[Cite as Fenstermaker v. Fenstermaker, 2015-Ohio-5524.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


KENNETH C. FENSTERMAKER,                              :   OPINION

                 Plaintiff-Appellant/                 :
                 Cross-Appellee,                          CASE NO. 2014-T-0012
                                                      :
        - vs -
                                                      :
CAROL A. FENSTERMAKER,
                                                      :
                 Defendant-Appellee/
                 Cross-Appellant.                     :



Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2007 DR 242.

Judgment: Affirmed in part, reversed in part, and remanded.


Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E.,
Warren, OH 44483-5805 (For Plaintiff-Appellant/Cross-Appellee).

William R. Biviano, Biviano Law Firm, 700 Huntington Bank Tower, 108 Main Avenue,
S.W., Warren, OH 44481-1089 (For Defendant-Appellee/Cross-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Plaintiff-appellant/cross-appellee, Kenneth C. Fenstermaker, appeals the

judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division,

granting defendant-appellee/cross-appellant, Carol A. Fenstermaker’s, motion for child

support. Based on the following, we affirm in part, reverse in part, and remand this

matter for proceedings consistent with this opinion.
       {¶2}   Kenneth and Carol were married on November 2, 1991, and had two

children: Rachel, born on July 10, 1991, and Valerie, born on May 7, 1993.

       {¶3}   In 2007, Kenneth filed a complaint for divorce.           In the judgment

entry/decree of divorce, Carol was granted legal custody of the two children, and

Kenneth was ordered to pay child support.

       {¶4}   Upon their daughter Valerie turning 18, the magistrate recommended

approving the determination of the Trumbull County Child Support Enforcement Agency

(CSEA) that child support be terminated due to her age.             Valerie was deemed

emancipated as of May 31, 2011. This was made an order of the court in an October

20, 2011 journal entry.

       {¶5}   Subsequently, Carol filed a motion for child support arguing that child

support was erroneously terminated for Valerie “based upon [her] age * * * without

considering [her] developmental condition.” Kenneth filed a motion to dismiss, arguing

the court did not have jurisdiction to reinstate child support.

       {¶6}   A trial was held. The magistrate issued a decision denying Kenneth’s

motion to dismiss for lack of jurisdiction and granting the motion for child support. The

magistrate determined Kenneth should pay $776 per month in support. The trial court

adopted the magistrate’s decision finding Valerie suffered from a “disability” and that,

due to her disability, Valerie “remains a minor,” and her “disability renders her incapable

of fully supporting and maintaining herself without constant care.” It also held that the

court retained jurisdiction to modify child support.

       {¶7}   Kenneth filed objections arguing, inter alia, that Valerie had not been

diagnosed with a “disability” and is capable of supporting herself.       Carol also filed




                                              2
objections arguing the effective date of the child support order should have been when

the initial support originally terminated.

        {¶8}   Both parties filed a “statement of evidence” due to the inability to create a

transcript. Kenneth also filed the deposition of Dr. Joseph Farris, a child and adolescent

psychiatrist, which had been presented at trial. Dr. Farris had treated Valerie since

2007.    Dr. Farris testified that Valerie cannot drive, live on her own, take her own

medications appropriately, manage responsibilities such as cooking or cleaning, or hold

a full-time job.   His testimony and progress notes indicate that she suffers from

Obsessive Compulsive Disorder, Attention Deficit Hyperactivity Disorder, Asperger’s

Syndrome [a condition in the Autism Spectrum], depression, and panic disorder. He

opined that Valerie “has a tremendous amount of difficulties to take care of herself in

regard to activities of daily living” and is unable to “support herself independently” and

“requires supervision.” He believed that, over time, she may be able to accomplish

these aforementioned tasks, as many of her problems are treatable.

        {¶9}   On cross-examination, Dr. Farris further testified that Valerie’s IQ is within

the average range and that many of the problems and symptoms that Valerie

experienced were self reported, as he did not directly observe them.

        {¶10} In her “statement of evidence,” Carol also attached Dr. Farris’ progress

notes regarding Valerie’s treatment and a 2006 Psychoeducational Evaluation, finding

Valerie met “special education criteria as Autistically Impaired.”

        {¶11} A Statement of Magistrate was filed finding that Carol’s “duties of home

taking care of Valerie * * * prevents her from working full time,” and Carol testified that

Valerie is unable to support herself. The magistrate found that Valerie was “clinically




                                              3
diagnosed with depression, ADHD, Asperger’s, OCD, and Panic Disorder.”                  The

statement also found that Valerie worked on a part-time basis in a day care, with Carol

testifying that Valeire worked “approximately two * * * hours per day,” because that is

“all she can handle.” Further, Valerie’s employer testified she worked four or less hours

per day. The magistrate found “Dr. Farris is of the opinion that Valerie still has a

tremendous amount of difficulties to take care of herself in regard to activities of daily

living.” The magistrate again concluded that Valerie should continue to receive child

support.

      {¶12} Kenneth filed supplemental objections. The parties submitted written final

arguments, pursuant to the court’s request.

      {¶13} The trial court issued a judgment order denying Kenneth’s objections to

the magistrate’s decision.      In a later judgment, the trial court overruled Carol’s

objections, finding that the original order terminating the child support for Valerie was

not improper because, at the time, Carol failed to raise the issue of a continuing

requirement of support.     It further held the effective date of the support order was

appropriate.

      {¶14} Kenneth asserts the following assignments of error:

               [1.] The trial court abused its discretion in granting mother’s motion
               for child support and overruling father’s objections.

               [2.] The trial court erred in not crediting the child’s income against
               the child support order and in setting child support after the
               administrative order was terminated.

      {¶15} At the outset, we note a transcript of the hearing on the child support

modification was not filed, as it does not exist: there was a malfunction with the trial




                                              4
court’s recording system. Therefore, in order to deal with objections to the magistrate’s

decision, the trial court instructed the parties to prepare respective “statements of

evidence,” which would allow the trial court to rule on the objections based on what the

parties recalled was adduced at trial. The trial court then proceeded to rule on the

objections based on the best information it had available to it at the time. On appeal,

Kenneth determined an App.R. 9(C) statement of the evidence was not necessary

because the record on review contained all the information the trial court had before it

when rendering its decision. Therefore, this court is able to resolve this appeal based

on the same record the trial court had before it.

       {¶16} Kenneth maintains that a child with Asperger’s, depression, and “mood

disorders,” who graduated from high school, has an average IQ and has been able to

work part-time, should not be considered a “Castle child.”

       {¶17} The Ohio Supreme Court in Castle v. Castle, 15 Ohio St.3d 279 (1984),

ruled that a domestic relations court has jurisdiction to order support for an adult child

under certain circumstances. The syllabus in Castle reads:

              1. The common-law duty imposed on parents to support their minor
              children may be found by a court of domestic relations having
              jurisdiction of the matter, to continue beyond the age of majority if
              the children are unable to support themselves because of mental or
              physical disabilities which existed before attaining the age of
              majority.

              2. The domestic relations court retains jurisdiction over parties in a
              divorce, dissolution or separation proceeding to continue or to
              modify support payments for a mentally or physically disabled child,
              who was so disabled before he or she attained the statutory age of
              majority, as if the child were still an infant.




                                             5
       {¶18} The Castle Court, in holding there was jurisdiction to enter a child support

order for disabled children, relied on both secondary sources and case law from outside

of Ohio.

              The law regards a normal child as capable of providing his or her
              own support at the age of eighteen. See R.C. 3109.01. An
              exception to this general rule has been recognized by a majority of
              states which have reviewed the question as follows:

              ‘* * * [But] where a child is of weak body or mind, unable to care for
              itself after coming of age, and remains unmarried and in the
              parent’s home, it has been held that the parental rights and duties
              remain practically unchanged, and that the parent’s duty to support
              the child continues as before. The obligation to support such a child
              ceases only when the necessity for the support ceases.’

Id. at 282, quoting 39 American Jurisprudence, Parent and Child, Section 69, at 710

(1942).

       {¶19} While the opinion sets forth dicta concerning the consideration to be given

to whether an adult child should be determined under a “legal disability,” no definition of

“legal disability” was established.    Since the Castle holding, the Ohio Legislature

codified the Castle dicta by enacting R.C. 3119.86(A), which states, in pertinent part:

              (1) The duty of support to a child imposed pursuant to a court child
              support order shall continue beyond the child’s eighteenth birthday
              only under the following circumstances:

              (a) The child is mentally or physically disabled and is incapable of
              supporting or maintaining himself or herself. (Emphasis added.)

       {¶20} There was no dispute the adult child in Castle was severely disabled; she

was “severely retarded, physically dependent and incapable of any gainful

employment.” Id. at 279. While we agree Valerie’s disabilities are not as significant as

those suffered by the adult child in Castle, our inquiry, nevertheless, remains the same:


                                            6
whether Valerie is mentally or physically disabled and whether she is incapable of

supporting or maintaining herself.

       {¶21} With respect to the first prong, i.e., “whether the child is mentally or

physically disabled,” the magistrate found Valerie was suffering from Asperger’s,

depression, Attention Deficit Hyperactivity Disorder, Obsessive Compulsive Disorder,

and panic disorder. On appeal, Kenneth cites to several cases where the adult child

suffered from a severe disability—a congenital genetic disorder or developmental

disabilities and a very low IQ. These cases, however, do not impact whether Valerie

suffers from a disability. Although Kenneth appears to argue a mental disability requires

a child to be of low intelligence, his interpretation is unsupported by citation to any case

law and would essentially exclude any individual with a mental disorder or mental illness

from falling under Castle, regardless of the severity of her problems and inability to care

for herself. See, e.g., In re J.F., 2d Dist. Montgomery No. 24370, 2011-Ohio-2969, ¶48-

50 (reversing a decision not to award child support to an individual with bipolar disorder,

ADHD, and past suicidal thoughts who could not support himself).

       {¶22} Kenneth attempts to minimize Valerie’s disability and argues that a

disability was not found in other cases where the evidence failed to demonstrate a child

was unable to support himself. This argument, however, fails to take into account Dr.

Farris’ deposition. In the absence of factual findings to the contrary, we accept the

magistrate’s factual determination as to this issue.       As previously noted, although

Valerie’s disability “is not as profound as the disabilities suffered by the Castle child,”

see Blaner v. Blaner, 11th Dist. Trumbull No. 2003-T-0042, 2004-Ohio-3678, ¶11, the




                                             7
trial court’s finding that Valerie suffered from a disability is not against the manifest

weight of the evidence.

       {¶23} In order to find the existence of a duty to provide support beyond a child’s

eighteenth birthday, it must also be established that the adult child “is incapable of

supporting or maintaining himself or herself.” Id. Kenneth argues Valerie’s disabilities

are not sufficient to prevent her from supporting herself. Dr. Farris, however, testified

that Valerie has “a tremendous amount of difficulties to take care of herself in regards to

activities of daily living.” The magistrate found Valerie does not possess a driver’s

license, has panic attacks, and her mother is unable to work a full- time job because she

has to take care of Valerie. We do note Valerie, at the time of the hearing, worked a

part-time job and in the previous year had earned over $7,000 at her employment. At

the same time, while the reasons are not clear on the record, she apparently was found

to be ineligible for Social Security disability benefits. See, e.g., Donohoo v. Donohoo,

12th Dist. Clermont Nos. CA2011-11-080 & CA2011-11-081, 2012-Ohio-4105, ¶29

(involving an adult child receiving social security and supplemental security benefits).

Even though Valerie does earn a modest income and may have been determined to be

ineligible for Social Security disability, we cannot find the trial court’s determination that

Valerie was incapable of supporting herself was against the manifest weight of the

evidence, as that finding was supported by some competent, credible evidence. Id. at

¶30-31 (because the child could not manage finances and his employment is not the

only factor to determine his ability to be independent, the trial court properly found him

to be a Castle child). See also Blacker v. Blacker, 2d Dist. Montgomery No. 20073,




                                              8
2004-Ohio-2193 (adult child worked as a bagger at Kroger full time but was unable to

be self-sufficient).

        {¶24} While we do not find the trial court erred in finding Valerie a Castle child,

this case reveals the need for direction, either from the Ohio Supreme Court or the

General Assembly, with regard to the support requirements for adult children who have

some level of disability, together with some ability to support themselves. R.C. 3109.01

states: “All persons of the age of eighteen years or more, who are under no legal

disability, are capable of contracting and are of full age for all purposes.”                       Legal

disability for purposes of R.C. 3109.01, however, is not defined. A definition of “legal

disability” is found in R.C. 2131.02, with a list of specific statutes to which the definition

applies. R.C. 3109.01 is not among them.

        {¶25} There are several concerns associated with a support order in this

scenario, when the Castle child is not subject to a guardianship. When a parent is

obligated to support an adult child, there are limited, if any, protections with regard to

the funds ordered to be paid by either parent for the benefit of the adult child.1

        {¶26} If the adult child were subject to guardianship, several safeguards would

be in place. First, a request for authority to expend funds would be required. Second,

the guardian would be required to make a periodic accounting to the court. Third, the

guardian would be required to act in the best interest of the ward or be subjected to

removal.



1. Many questions are posed when a noncustodial parent is required to pay support to an adult child.
For example, when a noncustodial parent is required to pay child support to the custodial parent of the
adult child, what if there is a dispute between the adult child and the custodial parent with regard to the
access of those funds? If the adult child were to enter into a contract, would that contract be enforceable
against her? Further, while the domestic relations order indicates that she essentially “remains a minor,”
does that mean she has been adjudged incompetent? There is no order to that effect.


                                                    9
       {¶27} Under these circumstances, it would seem that it would be in the best

interest of the adult child to have a guardianship established in order to ensure the adult

child receives the protections of the guardianship laws. However, if that was to be a

requirement, it would need to be resolved by the legislature.

       {¶28} Kenneth’s first assignment of error is without merit.

       {¶29} In Kenneth’s second assignment of error, he challenges the method by

which the trial court calculated his support obligation.

       {¶30} In calculating the support order, the trial court added Valerie’s income to

Carol’s income.

       {¶31} In this circumstance, where the adult child is capable of providing at least

some support for herself, it is not logical to have the support obligation of the parents

determined, in part, by the amount of income generated by the recipient of the support.

The support obligation of the parents should be determined only by the income of the

parents. Thereafter, it would be appropriate to apply a credit to the combined parental

child support obligation in the amount the adult child is reasonably expected to earn.

This credit is appropriate because it is the adult child’s income that is earned and should

be applied by her for her own support. Although applying a credit in this case would

increase Kenneth’s percentage of income to total income, his annual support obligation

would decrease as the total support order would have been offset by Valerie’s income.

       {¶32} Under his second assignment of error, Kenneth also requests this court to

reconsider the holding in In re Palcisco, 11th Dist. Trumbull No. 2012-T-0031, 2012-

Ohio-6134, and determine that child support may not be reinstated after it has been

terminated due to a finding of age-based emancipation.          To support his argument,




                                             10
Kenneth cites to the Tenth Appellate District’s opinion in Geygan v. Geygan, 10th Dist.

Franklin No. 11AP-626, 2012-Ohio-1965, which this court already rejected in Palcisco.

In Palcisco, this court considered the language in R.C. 3119.86(A)(1), which discusses

the obligation to continue child support beyond the age of 18 and states that the

“support order shall continue” beyond the child’s eighteenth birthday if she is disabled

and incapable of supporting herself. It rejected the appellant’s interpretation that the

statute indicated “that a child support order must be in existence on the child’s

eighteenth birthday in order to continue in existence.” Palcisco, supra, ¶13 (emphasis

sic). This court held that the “lack of a support order poses no impediment to the

continuation of [the appellant’s] duty to support, which is only conditioned upon the

child’s disability.” Id. at ¶22.

         {¶33} Here, although Kenneth’s court-ordered obligation to pay child support

had terminated when Valerie turned 18, this did not prevent a future order to pay

support, as she was found to be a Castle child. Thus, the domestic relations court’s

jurisdiction to order child support continued, even in the absence of an existing support

order.

         {¶34} Kenneth’s second assignment of error has merit to the extent indicated.

Upon remand, the trial court is to calculate support utilizing Valerie’s earning capacity in

the form of a credit after a determination of support based on the income of both

parents.

         {¶35} On cross-appeal, Carol raises the following assignment of error:




                                            11
       {¶36} “The trial court erred and abused its discretion in failing to reinstate the

support order as of May of 2011 since a Castle child is not subject to the age-based

emancipation order.”

       {¶37} On cross-appeal, Carol argues the lower court erred in reinstating the

child support obligation as of August 1, 2012, the date of the support hearing. Instead,

she argues the lower court “should have simply vacated the trial court’s October 20,

2011 decision that approved the administrative decision terminating support based on

Valerie’s emancipation.” We disagree.

       {¶38} Although Carol argues the October 20, 2011 decision should have been

vacated, she filed a motion for the trial court to determine that Valerie was a Castle child

and to determine that the administrative decision terminating support was in error.

Carol never appealed from the original decision in the trial court that established when

support should be terminated. Further, Carol failed to file a motion for relief from that

judgment. Instead, she filed a motion for child support five months after child support

for Valerie was properly terminated in accordance with the trial court’s previous order.

       {¶39} “A trial court may only relieve a party from judgment by the mechanisms

provided by the Ohio Rules of Civil Procedure.” Allstate Ins. Co. v. Witta, 9th Dist.

Summit No. 25738, 2011-Ohio-6068, ¶19, citing Pitts v. Ohio Dept. of Transp., 67 Ohio

St.2d 378, 380 (1981). In the absence of a Civ.R. 60(B) motion requesting the proper

relief in this matter, the trial court did not have a basis to vacate the judgment and did

not err in failing to do so. See id. at ¶19.

       {¶40} Although Carol cites Blacker v. Blacker, 2d Dist. Montgomery No. 20073,

2004-Ohio-2193 and In re Edgell, 11th Dist. Lake No. 2009-L-065, 2010-Ohio-6435, for




                                               12
the proposition that the date of the commencement of child support should be the same

as the date it was cancelled, both of these cases involved the courts’ consideration of a

motion for relief from judgment. Thus, these courts considered the necessary factors

for vacation of the judgment under Civ.R. 60(B), which did not occur here.

       {¶41} Carol’s assignment of error on cross-appeal is without merit.

       {¶42} Based on the opinion of this court, the judgment of the Trumbull County

Court of Common Pleas, Domestic Relations Division, is hereby affirmed in part and

reversed in part. This matter is remanded for proceedings consistent with the opinion of

this court.




THOMAS R. WRIGHT, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only in part, concurs in part, and
dissents in part with a Concurring/Dissenting Opinion.


                                ____________________


DIANE V. GRENDELL, J., concurs in judgment only in part, concurs in part, and
dissents in part with a Concurring/Dissenting Opinion.

       {¶43} I agree with the conclusion, but not the analysis, of the majority on the first

assignment of error, since Valerie was properly found to be a Castle child due to her

disability. I disagree with the disposition of the second assignment of error, remanding

to the lower court for a credit to be ordered toward child support based on Valerie’s

“earning capacity,” given the special circumstances inherent in this case, as well as

many other Castle cases.       As to the cross-assignment of error, I concur with the

majority in both its analysis and conclusion.



                                            13
       {¶44} Regarding the first assignment of error, the majority holds that Valerie is a

Castle child, but proceeds to take issue with the Castle doctrine as it is presently

applied, expressing the opinion that Castle children should be subject to guardianships,

while noting that this would “need to be resolved by the legislature” to be a requirement.

Supra at ¶ 27. Such analysis is purely advisory and is entirely unnecessary for the

resolution of this appeal. This is an issue not presently before this court, since the

appeal does not relate to the failure to appoint a guardian.

       {¶45} “It is well settled that appellate courts do not indulge in advisory opinions.”

Furbee v. Bittner, 11th Dist. Lake Nos. 2014-L-077, et al., 2015-Ohio-4425, ¶ 36; State

v. Economos, 11th Dist. Trumbull No. 2004-T-0124, 2005-Ohio-5605, ¶ 14 (while

“considering appellant’s assigned error may have some impact upon the general legal

landscape, our opinion would be merely advisory” when the issue was moot). Since it is

unnecessary and improper to advise the legislature in the manner done by the majority,

I concur in judgment only with the court’s analysis affirming the lower court on the

Castle child issue.

       {¶46} I dissent as to the determination that the lower court’s decision should be

reversed and this matter remanded to alter the child support award.             Under the

majority’s analysis on this issue, the trial court should “calculate support utilizing

Valerie’s earning capacity in the form of a credit” toward child support. Supra at ¶ 34.

The problem with this approach is that the “earning capacity” of some Castle children is

difficult, if not impossible, to determine. The basis for finding an individual such as

Valerie to be a Castle child is that she is incapable of supporting herself. Given some

Castle children’s variable states of employment and changing circumstances, this




                                            14
number could frequently fluctuate.       This is especially true in Valerie’s case where,

according to the court’s statement of her mother’s testimony, Valerie’s “ability to function

depends on her degree of anxiety and depression on any particular day.” The fact that

Valerie was able to hold a job for some period of time does not mean that this income

can be relied upon or that it should greatly and directly reduce the father’s support

obligation.

       {¶47} The majority essentially places an obligation on Valerie to work and treats

her as an adult, exactly the opposite of what should be the case for a Castle child. See

Blacker v. Blacker, 2nd Dist. Montgomery No. 20073, 2004-Ohio-2193, ¶ 31 (although

the Castle child had begun working, the father’s support obligation was ordered to

continue as it had previously after the determination that the child was unable to support

himself); Kirkpatrick v. Kirkpatrick, 9th Dist. Summit No. 14193, 1989 Ohio App. LEXIS

4545, 4 (Dec. 6, 1989) (where a minor child worked a limited number of hours per week

and the money earned was used for her personal needs, the court did not err in not

factoring in her income, since it was too insubstantial to warrant a reduction in the

support obligation).

       {¶48} This scenario could incentivize Valerie to discontinue her employment,

which would merely decrease her support, although such work could help Valerie

develop skills for the future. It also seems apparent that the mother must sacrifice time

to help ensure Valerie is able to attend work, given that Valerie cannot drive or ready

herself for the day. This creates additional costs associated with Valerie’s employment,

including her mother’s inability to work full-time.




                                              15
       {¶49} The lower court had to fashion an appropriate remedy under the specific

circumstances of this case. No applicable law is set forth to support a contrary holding.

This is especially evident when reviewing Charlton v. Charlton, 11th Dist. Geauga No.

95-G-1921, 1995 Ohio App. LEXIS 5564 (Dec. 15, 1995), cited by the appellant in

support of his position, which included a finding that a child was capable of self-support,

contrary to the conclusion in the present matter that Valerie is not so capable.

       {¶50} As such, I do not believe it is necessary or prudent to decrease Valerie’s

support based upon reliance on her earning capacity. This blurs the line between being

a Castle child and a typical adult who does not require support and creates a rule in

which constant modification of support could be required to uphold fairness and equity.

       {¶51} For the foregoing reasons, I concur in judgment only and disagree with the

unnecessary and improper analysis of the first assignment of error relating to Castle

children. I dissent from the disposition and analysis on the second assignment of error

since a determination of Valerie’s earning capacity for the purposes of child support is

unwarranted. Regarding the disposition of the cross-assignment of error, I concur in

both the judgment and analysis.




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