[Cite as Sable v. Sable, 2013-Ohio-2635.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


BRENDA SABLE                                 :       JUDGES:
                                             :
                                             :       Hon. John W. Wise, P.J.
        Plaintiff - Appellant                :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
MICHAEL SABLE                                :       Case No. 2012CA00230
                                             :
                                             :
        Defendant - Appellee                 :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No.
                                                     2011DR01556




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 17, 2013




APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

TRACEY A. LASLO                                      BEVERLY PROCTOR-DONALD
JOHN T. JAKMIDES                                     401 Tuscarawas Street
325 East Main Street                                 Suite 500
Alliance, OH 44601                                   Canton, OH 44702
Stark County, Case No. 2012CA00230                                                        2



Baldwin, J.

      {¶1}    Appellant Brenda Sable appeals a divorce judgment of the Stark County

Common Pleas Court, Domestic Relations Division. Appellee is Michael Sable.

                                 STATEMENT OF FACTS AND CASE

      {¶2}    The parties were married on April 5, 1985, in Billings, Montana. They

have one son, born February 1, 2004.

      {¶3}    The instant divorce action was filed on December 14, 2011. At a hearing

on September 27, 2012, the parties indicated to the court that they had signed a

separation agreement resolving most issues. However, the parties could not agree to

the extent of appellee’s visitation with the child, who would receive the tax deduction for

the child, and the value of the real estate. The court conducted an evidentiary hearing

on these issues.

      {¶4}    The parties’ marriage was terminated by a Judgment Entry of Divorce on

November 20, 2012.      The court gave appellee extended visitation every Tuesday,

Wednesday and Friday from 3:00 p.m. to 7:00 p.m. The court awarded appellee the tax

exemption for the child, and valued the real estate at $85,000.00. The court found the

parties’ equity in the property to be $16,000.00, and ordered appellee to pay appellant

$8,000.00 for her share of the equity in the residence. Appellant assigns three errors:

      {¶5}    I.    THE     TRIAL    COURT      ERRED     IN   GRANTING       EXTENDED

VISITATION TO APPELLEE DESPITE EVIDENCE THAT DOING SO WOULD

DISRUPT THE CHILD’S SCHOOLWORK AND WEEKLY SCHEDULE.

      {¶6}    II.   THE     TRIAL    COURT      ERRED     IN   ASSIGNING       THE    TAX

EXEMPTION TO APPELLEE DESPITE THE FACT THAT THIS WAS NOT EVEN
Stark County, Case No. 2012CA00230                                                      3


SOUGHT BY THE APPELLEE, AND FURTHER FAILED TO REVIEW TAX

DOCUMENTS IN MAKING ITS DECISION.

      {¶7}    III.   THE TRIAL COURT ERRED IN FAILING TO ESTABLISH A

SCHEDULE FOR HUSBAND’S PAYMENT TO WIFE FOR HER ONE-HALF OF THE

EQUITY IN THE MARITAL RESIDENCE.

                                                   I.

      {¶8}    Appellant argues that the court erred in giving appellee extended visitation

with the child, as the evidence demonstrated the extra evenings of visitation would

disrupt the child’s schoolwork and weekly schedule. The standard visitation schedule,

requested by appellant, would allow appellee a minimum of one week day of parenting

time from 5:00 p.m. to 8:00 p.m. The court’s order gives appellee visitation on three

week days, from 3:00 p.m. to 7:00 p.m. During the pendency of the divorce, appellee

visited with the child two week days.

      {¶9}    Matters concerning visitation rest in the trial court's sound discretion.

Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). In order to find an abuse

of discretion, we must find that the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

      {¶10}   Appellant argues that appellee was uninvolved with the child’s school, as

he was unable to name the child’s teacher the previous year or his current teacher. She

argues that he was unaware that his son was playing soccer, and had not helped pay

with extracurricular activity fees. She argues that appellee does not help the child with

his homework, and that her boyfriend, a retired teacher, helped the child with homework
Stark County, Case No. 2012CA00230                                                     4


at her home during the evenings. She also argues that the child does not want to go to

his father’s house for visitation.

      {¶11}   However, there was also evidence that despite his inability to recall the

names of teachers, appellee attended school conferences and was aware that at his

last school, the child had problems with being bullied. Appellee testified that he helped

with homework, and he was able to identify the problem subjects for the child. Appellee

testified that appellant did not inform him of any costs associated with extracurricular

activities other than Boy Scout camp, which he paid for when made aware of the

expense. Further, appellant herself admitted that she did not discuss enrolling their son

in Scouts and soccer with appellee, and that her boyfriend participated in scouting with

the child. In addition, appellant was found in contempt of court for denying appellee

parenting time.

      {¶12}   The trial court did not abuse its discretion in giving appellee extended

visitation. The visitation order is a mere four hours a week more than the temporary

visitation order.   The evidence does not support appellant’s claim that this extra

visitation time is disruptive to the child’s school schedule. From the record, the court

could conclude that appellant has attempted to limit appellee’s involvement with the

child, preferring that the child spend time with her new boyfriend.

      {¶13}   The first assignment of error is overruled.

                                                   II.

      {¶14}   Appellant argues that the court erred in awarding appellee the tax

exemption for the child.
Stark County, Case No. 2012CA00230                                                       5


   {¶15}      As with other domestic relations issues, a trial court's decision awarding

the tax dependency exemption to a party is reviewed for an abuse of discretion. Corple

v. Corple, 123 Ohio App.3d 31, 33, 702 N.E.2d 1234 (1997). Thus, pursuant to

Blakemore, supra, we must determine whether the trial court's decision in awarding the

exemption to appellee was arbitrary, unconscionable or unreasonable.

   {¶16}      The trial court must find that “the interest of the child has been furthered”

before it can allocate the tax exemption to the noncustodial parent. Bobo v. Jewell, 38

Ohio St.3d 330, 332, 528 N.E.2d 180 (1988). The best interest of the child is furthered

when the allocation of the tax exemption to the noncustodial parent produces a net tax

savings for the parents. Singer v. Dickinson, 63 Ohio St.3d 408, 588 N.E.2d 806,

paragraph two of the syllabus (1992). Such net tax savings for the parents can only

occur when the noncustodial parent's taxable income falls into a higher tax bracket. Id.

at 415-416, 588 N.E.2d 806. When determining the net tax savings to the parties, a trial

“court should review all pertinent factors, including the parents' gross incomes, the tax

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

federal, state, and local income tax rates.” Id. at 416, 588 N.E.2d 806.

   {¶17}      R.C. 3119.82 provides in pertinent part:

   {¶18}      “Whenever 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 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 agree on which parent should

claim the children as dependents, the court shall designate that parent as the parent
Stark County, Case No. 2012CA00230                                                        6


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.”

   {¶19}      The evidence at the hearing reflected that appellant’s income was

$17,000.00, while appellee’s income was just over $50,000.00.              The child support

worksheet reflects that appellant’s adjusted gross income, including division of

appellee’s military retirement benefits, was just over $26,000.00, while appellee’s

adjusted gross income was slightly over $40,000.00. The trial court’s entry states that

the court reviewed all pertinent factors, including the income of the parties, the

exemptions and deductions to which the parties are otherwise entitled, and all relevant

tax rates.   Based on the disparity of income of the parties, we find no abuse of

discretion in the allocation of the exemption to appellee.

   {¶20}      The second assignment of error is overruled.
Stark County, Case No. 2012CA00230                                                          7




                                                   III.

   {¶21}      In her third assignment of error, appellant argues that the court erred in

failing to establish a payment schedule for appellee to pay her for her share of equity in

the marital residence. The judgment states in pertinent part:

   {¶22}      “Husband shall refinance the real estate into his name within twelve (12)

months and remove Wife’s name from the loan. Wife shall sign a Quit Claim Deed

transferring all interest in the real estate to the Husband . . . Husband shall pay the sum

of $8,000.00 to the Wife as and for her one-half of the equity in the marital residence.”

   {¶23}      At the time of the hearing, the issue before the court was the valuation of

the property, not the timing of the payment from appellee to appellant. Further, appellee

has twelve months to remove appellant’s name from the loan, and she is to sign a quit

claim deed transferring all interest in the real estate to him.      It appears from the

judgment that the timing of that payment is tied to the twelve month period in which the

remainder of the issues concerning transfer of the property must be resolved. If at that

time appellee has not paid appellant for her share of the equity, the issue concerning

timing of the payment will be ripe for review.
Stark County, Case No. 2012CA00230                                              8




   {¶24}     The third assignment of error is overruled. The judgment of the Stark

County Common Pleas Court, Domestic Relations Division, is affirmed.        Costs

assessed to appellant.




By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.




                                     HON. CRAIG R. BALDWIN



                                     HON. JOHN W. WISE



                                     HON. PATRICIA A. DELANEY
[Cite as Sable v. Sable, 2013-Ohio-2635.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


BRENDA SABLE                                   :
                                               :
        Plaintiff - Appellant                  :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
MICHAEL SABLE                                  :
                                               :
        Defendant - Appellee                   :       CASE NO. 2012CA00230


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs

assessed to appellant.




                                            HON. CRAIG R. BALDWIN



                                            HON. JOHN W. WISE



                                            HON. PATRICIA A. DELANEY
