008 agreed journal entry
and the present.” The trial court also found that “the Magistrate did not err in finding that the
extended parenting time exercised by father continues and that it would be unjust, unfair, and not
in the best interests of the children to not deviate from the child support worksheet guidelines.”
{¶14}
The record reflects that evidence was offered concerning numerous statutory
considerations, including: (1) extended parenting time or extraordinary costs associated with
parenting time; (2) disparity in income between parties or households; (3) benefits that either
parent receives from remarriage or sharing living expenses with another person; (4) significant
in-kind contributions from a parent; (5) the relative financial resources, other assets and
resources, and needs of each parent; (6) the standard of living and circumstances of each parent
and the standard of living the child would have enjoyed had the marriage continued or had the
parents been married. See R.C. 3119.23(D), (G)-(H), (J)-(L).
{¶15}
Mother provided unrebutted evidence that she had lost her job and was receiving
unemployment compensation. Pursuant to the child support guideline worksheet, Mother’s
annual unemployment income placed her at the federal poverty level. By contrast, Father’s
income had increased. In addition, Father had remarried and his spouse was also employed and
receiving child support for her child from a prior marriage. Notwithstanding the evidence
presented related to many of the above factors, the court below determined that it was
appropriate to center its analysis on the fact that the parties had previously agreed to a child
support deviation in 2008 and that the children spend equal if not more time with Father. It
concluded that it was in the minor children’s best interest “to maintain the integrity of the
parties’ agreement” and thus to deviate to the same extent as previously agreed.
{¶16}
Although extended parenting time is one factor that the trial court must consider
in evaluating whether guideline support is unjust, inappropriate, and not in the children’s best
interest, we conclude that the trial court’s reasoning was flawed. Instead of considering extended
parenting time in conjunction with the other enumerated factors, the trial court focused upon the
parties’prior agreement to deviate, in essence finding that because the parties had a prior
agreement to deviate that was purportedly based upon equalized parenting time, it should hold
the parties to their agreement. However, in focusing on the parties’ prior agreement and prior
circumstances, the trial court failed to consider the parties’ present circumstances in conjunction
with the statutory factors. Whether the parties have a prior contractual obligation to deviate is
not among the specific factors set forth in R.C. 3119.23. As is evident by the factors enumerated
in the statute, the inquiry is not whether it is fair to hold parties to a prior bargain; rather, the
inquiry requires the court to evaluate all of the factors in light of the current circumstances of the
parties. Thus, notwithstanding a prior agreement that took into account extended parenting time,
in determining whether to deviate from the presumptive guideline support, extended parenting
time was only one of many factors that the trial court was required to consider in evaluating the
parties current circumstances. See R.C. 3119.23(A)-(P). Here, the trial court essentially focused
on the parties’ prior agreement as being determinative of whether deviation was appropriate,
notwithstanding the fact that Mother was living at poverty level and unable to meet the
children’s needs and Father arguably had sufficient income to meet his needs. Further, many of
the enumerated factors concern the relative financial circumstances of the parties and the needs
of the children, thereby evidencing legislative intent to comprehensively consider the relative
financial and economic situation of the parties. R.C. 3119.23(D)-(L), (O). For example, the
statute requires the trial court to consider the physical needs of the children and the standard of
living of each parent and the standard of living the children would have enjoyed had the marriage
continued. R.C. 3119.23(M), (L). In the case at bar, it does not appear that the court gave due
consideration to all of the relevant financial factors expressly enumerated in the statute. The
record reflects a striking difference between Mother’s financial circumstances at the time of the
May 2008 agreement and her financial situation at the time of the hearing, as well as a striking
difference between Mother and Father’s incomes at the time of the hearing. Further, there was
evidence that Mother was not able to adequately meet the needs of the children while in her
home and that she was incurring credit card debt to subsist.
{¶17}
We acknowledge that in addition to the primary emphasis upon the parties’ prior
agreement to deviate, the trial court made reference to additional expenses incurred by the
Father. While these expenses can appropriately factor into the court’s analysis, we find that the
court considered the prior deviation agreement and Father’s expenses to the exclusion of other
specifically enumerated factors for which evidence was produced at trial. We further observe that
the evidence adduced at the hearing revealed that both Mother and Father were making additional financial contributions to the children such as the purchase of uniforms or payment of
extracurricular activities. For example, Mother testified that she had paid or would be paying
fees for basketball, Cub Scouts, and band. Father also testified that he has paid some amounts
for school field trips and Cub Scouts. Further, there was no evidence that Father was making any
additional contribution to tuition for preschool, as was the case when the parties initially
executed their separation agreement. Father did have an additional monthly expense of $138 for
eighteen months after an initial down payment of $1070 for orthodontia, which he was obligated
to pay pursuant to the parties’ shared parenting plan. In addition, because Father had remarried
and elected to provide his spouse with medical insurance coverage there was no additional cost
to cover the children. Father estimated that his monthly out-of-pocket expenses for the children’s
healthcare were $75. Thus, although there was consideration of Father’s additional expenditures,
we find that the trial court did not evaluate that factor along with the other factors it was required
to consider as made relevant by the evidence.
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