[Cite as Myers v. Brewer, 2017-Ohio-4324.]




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

 JOHANNAH RACHEL MYERS                             :
                                                   :
         Plaintiff-Appellee                        :   C.A. CASE NO. 2016-CA-10
                                                   :
 v.                                                :   T.C. NO. 15-FS-00557
                                                   :
 DAMON C. BREWER                                   :   (Civil Appeal from Common
                                                   :    Pleas Court, Domestic Relations)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                Rendered on the ___16th ___ day of _____June_____, 2017.

                                              ...........

ROBERTA S. FAY, Atty. Reg. No. 0074921, 10 N. Market Street, Troy, Ohio 45373
    Attorney for Plaintiff-Appellee

JUSTIN M. LOPEZ, Atty. Reg. No. 0089759, 18 E. Water Street, Troy, Ohio 45373
     Attorney for Defendant-Appellant

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

DONOVAN, J.

        {¶ 1} Defendant-appellant Damon C. Brewer (“Father”) appeals a decision of the

Darke County Court of Common Pleas, Domestic Relations Division, adopting the

decision of the magistrate granting plaintiff-appellee Johanna Rachel Myers’ (“Mother”)

motion to terminate or modify the parties’ shared parenting order. In its decision, the

magistrate recommended that Father be named the child support obligor for the parties’
                                                                                          -2-


three minor children. The magistrate also included its calculation of the child support

amount for which Father is to be responsible. The trial court adopted the magistrate’s

decision in a judgment entry issued on August 25, 2016. Father filed a timely notice of

appeal with this Court on September 19, 2016.

       {¶ 2} Initially, we note that the parties are parents to three minor children, to wit:

J.B., born in 2002; T.B., born in 2004; and I.B., born in 2006.

       {¶ 3} On August 20, 2009, the parties were granted a divorce in Ross County,

Ohio. As part of the divorce, the parties entered into a Shared Parenting Plan regarding

the care and maintenance of their three children.        In January of 2011, the Shared

Parenting Plan was modified, and Father was granted residential parenting rights for all

three children during the school year. Father was also permitted to relocate with the

children to New Mexico. Mother was granted residential parenting rights of the children

during their summer break.      Significantly, Mother was designated the child support

obligor and ordered to pay $362.94 per month in support for all three children.

       {¶ 4} Thereafter, in July of 2015, Father and the children moved to Bradford, Darke

County, Ohio. On December 30, 2015, Mother filed a motion to terminate or modify the

parties’ shared parenting plan. On April 8, 2016, Father filed a motion to terminate or

modify the shared parenting plan. The trial court appointed a Guardian ad Litem (GAL)

to interview the parties and their three children and submit a report.

       {¶ 5} A hearing was held before the magistrate on the parties’ motions over two

days, May 12, 2016 and June 7, 2016. On June 28, 2016, the magistrate issued her

decision recommending that the parties continue to operate under the existing shared

plan with modifications. Specifically, the magistrate recommended that the parties have
                                                                                           -3-


shared parenting time with the two youngest children, T.B. and I.B., on a rotating week to

week basis. The magistrate also recommended that the oldest child, J.B., reside with

Father throughout the week, with Mother only having standard parenting time.

Additionally, the magistrate recommended that Father be named residential parent for all

of the children for school purposes. At the time of the hearing, Mother had moved to

Greenville, Ohio, to be closer to her children and maintained a residence there as well.

         {¶ 6} With respect to the issue of child support, the magistrate recommended that

Father be named the child support obligor. The magistrate calculated Father’s support

order for all three children to be $414.56 per month. The magistrate recommended a

deviation of thirty-five percent from the guideline amount because the parties’ oldest child,

J.B., would primarily reside with Father.

         {¶ 7} Both parties filed objections to the magistrate’s decision. On August 25,

2016, the trial court issued a decision overruling the parties’ objections and adopting the

decision of the magistrate in its entirety.

         {¶ 8} It is this judgment that Father now appeals.1

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

         {¶ 10} “THE TRIAL COURT ERRED IN CALCULATING CHILD SUPPORT.”

         {¶ 11} In his sole assignment, Father challenges the trial court’s decision regarding

the award of child support to Mother. Specifically, Father contends that the trial court

erred when it named him the child support obligor when the parties have shared parenting

of the two youngest children and he is designated the residential parent of all of the

children for school purposes. Father further argues that the trial court erred when it failed


1   We note that Mother did not file an appellee’s brief in the instant case.
                                                                                          -4-


to consider the proper deviation factors when ordering him to pay child support to Mother

for the parties’ two youngest children.

                                       Standard of Review

       {¶ 12} We review child support decisions for abuse of discretion. Booth v. Booth,

44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). “ ‘Abuse of discretion’ has been

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

omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). In this regard, the Supreme

Court of Ohio has stressed that “most instances of abuse of discretion will result in

decisions that are simply unreasonable.” Id. The court has also said that “[a] decision is

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

       I. Whether the Trial Court Erred in Naming Father the Child Support Obligor

       {¶ 13} The evidence adduced at the hearing before the magistrate established that

Mother is employed by Pregnancy Decision Health Centers and earns a yearly salary of

$34,650.00. Father is employed by Clopay and earns a yearly base salary of $42,640.00

with an additional $5,000.00 in overtime earnings, an aggregate sum of $47,640.00.

Furthermore, all of the children are insured through Father’s employer. Based upon the

financial figures submitted by the parties and the disparity in their income, the trial court

adopted the magistrate’s recommendation, and named Father the child support obligor

and ordered him to pay child support in the amount of $414.56 per month.                This

calculation was derived from the standard child support worksheet.

       {¶ 14} “The party seeking to rebut the basic child support schedule has the burden

of presenting evidence which demonstrates that the calculated award is unjust or
                                                                                           -5-

inappropriate and would not be in the best interest of the child.” Murray v. Murray, 128

Ohio App.3d 662, 671, 716 N.E.2d 288 (12th Dist. 1999); accord MacMurray v.

Mayo, 10th Dist. Franklin No. 07AP–38, 2007–Ohio–6998, ¶ 30. “As with most matters

pertaining to child support, the decision to deviate from the actual annual obligation is

discretionary and will not be reversed absent an abuse of discretion.” Hattenbach v.

Watson, 2d Dist. Montgomery No. 27071, 2016-Ohio-5648, ¶ 14, citing Havens v.

Havens, 10th Dist. Franklin No. 11AP–708, 2012–Ohio–2867, ¶ 6; see In re Custody of

Harris, 168 Ohio App.3d 1, 2006–Ohio–3649, 857 N.E.2d 1235, ¶ 60–61 (2d Dist.).

       {¶ 15} Upon review, we can find no abuse of discretion in the trial court's decision

to order Father to pay child support to Mother. In regards to Father's first argument

herein, he contends that the trial court erred in designating him as the obligor for purposes

of completing the child support guidelines worksheet. Father contends that he should

have been considered the residential parent and not designated as the obligor on the

worksheet because he is the residential parent for school placement purposes and has

the children in his care for the majority of the time. Here, the trial court indicated that it

was designating Father the obligor because it was in the children's best interest, the

parties had disparate incomes, and it was necessary to allow the children to enjoy a

similar standard of living in both of their parents' homes. Where a trial court follows the

statutory guidelines for calculating child support, designating one parent, particularly the

one who earns significantly more than the other, as obligor in a shared parenting situation

is not an abuse of discretion. See Fallang v. Fallang, 109 Ohio App.3d 543, 547, 672

N.E.2d 730 (12th Dist. 1996).

       {¶ 16} In the instant case, the trial court stated as follows:
                                                                                        -6-


              First, [Father]’s two objections concern being named the child

       support and [sic] Obligor and the calculation of child support. This was

       based on the Magistrate’s decision that the parties essentially share equally

       the time with both children. However, the Court overrules these objections

       since the sharing of parenting time is not the same as each parent having

       custody of an equal number of children (which is considered to be “split

       parenting”).   If the Court were to accept [Father]’s argument, then the

       relative incomes of the parties would have no meaning and could result in

       a higher income parent raising one child in luxury while the other parent with

       limited income raising the other child in poverty.

Tr. Ct.’s Dec., p. 1-2.

       {¶ 17} Therefore, after a review of the record, we find that the trial court did not

abuse its discretion in designating appellant as “obligor” on the child support worksheet,

and its findings and the record sufficiently supported its determination.

        II. Whether the Trial Court Erred When It Failed to Consider a Deviation in

       Child Support Based Upon the Equal Parenting Time Father Exercised with

                                  the Two Youngest Children

       {¶ 18} We now address the issue of whether the trial court abused its discretion by

overruling Father's objection requesting a downward deviation in his support obligation

for the parties’ two youngest children, T.B. and I.B. R.C. 3119.24 provides that, in shared

parenting cases, the trial court must use the standard child support worksheet set forth

in R.C. 3119.022. Pursuant to R.C. 3119.03, “the amount of child support that would be

payable under a child support order, as calculated pursuant to the basic child support
                                                                                            -7-


schedule and applicable worksheet through the line establishing the actual annual

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

       {¶ 19} There is no statutory provision for any credit or offset to a child support

obligation when the parties agreed to shared parenting; therefore, a trial court may not

automatically deviate from the worksheet amount in order to credit an obligor for any time

the child spends with that parent. Pauly v. Pauly, 80 Ohio St.3d 386, 388–389, 686

N.E.2d 1108 (1997); Hubin v. Hubin, 92 Ohio St.3d 240, 749 N.E.2d 749 (2001).

Accord R.C. 3109.04(L)(6). “Unless the context clearly requires otherwise and except

as otherwise provided in the order, if an order is issued by a court pursuant to this section

and the order provides for shared parenting of a child, each parent, regardless of where

the child is physically located or with whom the child is residing at a particular point in

time, as specified in the order, is the ‘residential parent,’ the ‘residential parent and legal

custodian,’ or the ‘custodial parent’ of the child.” Hattenbach at ¶ 8.

       {¶ 20} However, R.C. 3119.24 permits a trial court to deviate from the guideline

calculation if that amount “would be unjust or inappropriate to the children or either parent

and would not be in the best interest of the child because of extraordinary circumstances

of the parents or because of any other factors or criteria as set forth in R.C. 3119.23 of

the Revised Code.” The fact that parents equally share in parenting time does not, by

itself, justify a deviation in the amount of child support. Glassner v. Glassner, 160 Ohio

App.3d 648, 2005–Ohio–1936, 828 N.E.2d 642, ¶ 48 (5th Dist.). Instead, it is just one

factor to be considered by the trial court. The “extraordinary circumstances listed in R.C.

3119.24(B) include (1) the amount of time the children spend with each parent, (2) the

ability of each parent to maintain adequate housing for the children, (3) each parent's
                                                                                          -8-

expenses, and (4) any other circumstances the court considers relevant.” Hattenbach

at ¶ 13. R.C. 3119.23 adds an additional sixteen factors a trial court may consider in

determining whether to deviate from the guideline, including income disparity between

the parties.

       {¶ 21} As previously discussed, the trial court specifically noted the income

disparity between the parties, namely that Father earned approximately $47,600.00

including overtime pay, while Mother earned approximately $34,600.00. Based upon the

income disparity between the parties, the trial court found that a downward deviation was

not just, reasonable, appropriate, or in the best interest of the two youngest children, T.B.

and I.B. Furthermore, the trial court found it “prudent” of the magistrate to recommend a

thirty-five per cent child support deviation for J.B. to account for the fact that Father was

awarded primary custody of the child with Mother only having standard parenting time.

Hattenbach at ¶ 15.

       {¶ 22} Therefore, we conclude that the trial court did not err when it failed to award

Father a downward deviation in his support obligation for the parties’ two youngest

children, T.B. and I.B. Additionally, the trial court’s decision adopting the thirty-five per

cent child support deviation for J.B. was clearly reasonable and supported by the record.

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

       {¶ 24} Lastly, Father argues that the trial court erred when it failed to include his

annual support obligation in its decision as required by R.C. 3119.22, which states in

pertinent part:

               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
                                                                                            -9-


      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

      in the best interest of the child.

             If it deviates, the court must enter in the journal the amount of child

      support calculated pursuant to the basic child support schedule and the

      applicable worksheet, through the line establishing the actual annual

      obligation, its determination that that amount would be unjust or

      inappropriate and would not be in the best interest of the child, and findings

      of fact supporting that determination.

      {¶ 25} Upon review, we find that the trial court did, in fact, fail to include the annual

amount of child support for which Father would be responsible pursuant to R.C. 3119.23

in its judgment entry. On remand, the trial court is instructed to include in its judgment

entry the original annual obligation from line 23 of the child support worksheet, the

deviation amount, and the actual obligation amount after the deviation is deducted.

      {¶ 26} Aside from the foregoing corrections, the judgment of the trial court is

affirmed on the merits and in all other respects. The matter is remanded for limited

proceedings consistent with this opinion.

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

FROELICH, J. and TUCKER, J., concur.
                        -10-




Copies mailed to:

Roberta S. Fay
Justin M. Lopez
Hon. Jonathan P. Hein
