[Cite as Sowers v. Sowers, 2018-Ohio-1057.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                      MIAMI COUNTY

 AMANDA SOWERS                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2017-CA-19
                                                    :
 v.                                                 :   Trial Court Case No. 2015-DR-166
                                                    :
 MATTHEW SOWERS                                     :   (Domestic Relations Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                            Rendered on the 23rd day of March, 2018.

                                               ...........

CRAIG M. SAMS, Atty. Reg. No. 0089716, 10532 Success Lane, Dayton, Ohio 45458
     Attorney for Plaintiff-Appellee

SCOTT D. RUDNICK, Atty. Reg. No. 0000853, 121 West Third Street, Greenville, Ohio
45331
      Attorney for Defendant-Appellant

                                              .............




WELBAUM, P.J.
                                                                                          -2-




       {¶ 1} In this case, Defendant-Appellant, Matthew Sowers (“Matthew”) appeals

from a judgment denying his motion for an increase in child support to be paid by Plaintiff-

Appellee, Amanda Sowers (“Amanda”). According to Matthew, the trial court erred in

concluding that Amanda’s child support obligation was not 10% greater than the

obligation calculated at the time of the final decree.

       {¶ 2} Matthew further contends that the trial court erred in finding that he failed to

establish that Amanda was fully employed and was earning more than the current

minimum wage in Ohio. And finally, Matthew contends that the trial court abused its

discretion when it refused to make a child support award.

       {¶ 3} We conclude that the trial court erred in requiring Matthew to establish a 10%

deviation in the child support obligation and to also establish a substantial change of

circumstances that was not contemplated at the time of the divorce decree, before the

court would allow modification of child support. We further conclude that the trial court

erred in finding that Amanda was not earning more than the current minimum wage in

Ohio. In addition, the trial court erred by deviating from the calculated child support

obligation without following the statutory requirements in R.C. 3119.22 and R.C. 3119.23.

       {¶ 4} The court did not err in its conclusion about the amount of Matthew’s gross

income that was due to his wages from employment. However, the court did err in

including mileage reimbursements in Matthew’s gross income without considering

whether the reimbursement caused Matthew, effectively, to have a higher income.

Accordingly, the judgment of the trial court will be affirmed solely with respect to the

calculation of Matthew’s gross income from wages, will be reversed on all other grounds,
                                                                                       -3-


and will be remanded for further proceedings.



                             I. Facts and Course of Proceedings

      {¶ 5} In May 2015, Amanda filed a divorce complaint against Matthew.            The

complaint indicated that the parties had two children, R.S. and E.S., who were then,

respectively, 10 and nine years old.     Amanda was given temporary custody of the

children, and Matthew was ordered to pay child support. However, in September 2015,

the court granted Matthew emergency temporary custody based on a motion filed by a

guardian ad litem that the court had appointed.

      {¶ 6} A final divorce decree was filed on January 12, 2016, and was based on the

parties’ agreement. The decree designated Matthew as the residential parent and legal

custodian of the children.   Amanda was given reasonable visitation time, and was

ordered to coordinate visitation with the administrator at the Family Health Center.

Amanda was unemployed at the time of the divorce, and zero child support was ordered,

per the parties’ agreement. In addition, the decree granted the federal tax exemptions

for the children to Matthew; however, the decree stated that Amanda would be entitled to

claim E.S. as a dependent if her household income rose to a level allowing her to take

advantage of a child dependence exemption.

      {¶ 7} A document entitled “Form DR16” was also filed on January 12, 2016, and

was incorporated into the divorce decree. The decree provided that if any conflict existed

between the decree and the DR16, the DR16 would control.

      {¶ 8} The DR16, itself, ordered Amanda to seek work. The court also attached a

child support computation worksheet to the divorce decree, and for purposes of the
                                                                                      -4-


worksheet, imputed $16,375 in income to Amanda.              According to the worksheet,

Amanda’s annual child support obligation would have been $3,630.87, or $302.50 per

month. However, as was noted, the decree ordered zero support.

      {¶ 9} In April 2016, Matthew filed a motion to correct the judgment and a motion

for relief from judgment, based on his overpayment of child support that was supposed to

be returned to him. By mistake, this provision had not been included in the divorce

decree. The parties then filed an agreed entry in July 2016, which awarded Matthew a

judgment of $1,070 in overpaid child support. Amanda agreed to begin paying $30 per

month beginning August 1, 2016, and Matthew agreed to accept a reduced sum of $800

if the amount was paid in full on or before June 30, 2017.

      {¶ 10} Matthew then filed a motion for modification of child support in September

2016, and a hearing was held on January 4, 2017. Following the hearing, the magistrate

filed a decision, recommending that Matthew’s request be overruled, and that child

support remain at zero dollars. Matthew filed objections and supplemental objections,

which the trial court overruled in July 2017. This appeal followed.



                       II. Alleged Error Concerning Support Obligation

      {¶ 11} Matthew’s First Assignment of Error states that:

             The Trial Court Erred In Finding that the Appellee’s Support

      Obligation Is Not Ten Percent Greater Than the Support Obligation Actually

      Calculated at the Time of the Decree.

      {¶ 12} Under this assignment of error, Matthew contends that because zero child

support was ordered at the time of the decree, the amount calculated in connection with
                                                                                           -5-


modification (about $299 per month) met the 10% requirement for a substantial change

of circumstances in R.C. 3119.79(A).        Matthew further contends that the trial court

incorrectly created new law by finding that if an obligor is required to seek work, ultimately

obtaining employment would not be a change of circumstances since it was contemplated

by the decree.

       {¶ 13} We review child support decisions for abuse of discretion. Booth v. Booth,

44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). “ ‘Abuse of discretion’ has been

defined as an attitude that is unreasonable, arbitrary, or unconscionable.”          (Citation

omitted.)   AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). However, the Supreme Court of

Ohio has stressed that “most instances of abuse of discretion will result in decisions that

are simply unreasonable.” Id. The court has also said that “[a] decision is unreasonable

if there is no sound reasoning process that would support that decision.” Id.

       {¶ 14} R.C. 3119.79(A) provides that:

              If an obligor or obligee under a child support order requests that the

       court modify the amount of support required to be paid pursuant to the child

       support order, the court shall recalculate the amount of support that would

       be required to be paid under the child support order in accordance with the

       schedule and the applicable worksheet through the line establishing the

       actual annual obligation. If that amount as recalculated is more than ten

       per cent greater than or more than ten per cent less than the amount of child

       support required to be paid pursuant to the existing child support order, the

       deviation from the recalculated amount that would be required to be paid
                                                                                        -6-


      under the schedule and the applicable worksheet shall be considered by

      the court as a change of circumstance substantial enough to require a

      modification of the child support amount.

      {¶ 15} In finding that modification of support was not warranted, the trial court

concluded that Matthew was required to establish that Amanda’s support obligation was

more than 10% greater due to her change in income, and was also required to establish

that her change in circumstances was not contemplated at the time of the decree. Doc.

# 70, Decision & Entry Adopting Magistrate’s Decision and Order, p. 6. In this regard,

the court compared Amanda’s current support obligation of $299 with the $302 listed in

the Child Support Computation Worksheet attached to the divorce decree, and found that

her support obligation had not increased by more than 10%.

      {¶ 16} The court also held that Matthew had not established the second

requirement either, because when the divorce decree was filed, the parties contemplated

that Amanda would obtain employment at some point.         As a result, the court found no

change in circumstances that would permit modification of child support. In reaching

these conclusions, the trial court relied on our prior decision in Baire v. Baire, 102 Ohio

App.3d 50, 656 N.E.2d 984 (2d Dist.1995). Doc. #70, at p. 5.

      {¶ 17} However, shortly before the trial court’s decision, we had concluded that our

decision in Baire was inconsistent with the decision of the Supreme Court of Ohio in

DePalmo v. DePalmo, 78 Ohio St.3d 535, 679 N.E.2d 266 (1997). See Mossing-Landers

v. Landers, 2016-Ohio-7625, 73 N.E.3d 1060, ¶ 51-52 (2d Dist.). We stressed, among

other things, that DePalmo had not yet been decided when Baire was issued. Id. at ¶

52.
                                                                                           -7-

       {¶ 18} Like the case before us, DePalmo involved a situation where a father had

waived child support when the parties’ divorce decree was filed. Mossing-Landers at

¶ 56, citing DePalmo at 535-536. In DePalmo, the father subsequently moved for a

support order, and the mother argued that the court should use what was called the “dual

threshold test.”   This test restricted use of the 10% threshold test, and “allowed

modification only where a change in circumstances had occurred so that the custodial

parent could no longer provide the total amount of support that was reasonable, or where

the non-custodial parent's circumstances had substantially changed so that the trial court

could find, in its discretion, that support from the noncustodial parent was in the children's

best interests.” Mossing-Landers at ¶ 57, citing DePalmo at 538. The Supreme Court

of Ohio rejected the use of this test, however. Id. at ¶ 58.

       {¶ 19} We made the following observations about the court’s rejection of the dual

threshold test:

       First, the court stated [in DePalmo] that whether a support order is currently

       in existence “is a distinction without a difference and is immaterial to

       whether child support should be calculated according to the statutory

       guidelines.” [DePalmo, 78 Ohio St.3d] at 539, 679 N.E.2d 266. As was

       noted, the court then stated that “[i]f a support order already exists, the only

       test to determine whether child support shall be modified is set forth by R.C.

       3113.215(B)(4) [now R.C. 3119.79] * * *.” (Emphasis sic.) (Parenthetical

       material added.) Id.

              The court went on to stress the requirement of strictly complying with

       the Child Support Guidelines, and stated that “[o]bviously, when the amount
                                                                                  -8-


of child support provided by the noncustodial parent is zero, but the Child

Support Guidelines clearly establish that the noncustodial parent owes

support, then that ten percent difference is clearly met.” DePalmo, 78 Ohio

St.3d at 540, 679 N.E.2d 266. Notably, the court did not consider whether

the change in circumstances was contemplated at the time of the original

order, and did not agree with the obligor's argument that support (or rather

the order of no support) should not be modified because “circumstances at

the time of the hearing were substantially similar to those on * * * the date

of the original agreement.” Id. at 536-537, 679 N.E.2d 266.

       Ultimately, the Supreme Court of Ohio stated that “[w]hen the court

is modifying a preexisting order for the payment of child support, the court

must apply the ten percent test established by R.C. 3113.215(B)(4) [now

R.C. 3119.79(A)] in the Child Support Guidelines and the standards set out

in Marker [v. Grimm, 65 Ohio St.3d 139, 601 N.E.2d 496 (1992)].”

(Parenthetical material added.). DePalmo at 540–541, 679 N.E.2d 266.

       As a result, the trial court was required to recalculate the support

and, if the difference were more or less than 10 percent, that would

constitute a substantial change in circumstances. This is not to say that

the trial court has no discretion at all in the matter.         R.C. 3119.22

specifically allows courts to deviate from the amount of support calculated

if that amount “would be unjust or inappropriate and would not be in the best

interest of the child.” In this situation, however, the trial court must comply

with Marker by including “findings of fact to support such determination.”
                                                                                        -9-

       Marker, 65 Ohio St.3d 139, 601 N.E.2d 496, at paragraph three of the

       syllabus.

(Emphasis added; footnote omitted.)      Mossing-Landers, 2016-Ohio-7625, 73 N.E.3d

1060, at ¶ 58-61.

       {¶ 20} The facts in the case before us indicate that the decree and the order

attached to the divorce decree ordered zero child support.        In calculating the child

support for purposes of the requested modification, the trial court attributed $16,925 to

Amanda, which resulted in an actual annual support obligation of $3,589.09, or $299.09

per month. See Ex. A attached to Doc. #70. This was clearly an increase of over 10%

and the trial court, therefore, erred in concluding that modification was unwarranted under

R.C. 3119.79. Mossing-Landers at ¶ 33-65. Accord Schilling v. Ball, 11th Dist. Lake

No. 2016-L-072, 2017-Ohio-5511, ¶ 16-18 (trial court was not required to find a

substantial change in circumstances not contemplated by the prior decree when it ordered

appellant to pay $356 per month in child support despite prior agreement to deviate

support to zero; 10% deviation in support amount was sufficient under DePalmo).

       {¶ 21} A point we did not specifically mention in Mossing-Landers is the wording

of R.C. 3119.79(A) itself, which finds a substantial modification sufficient to require

modification if the recalculated amount “is more than ten per cent greater than or more

than ten per cent less than the amount of child support required to be paid pursuant to

the existing child support order.” (Emphasis added.) This statute does not refer to the

amount of child support calculated as potentially payable in a prior child support

computation worksheet; it refers to the amount required to be paid under the existing

order. This statement is not ambiguous. Clearly, when the prior order requires zero
                                                                                        -10-


dollars to be paid, a recalculated amount of $299.09 is more than a 10% increase.

       {¶ 22} We further note that nothing in the divorce decree prohibited either party

from seeking modification of child support. Mossing at ¶ 65. Accordingly, the trial court

erred in requiring Matthew to show a substantial change of parental circumstances in

addition to the 10% change in the amount of child support. The First Assignment of

Error, therefore, is sustained.



                                  III. Determination of Wages

       {¶ 23} Matthew’s Second Assignment of Error states that:

              The Trial Court Erred in Determining that the Appellant Failed to

       Establish that the Appellee Is Fully Employed Earning More than

       $16,952.00 (the Current Minimum Wage in Ohio).

       {¶ 24} Under this assignment of error, Matthew contends that the trial court erred

in concluding that he failed to establish that Amanda was earning more than $16,952, or

the current Ohio minimum wage. In this regard, Matthew notes that Amanda filed an

affidavit of income and expenses, in which she stated that her gross annual wages were

$22,048. He also notes that Amanda testified at the hearing that she was earning $10.60

per hour at Meijer, which would equate to $22,048 in gross income per year.

       {¶ 25} Matthew has attached an affidavit to his brief, but there is no file-stamp on

the affidavit, and it is not docketed in the trial court record. As a result, we will not

consider it.1 Nonetheless, Amanda did testify during the hearing, which was held in early


1Matthew’s counsel did question Amanda at the hearing about an affidavit that the court
had ordered her to prepare, and that Amanda had sent to him. Transcript of
Proceedings, pp. 24-29. We assume this may be the same affidavit, but it was not
                                                                                      -11-


January 2017, that she was currently earning $10.60 per hour.2

       {¶ 26} Amanda claimed at the hearing that she was “part-time,” but admitted that

she had worked 40 hours per week at Meijer ever since she was hired in early June 2016.

She also said that Meijer was currently scheduling her 40 hours per week. Transcript of

Proceedings, pp. 23-24. According to Amanda, Meijer had threatened to cut hours in

January and February and had said that it had to “cut so many hours every week out of

each department.” Id. at p. 24. Amanda then stated, “I don’t know how that’s going to

work.” Id.

       {¶ 27} Although Amanda claimed she was part-time, she had also consistently

worked 40 hours per week since she was hired, and her testimony about the probability

of receiving less hours was mere speculation. This is not a credibility decision to which

we would normally defer; the court’s calculation of Amanda’s gross income at a minimum

wage level was based on speculation. However, even at the minimum wage level used

by the trial court, a 10% change in the amount of support existed.

       {¶ 28} Based on the preceding discussion, the Second Assignment of Error is

sustained.



                  IV. Abuse of Discretion in Refusing to Order Child Support

       {¶ 29} Matthew’s Third Assignment of Error states that:


specifically identified at the hearing, nor was it made an exhibit.
2 The magistrate used an incorrect hourly wage of $10.40 in its decision. See
Magistrate’s Decision, Doc. #63, pp. 2-3. In contrast, Amanda testified at the hearing
that she had received a raise to $10.60 per hour. Transcript of Proceedings, p. 23.
Based on Amanda’s testimony, there is no question that if Amanda worked 40 hours per
week, her yearly gross income would be $22,048.
                                                                                          -12-


              The Trial Court Erred and Abused Its Discretion in Refusing to Make

       an Award of Child Support.

       {¶ 30} Under this assignment of error, Matthew contends that the trial court erred

in failing to comply with requirements for ordering a deviation from the guidelines for child

support, and, therefore, abused its discretion.

       {¶ 31} As was noted, we review support orders for abuse of discretion, which most

often occurs when a trial court’s decision is based on unsound reasoning. Booth, 44

Ohio St.3d at 144, 541 N.E.2d 1028; AAAA Enterprises, Inc., 50 Ohio St.3d at 161, 553

N.E.2d 597.

       {¶ 32} R.C. 3119.22 allows a court to deviate “from the amount of child support

that would otherwise result from the use of the child support guidelines and the applicable

worksheet if the court determines that the actual annual obligation would be unjust or

inappropriate and would not be in the child's best interest.” (Citations omitted). In re

C.S.M., 2d Dist. Greene No. 2015-CA-28, 2015-Ohio-4608, ¶ 24.

       {¶ 33} “If the court enters a child support order that deviates from the calculated

amount, ‘the court must enter in the journal the amount of child support calculated

pursuant to the basic child support schedule and the applicable worksheet, through the

line establishing the actual annual obligation, its determination that that amount would be

unjust or inappropriate and would not be in the best interest of the child, and findings of

fact supporting that determination.’ ” In re S.H., 2d Dist. Montgomery No. 23382, 2009-

Ohio-6592, ¶ 46, quoting R.C. 3119.22. Accord C.S.M. at ¶ 24; Lenoir v. Paschal, 2d

Dist. Montgomery No. 23732, 2010-Ohio-2922, ¶ 7.

       {¶ 34} We have stressed that under the decision of the Supreme Court of Ohio in
                                                                                         -13-

Marker, “any court-ordered deviation from the applicable worksheet and the basic child

support schedule must include findings of fact to support the determination.” C.S.M. at

¶ 24, citing Marker, 65 Ohio St.3d at 143, 601 N.E.2d 496. R.C. 3119.23(A)-(O) lists 15

specific factors that courts may use in deciding whether to grant a deviation under R.C.

3119.22. Additionally, R.C. 3119.23(P) is non-specific and lets courts consider “[a]ny

other relevant factor.”

       {¶ 35} In the case before us, the trial court concluded that the deviation issue was

moot because Matthew failed to establish both a 10% deviation in the amount of support,

and also failed to show a change of circumstances. The court then stated that:

       In any event, the parties agreed that it was in the best interests of the minor

       children to deviate to no child support at the time of the Decree. The Court

       specifically finds that the reasons to deviate child support to $0.00 are as

       true today as they were when child support was set by the parties.

Doc. # 70, p. 7.

       {¶ 36} Although the court indicated the issue of deviation was moot, it nonetheless

considered it, while failing to either make findings under R.C. 3119.22 or refer to any

factors listed in R.C. 3119.23. Furthermore, the trial court’s remark that the reasons for

deviating were as true in 2017 as they were in 2015 when the parties agreed to waive

support, is simply not supported by the record. The divorce decree mentioned only that

Amanda was unemployed. In contrast, at the time of the modification hearing, Amanda

was employed and had been fully employed for several months. Accordingly, the trial

court abused its discretion to the extent that it deviated from the appropriate amount of

support without complying with R.C. 3119.22 and R.C. 3119.23.
                                                                                       -14-


      {¶ 37} In his brief, Matthew also contends that the trial court erred in calculating

his income. We disagree, in part. In the first place, Matthew’s gross earnings were not

$32,000 as he contends.      The exhibit Matthew submitted indicates that his gross

earnings in 2016 were $35,566.09, which is the figure the trial court used.          See

Defendant’s Ex. 1 and Doc. #70, pp. 2-3. Matthew’s net earnings were $31,708.02,

which is close to the figure he claims. However, the statute and worksheet refer to

“gross,” not “net” income. See R.C. 3119.022. Thus, the trial court did not err in this

regard.

      {¶ 38} Furthermore, we do not completely agree that the court erred with respect

to the healthcare premiums. Contrary to Matthew’s assertion, these amounts were not

included in his gross income; the court simply did not credit him with payments for

healthcare. The trial court noted that Matthew’s employer paid the premiums and stated

that it was impossible to determine if Matthew had paid any money for the premiums.

See Doc. # 70, p.3, citing Defendant’s Ex. 1. At the hearing, Matthew indicated that

Defendant’s Ex. 3 showed the cost of his health insurance monthly; he claimed that he

paid a total of $830.85 per month, and that $493.24 of this amount was for his children’s

health coverage. Transcript of Proceedings, p. 11. However, this is inconsistent with Ex.

1, which indicates a possible yearly deduction from his wages of around $3,131.16 for

health and dental coverage, or about $260.93 per month.3 Since this matter is being

reversed and remanded, the trial court can decide on remand what amount, if any, should


3 We say “possible” because Matthew did not testify about these amounts on Ex.1 at trial,
and the deductions on that exhibit merely state “Dent 125” and “H 125.” For purposes of
discussion, we assume these may be deductions for health and dental coverage, as it
seems clear that is what the amounts represent.
                                                                                        -15-


be credited toward premiums, since it appears that Matthew did pay some amount for the

children’s healthcare.

        {¶ 39} The trial court also added $8,544.96 in mileage reimbursements and other

payments to arrive at a figure of $44,110 for Matthew’s gross income. See Doc. #70, p.

3 and Ex. A attached to Doc. #70. 4        This amount was taken from Matthew’s pay

statement. See Defendant’s Ex. 1. As support for its decision, the trial court cited two

cases: Neal v. Halsey, 2d Dist. Greene No. 95-CA-22, 1995 WL 765964 (Dec. 20, 1995),

and Lyons v. Bachelder, 5th Dist. Morrow No. 2004AP0017, 2005-Ohio-4966. Doc. #70,

p. 6.

        {¶ 40} Neal involved a decision on the gross income of an independent insurance

salesman who had claimed various business expenses on his tax return, including

deductions for the standard mileage rate and specific expenses for maintenance and

repair of his car. In calculating his income for purposes of child support, the trial court

accepted all of his business expenses other than the deduction for the automobile

expenses (including mileage). Neal at *1.

        {¶ 41} After the opposing party appealed, we considered R.C. 3113.215(A)(2),

which defined “gross income,” R.C. 3113.215(A)(3), which defined “self-generated

income,” R.C. 3113.215(A)(4)(a), which defined “ordinary and business expenses

incurred in generating gross receipts,” and R.C. 3113.215(A)(4)(b), which defined items

like depreciation and other noncash items that may be deducted under federal tax returns

but not as ordinary and necessary business expenses incurred in generating gross



4  The actual total for the wages and reimbursements is $41,111.05, but this slight
difference is irrelevant for purposes of our discussion.
                                                                                           -16-

receipts. Id. at *2.5

       {¶ 42} We also considered federal tax law, which allowed deduction of expenses

incurred in carrying on a trade or business and traveling expenses while an individual is

away from home in pursuit of a trade or business. Id. at *3, citing 26 U.S.C. 162(a). At

the time, the standard business mileage rate was $.29 a mile, which included a

depreciation amount of $.12 per mile. Id.

       {¶ 43} After considering these matters, we concluded that the trial court erred by

failing to deduct any of the business mileage expenses from the obligor’s gross income.

We allowed the amount of mileage the obligor claimed to have driven for business, using

the standard mileage rate; however, we also held that “for purposes of child support

calculation, a parent is not entitled to the type of depreciation included within the standard

mileage deduction. R.C. 3113.215(A)(4)(b). Therefore, twelve cents per mile must be

deducted from the twenty-nine cent standard rate.” Id.

       {¶ 44} Our comments in Neal do not support a requirement for inclusion of mileage

reimbursements within gross income for purposes of calculating child support, nor do they

eliminate a need for analysis. Under our decision in Neal, the following amounts may be

added to an obligor’s gross income: (1) the amount attributable to depreciation, using the

standard mileage allowed by the Internal Revenue Service for business travel; and (2)

any part of reimbursed mileage that was used for personal, rather than business travel.

Consequently, including the total amount and also failing to use any analysis for including

particular amounts would be incorrect.


5 These sections were later re-codified, respectively, as R.C. 3119.01(C)(7), R.C.
3119.01(C)(13), R.C. 3119.01(C)(9)(a), and R.C. 3119.01(C)(9)(b). There was no
pertinent change in the definitions.
                                                                                        -17-

      {¶ 45} Lyons involved a doctor’s assertion that he should receive a deduction from

his calculated income for business mileage in the amount of $4,635 for two vehicles. The

doctor drove one vehicle, and his wife drove the other. Lyons, 5th Dist. Morrow No.

2004AP0017, 2005-Ohio-4966, at ¶ 41 and 48-59. The doctor’s medical corporation,

which was titled in his name, had deducted expenses in the amount of $4,635.00 for the

use of motor vehicles driven for business-related miles. Id. at ¶ 45. During trial, the

doctor testified that the amount of his personal use of the auto had been factored into his

W-2 form.    However, he failed to testify as to any particular amount that had been

included in his taxable income. Id. at ¶ 49. Based on the doctor’s testimony, the court

of appeals held that the trial court did not abuse its discretion by failing to deduct the

business mileage expense from the doctor’s income. The court of appeals noted that

the doctor had not offered evidence to the contrary. Id. at ¶ 71. Again, this fact-based

holding does not justify a blanket statement that mileage reimbursements from an

employer are properly included in gross income for child support calculation purposes.

      {¶ 46} Neal differs somewhat from the case before us in that it involved self-

generated income, which is statutorily defined to include “expense reimbursements * * *

if the reimbursements are significant and reduce personal living expenses.”           R.C.

3119.01(C)(13). Self-generated income is also limited to “gross receipts received by a

parent from self-employment, proprietorship of a business, joint ownership of a

partnership or closely held corporation, and rents minus ordinary and necessary

expenses incurred by the parent in generating the gross receipts.” Id.

      {¶ 47} In contrast, “gross income” (which applies here) is defined by R.C.

3119.01(C)(7) as “the total of all earned and unearned income from all sources during a
                                                                                         -18-


calendar year * * *.” The statute does not include expense reimbursements within the

listed examples of “income.”

       {¶ 48} Recently, in Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, 3

N.E.3d 144, the Supreme Court of Ohio considered whether a trial court erred in including

within gross income certain employer-paid benefits like the value of a car, car insurance,

and a cellular telephone. Id. at ¶ 7. The obligor argued that these items should “be

considered part of gross income only if the recipient is self-employed, a proprietor of a

business, or a joint owner of a partnership or closely held corporation.” Id. at ¶ 12. In

support of this proposition, the obligor reasoned that because “the only statutory

reference to company cars and other in-kind items is in the context of ‘self-employment,

proprietorship of a business, joint ownership of a partnership or closely held corporation,’

the General Assembly meant to exclude such items from gross income when they are

received outside that context.”    Id. at ¶ 12-13, referring to the definitions of “gross

income” in R.C. 3119.01(C)(7) and “self-generated income” in R.C. 3119.01(C)(13).

       {¶ 49} The Supreme Court of Ohio disagreed, however, commenting that:

              We find nothing in the statutory scheme to support that conclusion.

       To be sure, R.C. 3119.01(C)(13) states that “self-generated income”

       includes company cars. That is a far stretch from stating that company

       cars cannot be part of gross income unless they are from self-generated

       income.

              The record indicates that Morrow [the obligor] did not have a car, car

       insurance, or phone, other than the car, car insurance, and phone provided

       to him by his employer. Based on that understanding, the trial court, after
                                                                                          -19-


       reviewing case law, concluded that “it was reasonable to include the value

       of these benefits in the Plaintiff's gross income.”        We agree.      If his

       employer did not provide a car, Morrow would have had to purchase or

       lease one on his own, using his own funds. Accordingly, it is sensible to

       conclude that the provision of a car is no different from the provision of funds

       to buy or lease a car.       Either way, the person receiving the benefit

       effectively has a higher income.

Morrow, 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, at ¶ 14-15.

       {¶ 50} The issue, therefore, appears to be the same whether a parent is an

employee or fits within the particular categories outlined in R.C. 3119.01(C)(13).

Specifically, a court should consider whether a “reimbursement” or benefit caused a

parent, effectively, to have a higher income. An example of this can be found in Parrick

v. Parrick, 3d Dist. Hancock No. 5-12-12, 2013-Ohio-422. In that case, the court of

appeals found no error in a trial court’s decision to exclude an employee’s income mileage

reimbursements from her employer as part of her gross income for child support

purposes. The court commented that the employee’s “expense reimbursements from

her employers were merely repaying her for the money that she had spent, as required

by her job.” Id. at ¶ 33.

       {¶ 51} In the case before us, the record does not indicate whether Matthew’s

reimbursement caused him to effectively have a higher income, and the trial court did not

consider this issue. Instead, the court included the total reimbursement within Matthew’s

gross income, while offering no reasoning and citing cases that do not support blanket

inclusion. Accordingly, since this case is being reversed and remanded, the court should
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reconsider this issue in view of the above authority, and should allow the presentation of

further evidence.

       {¶ 52} Based on the preceding discussion, the Third Assignment of Error is

sustained in part and overruled in part.



                                           V. Conclusion

       {¶ 53} Matthew’s First and Second Assignments of Error having been sustained,

and his Third Assignment of Error having been sustained in part and overruled in part,

the judgment of the trial court is affirmed solely with respect to the court’s decision on the

amount of Matthew’s gross income from wages. In all other respects, the judgment is

reversed, and this cause is remanded for further proceedings consistent with this opinion.



                                      .............



DONOVAN, J. and TUCKER, J., concur.



Copies mailed to:

Craig Sams
Scott D. Rudnick
Hon. Jeannine N. Pratt
