[Cite as Moore v. Moore, 182 Ohio App.3d 708, 2009-Ohio-2434.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              UNION COUNTY




MOORE,

        APPELLANT,                                               CASE NO. 14-08-46

        v.

MOORE,                                                           OPINION

        APPELLEE.




                 Appeal from Union County Common Pleas Court
                           Domestic Relations Division
                          Trial Court No. 2000-DR-0219

                      Judgment Reversed and Cause Remanded

                           Date of Decision:        May 26, 2009




APPEARANCES:

        Jeffrey A. Merklin, for appellant.

        Frederick B. Johnson, for appellee.
Case No. 14-08-46


           ROGERS, Judge.

           {¶1} Plaintiff-appellant, Stacia A. Moore, appeals the judgment of the

Union County Court of Common Pleas, Domestic Relations Division, ordering

defendant-appellee, Kelvin Moore,1 to pay child support for the parties’ minor

child. On appeal, Stacia contends that the trial court erred in calculating the

amount of child support by failing to allow her to present evidence regarding the

family’s standard of living and by “capping” the child support at the $150,000

maximum guideline support level. Based upon the following, we reverse the

judgment of the trial court.

           {¶2} Stacia and Kelvin married in 1987, and three children were born of

the marriage: Laura (born June 29, 1988), Kalie (born June 12, 1990), and

McKenzie (born on October 16, 1992). In February 2001, the parties terminated

their marriage and began operating under a shared-parenting plan.

           {¶3} In August 2006, Stacia filed a motion to terminate the shared-

parenting plan on the basis that Kalie was living exclusively with her, that Laura

had become emancipated, and that Kelvin had made a commitment to move from

Union County to Indiana.

           {¶4} In December 2006, the parties reached a mediated agreement

whereby the shared-parenting plan would continue with regard to McKenzie until



1
    We note that defendant-appellee, Kelvin Moore, did not file an appellate brief.


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Kelvin moved to Indiana, at which time it would terminate and Kelvin would pay

child support for McKenzie and Kalie in the amount of $852.48 per month.

       {¶5} In May 2008, the Union County Child Support Enforcement Agency

(“CSEA”) filed an administrative adjustment recommendation, ordering that

Kelvin’s amount of monthly child support increase from $852.48 to $896.35.

Shortly thereafter, Stacia requested a mistake-of-fact hearing in response to the

administrative review. At the mistake-of-fact hearing, the CSEA denied Stacia’s

objections, and she subsequently filed a request for a court hearing on the matter.

       {¶6} In June 2008, the CSEA ordered that Kelvin’s amount of monthly

child support be decreased to $426.24 because Kalie had become emancipated.

       {¶7} In August 2008, the case proceeded to a court hearing before a

magistrate on the issue of Stacia’s opposition to the CSEA’s May 2008

administrative adjustment recommendation, at which the following transpired.

       {¶8} Initially, the trial court established that Kelvin’s annual gross income

was $115,818 and that Stacia’s annual gross income was $107,648.40. Thereafter,

Stacia’s counsel attempted to question Kelvin about his reduced expenditures

associated with his children since his move to Indiana, as he no longer spent as

much time with them. However, the trial court refused to permit any testimony on

this matter, stating, “[W]hat I will need to hear testimony on is, what specific

needs does the remaining child have which would necessitate the court going over



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using $150,000 as the combined income for both parties?” and “what I need to

hear from your client is what extra expenses does she have, what is the child

involved in * * * that she needs money for.” Additionally, Stacia’s counsel

attempted to present testimony about the lifestyle of the entire family prior to

Kelvin’s move to Indiana and the emancipation of Laura and Kalie; however, the

trial court refused to consider any testimony involving the family as a whole or the

standard of living enjoyed by Laura and Kalie prior to their emancipation.

Stacia’s counsel strenuously objected to this limitation on testimony, stating that it

prevented him from presenting evidence about McKenzie’s and the parties’

standard of living.

       {¶9} Thereafter, the trial court began questioning Stacia about specific,

extraordinary, recent expenses she had incurred for McKenzie’s benefit.            In

response to the trial court’s questioning, Stacia testified that McKenzie would turn

16 years old in the next month; that she was currently taking driving courses

costing $125 or $425; that McKenzie participated in an athletic league that would

have cost $350, but she had become injured, so she did not have to pay; and that

she had incurred other fees, including a yearbook for $42, school fees of $85,

school supplies of $250, $1,800 for school lunches, $120 to attend school

functions, $900 for a choir trip to New York, $511 for a vacation to Florida,




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approximately $500 for each school dance, $100 for athletic attire, and $84 for

school pictures.

       {¶10} Thereafter, the magistrate issued her decision, finding that:

              When she was asked by the Court what she wanted in the
       amount of child support for the party’s [sic] remaining
       unemancipated child, McKenzie, [Stacia] stated that she wanted
       $17,000 a year plus [Kelvin] to pay one half of all of McKenzie’s
       expenses, including car, car insurance, trips, hair cuts, tanning, prom
       dresses, etc.

              ***

              [Stacia] makes all the decisions as to what activities
       McKenize [sic] should take part in such as athletic activities, trips,
       etc. [Kelvin] does not have any input. It was [Stacia’s] decision to
       provide McKenize [sic] with a lifestyle that results in [Stacia]
       purchasing $200-$300 prom dresses several times a year for her
       daughter. This with accessories results in [Stacia] spending
       approximately $500 per prom on McKenize [sic]. McKenzie attends
       several of these functions per year.

              The Court finds that using a combined annual gross income of
       $150,000 (which results in a monthly child support obligation for
       [Kelvin] in the amount of $674.44 which includes the 2% processing
       charge) is not unjust or inappropriate and would not [sic] be in the
       best interests of the child, Obligor or Obligee. [Stacia] testified that
       during the last year she spent approximately $1,900 per year.
       [Kelvin] will be paying child support in the amount of $7,934.87 per
       year which includes the 2% processing charge, which is more than
       enough to cover the expenses that [Stacia] testified to.

       {¶11} In September 2008, Stacia filed objections to the magistrate’s

decision, arguing that the magistrate did not allow her to present full and complete

evidence regarding the parties’ and their children’s standard of living and that the



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magistrate should not have capped the child support at the $150,000 combined

income level.

       {¶12} In October 2008, the trial court overruled Stacia’s objections, finding

that “evidence of a lifestyle existing at the time of the original divorce, February

26, 2001, some seven years before would hardly be relevant to lifestyle

immediately prior to the hearing conducted on August 19, 2008, and would not be

of assistance in determination of the best interests of the minor child, used in

setting child support.”     Additionally, the trial court adopted the magistrate’s

decision in its entirety.

       {¶13} It is from this judgment that Stacia appeals, presenting the following

assignments of error for our review.

                             Assignment of Error No. I

              The trial court erred by failing to allow appellant-mother to
       present full and complete evidence regarding the parties’ and their
       children’s standard of living before appellee-father’s move to
       Indiana versus after his move to Indiana.

                             Assignment of Error No. II

               The trial court abused its discretion by “capping” the child
       support received by appellant-mother at the $150,000.00 maximum
       guideline child support level as opposed to calculating support at the
       actual level of the parties’ combined incomes of $220,444.80 and at
       least extrapolating an order of support based on actual income
       levels.

                              Assignment of Error No. I



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      {¶14} In her first assignment of error, Stacia argues that the trial court

erred by disallowing presentation of full and complete evidence regarding the

parties’ and their children’s standard of living before Kelvin moved to Indiana

versus after his move to Indiana. Specifically, Stacia contends that in order to

demonstrate McKenzie’s particular needs, she should have been permitted to

present testimony about the standard of living of the family as a whole, how

McKenzie’s needs compared to those of the parties’ two older children before they

became emancipated, and how circumstances had changed in regard to Stacia’s

expenses. We agree that the trial court erred by disallowing this evidence.

      {¶15} Trial courts have broad discretion in determining whether to admit

or exclude evidence. Deskins v. Cunningham, 3d Dist. No. 14-05-29, 2006-Ohio-

2003, ¶53, citing Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83.

Accordingly, a trial court's ruling on the admissibility of evidence will not be

disturbed on appeal absent an abuse of discretion. Id. An abuse of discretion

constitutes more than an error of law or judgment and implies that the trial court

acted unreasonably, arbitrarily, or unconscionably.      Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219. When applying the abuse-of-discretion standard, a

reviewing court may not simply substitute its judgment for that of the trial court.

Id.




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      {¶16} R.C. 3119.04(B) governs child-support calculations when the

combined gross income of the parents exceeds $150,000 per year, providing that:

              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 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.

(Emphasis added). R.C. 3119.04(B) eliminated the former requirement that trial

courts extrapolate to determine the appropriate amount of child support when the

parents’ combined income exceeds $150,000. However, the current statute does

not prohibit trial courts from extrapolating, nor does the $150,000 amount

constitute a “cap” that trial courts may not exceed. Cyr v. Cyr, 8th Dist. No.

84255, 2005-Ohio-504, ¶ 54, 56; Petersen v. Petersen, 5th Dist. No. 02COA059,

2003-Ohio-4189, ¶ 22.      Instead, R.C. 3119.04(B) “leaves the determination

entirely to the court's discretion, unless the court awards less than the amount of

child support listed for combined incomes of $150,000.” Cyr, 2005-Ohio-504, ¶

54. In determining an appropriate amount of support, the statute directs trial


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courts to consider the needs and standard of living of both the “children who are

the subject of the child support order and of the parents.” R.C. 3119.04(B).

Additionally, many courts have found that “[w]hen the income of the parents is

greater than $150,000, the appropriate standard for the amount of child support is ‘

“that amount necessary to maintain for the children the standard of living they

would have enjoyed had the marriage continued.” ’ ” Maguire v. Maguire, 9th

Dist. No. 23581, 2007-Ohio-4531, ¶ 12, quoting Berthelot v. Berthelot, 154 Ohio

App.3d 101, 2003-Ohio-4519, ¶ 24, quoting Birath v. Birath (1988), 53 Ohio

App.3d 31, 37.

       {¶17} In determining appropriate amounts of child support under R.C.

3119.04(B), courts routinely specify that they have considered the expenses of the

parents and the standard of living the parents and children enjoyed prior to the

separation and divorce, as well as the current standard of living of the parents. See

Barone v. Barone, 6th Dist. No. L-07-1336, 2008-Ohio-5793; Bunkers v. Bunkers,

6th Dist. No. WD-06-030, 2007-Ohio-561; Kendall v. Kendall, 6th Dist. No. OT-

04-004, 2005-Ohio-1777; Cho v. Cho, 7th Dist. No. 03 MA 73, 2003 WL

23018576; Wolfe v. Wolfe, 10th Dist. No. 04AP-409, 2005-Ohio-2331.

       {¶18} Here, the magistrate refused to allow Stacia to present any testimony

about McKenzie’s standard of living, permitting only questions about Stacia’s

specific, recently-incurred, out-of-the-ordinary expenses for McKenzie. Although



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these expenses should be considered in determining McKenzie’s needs, the statute

requires the trial court to consider the needs and standard of living of the child.

We find that in determining the amount necessary to maintain the standard of

living McKenzie would have enjoyed had the parties’ marriage continued,

evidence regarding the lifestyle the family enjoyed prior to the emancipation of the

two older children and Kelvin’s move to Indiana was relevant. See Maguire,

2007-Ohio-4531.      Therefore, Stacia should have been permitted to present

testimony about the standard of living enjoyed by Laura and Kalie prior to their

emancipation, as this evidence was relevant to determining what standard of living

McKenzie expected and would have enjoyed had the parties’ marriage continued.

Further, the magistrate refused to permit Stacia to present testimony about the

standard of living of either parent, as well as the standard of living enjoyed by the

family as a whole prior to Kelvin’s move to Indiana.

       {¶19} While the trial court was not required to award an amount exceeding

the child-support guideline for a combined income level of $150,000, the trial

court was required to consider McKenzie’s needs and standard of living, as well as

Kelvin and Stacia’s standards of living. The record before us demonstrates that

the trial court not only failed to consider this evidence, but also refused to permit

Stacia to present such evidence at the hearing. Consequently, we find that the trial

court abused its discretion in excluding this evidence.



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       {¶20} Accordingly, we sustain Stacia’s first assignment of error.

                            Assignment of Error No. II

       {¶21} In her second assignment of error, Stacia argues that the trial court

abused its discretion by capping the child support received at the $150,000

maximum guideline child-support level instead of calculating support at the actual

level of the parties’ combined incomes of $220,444.80 and extrapolating an order

of support based on that amount.

       {¶22} Our disposition of Stacia’s first assignment of error renders the

second assignment of error moot, and we decline to address it.             App.R.

12(A)(1)(c).

       {¶23} Having found error prejudicial to the appellant herein, in the

particulars assigned and argued in the first assignment of error, we reverse the

judgment of the trial court and remand the matter for further proceedings

consistent with this opinion.

                                                                Judgment reversed
                                                              and cause remanded.

       PRESTON, P.J., and WILLAMOWSKI, J., concur.

                                ______________________




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