[Cite as In re A.W., 2019-Ohio-1472.]




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

         IN RE: A.W. AND J.W.                   :
                                                :
                                                :   Appellate Case No. 28159
                                                :
                                                :   Trial Court Case No. 2017-1108
                                                :                     & 2017-1109
                                                :
                                                :   (Appeal from Common Pleas Court-
                                                :   Juvenile Division)
                                                :

                                          ...........

                                          OPINION

                             Rendered on the 19th day of April, 2019.

                                          ...........

L. ANTHONY LUSH, Atty. Reg. No. 0046565, 2160 Kettering Tower, Dayton, Ohio 45423
      Attorney for Respondent-Appellant

R.A.
        Petitioner-Appellee, Pro Se

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

DONOVAN, J.

        {¶ 1} Respondent-appellant Father appeals from a judgment of the Montgomery

County Court of Common Pleas, Juvenile Division, which awarded petitioner-appellee

Mother child support for their two children, A.W. and J.W. The court ordered Father to
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pay $2,383.15 per month for each child.1    Father filed a timely notice of appeal with this

Court on October 3, 2017.

       {¶ 2} Mother and Father are the parents of J.W. and A.W., who were born in 2007

and 2011, respectively. Mother and Father never married but did reside together with

both children until approximately the middle of 2013, when the parents split up and Mother

moved out. Between 2013 and 2016, there was no child support order in place, but

Father testified that he gave Mother approximately $800 every two weeks for the care

and well-being of J.W. and A.W. During the summer, Father testified that he gave

Mother approximately $1,000 every two weeks for the children.

       {¶ 3} Mother testified that, at some point in 2016, Father stopped giving her money

for the children’s care. Accordingly, Mother petitioned the Montgomery County Child

Support Enforcement Agency (MCCSEA) for a determination of Father’s child support for

J.W. and A.W. Thereafter, an administrative hearing was held before the MCCSEA on

January 20, 2017. Mother appeared at the hearing and provided testimony, but Father

was not present. On January 24, 2017, the MCCSEA issued an administrative order

recommending an award of child support to Mother in the amount $2,810.72 per month

for both children.

       {¶ 4} On February 23, 2017, Father filed an objection to the administrative support

order issued by the MCCSEA, essentially arguing that the child support award

recommended by the MCCSEA was not supported by the evidence. On July 25, 2017,


1
  All of the child support recommendations and orders in this case included an alternate,
slightly higher amount if the children were not covered by medical insurance. For
purposes of this appeal, we refer only to the amounts of child support ordered if medical
insurance were provided for the children. The support awards were also subject to an
additional two percent processing fee.
                                                                                       -3-


a hearing was held before a juvenile court magistrate on Father’s objection. Present at

the hearing were Father and his counsel, Mother, who was not represented by counsel,

and counsel for the MCCSEA.         After hearing testimony and viewing exhibits, the

magistrate took the matter under advisement. In her decision issued on August 23,

2017, the magistrate sustained Father’s objection to the administrative support order,

making the following findings:

             The objection to the administrative child support order * * * is

              sustained and child support shall be recalculated de novo as set forth

              in this Order.

             In accordance with the Ohio Revised Code 3119.04(B) and after

              careful review of the evidence the Court finds it would be unjust and

              not in the best interest of the children to cap the income at

              $150,000.00.

             The father is employed by the Cleveland Clinic.

             From January 1, 2017 to April 30, 2017 the father’s year to date gross

              income was $133,048.45.

             [Mother’s] gross income is less than $17,000.00 per year.

             The father was given credit for his daycare expenses paid.

              However, [he] could not be given credit for any school expense.

             The father stated that he has nine (9) other children but only has one

              (1) minor biological child who resides with him.

             The father is not Court ordered to provide child support to the other

              children. Therefore, no credit was given.
                                                                                         -4-


                The father had provided for [A.W. and J.W.] previously but has

                 withheld funds from the mother in the past.

                Upon calculation of support with a cap of $150,000.00, the support

                 order would be $871.50 per month, per child.

                [Father] has health insurance available at a reasonable cost and thus

                 a health care order shall issue.

(Emphasis added.) Magistrate’s Dec. p. 1-2. Based upon her findings, the magistrate

recalculated Father’s child support obligation for A.W. and J.W. to be $2,383.15 per

month for each child.

         {¶ 5} On September 6, 2017, Father filed an objection to the magistrate’s decision

and a request to file supplemental objections once he received a copy of the transcript of

the hearing. The trial court granted Father’s request to file supplemental objections on

September 20, 2017. After being granted three extensions by the trial court, Father filed

his supplemental objections to the magistrate’s decision on January 30, 2018.

         {¶ 6} Thereafter on September 12, 2018, the trial court issued a judgment affirming

and adopting the magistrate’s decision ordering Father to pay child support for A.W. and

J.W. in the amount of $2,383.15 per month for each child.

         {¶ 7} It is from this judgment that Father now appeals.2

         {¶ 8} Father’s sole assignment of error is as follows:

         THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING

         TO MEET THE STATUTORY REQUIREMENTS AS SET OUT IN O.R.C.

         3119.04(B)     WHEN      CALCULATING       AND    ESTABLISHING        CHILD


2   Mother did not file a brief in this appeal.
                                                                                        -5-


      SUPPORT.

      {¶ 9} In his sole assignment, Father contends that the trial court failed to properly

consider the statutory requirements set forth in R.C. 3119.04(B) when it calculated his

child support obligation for A.W. and J.W. Specifically, Father argues that there was no

evidence adduced which supported a child support award in excess of the baseline

amount based on a combined gross income of $150,000, as set forth in R.C. 3119.04(B).

      {¶ 10} When the combined gross income of the parties is greater than $150,000

per year, the standard child support guidelines set forth in R.C. 3119.02 are not

applicable. Instead, the provisions of R.C. 3119.04(B) apply. Bertram v. Bertram, 2d

Dist. Clark No. 2007-CA-135, 2009-Ohio-55, ¶ 11. In the instant case, Father does not

dispute that his yearly income alone from his employment as a doctor at the Cleveland

Clinic exceeds $150,000.      Clearly, Mother’s and Father’s yearly incomes, when

combined, were in excess of the baseline amount of $150,000 as set forth in R.C.

3119.04(B).

      {¶ 11} At the time of the trial court’s judgment, R.C. 3119.04(B) stated as follows:

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

      hundred fifty thousand dollars per year, the court, with respect to a court

      child support order, or the child support enforcement agency, with respect

      to an administrative child support order, 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
                                                                                          -6-


       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.

       {¶ 12} Under the version of R.C. 3119.04(B) in effect at the time of the trial court’s

judgment, the baseline amount of child support for parties with a combined gross income

greater than $150,000 was the amount that would be awarded using the basic child

support computation worksheet for a combined gross income of $150,000. Sues v.

Richardson, 2d Dist. Clark No. 2018-CA-101, 2019-Ohio-310, ¶ 15; see also Bajzer v.

Bajzer, 9th Dist. Summit No. 25635, 2012-Ohio-252, ¶ 5 (“[t]he level of support for a

combined gross income of $150,000 is the starting point from which a trial court exercises

its discretion in fashioning a child support award for parents with higher incomes”). A

child support order issued under R.C. 3119.04(B) cannot fall below the baseline amount

unless the court determines that amount “would be unjust or inappropriate and would not

be in the best interest of the child, obligor, or obligee[.]” R.C. 3119.04(B).

       {¶ 13} If a trial court orders child support in an amount that is below the baseline

amount, the trial court must make findings with regards to its decision. R.C. 3119.04(B).

Trial courts, however, may extrapolate upward from the baseline amount without making

any findings. Rucks v. Moore, 2d Dist. Montgomery No. 27928, 2018-Ohio-4692, ¶ 37;

Bertram, 2d Dist. Clark No. 2007-CA-135, 2009-Ohio-55, at ¶ 13; Moore v. Moore, 182
                                                                                           -7-

Ohio App.3d 708, 2009-Ohio-2434, 914 N.E.2d 1097, ¶ 16 (3d Dist.); Guertin v. Guertin,

10th Dist. Franklin No. 06AP-1101, 2007-Ohio-2008, ¶ 6; Pruitt v. Pruitt, 8th Dist.

Cuyahoga No. 84335, 2005-Ohio-4424, ¶ 44.

       {¶ 14} In determining an appropriate amount of child support, R.C. 3119.04(B)

directs trial courts to make the determination on a “case-by-case basis” and to “consider

the needs and standard of living of the children who are the subject of the child support

order and of the parents.” Sues at ¶ 17, quoting R.C. 3119.04(B). Additionally, we have

previously held that the deviation factors set forth in R.C. 3119.23 “are also relevant to

the court's assessment of the proper amount of child support when it makes its case-by-

case assessment under R.C. 3119.04.” Id. at ¶ 18, citing Elam v. Elam, 2d Dist.

Montgomery No. 25326, 2013-Ohio-957, ¶ 12.             “Pursuant to R.C. 3119.23, when

considering whether to deviate from the guidelines, a trial court may consider, among

other factors, any special and unusual needs of the children; other court-ordered

payments; extended times of visitation or extraordinary costs associated with visitation;

financial resources and earning ability of the children; disparity in incomes of the parties;

the financial resources and needs of each parent; the standard of living of each parent

and the standard of living the children would have enjoyed but for the separation of the

parties; physical and emotional needs of the children; and educational needs and

opportunities of the children.” (Emphasis added.) Id., quoting Elam.

       {¶ 15} An award of child support is left to the sound discretion of the trial court and

will not be disturbed on appeal absent an abuse of discretion. Bohme v. Bohme, 2d Dist.

Montgomery No. 27258, 2017-Ohio-1190, ¶ 11. An abuse of discretion occurs where a

trial court's decision is “unreasonable, arbitrary or unconscionable.” Blakemore v.
                                                                                        -8-

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “[M]ost instances of abuse

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

that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is

unreasonable if there is no sound reasoning process that would support that decision.”

Id.

       {¶ 16} On appeal, Father argues that, although the trial court “may” not be required

to make any findings with respect to its decision to award child support in excess of the

amount based on a combined income of $150,000 as set forth in R.C. 3119.04(B), the

trial court made findings which were not supported by the evidence adduced at the

hearing before the magistrate. Specifically, Father directs us to the following excerpt

from the trial court’s decision:

                      In calculating Father’s child support obligation pursuant to

              O.R.C. 3119.04(B) and after careful review of the evidence, the Court

              has considered the needs and standard of living of the children, as

              well as both parents in deciding that removing the $150,000.00

              combined gross income cap on child support is in the best interest of

              the children. The evidence presented supports this finding.

                      The Court finds that it would be unjust and not in the best

              interest of the children to cap the income at $150,000.00.

(Emphasis added.)

       {¶ 17} Father argues that no evidence was adduced at the hearing with respect to

the needs and/or respective lifestyles of the parents. Additionally, Father asserts that no
                                                                                          -9-


evidence was adduced which would permit the trial court to make any findings regarding

the needs of the children and/or their standard of living. Thus, Father contends that the

trial court’s decision to award child support in excess of the baseline amount of for

combined income of $150,000 was not supported by competent and credible evidence.

       {¶ 18} As previously stated, Father was employed at the Cleveland Clinic.

Father’s 2016 W-2 from the Cleveland Clinic listed his wages as $94,649.24, with Social

Security wages of $97,618.86. Tr. 11, Exhibit 2. Father also provided his pay stub from

the Cleveland Clinic dated April 28, 2017, which stated that he had earned a gross income

of $134,636.07 for the first four months of 2017. Tr.10, Exhibit 1. Father further testified

that he had nine dependents/children in total. However, with the exception of A.W. and

J.W., Father testified that he did not pay any court-ordered child support for any of his

children, but he provided informal support for his other children. Father also testified that

he had one biological child who lived with him.

       {¶ 19} On the other hand, the evidence adduced at the hearing established that

Mother was employed by Stratton Home Care, where she earned $10 an hour. Tr. 34.

Mother worked between 25 and 40 hours per week at Stratton Home Care. Id. Mother

testified that, every other week, she worked for Miami Valley Home Health for

approximately three hours, where she also earned $10 an hour. Mother testified that, on

average, she earned approximately $300 a week. The record establishes that Mother

earned less than $17,000 a year.

       {¶ 20} Based upon the evidence presented at the hearing, Father earned in just

four months almost eight times what Mother earned in an entire year.              Thus, the

significant income disparity between Mother and Father and the likely higher standard of
                                                                                          -10-


living that A.W. and J.W. would have enjoyed were certainly factors the trial court properly

considered when it decided to deviate from the child support calculation based on

combined income of $150,000 as set forth in R.C. 3119.04(B).

        {¶ 21} Moreover, the evidence established that A.W. attended private school for

pre-school in 2016-2017 at a cost of $3,700 per year. J.W. also attended private school,

which cost $4,095 for the 2016-2017 school year. Father testified that A.W. and J.W.

would attend the same private school (J.W.’s current school) for the 2017-2018 school

year.

        {¶ 22} Attending private school is one aspect of a child's standard of living. Rucks,

2d Dist. Montgomery No. 27928, 2018-Ohio-4692, ¶ 39; see Rand v. Rand, 18 Ohio St.3d

356, 361, 481 N.E.2d 609 (1985) (Celebreeze, J., concurring), quoting In re Landis, 5

Ohio App.3d 22, 28, 448 N.E.2d 845 (10th Dist.1982)(“Appellant's obligation is to pay

money for the support of his children, including tuition for their attendance at a private

school if that be reasonable and consistent with the standard of living the children would

have enjoyed had the marriage continued.”) This court also has affirmed a father's

obligation to contribute to the parochial school tuition of his minor child. See Worthen v.

Worthen, 2d Dist. Clark No. 2002 CA 33, 2002-Ohio-5587. While the parents in this case

were never married, it is apparent from the record that both A.W. and J.W. enjoyed a

standard of living which allowed them to attend private schools. Moreover, it is highly

unlikely that Mother’s yearly income would bear the expense of a private school education

for even one, let alone both children. Accordingly, Father’s assertion that no evidence

was adduced with respect to the standard of living enjoyed by the children has no merit.

        {¶ 23} After a thorough review of the record, we find no merit to Father's claim that
                                                                                          -11-


the record fails to support an upward deviation from the baseline amount of child support

provided in R.C. 3119.04(B). Under the facts and circumstances of this case, it was not

unreasonable for the trial court to upwardly deviate from the baseline amount of child

support. Therefore, the trial court's decision to do so was not an abuse of discretion.

       {¶ 24} Father’s assignment of error is overruled.

       {¶ 25} Father’s assignment of error having been overruled, the judgment of the

trial court is affirmed.

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



HALL, J. and TUCKER, J., concur.



Copies sent to:

L. Anthony Lush
R.A.
Hon. Anthony Capizzi
