[Cite as Hackett v. Hackett, 2013-Ohio-4684.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

DENISE K. HACKETT (NKA BERRY)                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 13CAF010002
DAMIAN M. HACKETT

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Delaware County Court of
                                                Common Pleas, Domestic Relations
                                                Division, Case No. 04-DSC-04-165


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         October 21, 2013


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


DOUGLAS W. WARNOCK                              SCOTT M. GORDON
20 East Central Avenue                          40 N. Sandusky Street, Suite 300
Delaware, Ohio 43015                            Delaware, Ohio 43015
Delaware County, Case No. 13CAF010002                                                  2

Hoffman, P.J.


       {¶1}   Defendant-appellant Damian M. Hackett appeals the December 19, 2012

and January 15, 2013 Judgment Entries entered by the Delaware County Court of

Common Pleas, Domestic Relations Division, which overruled Appellant’s objections to

the magistrate’s August 10, 2012 decision, approved and adopted said decision as

order of the court. Plaintiff-appellee is Denise K. Hackett, nka Berry.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   Appellant and Appellee were married on November 7, 1992. Two children

were born as issue of the marriage, to wit: Cameron (DOB 4/26/95) and Mallory (DOB

2/9/98). The trial court dissolved the parties’ marriage via Decree of Dissolution of

Marriage filed June 1, 2004. Pursuant thereto, the parties agreed the parental rights

and responsibilities for the minor children would be shared, Appellee would be

designated as the residential parent for school-placement purposes, and Appellant

would pay child support in the amount of $765.00/month for the minor children. The

parties filed a Decree of Shared Parenting on June 1, 2004. Appellant’s child support

obligation remained the same for approximately seven years.

       {¶3}   On June 23, 2011, Appellee filed a post-decree motion. Therein, Appellee

sought a lump-sum judgment against Appellant for payment and reimbursement of

medical and other expenses. She also requested a modification of and an increase in

Appellant’s child support obligation; an order Appellant provide proof of life insurance

and other accounts for the children; and any other relief deemed appropriate by the trial

court. On January 4, 2012, Appellant filed a motion seeking a recalculation of and

deviation from child support. The magistrate conducted a hearing on the motions on
Delaware County, Case No. 13CAF010002                                                3


January 19, 2012, and April 23, 2012. At the time of the hearing, both parties had

significantly higher incomes than they had when the marriage was dissolved in 2004.

Appellant worked as an account manager at JRC Toyota and earned over $100,000, in

2011. Appellee worked as a teacher an earned over $77,000, in 2011.

      {¶4}   The magistrate issued his decision on August 10, 2012.    The magistrate

granted Appellee’s motion for an increase in Appellant’s child support obligation,

increasing such to $1,274.24/month.    The amount was calculated using a figure of

$102,966.02, for Appellant’s income, which represents the sum of Appellant’s wages as

shown on his 2011 W-2, $96,966.02, and his annual car allowance of $6,000. The

magistrate denied Appellant’s request for a recalculation and deviation from child

support. Appellant filed timely objections to the magistrate’s decision. Via judgment

entry filed December 19, 2012, the trial court overruled all of Appellant’s objections.

The trial court approved and adopted the magistrate’s decision via judgment entry filed

January 15, 2013.

      {¶5}   “I. THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE SPECIFIC

FACTS SUPPORTING ITS DECISION TO DESIGNATE FATHER AS THE OBLIGOR

FOR PURPOSES OF COMPLETING A CHILD SUPPORT WORKSHEET, PURSUANT

TO FRENCH V. BURKHART, 2000 WL 699656, *1, 4 (OHIO APP.5TH DIST.)

      {¶6}   “II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FAILING

TO APPLY R.C. §3119.24 IN ITS ANALYSIS OF THE DEVIATION OF CHILD

SUPPORT.
Delaware County, Case No. 13CAF010002                                                    4


      {¶7}   “III. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

GRANT A DEVIATION FROM THE GUIDELINE CHILD SUPPORT CALCULATION

PURSUANT TO R.C. §3119.24 AND R.C. §3119.23.

      {¶8}   “IV. THE TRIAL COURT ERRED, AS A MATTER OF LAW, WHEN

APPLYING R.C. §3119.05(D) BY NOT AVERAGING APPELLANTS’ PRIOR THREE

YEARS OF COMMISSIONS.”

                                                I

      {¶9}   In his first assignment of error, Appellant contends the trial court erred in

failing to set forth specific facts in support of its decision to designate Appellant as

obligor for purposes of completing a child support worksheet.

      {¶10} Appellant did not object to the magistrate’s failure to set forth facts

supporting the decision to designate Appellant as obligor.

      {¶11} Civ.R. 53(D)(3)(b)(iv) provides:

             Except for a claim of plain error, a party shall not assign as error on

      appeal the court's adoption of any factual finding or legal conclusion,

      whether or not specifically designated as a finding of fact or conclusion of

      law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that

      finding or conclusion as required by Civ.R. 53(D)(3)(b)

      {¶12} Because Appellant failed to object to the magistrate's decision, we find he

has waived all but plain error. The plain error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances where error,

to which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the legitimacy
Delaware County, Case No. 13CAF010002                                                      5

of the underlying judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d 116, 679

N.E.2d 1099, 1997-Ohio-401, at syllabus.

       {¶13} Appellant was designated obligor pursuant to the parties’ Decree of

Shared Parenting filed June 1, 2004, and approved by Appellant. Accordingly, we find

no plain error in the trial court's designation of Appellant as obligor.

       {¶14} Appellant’s first assignment of error is overruled.

                                                  II

       {¶15} In his second assignment of error, Appellant maintains the trial court erred

as a matter of law by failing to apply R.C. 3119.24 in its analysis of the deviation of child

support.

       {¶16} R.C. 3119.24 imposes an obligation upon the court to calculate child

support pursuant to the requirements of the statute. R.C. 3119.24 states:

              (A)(1) 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.
Delaware County, Case No. 13CAF010002                                                    6

              (2) The court shall consider extraordinary circumstances and other

       factors or criteria if it deviates from the amount described in division (A)(1)

       of this section and shall enter in the journal the amount described in

       division (A)(1) of this section its determination that the amount would be

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

       and findings of fact supporting its determination.

              (B) For the purposes of this section, “extraordinary circumstances

       of the parents” includes all of the following:

              (1) The amount of time the children spend with each parent;

              (2) The ability of each parent to maintain adequate housing for the

       children;

              (3) Each parent's expenses, including child care expenses, school

       tuition, medical expenses, dental expenses, and any other expenses the

       court considers relevant;

              (4) Any other circumstances the court considers relevant.

       (Emphasis added).

       {¶17} The language in R.C. 3119.24(A)(2), which grants a trial court authority to

deviate from the calculated child support order is discretionary. If, and only if, a trial

court chooses to deviate from the worksheet is the trial court required to consider the

factors.

       {¶18} In the case subjudice, the trial court did not order a deviation; therefore,

the trial court was not required to consider the factors. We find the trial court did not

abuse its discretion.
Delaware County, Case No. 13CAF010002                                                    7


      {¶19} Appellant’s second assignment of error is overruled.

                                                III

      {¶20} In his third assignment of error, Appellant submits the trial court abused its

discretion in failing to grant a deviation from the guideline child support calculation

pursuant to R.C. 3119.24 and 3119.23.

      {¶21} In reviewing matters concerning child support, the decision of the trial

court should not be overturned absent an abuse of discretion. Booth v. Booth (1989), 44

Ohio St.3d 142, 144, 541 N.E.2d 1028. “The term ‘abuse of discretion’ connotes more

than an error of law or judgment, it implies that the court's attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore (1984), 5 Ohio St.3d 217, 219,

450 N.E.2d 1140.

      {¶22} Generally, if a trial court issues a shared parenting order, the trial court

must also order the payment of an amount of child support calculated using the child

support schedule and the worksheet set forth in R.C. 3119.022. R.C. 3119.24(A). The

guideline child support amount which results from the use of the basic child support

schedule and the applicable worksheet (through the line establishing actual annual

obligation) is presumed to be the correct amount of child support due. R.C. 3119.03.

However, if the guideline child support 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). The factors which guide the trial court's decision to deviate

include R.C. 3119.23(D), “[e]xtended parenting time”; R.C. 3119.23(C), “[o]ther court-
Delaware County, Case No. 13CAF010002                                                    8


ordered payments”; R.C. 3119.23(G), “[d]isparity in income between the parties or

households”; R.C. 3119.23(H), “[b]enefits that either parent receiveds from remarriage

or sharing living expenses with another person”; R.C. 3119.23(J), “[s]ignificant in-kind

contributions from a parent, including, but not limited to, direct payment for lessons,

sports equipment, schooling, or clothing; and R.C. 3119.23(P), “[a]ny other relevant

factor.”

       {¶23} In Pauly v. Pauly, 80 Ohio St.3d 386 (1997), the Supreme Court of Ohio

addressed whether R.C. 3113.215(B)(6)(a), now R.C. 3119.24(A) mandated an

automatic decrease in child support for any time a parent might spend with a child

beyond the shared parenting plan schedule. The court found the relevant statute did not

extend any automatic reductions; instead, the statute vested the trial court with the

discretion to deviate downward from the guideline child support amount if the

circumstances, including extended parenting time, justified such a deviation. Id. at 389–

90.

       {¶24} The trial court specifically found a downward deviation from the guideline

support would not be in the children’s best interest, noting the unique activities in which

the children were involved as well as the significant increase in both parties’ incomes

since the original shared parenting decree. Upon review of the entire record, we find

the trial court’s decision not to grant Appellant a downward deviation was not an abuse

of discretion.

       {¶25} Appellant’s third assignment of error is overruled.
Delaware County, Case No. 13CAF010002                                                    9


                                                IV

       {¶26} In his fourth assignment of error, Appellant asserts the trial court erred and

abused its discretion in calculating the amount of child support using Appellant’s current

income, rather than by averaging.

       {¶27} Pursuant to R.C. 3119.05(H), the trial court, “when appropriate,” may

average the obligor's income over a reasonable period of years in order to compute

“gross income” for a child support order. The decision to do so lies within the trial

court's discretion and will not be reversed absent abuse of discretion. Johnson v.

Huddle, 4th Dist. No. 03CA19, 2004–Ohio–410, at ¶ 12.

       {¶28} Averaging one's income is utilized when a party's income is “unpredictable

or inconsistent.” Scott G.F. v. Nancy N.W., 6th Dist. No. H–04–015, 2005–Ohio–2750,

at ¶ 46.    “[I]ncome averaging is appropriate when gross income varies due to

circumstances and factors beyond the parent's control, no matter what the source may

be. It is no more ‘fair’ to penalize a parent and order much higher child support after an

uncommonly good financial year, than it would be to penalize the child for a parent's

temporary decline in income.” Id. at ¶ 47.

       {¶29} A review of the record reveals Appellant’s employment changed in 2009,

and he received unemployment benefits that year. We find income averaging under

these facts and circumstances would not be appropriate given the different

employments, the varied pay structures, the period of unemployment, and the receipt of

unemployment compensation. Accordingly, we cannot say the trial court abused its

discretion in the not utilizing averaging to calculate Appellant's income.

       {¶30} Appellant’s fourth assignment of error is overruled.
Delaware County, Case No. 13CAF010002                                        10


       {¶31} The judgment of the Delaware County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                        ___________________________________
                                        HON. WILLIAM B. HOFFMAN


                                        ___________________________________
                                        HON. SHEILA G. FARMER


                                        ___________________________________
                                        HON. PATRICIA A. DELANEY
Delaware County, Case No. 13CAF010002                                        11


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


DENISE K. HACKETT (NKA BERRY)           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
DAMIAN M. HACKETT                       :
                                        :
       Defendant-Appellant              :        Case No. 13CAF010002


       For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas, Domestic Relations Division, is affirmed.

Costs to Appellant.




                                        ___________________________________
                                        HON. WILLIAM B. HOFFMAN


                                        ___________________________________
                                        HON. SHEILA G. FARMER


                                        ___________________________________
                                        HON. PATRICIA A. DELANEY
