[Cite as In re M.J.M., 2019-Ohio-4799.]




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

 IN RE: M.J.M.                                 :
                                               :
                                               :   Appellate Case No. 28396
                                               :
                                               :   Trial Court Case No. 2016-3599
                                               :
                                               :   (Appeal from Common Pleas Court –
                                               :   Juvenile Division)
                                               :
                                               :

                                          ...........

                                          OPINION

                         Rendered on the 22nd day of November, 2019.

                                          ...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Appellee, Montgomery County Children Services

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
      Attorney for Appellant, Father

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




WELBAUM, P.J.
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       {¶ 1} Petitioner-appellant, the father of M.J.M. (“Father”), appeals from the

judgment of the Montgomery County Court of Common Pleas, Juvenile Division, denying

his motion to terminate or modify his child support obligation. In support of his appeal,

Father asserts that pursuant to R.C. 3119.22 and R.C. 3119.23, his child support

obligation should have been reduced to $0 due to monthly Social Security benefits

received by M.J.M. and funds that M.J.M. will receive from her guardianship when she

turns 18 years old.    For the reasons outlined below, the judgment of the trial court

denying Father’s motion to terminate or modify child support will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} M.J.M., the minor child at issue in this appeal, was born in March 2002.

Father and M.J.M.’s mother (“Mother”) were married at the time of M.J.M.’s birth, but

divorced in December 2009.       After the divorce, Mother became M.J.M.’s primary

custodian and Father was awarded standard visitation time.

       {¶ 3} As M.J.M. grew older, she would often refuse to go to Father’s house when

it became his time to exercise visitation. In February 2015, M.J.M. alleged that Father

had sexually abused her. Law enforcement in Clermont County, Ohio, investigated the

allegations made by M.J.M., but ultimately did not file any charges against Father. In

July 2015, Mother sent M.J.M. to live with her maternal grandfather (“Maternal

Grandfather”). This move was the result of an unresolved conflict between Mother’s

boyfriend and M.J.M. Father had not seen M.J.M. since May 2014 and had not spoken

to her since April 2015.
                                                                                         -3-


       {¶ 4} On October 6, 2015, Mother died as a result of suicide. Following Mother’s

passing, M.J.M. continued to reside with Maternal Grandfather. On August 12, 2016, a

juvenile court magistrate issued a decision finding that M.J.M. was a dependent child and

awarded temporary custody of M.J.M. to her maternal aunt (“Maternal Aunt”), as Maternal

Grandfather had difficulty caring for M.J.M. due to her special mental and physical needs.

In the decision, the magistrate also ordered Father not to have visitation with M.J.M. until

recommended by the child’s therapist.        Father filed objections to the magistrate’s

decision, which were overruled by the juvenile court. After the juvenile court adopted the

magistrate’s decision, Father appealed.      On May 25, 2018, this court affirmed the

judgment of the juvenile court in In re M.M., 2d Dist. Montgomery Nos. 27722 and 27724,

2018-Ohio-2034.

       {¶ 5} On September 8, 2017, while the appeal in In re M.M. was pending, Father

filed a motion to terminate or modify his child support obligation. Shortly thereafter, on

October 31, 2017, Montgomery County Children Services (“MCCS”) filed a motion for

legal custody of M.J.M. to be granted to Maternal Aunt. A hearing on both motions was

held before a juvenile court magistrate on July 9, 2018. During this hearing, Father

testified that he did not oppose MCCS’s legal custody motion and had no objection to

Maternal Aunt being granted legal custody of M.J.M. Therefore, the main issue to be

determined at the hearing concerned whether Father’s child support obligation should be

terminated or modified.

       {¶ 6} In his motion to terminate or modify child support, Father argued that his

current monthly child support obligation of $434.50 should be terminated as a result of

M.J.M. receiving Social Security benefits and guardianship funds. At the hearing on the
                                                                                            -4-


motion, Maternal Aunt testified that M.J.M. receives a Social Security benefit in the

amount of $834 per month due to Mother’s death.            Of that amount, Maternal Aunt

testified that $265 is used to pay for storage lockers containing Mother’s belongings that

were awarded to M.J.M. through the probate court. According to Maternal Aunt, M.J.M.

would like to keep those belongings to help furnish her own home in the future. Maternal

Aunt also testified that $325 of the Social Security benefits is paid to Maternal Grandfather

for M.J.M.’s cell phone bill and fees, and for M.J.M.’s allowance, which is a little over $100

a month.

       {¶ 7} In addition to the Social Security benefits, Maternal Aunt testified that

Mother’s home had been sold and the proceeds of the sale were put into a guardianship

for M.J.M.      Maternal Grandfather testified that he receives $1,634 in Worker’s

Compensation benefits for Mother’s death twice a month, which he deposits into M.J.M.’s

guardianship.     Maternal Aunt and Maternal Grandfather both testified that the

guardianship money is not available to M.J.M. until she turns 18 years old, unless the

probate court approves the release of funds for a specific use. Maternal Grandfather

testified that he has petitioned the probate court for funds to purchase a car for M.J.M.

       {¶ 8} Father testified that, as of the date of the hearing, he had been employed at

USF Holland in West Chester, Ohio, for three weeks. Prior to that, Father testified that

he had worked for Ryder Integrated until December 8, 2017. Father testified that his

hourly wage was $18.48 with a guaranteed 40 hours of work per week. Based on that

information, the magistrate calculated Father’s annual salary as $38,438.40. Father

testified that he was married with no other minor children. Father also testified that his

wife was employed.
                                                                                      -5-


      {¶ 9} On August 7, 2018, the juvenile court magistrate issued a decision granting

legal custody of M.J.M. to Maternal Aunt and denying Father’s motion to terminate or

modify child support. Ten days later, on August 17, 2018, Father filed objections to the

magistrate’s decision denying his motion to terminate or modify child support. Father

also filed supplemental objections on February 15, 2019. However, on April 19, 2019,

the juvenile court issued a judgment overruling Father’s objections and adopting the

magistrate’s decision denying Father’s motion to terminate or modify child support.

Father now appeals from that judgment, raising a single assignment of error for review.



                                 Assignment of Error

      {¶ 10} Under his sole assignment of error, Father claims that the trial court erred

in denying his motion to terminate or modify his child support obligation. In support of

this claim, Father asserts that pursuant to R.C. 3119.22 and R.C. 3119.23, his monthly

child support obligation of $434.50 should have been reduced to $0 due to the Social

Security benefits received by M.J.M. and the funds that M.J.M. will receive from her

guardianship when she turns 18 years old. Father also asserts that his child support

arrearage should have been reduced based on Social Security back pay allegedly

awarded to M.J.M. We find no merit to either of Father’s claims.

      {¶ 11} A trial court’s ruling on a motion to modify child support is reviewed on

appeal for an abuse of discretion. Burks v. Burks, 2d Dist. Montgomery No. 28349,

2019-Ohio-4292, ¶ 8, citing Matlock v. Matlock, 2d Dist. Montgomery No. 28278, 2019-

Ohio-2131, ¶ 12.    An abuse of discretion occurs when a trial court’s decision is

“unreasonable, arbitrary or unconscionable.”       AAAA Ents., Inc. v. River Place
                                                                                           -6-


Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). “[M]ost instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.”           Id.   “A

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

decision.” Id.

        {¶ 12} Pursuant to R.C. 3119.22, the trial 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 basic child support schedule and the applicable worksheet 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 would be unjust or inappropriate and therefore not be in the

best interest of the child.” Again, we apply an abuse-of-discretion review to a trial court’s

decision whether to deviate from child support owed under the applicable worksheet.

Burks at ¶ 9, citing Hamby v. Hamby, 2d Dist. Montgomery No. 26506, 2015-Ohio-1042,

¶ 16.

        {¶ 13} In this case, Father argues that four of the factors listed under R.C. 3119.23

justify a deviation from the $434.50 support obligation calculated under the child support

computation worksheet.       Specifically, Father argues that the factors listed in R.C.

3119.23 (F), (P), (K), and (Q) support finding that his child support obligation should have

been reduced to $0. Those factors are as follows:

        (F) The obligee’s income, if the obligee’s annual income is equal to or less

        than one hundred per cent of the federal poverty level;

        ***
                                                                                         -7-


       (K) The standard of living and circumstances of each parent and the

       standard of living the child would have enjoyed had the marriage continued

       or had the parents been married;

       ***

       (P) Extraordinary child care costs required for the child or children that

       exceed the maximum state-wide average cost estimate as described in

       division (P)(1)(d) of section 3119.05 of the Revised Code, including

       extraordinary costs associated with caring for a child or children with

       specialized physical, psychological, or educational needs; [and]

       ***

       (Q) Any other relevant factor.

R.C. 3119.23(F),(K),(P) and (Q).

       {¶ 14} In discussing the aforementioned factors, Father fails to explain how they

apply to the instant case and we likewise fail to see how they are applicable.          For

example, factor (F) pertains to the obligee’s income—the obligee in this case being

Maternal Aunt, a non-parent, whose income is not factored into the child support

calculation.   See Child Support Computation Worksheet attached to Magistrate’s

Decision (Aug. 7, 2018), p. 7. See also R.C. 3119.07(C) (“If neither parent of a child who

is the subject of a child support order is the residential parent and legal custodian of the

child and the child resides with a third party who is the legal custodian of the child, the

court shall issue a child support order requiring each parent to pay that parent’s child

support obligation pursuant to the child support order.”) (Emphasis added.) Therefore,

because Maternal Aunt’s income is not part of the child support calculation, factor (F)
                                                                                          -8-


simply did not apply here.

       {¶ 15} Factor (K), concerning Father and Mother’s standard of living, is also

inapplicable, as Mother is deceased and there was no evidence of any standard of living

concerns raised in the trial court. With regard to factor (P), concerning “extraordinary

child care costs,” the record indicates that M.J.M. has been receiving trauma counseling

since 2016 and also receives treatment from other medical providers for multiple mental

and physical conditions. Assuming that the costs for those services are extraordinary

costs for purposes of factor (P), we fail to see how that factor supports Father’s claim that

his child support obligation should be reduced to $0, as those costs would require Father

to pay additional child support to Maternal Aunt so that M.J.M. could continue to receive

those services.

       {¶ 16} As for factor (Q), which instructs the trial court to consider “any other

relevant factor,” Father provides no relevant factor other than that M.J.M. receives

monthly Social Security benefits. Father argues that pursuant to Williams v. Williams,

88 Ohio St.3d 441, 727 N.E.2d 895 (2000), his child support obligation should be offset

by M.J.M.’s Social Security benefits. Father also argues that pursuant to Rice v. Rice,

177 Ohio App.3d 476, 2008-Ohio-3518, 895 N.E.2d 198 (5th Dist.), he is entitled to have

his child support arrearage offset by Social Security back pay. However, both Williams

and Rice are distinguishable from the present case.

       {¶ 17} Unlike the present case, the obligor fathers in Williams and Rice became

physically disabled and received Social Security benefits as a result of their disabilities.

Because the fathers’ children in those cases also received derivative Social Security

income for the fathers’ disabilities, the fathers moved to have their child support
                                                                                           -9-


obligations and/or arrearages reduced by the amount of Social Security disability benefits

received by their children. The courts in Williams and Rice found it appropriate to credit

the fathers’ child support obligations/arrearages with the Social Security disability benefits

received by their children. Williams at syllabus; Rice at ¶ 7-10. Williams specifically

noted that “where the disabled parent has no other source of income due to his or her

disability, the receipt of Social Security payments actually ensures that their child support

obligation will be satisfied,” and that “Social Security payments are tantamount to

earnings by the disabled parent.” Williams at 444.

       {¶ 18} The present case is distinguishable from Williams and Rice because Father

is not the source of the social security benefits being received by M.J.M. Rather, M.J.M.

is receiving the social security benefits as a result of Mother’s death. Therefore, the

benefits are in no way attributable to Father and not tantamount to Father’s earnings.

       {¶ 19} In In re Mudrak, 7th Dist. Belmont No. 94-B-32, 1997 WL 28557 (Jan. 22,

1997), the Seventh District Court of Appeals held that, because the father in that case

was not the parent whose disability occasioned the Social Security benefits awarded to

his child, the Social Security benefits could not be credited against the father’s child

support obligation. Id. at *5 (holding that “social security derivative payments received

on behalf of a minor child as a result of a parent’s disability should be credited toward that

parent’s support obligation”). (Emphasis sic.) Like the instant case, the child in Mudrak

received Social Security benefits as a result of her mother’s death and the father

attempted to have those benefits credited against his child support obligation.          The

Mudrak court likened such credit as a windfall to the father and stated that:

       If, as [father] argues, he is given a dollar for dollar credit, he would pay no
                                                                                           -10-


        child support and would thus receive a windfall. To illustrate this, consider

        what the situation would be if this were an ordinary case where [mother]

        survived and had no income. [Father’s] $17,680.00 annual salary would

        yield an annual child support obligation of $3,425.00 or, taking it one step

        further, if [mother] had survived and she had annual income equal to the

        social security benefits currently being received[,] * * * $4,044.00, [father’s]

        annual child support obligation would be $3,321.00 per year.               It is

        inconceivable then that [father] should receive a windfall from the death of

        the child’s mother and pay no support whatsoever. Further, [father] has

        failed to establish through the record how a dollar for dollar credit for child

        support benefits received by [the child], against his child support obligation,

        would serve the best interest of the child. [Father’s] argument for a dollar

        for dollar credit is rejected.

Id. at *3.

        {¶ 20} Similarly, in Paton v. Paton, 91 Ohio St.3d 94, 742 N.E.2d 619 (2001), the

Supreme Court of Ohio held that Social Security disability benefits awarded to a child due

to the child’s disability did not constitute a financial resource that justified deviating from

the basic child support schedule. Id. at syllabus. In so holding, the Supreme Court

stressed that “[p]arents, to the extent that they are able, have an obligation to support

their minor children. In situations where a child is eligible to receive [Social Security

Income], these benefits are intended to supplement the parents’ support obligation, not

to reduce it.” (Emphasis added.) Id. at 97.

        {¶ 21} Based on the foregoing, we find that M.J.M.’s receipt of monthly Social
                                                                                         -11-


Security benefits resulting from Mother's death did not warrant reducing Father’s child

support obligation or arrearage. Except for referencing M.J.M.’s guardianship funds,

which M.J.M. cannot access until she turns 18 years old, Father provided no other basis

on which to terminate or reduce his child support obligation. Therefore, because Father

otherwise failed to establish that his monthly child support obligation of $434.50 was

unjust or inappropriate and not in M.J.M.’s best interest, it was not an abuse of discretion

for the trial court to deny Father’s motion to terminate or modify his child support

obligation.

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



                                       Conclusion

       {¶ 23} Having overruled Father’s assignment of error, the judgment of the trial

court is affirmed.

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



DONOVAN, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Robert Alan Brenner
Michael Booher
Christopher Deal
Theodore Valley
Lori Byrd
Hon. Helen Wallace
