       [Cite as A.S. v. J.W., 2018-Ohio-1001.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


A.S.                                                  Court of Appeals No. L-17-1099

       Appellee                                       Trial Court No. 15249940

v.

J.W.                                                  DECISION AND JUDGMENT

       Appellant                                      Decided: March 16, 2018

                                                 *****

       Ron L. Rimelspach, for appellee.

       Jeffrey P. Nunnari and Rose M. Mock, for appellant.

                                                 *****

       JENSEN, J.

                                            I. Introduction

       {¶ 1} Appellant, J.W. (“father”), appeals the judgment of the Lucas County Court

of Common Pleas, Juvenile Division, directing him to pay appellee, A.S. (“mother”),

child support in the amount of $4,372.32 per month beginning in January 2016.
                            A. Facts and Procedural Background

       {¶ 2} On September 2, 2015, mother filed a complaint for allocation of parental

rights and responsibilities in relation to the parties’ minor child, R.W. In the complaint,

mother sought custody of R.W. with parenting time for father, an order directing father to

pay for birthing expenses and R.W.’s medical expenses, and an award of child support.

Approximately ten months later, the parties entered into a shared parenting plan that

addressed the noneconomic issues raised in the complaint. Thereafter, on August 11,

2016, the matter proceeded to an evidentiary hearing before a magistrate on the economic

issues, which included various expenses incurred by mother before and during the birth,

as well as child support.

       {¶ 3} At the hearing, mother and father each testified and introduced a number of

exhibits into evidence. Relevant here, the testimony at the hearing revealed the relative

income of the parties, with mother earning $122,619.44 in 2013, $132,147.36 in 2014,

and $131,506.00 in 2015. Mother expected to earn $140,000 in 2016. Father earned

commissions of $85,280.00 in 2013, $246,332.00 in 2014, and $212,898.00 in 2015,

along with a base annual salary of $90,000 during that time period. Father testified that

he received commission payments totaling approximately $338,000 by the date of the

hearing in August 2016, bringing his year-to-date income to $416,509.52. Father stated

that he would earn a base salary of $94,000 in 2016, and his commissions for the year

were projected to be $368,794.00. Father testified that his commissions for 2016 were

the product of several years of work and were not likely to recur.



2.
       {¶ 4} At the conclusion of father’s testimony, the parties moved for the admission

of their exhibits and moved the trial court to be permitted to submit written closing

arguments. The magistrate granted the parties’ request and took the matter under

advisement.

       {¶ 5} On September 13, 2016, the magistrate issued her decision in which she

adopted the parties’ shared parenting plan, denied mother’s request for the reallocation of

pre-birth expenses and non-birth expenses, and ordered father to pay mother half of the

birthing expenses. As to child support, the magistrate ordered father to pay child support

in the amount of $2,984.70 per month from September 2, 2015, through the end of 2015.

The magistrate then ordered that father pay child support in the amount of $4,372.32 per

month beginning in January 2016.

       {¶ 6} The increase in child support reflected father’s increase in earnings for 2016.

According to the child support computation worksheet that was referenced in the

magistrate’s decision and marked as Joint Exhibit III, the magistrate averaged father’s

2014, 2015, and 2016 commissions, and then added the average commission to father’s

base salary to arrive at father’s total gross income of $370,008.00. The magistrate then

calculated the parties’ combined adjusted gross income, which was $499,807.84.

Father’s income represented 72.55 percent of the combined gross income. Finally, the

magistrate extrapolated father’s child support obligation utilizing the one-child amount

indicated in the basic child support schedule found in R.C. 3119.021.

       {¶ 7} Six days after the magistrate issued her decision, the trial court conducted an

independent review of the magistrate’s findings and adopted the magistrate’s decision.

3.
The trial court’s decision was journalized on October 3, 2016. Thereafter, father filed

objections to the magistrate’s decision, primarily taking issue with the magistrate’s child

support awards. Father’s objections were ultimately found not well-taken and denied by

the trial court on March 24, 2017. Father then filed a timely notice of appeal.

                                 B. Assignment of Error

       {¶ 8} On appeal, father assigns the following error for our review:

              The trial court erred and abused its discretion to the prejudice of

       appellant when it calculated appellant’s child support obligation.

                                        II. Analysis

       {¶ 9} A trial court is vested with broad discretion in deciding child support matters

and will only be reversed upon a finding that the trial court abused its discretion.

Bigelow v. Bigelow, 6th Dist. Lucas No. L-13-1018, 2014-Ohio-994, ¶ 18, citing Dunbar

v. Dunbar, 68 Ohio St.3d 369, 371, 627 N.E.2d 532 (1994). An abuse of discretion

connotes that the court’s attitude is unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “Where a

judgment is supported by some competent, credible evidence, there is no abuse of

discretion.” Barone v. Barone, 6th Dist. Lucas No. L-07-1336, 2008-Ohio-5793, ¶ 15,

citing Van Vorce v. Van Vorce, 3d Dist. Auglaize No. 2-04-11, 2004-Ohio-5646, ¶ 15.

       {¶ 10} In his sole assignment of error, father contends that the trial court abused

its discretion in calculating his child support obligation. Father advances two arguments

to support his assignment of error. First, father argues that the trial court improperly

computed his income under R.C. 3119.05(D) by taking into consideration his commission

4.
from 2016. Second, father asserts that the trial court erred in extrapolating his child

support obligation from the child support guidelines set out in R.C. 3119.021 where the

parties’ income exceeded $150,000. We will address father’s arguments in turn.

       {¶ 11} Concerning father’s first argument, gross income is defined in part as “the

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; * * * and all other sources of income.” R.C. 3119.01(C)(7). Under R.C.

3119.01(C)(7)(e), “[n]onrecurring or unsustainable income or cash flow items” are

excluded from gross income. The determination of gross income is a factual finding that

will be upheld if it is supported by some competent, credible evidence. Thomas v.

Thomas, 6th Dist. Lucas No. L-03-1267, 2004-Ohio-1034, ¶ 13.

       {¶ 12} In cases in which the combined gross income of the parents is greater than

$6,600 but less than $150,000, courts are directed to calculate the amount of child

support by referencing the basic child support schedule contained in R.C. 3119.021.

However, where the parents’ combined gross income is greater than $150,000 per year, a

court “shall determine the amount of the obligor’s child support obligation on a case-by-

case basis and shall consider the needs and the standard of living of the children who are

the subject of the child support order and of the parents.” R.C. 3119.04(B).

       {¶ 13} In the case at bar, father argues that the trial court improperly included his

2016 commissions in its determination of his gross income under R.C. 3119.05(D), which

provides:

5.
              (D) When the court or agency calculates the gross income of a

       parent, it shall include the lesser of the following as income from overtime

       and bonuses:

              (1) The yearly average of all overtime, commissions, and bonuses

       received during the three years immediately prior to the time when the

       person’s child support obligation is being computed;

              (2) The total overtime, commissions, and bonuses received during

       the year immediately prior to the time when the person’s child support

       obligation is being computed.

       {¶ 14} Referencing this statute, father insists that the trial court should have added

the average of his 2013, 2014, and 2015 commissions onto his base salary from 2016 to

arrive at his gross income for purposes of calculating his 2016 child support obligation.

Instead, the trial court added the average of father’s 2014, 2015, and 2016 commissions

onto his base salary in arriving at a child support obligation.

       {¶ 15} Notably, R.C. 3119.05(D) concerns the trial court’s calculation of overtime

and bonuses, not commissions. See Poling v. Poling, 10th Dist. Franklin No. 13AP-189,

2013-Ohio-5141, ¶ 13 (Rejecting obligor’s argument that the trial court should have

treated his commissions as income under R.C. 3119.05(D) and stating that “R.C.

3119.05(D) speaks only to calculation of income from ‘overtime and bonuses.’ Here, the

income earned by appellant from 2009 to 2011 is purely commissions.”). That

commissions are not subject to R.C. 3119.05(D) is further demonstrated in R.C.



6.
3119.01(C)(7), which limits the amount of bonuses that may be treated as gross income

by referencing R.C. 3119.05(D), but does not so limit commissions.1

       {¶ 16} Having found that R.C. 3119.05(D) does not apply in this case, we note

that the trial court had the authority to average father’s income for purposes of calculating

his gross income under R.C. 3119.05(H). Lafever v. Lafever, 12th Dist. Clermont No.

CA2014-02-017, 2015-Ohio-823, ¶ 21 (“In order to address situations in which the

evidence has established a pattern of income from commissions, but where the amount of

those commissions is not predictable from year to year, Ohio courts have consistently

turned to R.C. 3119.05(H).”); see also Hackett v. Hackett, 5th Dist. Delaware No.

13CAF010002, 2013-Ohio-4684, ¶ 26-29 (averaging obligor’s commissions under R.C.

3119.05(H) instead of R.C. 3119.05(D)). R.C. 3119.05(H) provides: “When the court or

agency calculates gross income, the court or agency, when appropriate, may average

income over a reasonable period of years.” We have stated that “[i]t is particularly

appropriate * * * to average an obligor’s income where the income is unpredictable or

inconsistent.” Scott G.F. v. Nancy W.S., 6th Dist. Huron No. H-04-015, 2005-Ohio-2750,

¶ 46, citing Marquard v. Marquard, 10th Dist. Franklin No. 00AP-1345, 2001 Ohio App.

LEXIS 3495 (Aug. 9, 2001).




       1
         Having examined R.C. 3119.05(D), it appears that the legislature mistakenly
included commissions within subsections (1) and (2) of the statute. The statute is clear in
its aim to assist trial courts in fairly calculating an obligor’s overtime and bonus for
purposes of determining gross income, and including commissions in the equation does
not appear to advance that aim.
7.
       {¶ 17} Here, the evidence presented during the hearing reveals that father’s

income was somewhat inconsistent over the last several years. Thus, we find that income

averaging under R.C. 3119.05(H) was appropriate. Under R.C. 3119.05(H), the court

was not limited to a three-year lookback period in its averaging, nor was it prohibited

from considering father’s 2016 income to the extent that the income was established by

competent, credible evidence. Such evidence was introduced in the form of father’s own

testimony and his pay stubs, which established that father had already earned over

$400,000 as of the date of the hearing, the majority of which came in the form of

commissions.2 Father acknowledged that he would receive additional commissions and

would ultimately earn at least $470,000 in 2016. On this record, we find that the trial

court’s calculation of father’s gross income using his 2016 income was supported by

competent, credible evidence. Therefore, we find no merit to father’s first argument.

       {¶ 18} Next, father argues that the trial court erred when it extrapolated his child

support obligation from the child support guidelines under R.C. 3119.021.3 R.C.




       2
         Father characterizes his commission as an “all-time high” commission. Indeed,
father’s 2016 commission was his largest over the last several years. Nonetheless, we
find that the record does not establish that father’s 2016 commissions were nonrecurring
or unsustainable so as to be excluded from the trial court’s determination of gross
income. See Wolf-Sabatino v. Sabatino, 10th Dist. Franklin No. 12AP-1042, 2014-Ohio-
1252, ¶ 28 (holding that commissions are not nonrecurring when the recipient receives
them annually, even where the amount of the commissions vary from year to year).
       3
        The extrapolation method “takes the applicable percentage under the child
support schedules for couples with combined incomes of $150,000 and applies it directly
to whatever income the parents make.” Lanham v. Mierzwiak, 197 Ohio App.3d 426,
2011-Ohio-6190, 967 N.E.2d 1256, ¶ 18 (6th Dist.).
8.
3119.021 contains a basic child support schedule that “shall be used by all courts and

child support enforcement agencies when calculating the amount of child support to be

paid pursuant to a child support order, unless the combined gross income of the parents is

less than sixty-six hundred dollars or more than one hundred fifty thousand dollars.”

Because the parties’ combined gross income exceeds $150,000, R.C. 3119.04(B) applies

in this case. That statute provides:

              If the combined gross income of both parents is greater than one

       hundred fifty thousand dollars per year, the court * * * shall determine the

       amount of the obligor’s child support obligation on a case-by-case basis

       and shall consider the needs and the standard of living of the children who

       are the subject of the child support order and of the parents. The court or

       agency shall compute a basic combined child support obligation that is no

       less than the obligation that would have been computed under the basic

       child support schedule and applicable worksheet for a combined gross

       income of one hundred fifty thousand dollars, unless the court or agency

       determines that it would be unjust or inappropriate and would not be in the

       best interest of the child, obligor, or obligee to order that amount. If the

       court or agency makes such a determination, it shall enter in the journal the

       figure, determination, and findings.

       {¶ 19} In support of his argument, father cites a 2007 decision from the Eighth

District, Siebart v. Tavarez, 8th Dist. Cuyahoga No. 88310, 2007-Ohio-2643, in which

the court expressed “significant doubts whether the court fulfills its statutory duty to

9.
determine child support on a case-by-case analysis as required by R.C. 3119.04(B) when

it by rote extrapolates a percentage of income to determine child support.” Id. at ¶ 34.

Notably, the court went on in its decision to explain that the extrapolation method is not

impermissible per se. Instead, the court determined that the extrapolation method’s

utility began to diminish as the parties’ income rose sharply above $150,000.

Consequently, the court held that the application of the extrapolation method to a

combined income of $2.6 million yielded an excessive child support obligation.

       {¶ 20} Two years prior to Siebart, the Eighth District found that “[n]othing in

[R.C. 3119.04(B)] prohibits the court from using [the extrapolation] method to determine

the amount of support due in high income cases; it merely no longer mandates that the

court use this method.” Cyr v. Cyr, 8th Dist. Cuyahoga No. 84255, 2005-Ohio-504, ¶ 56.

After the Siebart decision was released, the Eighth District returned to the holding of Cyr,

stating:

              Although a trial court is not required to use the extrapolation method

       in calculating an award of child support under R.C. 3119.04(B), it is not

       error for a trial court to use the extrapolation method in determining a

       parent’s child support obligation in high income cases, so long as the trial

       court otherwise complies with the requirements of R.C. 3119.04(B). In re

       J.M.G., 8th Dist. Cuyahoga No. 98990, 2013-Ohio-2693, ¶ 31.

       {¶ 21} Having reviewed the record below, we find that the trial court did not err

simply because it employed the extrapolation method in arriving at its child support

figure. This finding is supported by our prior decisions citing to the Eighth District’s

10.
decision in Cyr. See Mierzwiak, supra, 197 Ohio App.3d 426, 2011-Ohio-6190, 967

N.E.2d 1256, at ¶ 22; Bunkers v. Bunkers, 6th Dist. Wood No. WD-06-030, 2007-Ohio-

561, ¶ 23; Kendall v. Kendall, 6th Dist. Ottawa No. OT-04-004, 2005-Ohio-1777, ¶ 25.

Further, our review of the trial court’s decision reveals that the court considered the

evidence presented at the evidentiary hearing and fashioned a child support obligation

that took the best interests of the parties and the child into account. In so doing, the trial

court stated as follows:

               Accounting for the substantial increase in [father’s] gross income in

       2016, [the magistrate] determined that a modification of the first [pre-2016

       child support amount] was fair, equitable, and in the best interest of the

       parties’ minor child.

               ***

               After a thorough review of the Magistrate’s Decision and Findings

       of Fact, the transcript, and the fact that two worksheets were prepared, as

       opposed to one, the Court finds that [the magistrate] appropriately

       calculated [father’s] income. Furthermore, pursuant to R.C. 3119.04(B),

       the income totals of both parties required a case-by-case analysis, which the

       Magistrate properly undertook, under the specific circumstances of this

       case.

       {¶ 22} This language demonstrates the trial court’s compliance with the mandates

of R.C. 3119.04(B). Moreover, because the child support obligation exceeds the

obligation that would have been computed under the basic child support schedule for a

11.
combined gross income of $150,000, the trial court was not required to make additional

findings to support its child support order. R.C. 3119.04(B).

       {¶ 23} In light of the foregoing, we find no merit to father’s second argument.

Accordingly, father’s sole assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 24} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, is affirmed. Father is ordered to pay the costs of this

appeal pursuant to App.R. 24.

                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                              _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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