[Cite as Kaethow v. Kaethow, 2013-Ohio-2354.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

LORI A. KAETHOW                                    JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10-CA-92,
STEVEN H. KAETHOW                                           10-CA-139

        Defendant-Appellant
                                                   OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Licking County Court of
                                                Common Pleas, Domestic Relations
                                                Division, Case No. 08-DR-00986


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         June 6, 2013


APPEARANCES:
k

For Plaintiff-Appellee                          For Defendant-Appellant


ELIZABETH WESTFALL                              GARY J. GOTTFRIED
5491 Scioto Darby Road                          608 Office Parkway, Suite B
Suite 102                                       Westerville, Ohio 43082
Hilliard, Ohio 43026
Licking County, Case No. 10-CA-92, 10-CA-139                                         2

Hoffman, P.J.


      {¶1}   In Licking App. No. 10CA0092, defendant-appellant Steven H. Kaethow

(“Father”) appeals the July 16, 2010 Judgment Decree of Divorce entered by the Licking

County Court of Common Pleas, Domestic Relations Division, with respect to the trial

court’s calculation of child support and allocation of the tax dependency exemptions.

Plantiff-appellee is Lori A. Kaethow (“Mother”). In Licking App. No. 10CA0139, Father

appeals the November 17, 2010 Judgment Entry, which found his motion to vacate or

modify the divorce decree to be moot.

                         STATEMENT OF THE FACTS AND CASE

      {¶2}   The parties were married on January 27, 2000. Two children were born

as issue of the marriage. A third child was born prior to the marriage. Mother filed a

complaint for divorce. Father filed an answer and counterclaim.

      {¶3}   The matter came on for hearing on October 16, and November 13, 2009.

The parties executed an Agreed Shared Parent Plan. Therein, the parties stipulated the

trial court would determine the amount of child support, the amount of child support

deviation, and the allocation of the annual tax dependency exemptions for the three

minor children.

      {¶4}   The trial court issued a Shared Parenting Decree on July 16, 2010, which

adopted and incorporated the parties’ Agreed Shared Parenting Plan. The trial court

determined the amount of child support pursuant to the guidelines would be

$1,541.55/month including processing fees. The trial court found the guideline child

support amount would be unjust, inappropriate, and not in the children’s best interest,

and reduced Father’s child support obligation to $1,209.06/month plus processing fees.
Licking County, Case No. 10-CA-92, 10-CA-139                                           3


The trial court awarded the tax dependency exemption for the younger son to Father

and the tax dependency exemption for the daughter to Mother. With respect to the tax

dependency exemption for the older son, the trial court ordered each party receive the

exemption on an alternating yearly basis.

         {¶5}   The trial court issued its Judgment Decree of Divorce on July 16, 2010.

Therein, the trial court reiterated its findings and orders relative to the child support

issues. Father filed a Notice of Appeal in Licking App. No. 10CA0092.

         {¶6}   On August 13, 2010, Father filed in the trial court a motion to vacate

and/or modify the shared parenting decree regarding the child support calculation and

tax dependency exemptions. Via Judgment Entry filed November 17, 2010, the trial

court found Father’s motion moot as a result of the appeal in Licking App. No.

10CA0092. Father filed a Notice of Appeal from this entry in Licking App. No.

10CA0139.

         {¶7}   In Licking App. No. 10CA0092, Father raises the following assignments of

error:

         {¶8}   “I. THE TRIAL COURT’S CHILD SUPPORT CALCULATION WAS

CONTRARY TO THE FACTS AND THE LAW AS IT WAS INCONSISTENT WITH THE

PARTIES’ SHARED PARENTING PLAN, WHICH WAS ADOPTED BY THE COURT.

         {¶9}   “II.   THE   TRIAL   COURT’S      ALLOCATION      OF     DEPENDENCY

EXEMPTIONS WAS CONTRARY TO THE FACTS AND THE LAW.”

         {¶10} In Licking App. No. 10CA0139, Father raises as his sole assignment of

error:
Licking County, Case No. 10-CA-92, 10-CA-139                                              4


       {¶11} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FAILING TO DECIDE APPELLANT’S MOTION TO MODIFY CHILD SUPPORT

PURSUANT TO CIVIL RULE75(H) ON ITS MERITS.”

                                      APP. NO. 10CA0092

                                                 I

       {¶12} In his first assignment of error, Father contends the trial court’s child

support calculation was contrary to the facts and the law as it was inconsistent with the

parties’ shared parenting plan.

       {¶13} In Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989), the Ohio

Supreme Court determined an abuse of discretion standard is the appropriate standard

of review in matters concerning child support. In order to find an abuse of discretion, we

must determine the trial court's decision was unreasonable, arbitrary or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶14} Father takes issue with the trial court’s inclusion of the child care

expenses in its calculation of child support. Father explains the trial court’s inclusion of

this expense results in his paying 56.21% of the child care expenses, rather than the

50% as agreed to by the parties.

       {¶15} In their Agreed Shared Parenting Plan, the parties agreed to have the trial

court determine the amount of child support, the amount of child support deviation, and

the allocation of the annual tax dependency exemptions. The parties also executed a

Schedule I visitation schedule which was incorporated into their Agreed Shared

Parenting Plan and provides, in relevant part:
Licking County, Case No. 10-CA-92, 10-CA-139                                             5


              Child Care-If [daughter] is enrolled in a child care or pre-school, the

      facility will have to be agreed upon by both parents * * *If a child care or

      pre-school is selected by both parents and [daughter] is enrolled, then

      tuition will be divided by both parents on a weekly basis, as long as it has

      not already been included in child support. (Emphasis added).

      {¶16} The aforementioned clearly expresses the parties’ agreement to divide the

cost of child care on a weekly basis, “as long as it has not already been included in child

support.”   The trial court included child care expenses for purposes of computing child

support on the Child Support Computation Summary Worksheet; therefore, the child

care expense would not be divided by the parties. Because the parties contemplated

the inclusion of child care expenses in the child support calculation, we find the trial

court did not abuse its discretion in including the expense when calculating child

support.

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

                                                II

       {¶18} In his second assignment of error, Father asserts the trial court’s

allocation of the tax dependency exemptions was contrary to the facts and the law.

       {¶19} In general, we review a trial court's decision allocating tax exemptions for

dependents under an abuse of discretion standard. See Eickelberger v. Eickelberger,

93 Ohio App.3d 221, 225-26, 638 N.E.2d 130 (1994), citing Hughes v. Hughes, 35 Ohio

St.3d 165, 518 N.E.2d 1213 (1988). However, this discretion is both guided and limited

by the statutory requirements of R.C. 3119.82. In Glassner v. Glassner, Stark App.
Licking County, Case No. 10-CA-92, 10-CA-139                                              6


No.2005-CA00137, 2006-Ohio-514, this court applied the abuse of discretion standard

in reviewing a trial court's allocation of dependency tax exemption.

       {¶20} In their Agreed Shared Parenting Plan, the parties stipulated the trial court

would determine the amount the allocation of the annual tax dependency exemptions

for the three minor children. The trial court awarded the tax dependency exemption for

the younger son to Father and the tax dependency exemption for the daughter to

Mother. The trial court ordered the tax dependency exemption for the older son be

taken by the parties on an alternating yearly basis. Father submits the tax dependency

exemption is most beneficial to him; therefore, the trial court should have awarded all

three exemptions to him.

       {¶21} As a general rule, under the Internal Revenue Code, the residential parent

presumptively receives the tax dependency exemption. Singer v. Dickerson (1992), 63

Ohio St.3d 408, 411, 588 N.E.2d 806. The parties agreed both parents would be

designated as the residential parents and the legal custodians of the children. Based

upon the presumption, we find the trial court did not abuse its discretion in the allocation

of the tax dependency exemptions.

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

                                      APP. NO. 10CA0139

                                                 I

       {¶23} In his sole assignment of error in App. Case No. 10CA0139, Father

maintains the trial court erred and abused its discretion in failing to decide his motion to

modify child support on its merits pursuant to Civ. R. 75(H).
Licking County, Case No. 10-CA-92, 10-CA-139                                          7


       {¶24} The trial court found Father’s motion to vacate and/or modify child support

was moot due to Father’s pending appeal. The trial court essentially found it lacked

jurisdiction to rule on the motion. Having ruled on Father’s underlying appeal from the

original divorce decree, we need not address this assignment of error as the motion to

vacate and/or modify child support is now ripe for review by the trial court.

       {¶25} Father’s sole assignment of error is overruled as moot.

       {¶26} The judgments of the Licking County Court of Common Pleas, Domestic

Relations Division, are affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ John W. Wise _____________________
                                              HON. JOHN W. WISE


                                              s/ Patricia A. Delaney _________________
                                              HON. PATRICIA A. DELANEY
Licking County, Case No. 10-CA-92, 10-CA-139                                        8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


LORI A. KAETHOW                            :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
STEVEN H. KAETHOW                          :
                                           :
       Defendant-Appellant                 :         Case No. 10-CA-92



       For the reasons stated in our accompanying Opinion, the judgment of the Licking

County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs to

Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


LORI A. KAETHOW                            :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
STEVEN H. KAETHOW                          :
                                           :
       Defendant-Appellant                 :         Case No. 10-CA-139



       For the reasons stated in our accompanying Opinion, the judgment of the Licking

County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs to

Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
