[Cite as Hattenbach v. Watson, 2016-Ohio-5648.]




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

 MERYL HATTENBACH                                 :
                                                  :   Appellate Case No. 27071
       Plaintiff-Appellee                         :
                                                  :   Trial Court Case No. 12-DR-304
 v.                                               :
                                                  :   (Domestic Relations Appeal from
 RICHARD J. WATSON                                :    Common Pleas Court)
                                                  :
       Defendant-Appellant                        :
                                                  :


                                             ...........

                                             OPINION

                         Rendered on the 2nd day of September, 2016.

                                             ...........

ANNE CATHERINE HARVEY, Atty. Reg. No. 0054585, Anne Catherine Harvey, L.L.C.,
345 North Main Street, Unit 2, Springboro, Ohio 45066
      Attorney for Plaintiff-Appellee

RICHARD J. WATSON, 2540 Hillview Avenue, Dayton, Ohio 45419
     Defendant-Appellant, pro se

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

FAIN, J.

        {¶ 1} Defendant-appellant Richard Watson appeals from an order of the Common

Pleas Court of Montgomery County, Division of Domestic Relations, overruling his motion

to reduce his child support obligation. He contends that he is entitled to a credit, an
                                                                                         -2-


offset, or a downward deviation.

       {¶ 2} We conclude that the trial court did not abuse its discretion when it

determined that Watson was not entitled to a downward deviation in his child support

obligation, due to the large disparity in the parties’ income. Accordingly, the order of the

trial court is Affirmed.



                              I. The Shared Parenting Plan

       {¶ 3} Watson and Meryl Hattenbach were married in 2005, and have two minor

children. The parties were divorced in October 2013. The Final Judgment and Decree

of Divorce incorporated a Shared Parenting Plan agreed to by the parties.

       {¶ 4} The Shared Parenting Plan, at Section 4.1, provides that “[b]oth parents shall

be considered residential and custodial parents, although the Mother is the primary parent

strictly for school placement purposes. This designation shall not be considered as

dispositive of any other allocation of parental rights and responsibilities either now or at

any time in the future.” Dkt. No. 54. The Plan gives Watson parenting time amounting

to approximately 40% of the year. Id. Section 5.2 of the Plan further states that “[d]uring

the time each parent has physical custody and residential status, they shall have all rights

as a legal guardian of [the children].” Id. Finally, the Plan provides that “Father/Obligor

shall pay $500.00 per month per child for two (2) children as and for child support,

pursuant to the attached child support computation worksheet, effective October 1, 2013.

* * * The parties acknowledge that the child support * * * is an approximate 22% deviation

from the Obligor’s amount of support.” Id. The parties agreed in the Plan that the

deviation was warranted because Watson would have 40% of the parenting time.
                                                                                      -3-




      {¶ 5} In September 2014, Watson moved to reduce his child support obligation.

In October 2014, Hattenbach moved for an increase in Watson’s child support obligation.

Three days of hearing were conducted in early 2015, after which the magistrate issued a

decision increasing Watson’s child support obligation.        Watson objected to the

magistrate’s decision.   The trial court overruled his objections and adopted the

magistrate’s decision. Watson appeals.



      II. Watson Is Not Entitled to an Automatic Child Support Reduction or

             Offset, and the Trial Court Did Not Abuse its Discretion by

                 Overruling his Request for a Downward Deviation

      {¶ 6} Watson’s sole assignment of error states as follows:

             THE MONTGOMERY COUNTY COMMON PLEAS COURT ERRED

      IN THAT THE APPELLANT IS ENTITLED TO AN AUTOMATIC CREDIT IN

      HIS CHILD SUPPORT PAYMENTS FOR THE TIME THE CHILDREN

      RESIDE WITH HIM PURSUANT TO R.C. 3119.07(A) IN CASES WHERE

      THE SHARED PARENTING PLAN ALLOCATED PARENTAL RIGHTS

      WITH RESPECT TO WHERE THEY ARE PHYSICALLY LOCATED OR

      WITH WHOM THE CHILD IS RESIDING AT A PARTICULAR POINT IN

      TIME AS PROVIDED IN R.C. 3109.04(L)(6).

      {¶ 7} Watson contends that the trial court erred by failing to give him a reduction

in his child support obligation based upon the large amount of time the children spend

with him.   He argues that, pursuant to the Shared Parenting Plan, he is the sole
                                                                                           -4-


residential, custodial, and legal parent when the children are with him, and therefore R.C.

3119.07(A) mandates that he should receive a credit or offset for the time the children are

with him.

       {¶ 8} Watson argues that he should receive an offset or credit pursuant to R.C.

3119.07(A), which provides that “a parent’s child support obligation for a child for whom

the parent is the residential parent and legal custodian shall be presumed to be spent on

that child and shall not become part of a child support order * * *.” However, R.C.

3119.07(A) [formerly R.C. 3113.215(C)], does not apply to shared parenting agreements

because under shared parenting agreements both parents are considered residential

parents at all times. Pauly v. Pauly, 80 Ohio St.3d 386, 388–389, 686 N.E.2d 1108

(1977). 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.”

       {¶ 9} Watson attempts to distinguish Pauly, claiming that R.C. 3119.07 is

applicable to this case, by arguing that the context of the Shared Parenting Plan clearly

demonstrates that the parties intended to make one parent a non-residential, non-

custodial parent during the time they are not with the children. In support, he references

Section 5.2, which he contends gives all legal, custodial and residential rights to the

parent exercising physical custody of the children. He also cites certain other provisions

of the Plan – for example, provisions requiring that the parent with physical custody of the
                                                                                        -5-


children must transport the child to school and extracurricular activities, which he claims

support his argument.

      {¶ 10} We find Watson’s argument unpersuasive. Section 5.2 does state that the

party in possession of the children “has all rights as legal guardian.” However, it does

not state that those rights are to the exclusion of the non-possessory parent, or that the

non-possessory parent loses any rights when not in possession of the children. Indeed,

it appears that Watson advances the idea that only the parent with the children has any

rights under the Plan. This does not comport with the concept of shared parenting, or

with the terms of the parties’ Plan, which must be read in context with the cited Section

5.2. For example, Section 4.1 of the Plan states that both parents are residential and

custodial parents. It does not differentiate between the parent with possession and the

parent without.   Additionally, Section 2.1(a) grants each parent “the right to make

decisions concerning the children’s health, social situation, morals, welfare, education,

legal and economic environment.” This section does not limit those rights to times when

the parent has the child. Likewise, Section 6.1 provides that the parties shall “jointly

decide all major issues regarding the children * * * including but not limited to academic

matters, non-emergency health-care matters, extracurricular activities, and summer

activities and camps.”    In short, nothing in the Shared Parenting Plan leads us to

conclude that it provides for the relinquishment of rights during the time a parent is not

with the children. Thus, we conclude that Watson’s argument lacks merit.

      {¶ 11} We now turn to the issue of whether the trial court abused its discretion by

denying Watson’s request for a downward deviation in his support obligation.          R.C.

3119.24 provides that, in shared parenting cases, the trial court must use the standard
                                                                                          -6-


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 schedule and applicable worksheet through the line

establishing the actual annual obligation, is rebuttably presumed to be the correct amount

of child support due.”

       {¶ 12} 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, supra; Hubin v. Hubin, 92 Ohio St.3d 240, 749

N.E.2d 749 (2001).

       {¶ 13} 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

expenses, and (4) any other circumstances the court considers relevant.” 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.
                                                                                       -7-




       {¶ 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

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.” Havens v. Havens, 10th Dist.

Franklin No. 11AP-708, 2012-Ohio-2867, ¶ 6; In re Custody of Harris, 168 Ohio App.3d 1,

2006-Ohio-3649, 857 N.E.2d 1235, ¶ 60–61 (2d Dist.).

       {¶ 15} The trial court noted that at the time of the divorce, Watson had an income

of $108,296, while Hattenbach, who was unemployed, had a minimum wage imputed

income of $16,328.     At the time of the hearings, Watson had an annual income of

$109,378, and he testified that his income in 2015 would be $110,473. Hattenbach had

become employed at a local grocery store, and had opened a grocery business of her

own. Her total annual income was $14,533.79. The trial court found that the downward

deviation was no longer just, reasonable, appropriate, or in the best interest of the

children. Hattenbach testified that she was experiencing more expenses because the

children were eating more, needed more clothes, and becoming involved in more

activities with associated fees and costs.

       {¶ 16} We conclude that the trial court did not abuse its discretion. Watson’s sole

assignment of error is overruled.
                                                                                     -8-




                                      III. Conclusion

       {¶ 17} Watson’s sole assignment of error having been overruled, the order of the

trial court from which this appeal is taken is Affirmed.


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



FROELICH and HALL, JJ., concur.



Copies mailed to:

Anne Catherine Harvey
Richard J. Watson
Hon. Denise L. Cross
