[Cite as In re B.S., 2013-Ohio-1976.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: B.S.                                           C.A. No.       26368
       S.S.


                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE Nos. DN 09-10-833
                                                                 DN 09-10-834

                                 DECISION AND JOURNAL ENTRY

Dated: May 15, 2013



        BELFANCE, Judge.

        {¶1}     Rebecca Saunders (“Mother”) appeals from the decision of the Summit County

Court of Common Pleas, Juvenile Division, which overruled Mother’s objections to the

magistrate’s decision. For the reasons set forth below, we affirm in part and reverse in part.

                                                 I.

        {¶2}     Mother and Michael Saunders (“Father”) were divorced in Florida. Father was in

arrears on his child support payments ordered by the Florida court. At the time this matter was

initiated, Mother lived in Ohio with their two children, B.S., born March 22, 2000, and S.S., born

April 8, 1998. This matter began when a complaint was filed asserting that B.S. and S.S. were

abused, neglected, dependent, and endangered. Father moved to Ohio and ultimately received

temporary custody of the children.

        {¶3}     In 2011, Mother and Father entered into a shared parenting plan. A hearing to

determine the issues of child support and tax exemptions was held before a magistrate on July
                                                 2


12, 2011. The magistrate issued a decision finding that a deviation from the child support

guidelines was warranted and concluded that Father would owe Mother no child support. The

magistrate concluded that Father would pay Mother $155 per month towards satisfying the

Florida child support arrears. In addition, the magistrate found that, when the children were not

covered by private health insurance, Father would pay $139 per month in cash medical support.

The trial court adopted the magistrate’s decision and entered judgment accordingly. Mother filed

objections to the magistrate’s decision and a hearing was held. Subsequently, the trial court

overruled Mother’s objections. Mother has appealed, raising five assignments of error for our

review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
          DETERMINED FATHER’S INCOME FOR CHILD SUPPORT PURPOSES
          AND CREDITED FATHER WITH UNDOCUMENTED CHILD CARE
          EXPENSES.

          {¶4}   Mother asserts in her first assignment of error that the trial court erred in

determining Father’s income for child support purposes and in crediting Father with

undocumented child care expenses. We agree in part.

          {¶5}   Generally, “[w]hen reviewing an appeal from the trial court’s ruling on objections

to a magistrate’s decision, this Court must determine whether the trial court abused its discretion

in reaching its decision.” Daniels v. O’Dell, 9th Dist. No. 24873, 2010–Ohio–1341, ¶ 10. “In so

doing, we consider the trial court’s action with reference to the nature of the underlying matter.”

Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049–M, 2009–Ohio–3139, ¶ 18.

          {¶6}   “It is well established that a trial court’s decision regarding child support

obligations falls within the discretion of the trial court and will not be disturbed absent a showing
                                                3


of an abuse of discretion.” Pauly v. Pauly, 80 Ohio St.3d 386, 390 (1997). “Whether a court is

establishing an initial child support order or whether the court is modifying an order based on

agreement between parties that does not include any order for the payment of child support, the

court must apply the Child Support Guidelines as required by the standards set out in Marker v.

Grimm[], 65 Ohio St.3d 139 [(1992)][.]” DePalmo v. DePalmo, 78 Ohio St.3d 535 (1997),

paragraph one of the syllabus. Marker provides that “[a] child support computation worksheet,

required to be used by a trial court in calculating the amount of an obligor’s child support

obligation * * * must actually be completed and made a part of the trial court’s record.” Id. at

paragraph one of the syllabus.

       A court that issues a shared parenting order in accordance with section 3109.04 of
       the Revised Code shall order an amount of child support to be paid under the
       child support order that is calculated in accordance with the schedule and with the
       worksheet set forth in section 3119.022 of the Revised Code, through the line
       establishing the actual annual obligation, except that, if that amount would be
       unjust or inappropriate to the children or either parent and would not be in the
       best interest of the child because of the extraordinary circumstances of the parents
       or because of any other factors or criteria set forth in section 3119.23 of the
       Revised Code, the court may deviate from that amount.

R.C. 3119.24(A)(1).

       {¶7}    “[T]he amount determined under the Child Support Guidelines [i]s rebuttably

presumed to be the correct amount of child support due[.]” (Internal quotations and citations

omitted.) DePalmo, 78 Ohio St.3d at 538; see also R.C. 3119.03.

       {¶8}    In filling out the child support worksheet in the instant matter, the magistrate

determined that Father’s income was $45,968.00. The trial court adopted the magistrate’s

findings.   Mother maintained that, based on Father’s pay stubs from January 2011 to the

beginning of July 2011, Father’s annual income would be between $53,000 and $54,000 instead.
                                                4


While we do not think the record supports Mother’s assertion, we do think the trial court erred in

calculating Father’s income.

       {¶9}    The magistrate noted that Father testified to an hourly rate of $17 and that he

averaged 52 hours per week. The magistrate utilized this information to calculate Father’s yearly

income at $45,968 per year. The magistrate noted that Father testified that his hours were less in

the winter and could be up to 57 hours per week. The magistrate essentially concluded that the

evidence supported Father’s testimony. The magistrate based this conclusion on the fact that the

income figure on Father’s 2010 W-2, which represented income from approximately the last 7

months of 2010, if extrapolated would be approximately equivalent to Father averaging 52 hours

a week at $17 per hour, or approximately $46,000 per year. While this is true, in light of

Father’s testimony that his work hours varied from week to week and season to season, using the

last seven months of the year as the basis for the entire year’s wages would inherently be flawed

due to the variation of Father’s work hours. To obtain an accurate picture of Father’s income,

and in order to determine if Father’s testimony is supported by the documentary evidence, one

would have to examine a calendar years’ worth of wages. Both the magistrate’s and Mother’s

calculations fail to do this.   The magistrate’s calculation, which is on the low side, is an

extrapolation based upon the end of a year, while Mother’s calculation, which is on the high side,

is an extrapolation based upon income from the first part of a year. An accurate income figure

would appear to lie somewhere in between the two figures. Overall, Father’s assertion that that

he averaged only 52 hours per week, and thus only made approximately $46,000 per year, does

not appear credible in light of the evidentiary material discussed and presented at the hearing.

Instead, it appears that, based upon the evidentiary materials, that Father would have had to

average more than 52 hours per week in light of the fact that his yearly income, based upon an
                                                 5


actual calendar year, would be somewhere between $46,000 and $54,000.              Therefore, the

magistrate’s reliance on this testimony to calculate Father’s income and the trial court’s adoption

of the magistrate’s finding is also misplaced. Accordingly, the matter is remanded so that an

accurate income figure for Father can be determined.

         {¶10} Mother next asserts that the trial court erred in adopting the magistrate’s finding

that Father had child care expenses in the amount of $5200 per year when those expenses were

not documented. We note that Father asserted in his testimony that he spent $250 per week on

child care. The magistrate noted that “Father provided no documentation of these payments, but

[M]other conceded that [F]ather had child care costs.” In calculating the child care costs, the

magistrate utilized a figure of $100 per week which Mother argued at the hearing was a

reasonable figure. The magistrate used the amount of $100 per week, or a total of $5200 per

year. At the hearing, Mother’s counsel asserted that she “would ask that we find the credit be

given to him in the neighborhood of about a hundred dollars a week rather than the $250 a

week.” Given Mother’s counsel’s concession at the hearing, and the magistrate’s compliance

with Mother’s counsel’s request, we cannot say that the trial court abused its discretion in

overruling Mother’s objection on this issue. Essentially, Mother’s counsel’s statement amounted

to a stipulation, and Mother has not provided any authority that the magistrate and trial court

could not rely on that stipulation. Accordingly, we conclude Mother’s argument is without

merit.

         {¶11} Additionally, we note that we are troubled by the trial court’s child support

worksheet. Numerous categories that would be applicable to the instant matter have been left

blank. For example, this Court has a difficult time understanding how the trial court came up

with the actual annual obligation. Section 26 of the worksheet is the portion which determines
                                                6


the actual annual obligation when health insurance is not provided. Both lines 26a and 26b have

been left blank. However, line 26c, which is supposed to represent the difference between 26b

and 26a, and the actual annual obligation, is completed with a figure of $1859. Completing all of

the applicable categories minimizes the chances of an error in the overall annual child support

obligation and aids review of the trial court’s child support award. Marker insists that a child

support worksheet be completed. Marker, 65 Ohio St.3d at paragraph one of the syllabus. While

the worksheet at issue is part of the record, it has not been completed. See In re Jamieson v.

Jamieson, 11th Dist. No. 95-T-5321, 1996 WL 702470, *3 (finding reversible error when a

worksheet was in the record, but only a few of the items were completed); see also Brown v.

Brown, 9th Dist. No. 201077, 2001 WL 324391, * 2-3 (Apr. 4, 2001); In re Day, 7th Dist. No. 01

BA 28, 2003-Ohio-1215, ¶ 27. Accordingly, we also remand the matter so the trial court can

complete a child support worksheet and include it in the record.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DID NOT
       ALLOW THE PARTIES TO PRESENT EVIDENCE AS TO THE TIME
       SHARE OUTLINED IN THE SHARED PARENTING PLAN FOR
       DEVIATION PURPOSES, THEN MADE A DETERMINATION BASED
       UPON FATHER’S INTERPRETATION OF THE TIME SHARE IN HIS
       WRITTEN CLOSING, WHICH WAS NOT BASED UPON REAL TIME
       SPENT.

       {¶12} Mother asserts in her second assignment of error that the trial court erred in

failing to allow the parties to present testimony about how much time they actually spend with

the children under the shared parenting plan. Mother seems to assert that, if the testimony was

allowed, it would be evident that all of Father’s time with the children is not time that Father is

actually home with the children and the actual parenting time split is closer to a 50/50 split. In
                                                 7


addition, Mother asserts that the trial court’s reliance on the magistrate’s calculation was not

supported by the evidence.

          {¶13} We note that the calculation of time the children spend with each parent would

relate to whether or not it was appropriate to deviate from the child support worksheet

calculation. See R.C. 3119.24(A), (B)(1); R.C. 3119.23(D). As the child support worksheet is

incomplete and Father’s income needs to be recalculated, whether deviation is appropriate will

also need to be reevaluated. Thus, it appears that issues related to deviation are not ripe for

review at this time.     Further, we cannot evaluate whether Mother was prejudiced by the

exclusion of the testimony, as we cannot know whether the trial court will deviate from the child

support award when it recalculates the amount. See Civ.R. 61.

          {¶14} Nonetheless, we note that it does not appear that Mother took issue at the

magistrate’s hearing with the magistrate disallowing the testimony that Mother now asserts

should have been admitted. When Mother’s counsel began to question Father about parenting

time, the magistrate asked Mother’s counsel whether such testimony was relevant “when [the

magistrate] [had] the shared parenting agreement [and thus had] the hours written down[.]”

Mother’s counsel replied that it was not, aside from the fact that the time split was not 60/40.

The magistrate then stated that she would do the analysis based on the time as set forth in the

shared parenting plan. Mother’s counsel did not follow up with any other argument as to why

the testimony was necessary.

          {¶15}   Additionally, we note that the shared parenting plan was signed by the parties on

July 11, 2011, and was set to take effect on July 14, 2011. Thus, it would appear that, at the time

of the magistrate’s hearing on July 12, 2011, the parties did not have a chance to put the plan into

action.    Accordingly, it would seem that the testimony Mother asserts should have been
                                                8


admissible would be merely speculative. For example, at the time of the hearing, Mother could

not know how often she would actually be able to exercise her first right of refusal when Father

was unable to care for the children.

       {¶16} To the extent Mother is arguing that the magistrate’s calculation of parenting time

as it relates to propriety of a deviation, and the trial court’s adoption of it, was an abuse of

discretion, we conclude this argument is not properly before us in light of our resolution of

Mother’s first assignment of error. As the trial court must recalculate the child support award, it

will also have to reconsider the validity of a deviation and the factors implicated therein.

Mother’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
       COMPUTED CHILD SUPPORT AND FAILED TO APPLY THE DEVIATION
       FACTORS IN R.C. []3119.23 BASED UPON THE ACTUAL EVIDENCE
       PRESENTED IN THE CASE.

       {¶17} Mother asserts in her third assignment of error that the trial court abused its

discretion in ordering a downward deviation to zero in Father’s child support obligation. In light

of our resolution of Mother’s first assignment of error, we do not reach the merits of Mother’s

argument. The trial court is already required to complete a new child support worksheet, which

will determine an amount due that is presumptively correct. See R.C. 3119.03. If the trial court

determines that the actual annual obligation “would be unjust or inappropriate to the children or

either parent and would not be in the best interest of the child because of the extraordinary

circumstances of the parents or because of any other factors or criteria set forth in section

3119.23 of the Revised Code, the court may deviate from that amount.” R.C. 3119.24(A)(1).

Accordingly, we decline to address Mother’s third assignment of error.
                                                  9


                                  ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT TOOK
       MOTHER’S ENTITLEMENT TO FLORIDA CHILD SUPPORT ARREARS
       FROM FATHER IN THE AMOUNT OF $150.00 PER MONTH INTO
       CONSIDERATION AS A BASIS FOR DENYING HER CHILD SUPPORT.

       {¶18} Mother asserts in her fourth assignment of error that the trial court erred in taking

into account Father’s child support arrears in determining that a downward deviation to zero was

appropriate.

       {¶19} Assuming that the trial court did consider the arrears as a basis for the downward

deviation to zero, a review of that issue is not before us in light of our resolution of Mother’s first

assignment of error.     After recalculating the child support award, the trial court can then

determine the appropriateness of a deviation based upon on the statutory factors referred to in

R.C. 3119.24. Accordingly, we decline to address Mother’s fourth assignment of error.

                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
       TO FOLLOW THE REQUISITE GUIDELINES FOR AWARDING MOTHER
       THE TAX EXEMPTION OF THE CHILDREN AND DID NOT ALLOW HER
       TO CLAIM EVEN ONE OF THE CHILDREN.

       {¶20} Mother asserts in her fifth assignment of error that the trial court erred in

awarding the tax exemptions for both children to Father. We agree.

       {¶21} “The allocation of tax exemptions between parents will not be disturbed absent an

abuse of discretion.” (Internal quotations and citations omitted.) Lawrence v. McCraw, 9th Dist.

No. 10CA0079-M, 2011–Ohio–6334, ¶ 14. R.C. 3119.82 provides:

       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
                                                 10


       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.

       {¶22} “[U]nder a shared parenting arrangement both parties are, in essence, deemed to

be the residential parent, thus the presumption [that the residential parent is entitled to the tax

exemption] would not apply.” Hall v. Hall, 3rd Dist. No. 6-10-01, 2010-Ohio-4818, ¶ 49.

“Therefore, the trial court is essentially left to allocate the tax dependency exemption focusing

on what is in the best interest of the children, which includes any net tax savings for either of the

parents.” Id.; see also Rainey v. Rainey, 12th Dist. No. CA2010-10-083, 2011-Ohio-4343, ¶ 40.

The factors appropriate for consideration are listed in the statute: “[N]et 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 * * *.” R.C. 3119.82; see

also Ankney v. Bonos, 9th Dist. No. 23178, 2006-Ohio-6009, ¶ 40, overruled in part on other

grounds, Gunderman v. Gunderman, 9th Dist. No. 08CA0067-M, 2009-Ohio-3787, ¶ 13. “Net

tax savings ‘occur through allocation to the noncustodial parent only if the noncustodial parent’s

taxable income falls into a higher tax bracket than the tax bracket of the custodial parent.’”

Jacobs v. Jacobs, 9th Dist. No. 12CA0019, 2012-Ohio-5815, ¶ 4, quoting Singer v. Dickinson,

63 Ohio St.3d 408, 415 (1992). “If both parents’ incomes are taxed in the same tax bracket, no
                                                   11


net savings are realized by allocating the exemption to the noncustodial parent.” Singer at 416;

see also In re J.H., 7th Dist. No. 10 JE 15, 2011-Ohio-6536, ¶ 17 (noting that examining the tax

bracket of the parents determines the net benefit of the exemption because it sets the value of the

exemption to each party). “In determining whether taxes would be saved by allocating the

federal tax dependency exemption * * *, a court should review 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.” Id. “While the trial court

does not need to state a basis for allocating the exemption, the record does need to include

financial data in relation to the above factors to support the trial court’s decision.” (Internal

quotations and citation omitted.) Jacobs at ¶ 4.

       {¶23} In the instant matter, the parties agreed in their shared parenting plan that they

would allow the trial court to decide the matter of the tax exemptions. The magistrate found that

       [t]here was insufficient evidence presented to show that either parent would have
       greater tax savings, earned income tax credit or other tax credits. Both asserted
       that they would receive more benefit – [F]ather because he’s in a higher tax
       bracket; [M]other because she is in a lower tax bracket and has received the
       earned income credit in the past – but there was no evidence to show that these
       assertions would actually occur. And if they were to occur, the magistrate is
       without sufficient evidence to know whether they would offset one another.

       {¶24} The trial court adopted the magistrate’s decision and overruled Mother’s

objections on the issue. In awarding the exemptions the magistrate and trial court did so on the

basis of the fact that Father has direct care of the children “50% more” than Mother, Mother’s

income has the potential to go unreported, and Mother’s “job status is more tenuous[.]” Thus, it

appears the magistrate and the trial court were focused primarily on the possibility of Mother

having unreported income or of not having a job, as opposed to the facts and evidence of

Mother’s current situation. While it is clear that the magistrate and trial court found that there
                                                 12


was insufficient evidence to determine which parent would receive the greater tax benefit from

claiming the exemptions, the remedy for such a problem was to require the parties to supply

information necessary so that appropriate consideration of the relevant factors could occur. It is

true that this Court has stated that, “[i]n the absence of evidence showing that the nonresidential

parent would receive a net tax savings from the dependency exemption, the court must employ

the presumption that the dependency exemption belongs to the residential parent.” (Internal

quotations and citation omitted.) Dunlap v. Dunlap, 9th Dist. No. 23860, 2008-Ohio-3201, ¶ 13.

Nonetheless, it is unclear how this presumption would apply in this case as both parents are

residential parents.   Thus, given the lack of a presumption as to who should receive the

exemption under the facts of this case, information relevant to the factors is vitally important to

resolve the matter.

       {¶25} We reiterate that all of the relevant factors need to be taken into consideration.

See R.C. 3119.82; Singer, 63 Ohio St.3d at 416. This would include any case-specific additional

factor, such as whether either parent is in arrears on child support. See R.C. 3119.82 (stating that

“the court shall consider, in making its determination, * * * any other relevant factor concerning

the best interest of the children[]”); see also Flynn v. Sender, 8th Dist. No. 84406, 2004-Ohio-

6283, ¶ 34. It does not appear that the magistrate or trial court considered the fact that Father

was significantly in arrears on the Florida child support award; a fact that would not favor Father

receiving the exemption.1 See Flynn at ¶ 34.


       1
         We note that R.C. 3119.82 states that “the court * * * may permit the parent who is not
the residential parent and legal custodian to claim the children as dependents * * * 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.” It is
unclear how this language would apply in the context of these facts, given that both parents are
the residential parent. Thus, it would not seem that the statute would bar a residential parent in
                                                 13


       {¶26} In light of the fact that both the magistrate and trial court found the information

related to the parties’ financial and tax matters to be insufficient to determine the net tax benefit

of the exemption, and the fact that it appears that the magistrate and trial court failed to take into

account the fact Father was significantly in arrears, we sustain Mother’s fifth assignment of

error. The matter is remanded so that the trial court can receive evidence which would allow it

to fully evaluate the issue and consider all of the above listed factors. See Lawrence, 2011-Ohio-

6334, at ¶ 15; Ankney, 2006-Ohio-6009, at ¶ 42.

                                                 III.

       {¶27} In light of the foregoing, we sustain portions of the Mother’s first assignment of

error and Mother’s fifth assignment of error. The remaining arguments are either overruled or

are not properly before us. The judgment of the Summit County Court of Common Pleas,

Juvenile Division, is affirmed in part and reversed in part.          The matter is remanded for

proceedings consistent with this opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.




arrears from receiving the exemption. Nonetheless, the wording of the statute does indicate that
the presence of arrears should at the very least be a factor weighing against the award of an
exemption.
                                                14


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

GREGORY PRICE, Attorney at Law, for Appellee.

CHELSEA BOLLIN, Assistant Prosecuting Attorney, for Appellee.
