[Cite as Dawson v. Dawson, 2009-Ohio-6029.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              UNION COUNTY



TIMOTHY D. DAWSON,                            CASE NO. 14-09-08

   PLAINTIFF-APPELLANT,

  v.

STEPHANIE DAWSON,

   DEFENDANT-APPELLANT,                         OPINION

  and

JON STOUT,

   DEFENDANT-APPELLEE.


IN THE MATTER OF:                               CASE NO. 14-09-10

K.S.

[STEPHANIE DAWSON - APPELLANT,                     OPINION
TIMOTHY DAWSON - APPELLANT].


IN THE MATTER OF:                               CASE NO. 14-09-11

N.S.,

[STEPHANIE DAWSON - APPELLANT,                     OPINION
TIMOTHY D. DAWSON - APPELLANT].
Case No. 14-09-08




IN THE MATTER OF:                                   CASE NO. 14-09-12

T.S.,

[STEPHANIE DAWSON - APPELLANT,                        OPINION
TIMOTHY D. DAWSON - APPELLANT].



               Appeal from Union County Common Pleas Court
                              Juvenile Division
          Trial Court Nos. 200440051, 20630014, 20630015, 20630013

                            Judgments Affirmed

                    Date of Decision: November 16, 2009




APPEARANCES:

        Elizabeth N. Gaba for Appellants

        Gregg R. Lewis for Appellee




PRESTON, P.J.

        {¶1} Appellants, Timothy D. Dawson (hereinafter “Timothy”) and

Stephanie Dawson (f.k.a. Stephanie Stout)(hereinafter “Stephanie”), appeal the

judgment of the Union County Court of Common Pleas, Juvenile Division, which



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affirmed and adopted the magistrate’s decision. For the reasons that follow, we

affirm.

          {¶2} The procedural history of this case is long, convoluted, and involves

two different divisions of the Union County Court of Common Pleas. Appellee,

Jon Stout (hereinafter “Jon”) and Stephanie were married on December 2, 1989,

and during the marriage three children were born: Nathan (d.o.b. 10/15/1991),

Trevor (d.o.b. 12/02/1993), and Kylie (d.o.b. 4/26/1998). It is undisputed that

during the course of the Stouts’ marriage, Stephanie had an extra-marital affair

with Timothy, became pregnant, and gave birth to Nathan in October of 1991.

While a blood test taken during the Stouts’ marriage revealed inconclusive results

as to the paternity of Nathan, a subsequent DNA test (discussed below in further

detail) indicated that Timothy was the biological father of Nathan.

          {¶3} On September 1, 1998, Jon and Stephanie terminated their marriage

by dissolution decree, and a shared parenting plan was adopted pertaining to the

three children in the Union County Court of Common Pleas, Domestic Relations

Division. On May 7, 1999, Jon moved to modify the shared parenting plan; in

addition, sometime in May of 1999, Timothy and Stephanie were married. On

June 28, 1999, Stephanie moved to terminate the shared parenting plan and

reallocate their parental rights, in particular requesting to be named the sole

residential parent for the three children. Subsequently, on July 29, 1999, Jon also



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Case No. 14-09-08



filed a motion to terminate the shared parenting plan and for reallocation of

parental rights, specifically requesting to be named the sole residential parent for

the three children.

       {¶4} On August 31, 1999, Timothy filed a motion to be joined as a third

party to the dissolution for reallocation of parental rights and responsibilities. In

addition, on September 1, 1999, Timothy moved for a relief of the judgment from

the divorce decree pursuant to Civ.R. 60(B). Timothy’s motions were based on

his desire to be acknowledged as Nathan’s biological father. On September 17,

1999, the magistrate denied Timothy’s motions, terminated the shared parenting

plan, and adopted a new shared parenting plan. In particular, under paragraph 19

of the new plan, Timothy was joined as a party under R.C. 3109.051’s “significant

person” designation with respect to Nathan, and in exchange, Timothy agreed not

to file a paternity action, and all parties agreed not to reveal Nathan’s true

parentage to him until he reached the age of majority.

       {¶5} On April 28, 2000, Stephanie filed a Civ.R. 60(B) motion from the

judgment of the shared parenting plan entered into on September 17, 1999,

specifically requesting the trial court to set aside paragraph 19. On May 24, 2000,

Timothy also filed a Civ.R. 60(B) motion for relief from the September 17, 1999

judgment entry. On June 14, 2000, the magistrate overruled both Timothy and

Stephanie’s Civ.R. 60(B) motions for relief, but ordered that paragraph 19 be



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stricken from the plan, stating that Timothy Dawson was free to pursue a paternity

action in juvenile court. On June 30, 2000, the trial court adopted the magistrate’s

decision to excise paragraph 19 from the shared parenting plan, and as a result of

its excision, found Timothy’s Civ.R. 60(B) motion moot.

       {¶6} Subsequently, on June 22, 2000, Timothy Dawson filed a complaint

to establish paternity and allocation of parental rights and responsibilities in the

Juvenile Division of the Union County Court of Common Pleas. The juvenile

court bifurcated Timothy’s case: first, determining Timothy Dawson’s potential

paternity to Nathan; then second, determining any allocation of parental rights and

responsibilities Timothy may have with respect to Nathan.

       {¶7} Simultaneously, in the domestic relations court, Jon moved to

reallocate and terminate the shared parenting plan on August 30, 2000, and on

October 16, 2000, the magistrate terminated the shared parenting plan and made

Jon the sole residential parent and the legal custodian of all three children.

Stephanie filed objections to the magistrate’s decision on October 30, 2000, and

on January 8, 2001, a hearing was conducted by the domestic relations court on

Stephanie’s objections.

       {¶8} Back in the juvenile court, on March 1, 2001, based on the results

from a DNA test, the juvenile court magistrate found that Timothy was Nathan’s

biological father and that a father-child relationship did not exist between Jon and



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Nathan. This decision was adopted and approved by the juvenile court on March

2, 2001.

      {¶9} However, soon after the juvenile court’s decision, on March 8, 2001,

the domestic relations court issued a judgment entry on Stephanie’s objections,

essentially affirming the magistrate’s decision by terminating the shared parenting

plan and naming Jon the residential parent and legal custodian of the three

children. Stephanie appealed the domestic relations court’s decision to this Court

on April 6, 2001. On October 17, 2001, we reversed and remanded the case

concluding that, although the domestic relations court had listed numerous

changes in circumstances, it had failed to make the required specific finding that a

change in circumstances had occurred, and that it was in the best interest of the

children to terminate the shared parenting plan. No further appeal of the March 8,

2001 judgment entry was taken by either party.

      {¶10} Following the juvenile court’s decision regarding Timothy’s

paternity, hearings were conducted on the remainder of Timothy’s complaint (the

reallocation of parental rights). On April 27, 2001, after examining the evidence

and testimony, the juvenile court found, pursuant to the Ohio Supreme Court’s

decision in In re Perales (1977), 52 Ohio St.2d 89, 369 N.E.2d 1047, that Timothy

had abandoned Nathan and, thus, was an unsuitable parent. The juvenile court

then awarded Jon legal custody of Nathan, and visitation rights were afforded to



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Timothy and Stephanie. In addition, Timothy was ordered to pay child support for

the support of Nathan. Timothy then appealed to this Court, but only raised the

issue of whether the juvenile court had erred in finding that he had “abandoned”

Nathan. This Court affirmed the juvenile court’s decision on March 31, 2003.

       {¶11} We also note that prior to our decision on March 31, 2003, with

respect to Timothy’s appeal, this Court received a writ of prohibition from

Stephanie asking this Court to stop the domestic relations court from further

rendering orders with respect to Nathan claiming that the juvenile court had sole

jurisdiction over Nathan. This Court dismissed the writ on June 4, 2002, stating

that the two courts had concurrent jurisdiction since the domestic relations court

had specifically retained jurisdiction in its judgment entry.

       {¶12} Filings in both courts ceased until December 6, 2005, when Timothy

and Stephanie moved for an ex parte emergency order for custody of the three

children in the juvenile court. On January 6, 2006, the domestic relations court

certified the case to the juvenile court. On January 26, 2006, Stephanie and

Timothy were granted temporary custody of the three children, but on February

15, 2006, the children were returned to Jon.        On May 3, 2006, Nathan was

returned to the custody of the Stephanie and Timothy. Then, on May 12, 2006,

Jon filed a motion to reopen the issue of child support. The parties reached an

agreement on October 23, 2006, which was journalized as a magistrate’s decision



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on October 24, 2006, that named Timothy and Stephanie as the sole custodial and

residential parents of Nathan. The magistrate’s decision regarding the custody of

Nathan was adopted by the juvenile court on October 24, 2006. Hearings on the

issue of the reallocation of parental rights with respect to Kylie and Trevor, child

support, contempt of court, and attorney’s fees were conducted on October 23-25,

2006. On November 2, 2006, with respect to the custody of Kylie and Trevor, the

magistrate found that a change of circumstances did not exist which would warrant

a change in custody; and thus, the magistrate reinstated the domestic relations

court’s order issued on March 8, 2001 (which had declared Jon the residential

parent and legal custodian of Kylie and Trevor). This decision was adopted and

approved on November 13, 2006, by the juvenile court.

       {¶13} On November 7, 2007, the magistrate entered a decision with respect

to the issue of child support, contempt of court, and attorney’s fees. With respect

to the issues presented in this appeal, the magistrate found the following:

       1.     As the natural parents of Nathan, Timothy and Stephanie each
       had a separate duty to provide support for Nathan, whereas Jon, who
       was a non-parent/non-relative, did not bear such an obligation.
       2.     For purposes of any potential child support orders, Jon should
       not be considered voluntarily underemployed.
       3.     In its April 2001 order, the juvenile court had ordered
       Timothy to pay for child support for the care and benefit of Nathan
       and that the Child Support Enforcement Agency should conduct
       administrative proceedings to calculate child support. However, due
       to Timothy’s appeal on the April 2001 order, the administrative
       proceedings to calculate child support were stayed, and were never



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      re-initiated even after the order had been affirmed by this appellate
      court.
      4.      Despite the fact that neither party fully litigated the issue of
      Timothy’s child support prior to 2006, the stayed child support
      proceedings did not preclude the children from enjoying the support
      of their natural parents.
      5.      Timothy owed Jon child support for the benefit of Nathan
      from the date he filed his original paternity complaint (June 22,
      2000) until the date when Nathan was consistently and continuously
      removed from Jon’s custody (May 3, 2006).
      6.      Stephanie was obligated to pay child support for the care and
      benefit of Nathan pursuant to the March 8, 2001 domestic relations
      court order, but since Nathan was consistently and continuously
      removed from Jon’s custody, Stephanie’s obligation to pay for the
      child support of Nathan terminated effective May 3, 2006.
      7.      Because Jon was the sole residential and legal custodian of
      Nathan from 2000 until May 2006, he was to receive the tax
      dependency exemption for Nathan for 2000, 2001, 2002, 2003,
      2004, and 2005. Likewise, because Stephanie and Timothy were the
      named the residential and legal custodians of Nathan in 2006, they
      were to receive and share the tax dependency exemption for Nathan
      from 2006 and on: Stephanie receiving the exemption on the even-
      numbered years, and Timothy receiving the exemption on the odd-
      numbered years.
      8.      Stephanie was ordered to pay support for the care and benefit
      of Kylie and Trevor.

(Nov. 7, 2007 Mag. Dec.). Objections were timely filed by both Stephanie and

Timothy. In addition, on December 10, 2008, Stephanie and Timothy filed a

motion to retroactively and prospectively re-examine child support based on new

evidence they had discovered concerning an additional source of Jon’s income.

Ultimately, on March 31, 2009, the juvenile court issued a judgment entry

affirming the magistrate’s decision, and overruling Stephanie and Timothy’s

motion to re-examine child support.


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       {¶14} Timothy and Stephanie now appeal and present identical briefs to

this Court and the following six assignments of error.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO DETERMINE THAT THE LAW OF THE CASE
       FOR 98DR-0141, WHICH BECAME 20630014 UPON
       CERTIFICATION, WAS THAT JON STOUT WAS THE
       LEGAL FATHER OF NATHAN STOUT, WHILE THE LAW
       OF THE CASE FOR 20040051, WAS THAT TIM DAWSON
       WAS THE LEGAL FATHER OF NATHAN STOUT. AS
       SUCH, THE TRIAL COURT FAILED TO DETERMINE
       THAT NATHAN STOUT MAY HAVE TWO LEGAL
       FATHERS,      OR   MUTUALLY    EXCLUSIVE   LEGAL
       FATHERS, AND FAILED TO USE THAT DETERMINATION
       IN THEIR CONSIDERATION OF ISSUES IN THIS CASE,
       INCLUDING WHETHER THEY COULD RETROACTIVELY
       MODIFY A CHILD SUPPORT ORDER FOR 98DR-
       0141/20630014 OR PUT ON A CONFLICTING ORDER.

       {¶15} Even though it appears from the language in the assignments of error

that Stephanie and Timothy dispute the portion of the trial court’s judgment entry

that ordered Timothy pay child support to Jon, Stephanie and Timothy failed to

raise the issue of Timothy’s child support order in their briefs. Because Stephanie

and Timothy have failed to argue the issue of the child support order in these

assignments of error, and since their second assignments of error predominately

concerns the issue of the child support order, we will only address their arguments

as they were presented within their briefs.




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       {¶16} With that stated, essentially, in their first assignments of error,

Timothy and Stephanie argue that there are two inconsistent and contradictory

judgment entries in this case: two different courts have declared two different

individuals to be the “father” of Nathan. In addition, they argue that because the

juvenile court’s jurisdiction was limited to only prospective actions, not

retroactive actions, the juvenile trial court erred when it changed the domestic

relations court’s finding of parentage that Jon was the father of Nathan to finding

that Timothy was now Nathan’s father.

       {¶17} After the divorce decree was finalized in the domestic relations

court, on September 1, 1998, a shared parenting plan was adopted that named Jon

and Stephanie both the residential and legal custodians of the three children.

Later, in June and July 1999, Stephanie and Jon both filed motions in the domestic

relations court for reallocation of parental rights, and both sought to be declared

the three children’s sole residential and legal custodian. On August 31, 1999,

Timothy filed a motion to be joined as a third party to the dissolution for

reallocation of parental rights and responsibilities based on the premise that he was

Nathan’s biological father. While Timothy’s motion was not granted, he was

added in the modified parenting plan as a “significant person” under R.C.

3109.051; however, while this order granted Timothy visitation rights, it in no way

granted Timothy parental rights.      (June 14, 2000 Mag. Dec. at 6).          Soon



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afterwards, the domestic relations court excised the provision of the parenting plan

that pertained to Timothy, and declared that since Timothy did not have any

privity to the parties as it related to the divorce action in domestic relations court,

Timothy’s claim for paternity lay in juvenile court. (Id., citing State ex rel. Smith

v. Smith (1996), 110 Ohio App.3d 336, 674 N.E.2d 398; In re Mancini (1981), 2

Ohio App.3d 124, 440 N.E.2d 1232).

       {¶18} As a result, on June 22, 2000, Timothy filed a complaint in juvenile

court for the purpose of establishing paternity with respect to Nathan. Meanwhile,

the issue of the shared parenting plan between Jon and Stephanie was still

continuing in the domestic relations court. On October 16, 2000, the domestic

relations court magistrate terminated the shared parenting plan and made Jon the

sole residential parent and the legal custodian of all three children. Stephanie filed

objections to the magistrate’s decision on October 30, 2000, and on January 8,

2001, a hearing was conducted by the domestic relations trial court on Stephanie’s

objections.

       {¶19} Back in the juvenile court, on March 1, 2001, the juvenile court

magistrate found, as a result of DNA testing, that Timothy was Nathan’s

biological father, and that a father-child relationship did not exist between Jon and

Nathan. This decision was adopted and approved by the juvenile court on March

2, 2001, but on March 8, 2001, the domestic relations trial court issued a judgment



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entry on Stephanie’s objections essentially affirming the magistrate’s decision by

terminating the shared parenting plan and naming Jon the residential parent and

legal custodian. In its March 8, 2001 judgment entry, the domestic relations court

stated that, despite Timothy’s assertions that he was Nathan’s biological father, at

the time of the original dissolution hearing, the domestic relations court had found

all three children were born during the marriage of Stephanie and Jon, and

therefore, the children were presumed to be Stephanie and Jon’s children. (Mar. 8,

2001 JE).

       {¶20} Stephanie and Timothy claim in their briefs that once the domestic

relations court used the presumption of paternity to find Jon was Nathan’s father,

and no appeal was taken on that finding, the issue of Nathan’s father was finally

resolved under the doctrine of res judicata, and that the law of the case dictated

that Jon was Nathan’s father.      They argue that because the juvenile court’s

jurisdiction is limited to only prospective actions, not retroactive actions, the

juvenile trial court erred when it changed the domestic relations court’s finding of

parentage that Jon was the father of Nathan to finding that Timothy was now

Nathan’s father. We disagree.

       {¶21} The issue of Timothy’s parentage action with respect to Nathan was

not barred by res judicata, and was legitimately pursued in the juvenile court back

in 2000. The Ohio Supreme Court has held that the doctrine of res judicata can be



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invoked to give conclusive effect to a determination of parentage contained in a

dissolution decree or legitimation order. Gilbraith v. Hixson (1987), 32 Ohio

St.3d 127, 512 N.E.2d 956, syllabus. However, res judicata applies only where

there is an identity of issues and an identity of parties or persons in privity with

parties. Johnson v. Norman (1981), 66 Ohio St.2d 186, 190, 421 N.E.2d 124;

Payne v. Cartee (1996), 111 Ohio App.3d 580, 676 N.E.2d 946. Here, while the

domestic relations court in its March 8, 2001 judgment entry, found Jon was the

parent of Nathan under the statutory presumption in R.C. 3111.03(A)(1), Timothy

was never a party to the divorce proceedings, thus he was not bound by that

decision, and he was free to pursue his paternity complaint in juvenile court. Gatt

v. Gideon (1984), 20 Ohio App.3d 285, 485 N.E.2d 1059, paragraph one of

syllabus (holding that because the domestic relations court determined that the

child was an issue of the marriage, res judicata did not bar any action that the

natural father could file in juvenile court pursuant to R.C. 3111.04 and R.C.

3111.06(A) because he had not been a party to the divorce action.) See, also,

Leguillon v. Leguillon (1998), 124 Ohio App.3d 757, 767, 707 N.E.2d 571

(finding that a child was not precluded from bringing a paternity action under R.C.

Chapter 3111 to determine the existence or nonexistence of a father-child

relationship, because the child was arguably not a party to the original divorce




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action); Fitzpatrick v. Fitzpatrick (1998), 126 Ohio App.3d 476, 483-84, 710

N.E.2d 778.

       {¶22} Furthermore, it is clear that the juvenile court had jurisdiction to

decide the issue of paternity pursuant to R.C. 2151.23(B)(2), which gives the

juvenile court original jurisdiction to “determine the paternity of any child alleged

to have been born out of wedlock.” Here, Timothy sufficiently alleged in his

complaint that Nathan was “born out of wedlock” by stating that his conception

and birth resulted from his and Stephanie’s affair. (June 22, 2000 Compl. at 2).

This allegation was sufficient to have given the juvenile court proper jurisdiction

to hear the matter filed by Timothy. Nwabara v. Willacy (1999), 135 Ohio App.3d

120, 127, 733 N.E.2d 267, citing State ex rel. Willacy v. Smith (1997), 78 Ohio

St.3d 47, 51-52, 676 N.E.2d 109. Thus, on March 1, 2001, when the juvenile

court declared that Timothy was Nathan’s biological father, and that a parent-child

relationship did not exist between Jon and Nathan, and no appeal was taken on this

issue, this finding became, and has remained, legally binding.

       {¶23} We would also note that since August 31, 1999, when Timothy filed

a motion to be joined as a third party in the domestic relations court’s divorce and

shared parenting action, Timothy (and Stephanie) has continuously wanted to be

recognized as Nathan’s biological father and has actively sought to have parental

rights to Nathan. Timothy went so far as to establish his biological status by filing



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a complaint to establish paternity in the juvenile court, where he was eventually

proclaimed to be Nathan’s biological father.                        Even in the motions filed on

December 6, 2005, (in which Timothy and Stephanie moved for an emergency ex

parte order for custody of the three children and to be named Nathan’s sole

residential and legal custodian in the juvenile court), Timothy was still asserting

that he was Nathan’s father.                   Moreover, Timothy eventually received his

biological parental rights to Nathan when the juvenile court upheld the parties’

agreement that named Timothy and Stephanie the sole residential and legal

custodians of Nathan. Now on this appeal, presumably because of the current

judgment entry that ordered Timothy to pay child support to Jon (addressed in the

second assignment of error), Timothy and Stephanie are trying to claim that

Timothy is not really Nathan’s father, but rather Jon is Nathan’s father in the eyes

of the law because of contradictory judgment entries.                              Even if there were

inconsistencies between the domestic relations court and the juvenile court, we

find that after about ten years of litigating the issue of paternity, which was

predominately the result of Timothy and Stephanie’s efforts, the principal of

finality1 also weighs heavily in favor of upholding an otherwise valid juvenile



1
 “[f]inality requires that there be some end to every lawsuit, thus producing certainty in the law and public
confidence in the system’s ability to resolve disputes. Perfection requires that every case be litigated until a
perfect result is achieved. For obvious reasons, courts have typically placed finality above perfection in the
hierarchy of values.’ Finality is particularly compelling in a case involving determinations of parentage,
visitation and support of a minor child.” Strack v. Pelton (1994), 70 Ohio St.3d 172, 175, 637 N.E.2d 914,
quoting Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144-45, 493 N.E.2d 1353.


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court determination that Timothy is Nathan’s biological father.

       {¶24} Therefore, we find that the doctrine of res judicata did not bar any

action on the issue of Timothy’s paternity with respect to Nathan, and thus, despite

the domestic relations court’s finding that Jon was Nathan’s father in its March 8,

2001 order pursuant to the presumptions under R.C. 3111.03(A)(1), Jon was not

conclusively named Nathan’s father. In addition, when Timothy filed his paternity

action in the juvenile court and it declared that a parent-child relationship existed

between Timothy and Nathan, it was doing so pursuant to its statutory authority.

       {¶25} Timothy’s and Stephanie’s first assignments of error are, therefore,

overruled.

                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO FIND THAT JON STOUT IS ESTOPPED FROM
       ASKING FOR CHILD SUPPORT FROM TIMOTHY
       DAWSON DUE TO CLAIM PRECLUSION, ESTOPPEL,
       WAIVER, LACHES, RES JUDICATA AND INCONSISTENT
       POSITIONS, AND FURTHER FAILING TO FIND THAT
       ONLY A MOTHER IS ENTITLED TO RETROACTIVE
       CHILD SUPPORT IN A PATERNITY ACTION.

       {¶26} In their second assignments of error, Stephanie and Timothy argue

that the trial court abused its discretion when it found that Jon was not barred by

certain equitable doctrines from receiving child support from Timothy.             In

particular, Stephanie and Timothy claim that Jon’s right to receive child support

from Timothy was barred by the doctrines of estoppel, waiver, laches, claim


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preclusion, and inconsistent positions. In addition, they claim that Jon was also

not allowed to seek retroactive support from Timothy pursuant to R.C. 3111.15.

      {¶27} First of all, before we address the merits of the parties’ arguments,

we find that Stephanie does not have a legal interest in this assignment of error.

“It is well established in Ohio that an appeal lies only on behalf of a party

aggrieved. Such party must be able to show that he has been prejudiced by the

judgment of the lower court.” Love v. Tupman (1969), 19 Ohio St.2d 111, 113,

249 N.E.2d 794. See, also, Ohio Sav. Bank v. Ambrose (1990), 56 Ohio St.3d 53,

56, 563 N.E.2d 1388, fn 3. The appellant “has the burden of showing that his

rights have been adversely affected by the trial court’s judgment.” Ball v. Ball

(Dec. 30, 1994), 11th Dist. No. 93-P-0054, at *3. Here, even though Timothy and

Stephanie are currently married to each other, Stephanie and Timothy are two

separate legal parties in this action, and thus have different rights and have been

affected differently with respect to each assignment of error. While, in most of the

other assignments of error, Stephanie and Timothy have similar (if not the same)

interests, this particular assignment of error only concerns Timothy’s obligation to

pay child support to Jon.     Stephanie has always had a separate and distinct

obligation to pay child support to Jon, and in fact, she has paid her separate

obligation throughout the proceedings. Stephanie cannot show how the juvenile

court’s order to Timothy to pay child support to Jon has in any way affected or



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prejudiced her.     Thus, Stephanie cannot be considered an aggrieved party

regarding this assignment of error and her second assignment of error is without

merit. In re Jacobberger, 11th Dist. No. 2003-G-2538, 2004-Ohio-6937, ¶56

(finding appellant had failed to demonstrate how the juvenile court’s failure to

address appellee’s request for a recalculation adversely affected or prejudiced him,

thus appellant had no standing).

       {¶28} Therefore, Stephanie’s second assignment of error is overruled.

       {¶29} With respect to Timothy’s second assignment of error, we generally

review a trial court’s decision relating to child support, spousal support and

property division, under an abuse of discretion standard. Marsh v. Weston, 5th

Dist. No. 2007-CA00102, 2008-Ohio-1069, ¶19.            The Supreme Court has

repeatedly held the term abuse of discretion implies the court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 450 N.E.2d 1140.         When applying the abuse of discretion

standard, a reviewing court may not substitute its judgment for that of the trial

court. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 541 N.E.2d 597.

       {¶30} Essentially, this assignment of error stems from Timothy’s

complaint in juvenile court in June 2000, in which he sought to establish his

paternity to Nathan and additionally sought parental rights to Nathan.          The

juvenile court bifurcated his complaint and first established that a parent-child



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relationship did exist between Timothy and Nathan, before then proceeding on to

the issue of parental rights and child support.2 The juvenile court found that

Timothy had abandoned Nathan, and thus, was an unfit parent and not entitled to

parental rights; in addition, the juvenile court also ordered that Timothy pay

support for the care and benefit of Nathan. The juvenile court ordered that the

matter of child support be sent to the Child Support Enforcement Agency for

purposes of calculations.               However, Timothy appealed the juvenile court’s

judgment entry to this Court only alleging that the court had erred in determining

that he was an unfit parent. The proceedings concerning the issue of child support

were stayed below pending our decision.3 Subsequent to this Court affirming the

juvenile court’s judgment, the child support proceedings were never re-initiated,

and Timothy never paid Jon support for the care and benefit of Nathan during the

period of time when Jon was Nathan’s sole residential and legal custodian. The

matter eventually re-surfaced on May 3, 2006, when Nathan was returned to the

custody of Stephanie and Timothy, and on May 12, 2006, Jon filed a motion to


2
  The juvenile court noted that pursuant to R.C. 3111.13(C), the magistrate should have addressed the issue
of child support in the paternity portion of the case; nevertheless, the juvenile court found that the
magistrate was correct in stating that an adjudicated father in a paternity action may be found to owe a duty
of child support toward the child, and thus it was not error for the magistrate to have ordered Timothy to
pay support for the care and benefit of Nathan.
3
  We acknowledge that when we accepted and ruled on Timothy’s appeal, the issue of child support, which
had been part of the appealed judgment entry, was technically unresolved, and thus we ruled on what
appears to have been a non-final appealable order. Nevertheless, we did rule on the issues that were
presented before us at that time, which did not include the validity of the child support order, and the
parties failed to raise any objections to our decision. Thus, we find that the issue of the validity of the child
support order has now become law of the case. The issue with respect to the calculations of the child
support order is still a matter that this Court may review.


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Case No. 14-09-08



reopen the issue of child support.       The magistrate had the Child Support

Enforcement Agency calculate Timothy’s potential child support arrearages using

the parties’ (stipulated) income from 2000, 2003, and 2006, respectively. (Nov. 7,

2007 Mag. Dec.).     Because Jon had been aware of this Court’s decision in

Timothy’s paternity case and could have just as easily have brought the child

support issue to the agency’s attention prior to 2006, the magistrate decided to use

the parties’ income in 2000 as the basis for its child support calculations. (Id.).

The juvenile court consequently affirmed the magistrate’s decision and

calculations. (Nov. 7, 2007 Mag. Dec.); (Mar. 31, 2009 JE).

      {¶31} Timothy argues that the trial court abused its discretion in failing to

find that Jon’s claim for child support has been barred by the equitable doctrines

of estoppel, waiver, laches, or claim preclusion. (Timothy’s Brief at 18). He

claims that Jon has known as early as 1994 that he was not Nathan’s biological

father, thus he has known since then that he has had a right to child support from

Timothy. Timothy states that because Jon failed to raise his right to child support

during the divorce proceedings, he was precluded, estopped, waived the issue, or

was forbidden by laches to pursue such claims for support in juvenile court. We

disagree.

      {¶32} We find that the juvenile court’s finding was not an abuse of

discretion because Timothy failed to prove the essential elements of the equitable



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Case No. 14-09-08



defenses. The defenses of estoppel, waiver, and laches are closely related to each

other and the three are often asserted together. The elements of estoppel are: “(1)

a representation by the party to be estopped; (2) which communicates some fact or

state of affairs in a misleading way; (3) which induces reasonable, actual reliance

by the second party; (4) who would suffer prejudice or pecuniary disadvantage

unless the first party is estopped from an otherwise valid right in contradiction to

[his] earlier representation.” Myers v. Myers (2002), 147 Ohio App.3d 85, 92, 768

N.E.2d 1201, citing Johnson v. Franklin (1989), 64 Ohio App.3d 205, 210, 580

N.E.2d 1142 (emphasis added).

       {¶33} “Waiver is a voluntary relinquishment of a known right * * *

[which] applies generally to all personal rights and privileges.” Chubb v. Ohio

Bur. of Workers’ Comp. (1998), 81 Ohio St.3d 275, 278, 690 N.E.2d 1267

(citations omitted). A person can voluntarily relinquish a known right by words or

by conduct. State ex rel. Ford v. Cleveland Bd. of Edn. (1943), 141 Ohio St. 124,

47 N.E.2d 223. The person that owes the duty to perform may assert the defense

of waiver if he has changed his position as a result of another party’s voluntary

relinquishment of a known right.      Andrews v. Teachers Retirement Sys. Bd.

(1980), 62 Ohio St.2d 202, 205, 404 N.E.2d 747 (emphasis added).

       {¶34} “Laches is an omission to assert a right for an unreasonable and

unexplained length of time, under circumstances prejudicial to the adverse party.



                                       -22-
Case No. 14-09-08



It signifies delay independent of limitations in statutes. It is lodged principally in

equity jurisprudence.” Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 472 N.E.2d

328, quoting Smith v. Smith (1957), 107 Ohio App.3d 440, 443-44, 146 N.E.2d

454. Mere delay in asserting a right does not in and of itself constitute laches.

Rather, in order to succeed under the doctrine of laches, “it must be shown that the

person for whose benefit the doctrine will operate has been materially prejudiced

by the delay of the person asserting his claim.” Connin, 15 Ohio St.3d at 36,

quoting Smith v. Smith, (1959) 168 Ohio St. 447, 156 N.E.2d 113, paragraph three

of the syllabus (emphasis added).

       {¶35} After a review of the record, there is absolutely no evidence in the

record how Timothy would suffer prejudice, or how he changed his position, or

even how Timothy has been materially prejudiced by Jon’s action to seek child

support payments from Timothy. The fact that there was a delay from 2001 until

2006 alone is insufficient to constitute material prejudice.       Myers, 147 Ohio

App.3d at 92, citing Smith, 168 Ohio St. at 447. Timothy argues that he did not

have to show that he was materially prejudiced because he was precluded by the

decision of Merkel v. Doe (1993), 63 Ohio Misc.2d 490, 635 N.E.2d 70, from

attempting to establish paternity in the domestic relations court. Timothy claims

that Merkel stands for the proposition that “a putative father may not attempt to

infringe upon a family unit in an effort to bring a paternity action under R.C.



                                        -23-
Case No. 14-09-08



3111.04.” (Timothy’s Brief at 19). While that may be true with respect to the

domestic relations court proceedings, Timothy’s child support order to Jon was

issued by a valid juvenile court order in 2001 in response to his paternity action.

Until Timothy initiated the proceedings in the juvenile court and he was declared

to be Nathan’s biological father, he never had any court ordered duty to provide

support. Thus, in 2006, Jon was merely asking the juvenile court to enforce its

prior order. And when Jon filed his motion asking the juvenile court to enforce its

child support order, Timothy failed to offer any evidence as to how he would be

prejudiced, has been prejudiced, or has changed his position by Jon’s action.

Therefore, we find that the juvenile court did not abuse its discretion when it

found that Jon was not barred by estoppel, waiver, or laches from asking the

juvenile court to enforce its April 27, 2001 child support order.

       {¶36} In addition, Timothy claims that Jon was barred from seeking child

support from him under the doctrine of claim preclusion. “The doctrine of res

judicata encompasses the two related concepts of claim preclusion, also known as

* * * estoppel by judgment, and issue preclusion, also known as collateral

estoppel.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381, 653 N.E.2d

226. Claim preclusion prevents subsequent actions, by the same parties or their

privies, based upon any claim arising out of a transaction that was the subject

matter of a previous action. Fort Frye Teachers Assn., OEA/NEA v. State Emp.



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Case No. 14-09-08



Relations Bd. (1998), 81 Ohio St.3d 392, 395, 692 N.E.2d 140. Where a claim

could have been litigated in the previous suit, claim preclusion also bars

subsequent actions on that matter. Grava, 73 Ohio St.3d at 382. However, as we

stated above, Timothy was never a party nor in privity with anyone in Jon and

Stephanie’s divorce action in the domestic relations court; therefore, claim

preclusion is inapplicable and Timothy cannot claim Jon was barred from raising

the issue of child support later in juvenile court based on this theory. Smith, 110

Ohio App.3d at 341-42. See, also, Gatt, 20 Ohio App.3d 285, paragraph one of

syllabus; Leguillon, 124 Ohio App.3d at 767; Fitzpatrick, 126 Ohio App.3d at

483-84.

       {¶37} Next, Timothy claims that Jon’s claim is barred by another aspect of

the doctrine of res judicata, known as inconsistent position, which states that “a

party cannot be permitted to occupy inconsistent positions or to take a position in

regard to a matter which is directly contrary to or inconsistent with one previously

assumed by him.” Van Dyne v. Fidelity-Phenix Ins. Co. (1969), 17 Ohio App.2d

116, 127, 244 N.E.2d 752. However, Jon’s failure to assert his right to support

from Timothy in domestic relations court is not inconsistent with Jon’s request in

juvenile court to enforce its order on Timothy to pay support for Nathan, when

Timothy was never a party to the action in the domestic relations court and

paternity was established in juvenile court.



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Case No. 14-09-08



      {¶38} Finally, Timothy claims that according to R.C. 3111.15, only a

mother in a paternity action may acquire retroactive support. R.C. 3111.15 deals

with the enforcement of support orders, and in pertinent part provides:

      (A) If the existence of the father and child relationship is
      declared or if paternity or a duty of support has been
      adjudicated under sections 3111.01 to 3111.18 of the Revised
      Code or under prior law, the obligation of the father may be
      enforced in the same or other proceedings by the mother, the
      child, or the public authority that has furnished or may furnish
      the reasonable expenses of pregnancy, confinement, education,
      support, or funeral, or by any other person, including a private
      agency, to the extent that any of them may furnish, has
      furnished, or is furnishing these expenses.

(emphasis added). It is clear from the language of the statute that “any other

person” that furnishes expenses for the support of a child, may seek enforcement

of a support order against the adjudicated father.     Even though Jon was not

Nathan’s biological father, from 2001 until 2006 Jon was Nathan’s residential and

legal custodian, and as such, provided expenses for the care and benefit of Nathan

during those years. Thus, under the plain language of the statute, Jon was allowed

to enforce the juvenile court child support order against Timothy.

      {¶39} Therefore, Timothy’s second assignment of error is overruled.

      {¶40} We elect to address Stephanie’s and Timothy’s remaining

assignments of error out of the order they were presented.




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                      ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       OVERRULING THE DAWSON’S MOTION TO REEXAMINE
       CHILD SUPPORT WITHOUT NOTICE OF HEARING AND
       WITHOUT HOLDING AN EVIDENTIARY HEARING ON
       THE MATTER, AND BY FAILING TO CALCULATE
       STOUT’S $135,000 SETTLEMENT AS INCOME FOR CHILD
       SUPPORT PURPOSES.

       {¶41} In their fourth assignments of error, Stephanie and Timothy argue

that the trial court erred when it failed to hold a hearing on their “Motion to

Retroactively and Prospectively Reexamine, Recalculate, Reconsider and Modify

Child Support Based on Jon Stout’s Retroactive Settlement With the Logan

County Sheriff”; in addition, they argue that the trial court should have assessed

Jon’s settlement award as income in its calculation of child support.

       {¶42} Essentially, Stephanie and Timothy claim that they discovered new

evidence concerning an additional source to Jon’s income after the magistrate’s

decision was rendered. In particular, they discovered that Jon had been given a

settlement offer of $135,000.00 from the Logan County Sheriff’s Office. Once

they discovered this information, Stephanie and Timothy filed a “Motion to

Retroactively and Prospectively Reexamine, Recalculate, Reconsider and Modify

Child Support Based on Jon Stout’s Retroactive Settlement With the Logan

County Sheriff,” which raised the issue that Jon’s settlement should have been

calculated as part of his “income” in the child support worksheet and schedule. In



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Case No. 14-09-08



addition to their motion, they attached a copy of the settlement offer between Jon

and the Sheriff’s Office, along with various newspaper articles detailing the

progress and result of the parties’ settlement. While Stephanie and Timothy never

filed a motion requesting a hearing, nonetheless, they still argue that the trial court

erred by not holding a hearing on their motion, and its failure to hold such a

hearing violated their due process rights.

       {¶43} In its final judgment entry, the trial court treated Stephanie and

Timothy’s motion as a motion to recalculate and modify the child support order

based on an alleged one time monetary award given to Jon in a settlement with the

Logan County Sheriff’s Office. While the trial court indicated that Stephanie and

Timothy had failed to present any evidence on this issue, it did go on to find that,

“in any event such an amount would not be factored into a child support

calculation because it is not a recurring source of compensation. * * * A one time

lump sum payment would fall within the nonrecurring description of payment,”

which is specifically excluded from the definition of “gross income,” which is the

category that is submitted for the calculation of child support. (Mar. 31, 2009 JE

at 25-26).

       {¶44} We agree with the trial court that Jon’s $135,000.00 settlement does

not fall within the definition of “gross income,” but rather is excluded from the

calculation of child support because it is “nonrecurring or unsustainable income.”



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       {¶45} This particular assignment of error involves the question of

interpreting a statutory provision, thus, our review of a trial court’s interpretation

of a statute is conducted under a de novo standard of review since statutory

interpretation is a matter of law. State v. Wemer (1996), 112 Ohio App.3d 100,

103, 677 N.E.2d 1258. Therefore, we review the decision without deference to the

trial court’s interpretation. Id.

       {¶46} Under the prescribed child support worksheet and schedule pursuant

to R.C. 3119.02 to R.C. 3119.24, gross income is the basis for calculating the

standard child support amount, and includes the following:

       “Gross income” means, except as excluded in division (C)(7) of
       this section, the total of all earned and unearned income from all
       sources during a calendar year, whether or not the income is
       taxable, and includes income from salaries, wages, overtime pay,
       and bonuses to the extent described in division (D) of section
       3119.05 of the Revised Code; commissions; royalties; tips; rents;
       dividends; severance pay; pensions; interest; trust income;
       annuities; social security benefits, including retirement,
       disability, and survivor benefits that are not means-tested;
       workers’ compensation benefits; unemployment insurance
       benefits; disability insurance benefits; benefits that are not
       means-tested and that are received by and in the possession of
       the veteran who is the beneficiary for any service-connected
       disability under a program or law administered by the United
       States department of veterans’ affairs or veterans’
       administration; spousal support actually received; and all other
       sources of income. “Gross income” includes income of members
       of any branch of the United States armed services or national
       guard, including, amounts representing base pay, basic
       allowance for quarters, basic allowance for subsistence,
       supplemental subsistence allowance, cost of living adjustment,
       specialty pay, variable housing allowance, and pay for training


                                        -29-
Case No. 14-09-08



       or other types of required drills; self-generated income; and
       potential cash flow from any source.

R.C. 3119.01(C)(7). However, “gross income” does not include “nonrecurring or

unsustainable income or cash flow items,” which is more specifically defined as:

       an income or cash flow item the parent receives in any year or
       for any number of years not to exceed three years that the
       parent does not expect to continue to receive on a regular basis.
       “Nonrecurring or unsustainable income or cash flow item” does
       not include a lottery prize award that is not paid in a lump sum
       or any other item of income or cash flow that the parent receives
       or expects to receive for each year for a period of more than
       three years or that the parent receives and invests or otherwise
       uses to produce income or cash flow for a period of more than
       three years.

R.C. 3119.01(C)(7)(e), (8).       Here, Jon’s settlement with the Logan County

Sheriff’s Office, while presumably given to Jon in compensation for the income he

would have received had he not been fired, was still a one-time nonrecurring

payment that Jon had no expectation of receiving on a continued basis. Thus, the

$135,000.00 would not have been considered as “gross income” in calculating

child support; therefore, the trial court did not err in failing to add it into the child

support calculations.

       {¶47} Stephanie’s and Timothy’s fourth assignments of error are,

therefore, overruled.

                        ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO CORRELATE ITS ORDER REGARDING


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       RETROACTIVE AWARDS OF CHILD SUPPORT FOR
       NATHAN WITH A FINDING OF NATHAN’S PRESENT
       BEST INTEREST, AND BY FAILING TO ORDER CHILD
       SUPPORT FROM JON STOUT FOR NATHAN, AND BY
       FAILING TO CONSIDER THE OTHER CHILDREN’S BEST
       INTERESTS. NATHAN AND THE OTHER CHILDREN’S
       PRESENT BEST INTEREST WAS IGNORED BY THE
       TRIAL COURT.

       {¶48} In their third assignments of error, Timothy and Stephanie argue that

the trial court erred by not considering the best interest of the children when it

calculated the child support owed by each individual party with respect to all three

children. They claim that under R.C. 3119.02 it requires that child support be

calculated so that it is in the best interest of the children, not what is in the best

interest of the parents.

       {¶49} While we agree that R.C. 3119.02 states that child support orders

shall be calculated to be “in the best interest of the children,” there is a

presumption under R.C. 3119.03 that if the trial court uses the figures generated

from the prescribed child support worksheet and schedule, then the child support

will be presumed to be correct. Furthermore, only when the trial court deviates

from the figures generated from the child support worksheet is the trial court then

statutorily required to make a specific finding that the worksheet calculation was

unjust, inappropriate or would not have been in the best interest of the children.

R.C. 3119.22. However, there is no statutory requirement that the trial court make

reverse findings: that the amount of child support calculated through the


                                        -31-
Case No. 14-09-08



worksheet and schedule is just and appropriate, and is in the best interest of the

children. Lee v. Loos, 5th Dist. No. 2004 AP 02 0015, 2005-Ohio-254, ¶16. See,

also, R.C. 3119.22. Thus, there is a presumption that the amount calculated by the

worksheet and schedule is in the best interest of the children. Lee, 2005-Ohio-254,

at ¶16.

          {¶50} Here, the only dispute Stephanie and Timothy raised regarding the

trial court’s calculations of child support was with respect to Jon’s $135,000.00

settlement from the Logan County Sheriff’s Office.4 However, as we discussed

above, the $135,000.00 settlement does not fall under the category of gross

income, and thus, it was not to be included in the calculation of child support.

Therefore, because the trial court’s order of child support did not deviate from the

amount calculated through the requisite worksheet and schedule, and there is a

presumption that the amount calculated through the worksheet is correct, and

Stephanie and Timothy do not raise any viable issues with respect to the trial

court’s child support calculations, we find that the trial court did not err by failing

to find that the ordered amount of child support was in the children’s best

interests.




4
  In fact, this Court notes that during the October 2006 hearings, all of the parties stipulated to the figures
submitted and used by the juvenile magistrate for purposes of calculating child support, including the fact
that Jon was currently making less than his previous income at the Logan County Sheriff’s Office. (Oct.
24, 2006 Tr. at 128-30); (Oct. 25, 2006 Tr. at 184).


                                                    -32-
Case No. 14-09-08



       {¶51} Timothy’s and Stephanie’s third assignments of error are, therefore,

overruled.

                       ASSIGNMENT OF ERROR NO. V

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO FIND JON STOUT VOLUNTARILY
       UNDEREMPLOYED.

       {¶52} Under their fifth assignments of error, Stephanie and Timothy argue

that the trial court abused its discretion when it found that Jon was not voluntarily

underemployed. Essentially, they claim that the events which surrounded Jon’s

termination from the Logan County Sheriff’s Department stemmed from Jon’s

voluntary actions, and that the trial court should have found that his misconduct

caused his underemployment.

       {¶53} In calculating child support, a trial court is permitted to impute

income to a parent when the parent is voluntarily unemployed or voluntarily

underemployed. Synder v. Synder, 5th Dist. No. 2008CA00219, 2009-Ohio-5292,

¶29, citing R.C. 3119.01(C)(11). See, also, Inscoe v. Inscoe (1997), 121 Ohio

App.3d 396, 424, 700 N.E.2d 70, citing Rock v. Cabral (1993), 67 Ohio St.3d 108,

616 N.E.2d 218, syllabus. In determining whether an individual is voluntarily

underemployed or unemployed, the trial court must determine not only whether

the change was voluntary, but also whether it was made with due regard to their

income-producing abilities and their duty to provide for the continuing needs of



                                        -33-
Case No. 14-09-08



the child. Synder, 2009-Ohio-5292, at ¶29, quoting Farrell v. Farrell, 5th Dist.

No. 2008-CA-0080, 2009-Ohio-1341, ¶20.           Whether a parent is voluntarily

unemployed or underemployed is a determination within the trial court’s

discretion and will be upheld absent an abuse of discretion. Rock, 67 Ohio St.3d at

112, applying former R.C. 3113.215. An abuse of discretion is more than an error

of law or judgment; rather, it implies that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.

       {¶54} Hearings on the issue of child support were held on October 24 and

25, 2006. There was little testimony regarding the issue of Jon’s termination at the

Logan County Sheriff’s Office and his subsequent employment at Crazy Scott’s.

There was testimony about allegations that Jon had engaged in an inappropriate

relationship with a minor, and that criminal charges had been filed as a result of

these allegations; however, there was no proof that any of these allegations were

true or that they resulted in any convictions. (Oct. 23, 2006 Tr. at 95-98); (Oct.

24, 2006 Tr. at 90-105). In fact, there was evidence that some of the charges were

dismissed against Jon. (Oct. 24, 2006 Tr. at 52). Moreover, while Jon admitted

that he had been fired from the Logan County Sheriff’s Office for insubordination

and dishonesty, which stemmed from his refusal to take a polygraph examination,

he continually denied that his termination by the Logan County Sheriff’s Office

was the result of his own actions or conduct. (Oct. 23, 2006 Tr. at 40-46); (Oct. 24,



                                        -34-
Case No. 14-09-08



2006 Tr. at 49); (Oct. 25, 2006 Tr. at 179-81). In addition, because he believed

that his termination was not the result of his conduct or actions, he was fighting his

former employer about the issue in civil court. (Oct. 25, 2006 Tr. at 179-81). And

as the parties all agree in their briefs, this fight with the Logan County Sheriff’s

Office on the issue of his wrongful termination, eventually resulted in a settlement

offer by the sheriff’s office to Jon for $135,000.00.

       {¶55} In its decision, the juvenile magistrate found that Jon currently

worked at Crazy Scott’s, earning $14.00 per hour, working forty hours per week,

52 weeks per year, for a total of $29,120.00. In its calculation of child support, the

juvenile magistrate took Jon’s annual gross income and added $3,780.00 in

overtime and bonuses, which he had earned through his employment at Crazy

Scott’s. In addition, the juvenile magistrate found that “Jon Stout should not be

considered voluntarily underemployed as a result of his termination from the

Logan County Sheriff’s Office and subsequent employ[sic] at Crazy Scott’s.”

(Nov. 7, 2007 Mag. Dec.)

       {¶56} Stephanie and Timothy objected to the juvenile magistrate’s finding

arguing that Jon’s income should have been based on his prior income, which was

higher at the Logan County Sheriff’s Office, rather than his income at Crazy

Scott’s. They argued that it was irrelevant whether Jon was ultimately convicted

because it was through his own voluntary actions (his choice to have improper



                                        -35-
Case No. 14-09-08



conduct with a minor) that lead to his subsequent termination. The trial court

found that Stephanie and Timothy had failed to present any evidence that Jon was

ever found guilty and incarcerated for any criminal conduct; rather, the trial court

stated that the evidence in the record indicated that that Jon’s income was

involuntarily reduced. (Mar. 31, 2009 JE at 5-6). Thus, it concluded that the

juvenile magistrate did not err in finding that Jon was not underemployed, and that

his then current salary at Crazy Scott’s was the appropriate figure to use in the

child support calculations. (Id.).

        {¶57} After a review of the record, we find that the trial court’s finding that

the evidence failed to demonstrate that Jon was voluntarily underemployed was

reasonable and not an abuse of discretion. While Stephanie and Timothy argue

that Jon’s termination from the Logan County Sheriff’s Office was the result from

his voluntary decision to engage in an inappropriate relationship with a minor,

there is absolutely no evidence in the record that these allegations were true.5

Conversely, there is evidence that Jon’s termination from the Logan County

Sheriff’s Office was anything but voluntary: he continually denied the validity of

the allegations, and he filed a civil law suit against his former employer for

wrongful termination, which resulted in a settlement award of $135,000.00.




5
  While the parties briefly mention that Jon pled guilty to a misdemeanor offense of attempted child
endangerment, we note that there is no formal evidence in the record that corroborates this statement.


                                                -36-
Case No. 14-09-08



Therefore, we find that the trial court did not abuse its discretion when it found

that Jon was not voluntarily underemployed.

       {¶58} Stephanie’s and Timothy’s fifth assignments of error are, therefore,

overruled.

                       ASSIGNMENT OF ERROR NO VI

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO AWARD THE TAX DEPENDENCY
       EXEMPTIONS FOR THE CHILDREN AT ISSUE TO THE
       DAWSONS, AS THE DAWSONS WOULD DERIVE THE
       GREATER TAX BENEFIT BY CLAIMING THEM, AND
       THIS WOULD BE IN THE CHILDREN’S BEST INTEREST.

       {¶59} In their last assignments of error, Stephanie and Timothy argue that

the trial court abused its discretion when it failed to award them the tax

dependency exemptions for the three children, because they would derive the

greater tax benefit by claiming them, and it would also be in the best interest of the

children. Specifically, they argue that the trial court was required to consider “all

pertinent factors, including the parents’ gross incomes, the exemptions and

deductions to which the parents are otherwise entitled, and the relevant federal,

state, and local income tax rates.” See Singer v. Dickinson (1992), 63 Ohio St.3d

408, 411, 588 N.E.2d 806. Because the trial court did not consider any of these

factors when awarding the exemptions, Stephanie and Timothy claim that the trial

court abused its discretion.




                                        -37-
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        {¶60} A trial court’s decision in awarding the federal income tax

dependency exemption is governed by R.C. 3119.82, which states in pertinent

part:

        [w]henever a court issues, or whenever it modifies, reviews, or
        otherwise 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 * * * If the parties agree on which
        parent should claim the children as dependents, the court shall
        designate that parent as the parent who may claim the children.
        If the parties do not agree, 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 and, with respect to orders the court
        modifies, reviews, or reconsiders, the payments for child support
        are substantially current as ordered by the court for the year in
        which the children will be claimed as dependents. In cases in
        which the parties do not agree which parent may claim the
        children 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.

(emphasis added). With respect to this provision, this Court has previously stated

that “the trial court is not required to engage in any analysis under the statute [R.C.

3119.82] unless it chooses to award the tax exemption to the non-residential

parent.” Siefker v. Siefker, 3d Dist. No. 12-06-04, 2006-Ohio-5154, ¶10, quoting

Fisher v. Fisher, 3d Dist. No. 7-05-03, 2005-Ohio-5615, ¶25, citing R.C. 3119.82.



                                         -38-
Case No. 14-09-08



Here, with respect to Nathan, the juvenile magistrate stated that Jon was to receive

the federal tax dependency exemption for Nathan in the year 2000, 2001, 2002,

2003, 2004, and 2005. However, because Timothy and Stephanie were named the

residential and legal custodians of Nathan on May 3, 2006 (when legal custody of

Nathan was consistently and continuously removed from Jon), and because

Timothy and Stephanie were married and resided with one another, the juvenile

magistrate stated that the tax dependency exemption should be divided equally

between the Dawsons starting in 2006: Stephanie receiving the tax dependency

exemption on every even-numbered year, and Timothy receiving the tax

dependency exemption on every odd-numbered year. Because Jon was named

Nathan’s sole residential and legal custodian from 2000-2005, and on May 3,

2006, Stephanie and Timothy were named the residential and legal custodians of

Nathan, the juvenile magistrate gave the tax dependency exemption for Nathan to

whichever person(s) was named the residential parent at that moment in time;

therefore, it was not required to undertake any analysis in its tax dependency

exemption determination.

       {¶61} Similarly, with respect to Kylie and Trevor, pursuant to the juvenile

magistrate’s order finding that there was not a sufficient change of circumstances

to warrant a modification of the March 8, 2001 domestic relations court order

(which designated Jon the sole residential and legal custodian of all three



                                       -39-
Case No. 14-09-08



children), the juvenile magistrate awarded Jon the tax dependency exemptions for

Trevor and Kylie for the year 2006 and every year thereafter until further order of

the court. Because Jon was still the sole residential and legal custodian of Trevor

and Kylie, the juvenile magistrate was not required to undertake any analysis

when it awarded him the tax dependency exemptions for Trevor and Kylie for the

year 2006 and thereafter.

       {¶62} Timothy’s and Stephanie’s sixth assignments of error are, therefore,

overruled.

       {¶63} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgments Affirmed

ROGERS and SHAW, J.J., concur.

/jnc




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