[Cite as Jones v. Jones, 2014-Ohio-330.]




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

 JENNIFER N. JONES                              :
                                                :      Appellate Case No. 2013-CA-32
           Plaintiff-Appellee                   :
                                                :      Trial Court Case No. 11-DR-94
 v.                                             :
                                                :
 RICHARD A. JONES                               :      (Civil Appeal from Common Pleas
                                                :      (Court, Domestic Relations)
           Defendant-Appellant                  :
                                                :
                                           ...........

                                           OPINION

                             Rendered on the 31st day of January, 2014.

                                           ...........

JOHN E. HEMM, Atty. Reg. #0021506, Dungan & LeFevre Co., L.P.A., 111 West Ash Street,
Box 1529, Piqua, Ohio 45356
      Attorney for Plaintiff-Appellee

ANDREW D. LUCIA, Atty. Reg. #0067191, Post Office Box 122, Troy, Ohio 45373
    Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1}     Defendant-appellant Richard A. Jones appeals from an order of the Miami

County Common Pleas Court modifying his child support obligation to an amount in accordance
                                                                                                                                        2


with the child support guidelines.                  Mr. Jones contends that he is entitled to a downward

deviation from the amount set by the guidelines.

         {¶ 2}       We conclude that the trial court did not abuse its discretion with regard to the

amount of child support. Accordingly, the judgment of the trial court is Affirmed.



                                            I. The Course of Proceedings

         {¶ 3}       Jennifer and Richard Jones were married in 2003.                                 They have two minor

children.       In 2011, Ms. Jones filed a petition for dissolution.                           The parties entered into a

separation agreement. Ms. Jones was designated as the custodial and residential parent of the

minor children. The parties agreed that Mr. Jones would pay an amount of child support less

than the amount specified by the Child Support Guidelines. 1                                  The purpose of the agreed

deviation was to permit Mr. Jones to “get re-established financially.” The agreement also stated

that “[t]he parties further agree that after twelve (12) months the Wife can, if she so chooses, file

a motion with the Court seeking a modification of child support to be consistent with the

Supreme Court Guidelines, and that the passage of twelve (12) months will be considered a

change of circumstances to allow said motion to be filed should she so choose.” A decree of

dissolution, incorporating the separation agreement, was entered on April 13, 2011.

         {¶ 4}       Almost two years later, in February 2013, Ms. Jones filed a motion for

modification of child support. A hearing was conducted in May 2013, following which the

magistrate issued a decision setting Mr. Jones’s monthly child support obligation at $319.24 per


            1
              At the time, Mr. Jones had a yearly income of $29,120 while Ms. Jones’s income was $47,132.80. Child support was set at
 $432 per month – $216 per child.
                                                                                                  3


child, in accordance with the child support guidelines. Mr. Jones’s objections to the decision

were overruled, and the trial court adopted that decision as the order of the court. Mr. Jones

appeals.



               II. The Trial Court Did Not Abuse its Discretion by Ending an

           Agreed Temporary Downward Deviation in Mr. Jones’s Child Support

            Obligation and Setting Child Support in the Amount Specified by the

            Child Support Guidelines, as Expressly Contemplated by the Parties

           in their Separation Agreement Incorporated in the Dissolution Decree

       {¶ 5}    Mr. Jones’s sole assignment of error states as follows:

               THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND

       PREJUDICIAL ERROR AS THE DECISION IS MANIFESTLY AGAINST THE

       WEIGHT       OF     THE     EVIDENCE,       THUS      THEREBY        ARBITRARY,

       UNREASONABLE, AND UNCONSCIONALBE [SIC].

       {¶ 6}    Mr. Jones contends that a modification of his support obligation is not

appropriate, because there has been no showing of a change in circumstances with regard to his

salary or the “fiscal disparity” between his income and that of Ms. Jones. He further argues that

Ms. Jones has “experienced a significant increase in her standard of living because her live-in

boyfriend earns income at a level comparable to [Ms. Jones], and by the testimony of [Ms.

Jones], it is known that he makes substantial contributions to the household.” Finally, he argues

that the trial court awarded him two overnight visits with the children per week in addition to the

standard visitation order, so that he incurs more costs of care than someone subject to the
                                                                                                   4


standard order of visitation, which does not provide for overnights during the workweek. In

short, he argues that the trial court should continue to deviate downward from the child support

guidelines with regard to his support obligation.

       {¶ 7}     “In any action or proceeding in which the court determines the amount of child

support that will be ordered to be paid pursuant to a child support order * * *, the amount of child

support that would be payable under a child support order, as calculated pursuant to the basic

child support schedule and applicable worksheet through the line establishing the actual annual

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

 However, “if, after considering the factors and criteria set forth in section 3119.23 of the

Revised Code, the court determines that the amount calculated pursuant to the basic child support

schedule and the applicable worksheet, through the line establishing the actual annual obligation,

would be unjust or inappropriate and would not be in the best interest of the child[,]” the trial

court may deviate from the guidelines. The factors listed in R.C. 3119.23 include:

               (A) Special and unusual needs of the children;

               (B) Extraordinary obligations for minor children or obligations for

       handicapped children who are not stepchildren and who are not offspring from the

       marriage or relationship that is the basis of the immediate child support

       determination;

               (C) Other court-ordered payments;

               (D) Extended parenting time or extraordinary costs associated with

       parenting time, provided that this division does not authorize and shall not be

       construed as authorizing any deviation from the schedule and the applicable
                                                                                      5


worksheet, through the line establishing the actual annual obligation, or any

escrowing, impoundment, or withholding of child support because of a denial of

or interference with a right of parenting time granted by court order;

       (E) The obligor obtaining additional employment after a child support

order is issued in order to support a second family;

       (F) The financial resources and the earning ability of the child;

       (G) Disparity in income between parties or households;

       (H) Benefits that either parent receives from remarriage or sharing living

expenses with another person;

       (I) The amount of federal, state, and local taxes actually paid or estimated

to be paid by a parent or both of the parents;

       (J) Significant in-kind contributions from a parent, including, but not

limited to, direct payment for lessons, sports equipment, schooling, or clothing;

       (K) The relative financial resources, other assets and resources, and needs

of each parent;

       (L) The standard of living and circumstances of each parent and the

standard of living the child would have enjoyed had the marriage continued or had

the parents been married;

       (M) The physical and emotional condition and needs of the child;

       (N) The need and capacity of the child for an education and the educational

opportunities that would have been available to the child had the circumstances

requiring a court order for support not arisen;
                                                                                                   6


                (O) The responsibility of each parent for the support of others;

                (P) Any other relevant factor.

        {¶ 8}     During the hearing, the parties stipulated that Ms. Jones’s current yearly income

was $46,000 while Mr. Jones’s income was $28,886. The evidence showed that one of the

children was having difficulty at school, which necessitated counseling, paid for by Ms. Jones.

Additionally, Ms. Jones was paying the sum of $1,000 per year for that child to attend a private

school. She testified that the other child would be attending the same school the following year

and that she was not sure of the amount that would be charged for her tuition. Ms. Jones was

also paying for health insurance coverage for the children in the sum of $182 per month, as well

as child-care costs of $449.32 per month. She also pays the costs of extracurricular activities of

the children. Ms. Jones stated that her boyfriend resides with her and he contributes money to

help pay for groceries and mortgage expenses.

        {¶ 9}    Mr. Jones testified that he has was residing with his parents in their six-bedroom

house and that he pays them $300 per month for rent. Before then, he lived with a girlfriend.

He testified that he is supposed to pay any portion of his parents’ electric bill over $300, but the

bill had not gone over that amount since he had resided with them. He testified that he had been

paying child support for another child, not of this marriage, but that child would become

emancipated the day after the hearing in this case. Mr. Jones has visitation with the children

from Tuesday after work until Thursday morning, as well as every other weekend. He testified

that he has spent about $150 on clothing for the children and that he purchased a sports helmet

for his son.

        {¶ 10} We conclude that the trial court did not abuse its discretion in ordering that the
                                                                                                                                             7


agreed temporary downward deviation be discontinued and setting child support in the amount

specified by the guidelines.                  By virtue of the separation agreement incorporated in their

dissolution decree, the parties agreed to a downward deviation from the child support amount

specified by the guidelines for one year.                         They further agreed that child support could be

modified after that time. Under these circumstances, continuing the downward deviation from

the child support guidelines after a year had passed was not within the contemplation of the

parties at the time of the decree.

         {¶ 11} We also reject Mr. Jones’s argument that a downward deviation is justified by his

claim that Ms. Jones has seen an increase in her standard of living due to the fact that her

boyfriend shares some household expenses. Mr. Jones lives with his parents. He did not

submit any documentation regarding his income or expenses. He testified that he pays $300 per

month as rent. The only other expense he testified to was a one-time $150 payment for clothes

and an unknown amount for a sports helmet.2 He testified that his parents work and that they

receive income from a rental property. The magistrate noted that he, like Ms. Jones, pays 1.75%

in local income tax. The evidence supports a finding that Mr. Jones also enjoys a subsidized

standard of living, as a result of living with his parents.




           2
                 As previously noted, Mr. Jones apparently paid for child support and health insurance for another child, but that expense was
 not relevant, since the child became emancipated the day after the hearing.
[Cite as Jones v. Jones, 2014-Ohio-330.]
         {¶ 12} Finally, both the magistrate and the trial court noted the fact that Mr. Jones

enjoys two overnight visitations during the week, which is more than mandated in the standard

visitation guidelines.          But Mr. Jones did not testify that this resulted in any extraordinary

expenses. The only expense he testified to was the one-time payment of $150 for clothing

during the two years after the dissolution. While it can be presumed that costs were incurred for

feeding the children during the extra visitation, there is no evidence that this cost was borne by

Mr. Jones, who did not claim to have expenses for groceries.3

         {¶ 13} A trial court's child-support modification is reviewed for an abuse of discretion.

Lenoir v. Paschal, 2d Dist. Montgomery No. 23732, 2010-Ohio-2922, ¶ 5. Based upon this

record, we conclude that the trial court did not act unreasonably, arbitrarily, or unconscionably by

failing to continue the agreed temporary downward deviation in Mr. Jones’ child support

obligation from the amount specified by the Ohio child support guidelines. Mr. Jones’s only

monthly expense, according to this record, consists of rent, in the amount of $300, paid to his

parents. He made no showing that a downward deviation from the child support guidelines is

warranted.

         {¶ 14} Mr. Jones’s sole assignment of error is overruled.



                                                       III. Conclusion

         {¶ 15} Mr. Jones’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

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

           3
             While the magistrate made a finding that Mr. Jones paid $100 per month for groceries, the record does not support that
 finding. From the evidence in the record, it is possible that Mr. Jones’s parents pay for the household groceries.
                                           9


FROELICH, P.J., and DONOVAN, J., concur.



Copies mailed to:

John E. Hemm
Andrew D. Lucia
Hon. Robert J. Lindeman
