[Cite as Abrams v. Abrams, 2017-Ohio-4319.]




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

 LAVONNE ABRAMS                                     :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27345
                                                    :
 v.                                                 :   Trial Court Case No. 2002-DR-1901
                                                    :
 RODNEY C. ABRAMS                                   :   (Appeal from Domestic Relations
                                                    :   Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                            Rendered on the 16th day of June, 2017.

                                               ...........

CAROL J. HOLM, Atty. Reg. No. 0014613, 130 West Second Street, Suite 1010, Dayton,
Ohio 45402
      Attorney for Plaintiff-Appellee

JEFFREY D. SLYMAN, Atty. Reg. No. 0010098, 211 Kenbrook Drive, Suite 5, Vandalia,
Ohio 45377
      Attorney for Defendant-Appellant

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




WELBAUM, J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, Rodney C. Abrams, appeals from the judgment of the

Montgomery County Court of Common Pleas, Domestic Relations Division, overruling in

part and sustaining in part his objections to the magistrate’s decision that denied his

motion to show cause and motion to modify child support. For the reasons outlined

below, the judgment of the trial court will be affirmed.



                             Facts and Course of Proceedings

       {¶ 2} Rodney and Lavonne Abrams (hereinafter “Rodney” and “Lavonne”) were

married on April 1, 1995. One daughter, D.J.A., was born as issue of their marriage in

1997. After almost ten years of marriage, the parties were granted a Final Judgment and

Decree of Divorce on December 30, 2004.

       {¶ 3} Article IV of the divorce decree ordered Rodney to pay $666 per month in

child support for D.J.A. The decree noted that D.J.A. “may be a Castle child and the

parties agree that child support shall continue until such time as [D.J.A.] is able to live

independently, if ever.” 1    Judgment Entry and Decree of Divorce (Dec. 30, 2004),

Montgomery County Domestic Relations Court Case No. 2002-DR-1901, Docket No. 49,

Article IV, p. 5.

       {¶ 4} Article XIII of the divorce decree further ordered Rodney to quitclaim the

parties’ marital residence located in Moraine, Ohio, to Lavonne within seven days of the



1
  The phrase “Castle child,” means that the child “has a mental or physical disability,
attained before the age of majority, that may extend the parents’ duty to support her
beyond the age of majority.” Elam v. Elam, 2d Dist. Montgomery No. 25326, 2013-Ohio-
957, ¶ 4, citing Castle v. Castle, 15 Ohio St.3d 279, 473 N.E.2d 803 (1984).
                                                                                        -3-


decree being filed. Under the same article, the decree ordered Lavonne to refinance the

residence in her own name within one year from the date of the decree, or the residence

would immediately be listed for sale with Lavonne to receive the proceeds or costs of said

sale. Lavonne has resided at the marital residence with D.J.A. at all times since the

divorce.

      {¶ 5} Eleven years after the divorce, on March 15, 2016, Rodney filed a motion to

modify the child support payment ordered by the divorce decree for the reason that D.J.A.

had begun receiving social security disability benefits in the amount of $488.67 per month

as of December 2015. On May 2, 2016, Rodney also filed a motion to show cause, in

which he moved the trial court for an order requiring Lavonne to appear and show cause

as to why she should not be held in contempt of court for failing to refinance the marital

residence in her name as required by the divorce decree.

      {¶ 6} A hearing on both of Rodney’s motions was held before a magistrate on June

22, 2016. At the hearing, the magistrate heard testimony and received exhibits from

Rodney and Lavonne, both of whom were represented by counsel. Rodney’s exhibits

included his and Lavonne’s tax returns from 2013, 2014, and 2015. Lavonne’s exhibits

included: (1) the promissory note for the marital residence; (2) a quitclaim deed signed by

Rodney transferring the marital residence to Lavonne on November 4, 2015; (3) an

October 16, 2015 correspondence from Evolve Bank & Trust regarding an application for

a home loan; (4) a June 2, 2016 Housing Source application for foreclosure intervention

assistance; and (5) three of Lavonne’s pay stubs from March and April 2016.

      {¶ 7} During the hearing, Rodney objected to the magistrate allowing Lavonne to

testify regarding the correspondence from Evolve Bank & Trust and the Housing Source
                                                                                          -4-


application (marked as Plaintiff’s Exhibit Nos. 3 and 4) on grounds that the documents

constituted inadmissible hearsay.       Specifically, Rodney claimed that the documents

were business records that required authentication by a records custodian, which

Lavonne failed to provide.

         {¶ 8} The magistrate overruled Rodney’s objections to Plaintiff’s Exhibit Nos. 3 and

4, indicating that the exhibits would be admitted “for what they are worth.” Hearing Trans.

(June 22, 2016), p. 18, 42. The magistrate allowed Lavonne to reference her credit

report in the correspondence from Evolve Bank & Trust (Plaintiff’s Exhibit No. 3) and

permitted her to read into the record a hardship statement that she drafted and signed on

the Housing Source application (Plaintiff’s Exhibit 4).        However, Lavonne did not

otherwise testify regarding the contents of Plaintiff’s Exhibit Nos. 3 and 4, and the

magistrate did not permit Lavonne to explain what the exhibits showed. See id. at 17-

18.

         {¶ 9} Following the hearing, on July 22, 2016, the magistrate issued a written

decision overruling both Rodney’s motion to show cause and his motion to modify child

support. With respect to the motion to show cause, the magistrate found that Rodney

failed to establish by clear and convincing evidence that Lavonne was in contempt for

failing to abide by the refinance provision in the divorce decree. The magistrate came to

this conclusion because Rodney failed to quitclaim the marital real estate to Lavonne in

a timely manner, and because Lavonne proved her inability to comply with the refinancing

order.

         {¶ 10} With respect to the motion to modify child support, the magistrate found no

substantial change in circumstances warranting a modification given that the magistrate
                                                                                            -5-


calculated less than a ten percent deviation between the original child support order and

the new child support computation using the income information provided by the parties

at the hearing. The magistrate did not include D.J.A.’s social security disability benefits

in the new computation based on the Supreme Court of Ohio’s holding in Paton v. Paton,

91 Ohio St.3d 94, 742 N.E.2d 619 (2001) (holding that “[s]upplemental security income

benefits received by a disabled child do not constitute a financial resource of the child

pursuant to R.C. 3113.215(B)(3)(f)[2] for purposes of justifying a trial court’s deviation from

the basic child support schedule”). Accordingly, based on the magistrate’s calculation of

the parties’ current gross incomes, the magistrate recommended the child support order

of $666 remain unchanged.

         {¶ 11} Rodney filed timely objections to the magistrate’s decision on August 2,

2016, and supplemental objections on August 24, 2016.              Lavonne filed a reply to

Rodney’s objections on September 6, 2016.

         {¶ 12} In objecting to the magistrate’s decision overruling his motion to show

cause, Rodney argued that the magistrate’s failure to find Lavonne in contempt of court

was against the manifest weight of the evidence since the evidence established that

Lavonne violated the divorce decree by failing to refinance the marital residence in her

name within one year of the decree being filed. Rodney also argued that the magistrate

incorrectly determined that the defense of inability to comply with the divorce decree

applied to Lavonne given that said defense was based on information elicited from

hearsay statements, i.e., Plaintiff’s Exhibit Nos. 3 and 4.

         {¶ 13} In objecting to the magistrate’s decision overruling his motion to modify child


2
    R.C. 3113.215(B)(3)(f) is now codified as R.C. 3119.23(F).
                                                                                          -6-


support, Rodney challenged the magistrate’s computation of child support. Specifically,

Rodney contended that the magistrate’s child support computation used Lavonne’s

incorrect gross income, claiming the figure used did not include Lavonne’s overtime pay,

401K withdrawal, and rental income. Rodney also contended that the magistrate should

have granted him a deviation from the basic child support worksheet computation due to

D.J.A. receiving social security disability benefits.

       {¶ 14} After conducting an independent review as required by Civ.R. 53, the trial

court overruled Rodney’s objections in part and sustained them in part. As for the motion

to show cause, the trial court determined the magistrate correctly found that Lavonne had

established the inability to comply with the refinance order in the divorce decree, and that

the magistrate did not err in considering Plaintiff’s Exhibit Nos. 3 and 4 given that the

exhibits were not used for the truth of the matter asserted. However, the trial court

sustained Rodney’s objection in part given that the divorce decree required Lavonne to

list the marital residence for sale if she had not refinanced within a year from the decree

being filed. Since Lavonne had not yet refinanced the marital residence in her name, the

trial court ordered the property to be immediately listed for sale pursuant to the terms of

the divorce decree.

       {¶ 15} With respect to the motion to modify child support, the trial court found that,

based on the testimony and evidence in the record, the magistrate’s child support

computation was correct. Specifically, the trial court held that the magistrate did not use

Lavonne’s incorrect gross income or err in failing to grant Rodney a deviation from the

basic child support worksheet computation as a result of D.J.A.’s social security disability

benefits. Accordingly, the trial court ordered the child support to remain at $666.
                                                                                        -7-


      {¶ 16} Rodney now appeals from the judgment of the trial court, raising two

assignments of error for review.



                               First Assignment of Error

      {¶ 17} Rodney’s First Assignment of Error is as follows:

      THE TRIAL COURT’S FAILURE TO FIND PLAINTIFF-APPELLEE IN

      CONTEMPT OF COURT FOR A CLEAR VIOLATION OF THE PARTIES’

      DIVORCE DECREE WAS AGAINST THE MANIFEST WEIGHT OF THE

      EVIDENCE.

      {¶ 18} Under his First Assignment of Error, Rodney contends that the trial court

erred in failing to find Lavonne in contempt of court for violating the parties’ divorce

decree. Rodney claims that this decision was an abuse of discretion and against the

manifest weight of the evidence because Lavonne specifically testified that she had failed

to refinance the marital real estate in her name as required by Article XIII of the divorce

decree. Rodney also claims that in rendering its decision, the trial court improperly

concluded that Plaintiff’s Exhibit Nos. 3 and 4 were not hearsay.

      {¶ 19} We review the trial court’s decision whether to find a party in contempt under

an abuse-of-discretion standard. DeWitt v. DeWitt, 2d Dist. Darke No. 1386, 1996 WL

125920, *2 (Mar. 22, 1996), citing State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11,

417 N.E.2d 1249 (1981). (Other citations omitted.) “ ‘Abuse of discretion’ has been

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

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83,
                                                                                            -8-


482 N.E.2d 1248 (1985). “It is to be expected that most instances of abuse of discretion

will result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.”     Id.   “A decision is unreasonable if there is no sound

reasoning process that would support that decision.” Id.

       {¶ 20} “A person may be found in contempt of court for ‘[d]isobedience of, or

resistance to, a lawful writ, process, order, rule, judgment, or command of a court[.] * * *’ ”

DeWitt at *2, quoting R.C. 2705.02(A). “ ‘A prima facie case of civil contempt is made

when the moving party proves both the existence of a court order and the nonmoving

party’s noncompliance with the terms of that order.’ ” Jenkins v. Jenkins, 2012-Ohio-

4182, 975 N.E.2d 1060, ¶ 12 (2d Dist.), quoting Wolf v. Wolf, 1st Dist. Hamilton No. C-

090587, 2010-Ohio-2762, ¶ 4. The movant must establish this by clear and convincing

evidence. (Citation omitted.) Id.

       {¶ 21} “Once the movant has put forward a prima facie case, the burden falls to

the defendant to prove his inability to comply with the order.” Dewitt at *2, citing Pugh v.

Pugh, 15 Ohio St.3d 136, 140, 472 N.E.2d 1085 (1984). (Other citations omitted.) “ ‘ “As

a general rule, the inability of the contemnor to comply with a judgment or order, without

fault on the contemnor’s part, is a good defense in a contempt proceeding for

disobedience of the order.” ’ ” Bostick v. Bostick, 2d Dist. Champaign No. 2015-CA-13,

2016-Ohio-3354, ¶ 10, quoting Wagshul v. Wagshul, 2d Dist. Montgomery No. 23564,

2010-Ohio-3120, ¶ 35, quoting 17 Ohio Jurisprudence 3d, Contempt, Section 62.

       {¶ 22} “ ‘ “[A] person who seeks to satisfy the court that his or her failure to obey

an order or judgment was entirely due to the person’s inability to render obedience carries

the burden of establishing that fact.” ’ ”     Id.   An unsubstantiated claim of financial
                                                                                          -9-


difficulties is insufficient to establish a person’s inability to comply with a court order.

(Citation omitted.) Dewitt, 2d Dist. Darke No. 1386, 1996 WL 125920 at *2. Accord

Wagshul at ¶ 41. Rather the inability to comply must “ ‘be real and not self-imposed, nor

due to fraud, sharp practices, or intentional avoidance.’ ” DeWitt at *2, quoting Wagner

v. Wagner, 2d Dist. Montgomery No. 10115, 1987 WL 14271, *3 (July 10, 1987).

       {¶ 23} As previously discussed, Rodney moved the trial court to find Lavonne in

contempt of court for failing to abide by Article XIII of their divorce decree, which ordered

Lavonne to refinance the loan on their marital residence in her name within a year of the

divorce. There is no dispute that Article XIII of the divorce decree provides as follows:

       It is further ordered that Husband shall within seven days of the filing of this

       Decree Quitclaim the marital real estate at * * * Moraine, Ohio to Wife. Wife

       shall have one year from the date of this Decree to refinance the real estate

       in her own name or such property shall be immediately listed for sale and

       the proceeds or cost of such sale shall be Wife’s alone.

Judgment Entry and Decree of Divorce (Dec. 30, 2004), Montgomery County Domestic

Relations Court Case No. 2002-DR-1901, Docket No. 49, p. 6.

       {¶ 24} Based on the parties’ testimony at the contempt hearing, the trial court

found that there is no dispute that both Lavonne and Rodney failed to comply with Article

XIII of the divorce decree. Rodney admitted that he did not provide a quitclaim deed to

Lavonne within seven days of the divorce decree, as he quitclaimed the marital real estate

to her on November 4, 2015. Lavonne also admitted that she has not yet refinanced the

marital real estate in her name as required by the decree. Accordingly, there is no

question that there was non-compliance with a court order. Therefore, we are left with
                                                                                       -10-


the issue of whether the trial court abused its discretion in finding that Lavonne

successfully demonstrated her inability to comply with the refinance order.

      {¶ 25} Rodney testified that after the divorce, Lavonne had on certain occasions

asked him for more time to refinance the property in her name. Rodney further testified

that “to be as fair as possible” he gave Lavonne more time as requested, but would stress

to her that she needed to get the matter taken care of. Hearing Trans. (June 22, 2016),

p. 32-33. Rodney indicated that refinancing the loan in Lavonne’s name became a

priority for him in 2015, because having the loan in his name had negatively affected his

credit and prevented him from purchasing a new home. Rodney later quitclaimed the

real estate to Lavonne on November 4, 2015, approximately 11 years after their divorce.

      {¶ 26} Based on this evidence, the trial court found that Rodney implicitly waived

the refinancing requirement up until it became an issue for him purchasing a new home

in 2015. The trial court further found that the quitclaim of Rodney’s interest in the home

was a necessary step for Lavonne to refinance the real estate in her name because it

was unlikely that any financial institution would consider providing a loan solely to

Lavonne when Rodney still had a priority interest in the real estate. The trial court,

therefore, concluded that until Rodney quitclaimed the property to her, Lavonne was

unable to comply with the refinancing order.

      {¶ 27} The trial court also found that Lavonne attempted to refinance the loan

through Evolve Bank & Trust in October 2015. The trial court further found that there

was an arrearage on the marital residence’s mortgage loan that prevented Lavonne from

being able to refinance the loan, as the trial court reasoned it was unlikely that any

financial institution would extend Lavonne credit to refinance the loan in her name when
                                                                                          -11-


there is a history of non-payment.

       {¶ 28} The foregoing findings are reasonable and supported by the record.

Lavonne testified that the mortgagee of the marital real estate, Ocwen Financial

Corporation, has refused to accept the quitclaim deed and that her efforts to refinance

since the fall of 2015 have failed. Lavonne specifically testified that she had tried to

refinance through Evolve Bank & Trust. In support of this testimony, she submitted

Plaintiff’s Exhibit No. 3, which is an October 2015 correspondence from Evolve Bank &

Trust responding to her home loan application.          Lavonne also testified that as of

November 2015, the mortgagee of the marital residence has refused to accept her

monthly mortgage payments, putting her in arrears on the mortgage loan.

       {¶ 29} Although there is no testimony discussing the specific reason for the

mortgagee refusing Lavonne’s monthly payments, a review of the promissory note

admitted as Plaintiff’s Exhibit No. 1 indicates that the mortgage loan at issue required the

parties to make monthly installment payments beginning on December 13, 2000, with a

final balloon payment of the outstanding principal balance and unpaid interest due on

November 13, 2015. While Lavonne testified that she has made all of her monthly

installment payments between December 2004 and November 2015, the record indicates

that Lavonne thereafter needed assistance with the remainder of her mortgage loan.

Lavonne testified that she requested assistance from the Housing Source, a county

foreclosure intervention program.      In support of this testimony Lavonne submitted

Plaintiff’s Exhibit No. 4, which is an application for assistance and hardship statement that

Lavonne claimed she signed and submitted to the Housing Source on June 2, 2016.

       {¶ 30} As noted earlier, Rodney objects to the admissibility of Plaintiff’s Exhibit
                                                                                         -12-


Nos. 3 and 4 on grounds that the documents constitute inadmissible hearsay.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid. R.

801(C). “To constitute hearsay, two elements are needed. First, there must be an out-

of-court statement. Second, the statement must be offered to prove the truth of the

matter asserted.    If either element is not present, the statement is not ‘hearsay.’ ”

(Footnote and citations omitted.) State v. Maurer, 15 Ohio St.3d 239, 262, 473 N.E.2d

768 (1984). Accord State v. Tate, 2d Dist. Montgomery No. 25386, 2013-Ohio-5167, ¶

75.

       {¶ 31} An out of court statement is not hearsay if it “is offered to prove a statement

was made and not for its truth, * * * to show a state of mind, * * * or to explain an act in

question.” Maurer at 262.       Accord State v. Williams, 38 Ohio St.3d 346, 348, 528

N.E.2d 910 (1988) (finding “[a] statement is not hearsay if it is admitted to prove that the

declarant made it, rather than to prove the truth of its contents”). We review rulings

regarding hearsay under an abuse-of-discretion standard. (Citation omitted.) State v.

Williams, 2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 17.

       {¶ 32} In ruling on the hearsay issue, the trial court found that the magistrate

considered Plaintiff’s Exhibit Nos. 3 and 4 for the limited purpose of corroborating

Lavonne’s testimony that she had contacted Evolve Bank & Trust in an attempt to

refinance her mortgage and that she had requested mortgage assistance from the

Housing Source. Accordingly, the trial court concluded that because the magistrate did

not accept the exhibits for the truth of the matters asserted in them, but rather to

corroborate Lavonne’s testimony regarding her financial difficulties and her efforts to
                                                                                          -13-


refinance the loan, the information elicited from the exhibits and considered by the

magistrate was not hearsay.

       {¶ 33} Although the magistrate allowed Lavonne to reference her credit report in

the correspondence from Evolve Bank & Trust and to read the contents of her hardship

statement in the Housing Source application on the record, we nevertheless agree with

the trial court that said information was used to prove Lavonne’s actions, i.e., that she

sought financial assistance, rather than to prove the truth of the documents’ contents.

Because the magistrate did not otherwise permit Lavonne to testify regarding the contents

of Plaintiff’s Exhibit Nos. 3 and 4, and indicated on the record that she was going to “allow

the documents in for what they are worth,” we do not find the trial court’s hearsay ruling

was an abuse of discretion.

       {¶ 34} That said, we cannot say, based upon this record, that the trial court abused

its discretion in finding Lavonne unable to comply with the refinancing order in the divorce

decree. The trial court is in the best position to assess the credibility of the witnesses

and to weigh the evidence presented. Based on the testimony and evidence presented,

it was reasonable for the trial court to conclude that Rodney impliedly waived the refinance

requirement until 2015, and that Lavonne was otherwise prevented from refinancing until

Rodney quitclaimed the marital real estate to her. We also find that it was reasonable

for the trial court to conclude that Lavonne has since attempted to refinance the marital

residence in her name and that her financial difficulties prevent her from doing so.

However, since Lavonne has not refinanced as required, the divorce decree mandates

the property be listed for sale immediately. Therefore, it was reasonable for the trial court

to order the marital real estate to be listed for sale.
                                                                                        -14-


       {¶ 35} For the foregoing reasons, we conclude that the trial court’s decision

overruling in part and sustaining in part Rodney’s objections to the magistrate’s decision

on the motion to show cause was not an abuse of discretion.

       {¶ 36} Rodney’s First Assignment of Error is overruled.



                                Second Assignment of Error

       {¶ 37} Rodney’s Second Assignment of Error is as follows:

       THE TRIAL COURT’S DECISION TO OVERRULE DEFENDANT-

       APPELLANT’S MOTION TO MODIFY AND REDUCE THE CHILD

       SUPPORT PAYMENTS CONSTITUTED AN ABUSE OF DISCRETION.

       {¶ 38} Under his Second Assignment of Error, Rodney contends that the trial court

abused its discretion in overruling the motion to modify his child support obligation. In

support of this claim, Rodney argues that the trial court failed to correctly calculate the

deviation between the original and current child support computation guideline amounts

because the court did not use Lavonne’s correct gross income and did not grant him a

deviation from the child support guidelines as a result of his daughter receiving social

security disability benefits.

       {¶ 39} “We review child support decisions for abuse of discretion.”       Mossing-

Landers v. Landers, 2016-Ohio-7625, 73 N.E.3d 1060, ¶ 21 (2d Dist.), citing Booth v.

Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). As previously noted, “ ‘[a]buse

of discretion’ has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable.” (Citation omitted.) AAAA Enterprises, Inc., 50 Ohio St.3d at 161, 553

N.E.2d 597. “When applying the abuse-of-discretion standard, an appellate court may
                                                                                        -15-

not merely substitute its judgment for that of the trial court.” State Farm Mut. Auto. Ins.

Co. v. Fox, 182 Ohio App.3d 17, 2009-Ohio-1965, 911 N.E.2d 339, ¶ 12 (2d Dist.), citing

Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

      {¶ 40} “ ‘In order to modify child support, the trial court must find a substantial

change in circumstances, which is defined in R.C. 3119.79(A) as a ten-percent deviation

from the amount of child support previously ordered.’ ” Mossing-Landers at ¶ 29, quoting

Howell v. Howell, 167 Ohio App.3d 431, 2006-Ohio-3038, 855 N.E.2d 533, ¶ 47 (2d Dist.).

Therefore, “[w]hen a motion to modify is filed, the court must recalculate the amount of

support that would be required to be paid by using the child support schedule and the

applicable worksheet.” Cornell v. Cornell, 2d Dist. Montgomery No. 26732, 2015-Ohio-

5296, ¶ 9, citing R.C. 3119.79(A).

      {¶ 41} “ ‘R.C. 3119.79(A) clearly provides that to determine whether a 10 percent

difference exists, the court must compare the recalculated guidelines amount * * * to the

“amount of child support required to be paid pursuant to the existing child support order”

* * *.’ ” Mossing-Landers at ¶ 34, quoting Williams v. Williams, 10th Dist. Franklin No.

15AP-739, 2016-Ohio-3344, ¶ 9, quoting R.C. 3119.79(A) and citing Moore v. Moore, 5th

Dist. Guernsey No. 09-CA-21, 2010-Ohio-2499. “If the amount deviates 10% more or

less from the prior order, the statute states that ‘the deviation from the recalculated

amount that would be required to be paid 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.’ ” (Emphasis omitted.)

Cornell at ¶ 9, quoting R.C. 3119.79(A).       In that situation, “the trial court has no

discretion, but must consider the amount a change of circumstances sufficient to require
                                                                                      -16-

modification.” Id.

      {¶ 42} That said, “[t]he starting point for determining the proper amount of child

support to be paid is parental income, defined as gross income for those employed to full

capacity or gross income plus potential income for those not employed to full capacity.”

Wolf-Sabatino v. Sabatino, 10th Dist. Franklin No. 12AP-1042, 2014-Ohio-1252, ¶ 7,

citing Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, ¶ 11 and

R.C. 3119.01(C)(5).

      {¶ 43} R.C. 3119.01(C)(7) defines “gross income,” as follows:

      [T]he total of all earned and unearned income from all sources during a

      calendar year, whether or not the income is taxable, and includes income

      from salaries, wages, overtime pay, and bonuses to the extent described in

      division (D) of section 3119.05 of the Revised Code; commissions; royalties;

      tips; rents; dividends; severance pay; pensions; interest; trust income;

      annuities; social security benefits, including retirement, disability, and

      survivor benefits that are not means-tested[.] * * * “Gross income” * * *

      includes * * * self-generated income; and potential cash flow from any

      source.

      {¶ 44} In this case, Rodney contends that in determining whether there was a

substantial change in circumstances warranting a modification of child support, the trial

court incorrectly recalculated the child support guideline amount because the court did

not use Lavonne’s correct gross income. Specifically, Rodney claims the trial court’s

recalculation failed to include Lavonne’s overtime hours, 401K withdrawal, and rental

income.
                                                                                         -17-


       {¶ 45} In recalculating child support, the magistrate found that Lavonne’s gross

income was $38,209.60. The magistrate arrived at this amount by considering three of

Lavonne’s weekly paystubs from 2016, which showed an hourly wage of $18.37 at 40

hours per week. The magistrate multiplied the hourly wage by 40 hours per week and

then by 52 weeks per year. The magistrate also considered Lavonne’s past tax returns

for 2013, 2014, and 2015, which showed annual gross incomes of $39,017, $37,148 and

$44,413. Based on these figures, the magistrate concluded that Lavonne has historically

earned an income within the range that it had calculated.

       {¶ 46} While Lavonne’s income for 2015 is noticeably greater than in previous

years, Lavonne testified that it was greater that year because she withdrew her 401K as

a result of her employer, Synchrony Financial, splitting from its parent company. Instead

of rolling her 401K over, Lavonne testified that she decided to withdraw it. Her 2015 tax

return indicates that the 401K withdraw amounted to $7,582. Lavonne testified that her

income in 2016 would not be as high as it was in 2015 due to the 401K withdrawal.

Based on this evidence, the trial court determined that the magistrate did not err in failing

to include the 401K withdrawal amount in calculating Lavonne’s current gross income.

We find the trial court’s reasoning to be sound; accordingly, we do not find that the court

abused its discretion in failing to consider the amount of the 401K withdrawal in calculating

Lavonne’s gross income.

       {¶ 47} The trial court also found that the magistrate’s gross income calculation did

not include any of Lavonne’s overtime pay. Although Lavonne testified that she receives

overtime pay at time and a half, she noted that she does not work overtime often—usually

only one hour per week. The three pay stubs Lavonne submitted as evidence support
                                                                                         -18-


this testimony, as they showed minimal overtime hours ranging between 1.1 and 1.6

hours a week. Based on this evidence, the trial court found there was no reasonable

expectation of consistent overtime pay, and that the amount of overtime pay Lavonne

received was minimal and would not significantly affect the child support computation.

Accordingly, the trial court found the magistrate did not err in failing to include overtime

pay when calculating Lavonne’s gross income. We once again find that the trial court’s

reasoning is sound and not an abuse of discretion.

       {¶ 48} In addition to the 401K withdrawal and overtime pay, the trial court found

that the magistrate’s calculation did not include rental income from a small one-bedroom

house located on the lot of the marital real estate. Lavonne testified that she and Rodney

had received rental income from the house when they were married and included it on

their tax returns. However, Lavonne indicated that since their divorce, she has, on

occasion, allowed family members to reside in the rental property, but that they did not

make regular rental payments. More specifically, Lavonne testified that she had allowed

her nephew to reside on the rental property and that he did not pay her rent most of the

time, but when he did, he gave her $350 as a monthly payment. Because she did not

receive regular rental payments, Lavonne testified that she did not include any rental

income on her tax returns. Lavonne further testified that the rental property has been

vacant for the past six months. No other information or documentation was provided to

the trial court to reflect when or how much rent was collected before or after the parties’

divorce.

       {¶ 49} Rodney claims that despite the fact that little to no rent was collected since

the parties’ divorce, and despite the rental property being vacant for the past six months,
                                                                                          -19-


the potential rental income that could be generated from the property should still have

been included as part of Lavonne’s gross income since the statutory definition of “gross

income” in R.C. 3119.01(C)(7) includes “potential cash flow from any source.”

       {¶ 50} In support of this argument, Rodney cites to Bishop v. Bishop, 4th Dist.

Scioto No. 03CA2908, 2004-Ohio-4643.           In Bishop, the trial court found “that the

definition of ‘gross income’ for purposes of calculating child support includes potential

cash flow from any source[,]” and held that there was competent credible evidence in the

record to impute rental income to each of the parties’ respective gross incomes even

though the rental property was not currently being rented nor in a condition to be rented.

Id. at ¶ 2, 14-20.    Rodney argues that, like Bishop, there was competent credible

evidence in the record to attribute $350 per month in potential rental income to Lavonne’s

gross income as a result of the rental property located on the marital real estate.

       {¶ 51} In Bishop, however, the parties specifically testified regarding how much

rental income they had regularly collected in the past and regarding the property’s current

rental value.   Id. at ¶ 17-18.     While Lavonne testified that she received irregular

payments from her nephew in the amount of $350, the magistrate was not otherwise

provided with information or documentation indicating when or how much total rent was

collected from him. There was also no testimony or evidence submitted establishing how

much rent was collected while the parties were married. Moreover, no testimony or

evidence was submitted establishing how much the property could currently be rented

for.   As a result, the trial court concluded that the magistrate was provided with

insufficient information to determine rental income, and, therefore, did not err in failing to

include any such income when calculating Lavonne’s gross income for purposes of the
                                                                                          -20-


child support computation.

       {¶ 52} Although the definition of “gross income” does include “potential cash flow

from any source” we do not find that the trial court’s decision was unreasonable. Not

only does the record indicate that there was very little information to make a rental income

determination, but it also indicates that Lavonne works full time and cares for the parties’

daughter, who has a disability.      Accordingly, the trial court could have reasonably

concluded that Lavonne undertakes significant responsibilities, which make it difficult for

her to assume the responsibility of being a landlord as well. Therefore, we find the trial

court did not abuse its discretion in failing to attribute rental income to Lavonne’s gross

income calculation for purposes of the child support computation.

       {¶ 53} Rodney also contends that the trial court failed to consider D.J.A.’s social

security disability benefits that Lavonne began to receive on D.J.A.’s behalf in December

2015. Rodney claims that the trial court should have granted him a deviation from the

basic child support computation worksheet guidelines as a result of those benefits.

       {¶ 54} R.C. 3119.22 governs such deviations and provides that:

       The court may order an amount of child support that deviates from the

       amount of child support that would otherwise result from the use of the basic

       child support schedule and the applicable worksheet, through the line

       establishing the actual annual obligation, 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
                                                                                          -21-


       in the best interest of the child.

       {¶ 55} R.C. 3119.23, formerly codified as R.C. 3113.215(B)(3), provides the

factors a court may consider in determining whether to grant a deviation, and includes the

“financial resources and earning ability of the child.” R.C. 3119.23(F). However, the

magistrate found, and the trial court agreed, that pursuant to Paton v. Paton, 91 Ohio

St.3d 94, 742 N.E.2d 619 (2001), “[s]upplemental security income benefits received by a

disabled child do not constitute a financial resource of the child pursuant to [R.C.

3119.23(F)] for purposes of justifying a trial court’s deviation from the basic child support

schedule.” Id. at syllabus.

       {¶ 56} In Paton, the magistrate treated the social security benefits of a child with a

disability as a financial resource of the child and deducted an amount representing the

social security benefits from the parents’ combined annual support obligation. Id. at 94-

95. The Supreme Court found this was inappropriate and explained that: “[w]hile we do

not dispute that SSI benefits are arguably a financial resource of a recipient, we do not

believe that SSI benefits are the type of ‘financial resource’ that justifies a trial court’s

decision to deviate from the basic child support schedules.” Id. at 96. Rather, the court

found that “SSI benefits received by a disabled child ‘are intended to supplement other

income, not substitute for it.’ ” Id. at 97, quoting Oatley v. Oatley, 57 Ohio App.2d 226,

228, 387 N.E.2d 245 (6th Dist.1977).

       {¶ 57} The Supreme Court further explained that:

              [R]educing a parent’s child support obligation by an amount

       representing the child's SSI benefits “would frustrate the purpose of the

       federal law by pushing the child’s standard of living back below the federal
                                                                                           -22-


       minimum.”     Such an approach would result in a “stair-step” effect that

       would increase the child’s reliance on federal assistance while decreasing

       the parents’ financial responsibility, because as the child’s SSI benefits

       increase, the parents’ support obligation simultaneously decreases.           In

       order to avoid this unintended and absurd result, “[t]he amount of

       supplemental security income received is modified as the amount of the

       recipient’s other income changes, not vice versa.” Oatley, 57 Ohio App.2d

       at 228, 11 O.O.3d at 262, 387 N.E.2d at 246.

              Parents, to the extent that they are able, have an obligation to

       support their minor children.      In situations where a child is eligible to

       receive SSI, these benefits are intended to supplement the parents’ support

       obligation, not to reduce it.     Consequently, we find that supplemental

       security income benefits received by a disabled child do not constitute a

       financial resource of the child pursuant to R.C. 3113.215(B)(3)(f) for

       purposes of justifying a trial court’s deviation from the basic child support

       schedule.

(Emphasis added.) Paton at 97.

       {¶ 58} Nevertheless, Rodney urges this court to ignore the holding in Paton and

instead follow the holding in Huff v. Huff, 9th Dist. Summit No. 20934, 2003-Ohio-1304,

wherein the Ninth District Court of Appeals affirmed the trial court’s inclusion of monthly

social security disability benefits received by the appellant’s children into appellant’s gross

income when calculating child support. Id. at ¶ 9-15. In reaching this conclusion, Huff

relied on the Supreme Court’s prior holding in Williams v. Williams, 88 Ohio St.3d 441,
                                                                                         -23-


727 N.E.2d 895 (2000), wherein the court addressed social security disability benefits in

the context of a parent’s disability, rather than a child’s disability.

       {¶ 59} In Williams the Supreme Court found that:

              [T]he underlying intent behind Social Security payments to a child is

       to provide support that the disabled parent is unable to provide. Thus,

       Social Security benefits are characterized as a substitute for the disabled

       parent’s earnings rather than gratuities from the federal government. * * *

              By recognizing that Social Security benefits are not gratuities from

       the federal government, but are earned by the disabled parent, these courts

       realize that unlike welfare and other forms of public assistance, Social

       Security benefits represent contributions that a worker has made

       throughout the course of employment; in this sense, benefits represent

       earnings in much the same way as do benefits paid by an insurance

       company. * * * Consequently, since the Social Security payments are

       deemed income of the disabled parent that enure to the sole benefit of the

       child, these courts allow that parent to receive a credit against his or her

       support obligations.

Williams at 443.

       {¶ 60} Paton specifically distinguished the holding in Williams because in Williams

it was the obligor parent, rather than the child, who had a disability. Paton, 91 Ohio St.3d

at 95, 742 N.E.2d 619, fn. 2.        Accordingly, from this court’s perspective, the Ninth

District’s reliance on Williams in Huff is misplaced with respect to social security benefits

of children with disabilities.    Paton clearly holds that supplemental security income
                                                                                          -24-


benefits received by a child with a disability do not constitute a financial resource of the

child for purposes of justifying a trial court’s deviation from the basic child support

schedule. Id. at syllabus. As a result, we find the trial court did not abuse its discretion

in applying the holding in Paton and in finding that the magistrate did not err in failing to

grant Rodney a deviation from the child support worksheet computation as a result of

D.J.A.’s social security disability benefits.

       {¶ 61} For the foregoing reasons, Rodney’s Second Assignment of Error is

overruled.



                                         Conclusion

       {¶ 62} Having overruled both assignments of error raised by Rodney, the judgment

of the trial court overruling his motion to show cause and motion to modify child support

is affirmed.

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



FROELICH, J. and TUCKER, J., concur.



Copies mailed to:

Carol J. Holm
Jeffrey D. Slyman
Hon. Timothy D. Wood
