[Cite as Freed v. Freed, 2015-Ohio-4527.]




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




SCOTT FREED,                                            CASE NO. 5-15-15

       PLAINTIFF-APPELLANT,

      v.
                                                        OPINION
DANIELLE A. FREED,

       DEFENDANT-APPELLEE.



                Appeal from Hancock County Common Pleas Court
                           Domestic Relations Division
                           Trial Court No. 02-DR-120

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: November 2, 2015



APPEARANCES:

        John C. Filkins for Appellant

        Scott T. Coon for Appellee
Case No. 5-15-15


WILLAMOWSKI, J.

       {¶1} Plaintiff-appellant Scott Freed (“Scott”) brings this appeal from the

judgment of the Court of Common Pleas of Hancock County, Domestic Relations

Division, modifying the amount of child support he owes to defendant-appellee

Danielle Freed (“Danielle”) and modifying which parent receives the federal tax

exemptions for the minor children. For the reasons set forth below, the judgment

is affirmed in part and reversed in part.

       {¶2} Scott and Danielle were married on September 18, 1993. Doc. 1.

Four children were born during the marriage: Zackery (D.O.B. March 1994),

Alivia (D.O.B. August 1998), Elijah (D.O.B. July 2000) and Eden (D.O.B. July

2000). Doc. 1. In 2002, Scott filed a complaint for divorce. Doc. 1. The trial

court entered a judgment entry decree of divorce along with a shared parenting

plan in 2003.    Doc. 66.     Pursuant to that decree, the children were residing

primarily with Danielle and Scott was ordered to pay $785.47 per month in child

support for the four children. Id. On July 1, 2004, the amount of child support

was reduced to $672.49 due to a change in Scott’s employment status. Doc. 105.

On January 18, 2008, the Hancock County Child Support Enforcement Agency

(“the Agency”) filed a motion to modify child support on the grounds that Zackery

was then residing with Scott upon the recommendation of Hancock County

Children’s Protective Services and the agreement of the parties. Doc. 111. The

motion requested that child support due from Scott should be terminated and that

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Danielle should be paying Scott $13.54 per month as set forth in the computation

worksheet.1 Id. The motion indicated that the modification should be effective as

of December 1, 2007. An initial hearing was held in April on the filed motion, but

a continuance was granted to Danielle to allow her to obtain counsel. Doc. 137.

Scott filed his parenting affidavit on April 24, 2008, which indicated that Zackery

was then located at “J.R.C. Wood County”, but had resided with him since July 4,

2006. Doc. 139.

        {¶3} On May 2, 2008, Danielle filed a motion for reallocation of parental

rights and responsibilities asking that the shared parenting plan be terminated and

that Scott only be granted supervised visitation due to a change in circumstances.

Doc. 142. Before a hearing was held, the trial court learned that all four children

in this matter were “the subjects of abuse, neglect and/or dependency proceedings

in [the Juvenile Division]” and stayed all proceedings pending a final resolution of

those cases. Doc. 146. On March 6, 2009, Danielle filed a motion to be allowed

to claim all four children for tax purposes. Doc. 160. Although the trial court

never officially lifted the stay, a hearing was held before the magistrate on August

24, 2009. Doc. 194. A second hearing was held in front of a second magistrate on

January 7, 2010. Doc. 191. On February 1, 2010, the magistrate issued its

decision. Doc. 178. In the decision, the magistrate noted that Alivia, Elijah, and

1
  In addition to the change of custody of Zackery, Danielle’s income increased from $10,712 as shown on
the computation worksheet completed in 2003, to $43,187 as shown on the computation worksheet
completed in 2008. Doc. 66 and 111. Scott’s income decreased from $41,000 in 2003 to $29,328 in 2008.
Id.

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Eden were placed in the sole legal custody under protective supervision by the

Hancock County Children’s Protective Services Unit (“HCCPSU”) and the

jurisdiction of the juvenile court. Id. at 3. However, Zackery was in foster care

and was not residing with either parent. Id. at 8. Based upon the custody orders of

the juvenile court, the magistrate then recommended that the shared parenting plan

be vacated. Id. at 3. The magistrate then recommended that child support be

modified so that Scott paid child support for all four children to Danielle, and then

one fourth of the support would be withheld and paid to HCCPSU due to Zackery

being in foster care.2 Id. at 8. The magistrate also recommended that the tax

dependency exemption from 2008 forward be granted to Danielle.3 Id. at 9-11.

        {¶4} On February 12, 2010, Scott filed his objections to the magistrate’s

recommendations. Doc. 180. The trial court ruled on the objections on February

25, 2015. Doc. 247. The trial court overruled the objections and adopted the

recommendations of the magistrate. Id. However, due to the passage of time, the

trial court did not enter any order, instead requesting Danielle’s attorney to prepare

the entry with the updated information. Id. The judgment was finalized on April

1, 2015. Doc. 253. The notice of appeal was filed on April 28, 2015. Doc. 256.

On appeal, Scott raises the following assignments of error.



2
  While recommending that Scott pay support for Zackery, the magistrate did not recommend that Danielle
pay any support for Zackery.
3
  The magistrate determined that since Danielle is the residential parent and Scott’s income is lower, she
should have the tax exemptions.

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                            First Assignment of Error

      The trial court erred when it ordered [Scott] to pay child
      support for the support of four minor children when the
      evidence established that one of the minor children does not live
      with either of the parties.

                          Second Assignment of Error

      The trial court erred in redirecting one-fourth of the monthly
      child support amount to the Hancock County Department of Job
      and Family Services when: A. no such motion was before the
      court; and B. there is no corresponding order for [Danielle] to
      pay an amount in child support to the Hancock County
      Department of Job and Family Services.

                           Third Assignment of Error

      The trial court erred in retroactively modifying the claiming of
      the dependency exemptions of the minor children back to the
      taxable year 2008 when [Danielle’s] motion to modify the tax
      exemptions was not filed until March 6, 2009.

                            Child Support for Zackery

      {¶5} In the first assignment of error, Scott claims that the trial court erred in

ordering him to pay child support to Danielle for Zackery when Zackery was

placed in foster care and was not in Danielle’s home.          All of the testimony

indicates that Zackery moved in with Scott in 2006. Doc. 194 at 15 and Doc. 191

at 9. In February of 2008, Zackery was committed to a juvenile detention center

by the Hancock County Juvenile Court. Doc. 194 at 15 and Doc. 191 at 10.

Zackery was released in July of 2009 and was placed in foster care. Doc. 194 at




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16 and Doc. 191 at 10. Thus, from February 2008 forward, Zackery was under the

jurisdiction of the juvenile court.4

         {¶6} A juvenile court has exclusive original jurisdiction to determine the

custody of any child not a ward of another court in the state. R.C. 2151.23(A)(2).

This applies to any child who has been alleged to be an abused, neglected,

dependent on delinquent child. R.C. 2151.23(A)(1). “Custody” has been defined

as including all of the parental rights, including the right to support for such child.

Ryan v. Ryan, 8th Dist. Cuyahoga No. 85506, 2005-Ohio-4166, ¶ 8 (concluding

that since the juvenile court had exclusive jurisdiction over the custody of the

child found to be neglected, the domestic relations court was without jurisdiction

to order custody and support for the child who was a ward of the juvenile court).

Thus, once a complaint was filed alleging that Zackery was a delinquent, abused,

neglected or dependent child, the juvenile court had “jurisdiction to hear and

determine the allegations in the complaint and to make a lawful disposition

concerning [Zackery].” In re Poling, 64 Ohio St.3d 211, 213, 1992-Ohio-144, 594

N.E.2d 589. Although a domestic relations court has continuing jurisdiction over

child custody and child support resulting from a divorce, the child who is the

beneficiary of those orders is not a ward of that court. Id. at 214. The two courts

have concurrent jurisdiction. Id. at 215. If a prior custody order was in place


4
  At the time of the hearings, all of the children were under the continuing jurisdiction of the trial court, but
the three younger children had been placed in the custody of Danielle. No argument is made by Scott
regarding the child support for those children.

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before the juvenile court obtains jurisdiction, the juvenile court can still determine

custody and support of children, but the determination must be made pursuant to

R.C. 3109.04. Id. at 216.

         {¶7} In this case, the custody of Alivia, Elijah, and Eden is indisputably

with Danielle pursuant to the orders of both the domestic relations court and the

juvenile court. However, the legal custody of Zackery is not clear. Despite the

fact that the juvenile court evidently granted temporary custody of Zackery to

HCCPSU,5 as evidenced by the fact that Zackery was placed in a foster home and

not with Danielle or Scott, the trial court named Danielle as “the sole legal

custodian and residential parent of the minor children, subject to juvenile court

jurisdiction”. Doc. 178 at 3. The domestic relations court then ordered Scott to

pay child support to Danielle for Zackery as well as the other children and that ¼

of the support be withheld and sent to HCCPSU for support of Zackery. However,

no corresponding order of support by Danielle for Zackery was made. Since the

trial court made its order “subject to” that of the juvenile court, this means that

custody of Zackery is with neither Danielle nor Scott, but is with HCCPSU.

Without custody of Zackery, Danielle should not be receiving support for him.

Thus, the trial court abused its discretion in ordering support be paid for Zackery

to Danielle.



5
  We do not have the juvenile court’s record before us for review, but pursuant to law, a child in foster care
is in the temporary custody of the State.

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       {¶8} Danielle argues that the trial court’s order of support was not error

because it also ordered that one-fourth of the support be redirected to HCCPSU for

support of Zackery. However, this still does not change the fact that the trial court

is ordering support to a person who does not have custody of the child. Danielle

argues in her brief that there was no evidence presented that she was not

responsible for supporting Zackery. A review of the record reveals that there was

no evidence presented that Danielle was contributing anything to Zackery’s

support and she was not ordered to do so by the trial court. The money Danielle

would have received from Scott for support of Zackery which was diverted to

HCCPSU was not her paying support as that money was designated as Scott’s

portion of the support.     Additionally, since the juvenile court was actively

exercising its jurisdiction over Zackery by placing him in foster care, the juvenile

court would be the appropriate court to make determinations regarding all parental

rights and responsibilities, including support. Ryan, supra. The trial court erred in

ordering Scott to pay child support to Danielle for Zackery, even though the trial

court sua sponte decided to divert a portion of it to a third party when the juvenile

court had awarded temporary custody of Zackery to a third party, had not made an

order of support at that time, was continuing to exercise its jurisdiction over

Zackery, and the trial court was making its order subject to that of the juvenile

court. The first assignment of error is sustained.



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       {¶9} In the second assignment of error, Scott alleges that the trial court

erred by sua sponte ordering one-fourth of the child support paid to Danielle be

sent to HCCPSU. Having determined in the first assignment of error that the trial

court erred by exercising jurisdiction by ordering child support to Danielle for

Zackery when he is a ward of the juvenile court, this assignment of error is moot.

This court therefore will not address this assignment of error. App.R. 12(A)(1)(c).

                                  Tax Exemptions

       {¶10} The final assignment of error alleges that the trial court erred by

retroactively modifying the dependency exemptions of the minor children back to

the 2008 tax year when the motion to modify was not filed until March 6, 2009.

This court notes that there is no question that the trial court can modify the tax

exemption for the year in which the motion was filed to grant it to the custodial

parent who has the higher income.        Scott claims that the trial court erred by

modifying the tax exemption for 2008 when the motion for modification was filed

in 2009 and he had already filed his 2008 tax return claiming the exemptions he

had previously been awarded. A trial court is required to designate which parent

may claim the children for tax purposes whenever it modifies or reviews a support

order. R.C. 3119.82. The motion to modify child support was filed in 2008, so

the question of the tax exemption was before the trial court at that time. This court

recognizes that the hearings on this matter were not concluded until two years

after the filing and that Scott had already filed his 2008 tax return at that time.

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Then the trial court did not rule on the objections for five years. Thus, Scott may

be prejudiced by the delay of the trial court in making a determination in this case.

This court also sees a potential issue with awarding a tax exemption to Danielle

for Zackery, who was neither in her custody nor being provided support by her.

That exemption would possibly belong to the foster parents as no direct support

for Zackery to them was actually ordered. See IRS Publication 17. However, this

court cannot find that the trial court abused its discretion by making a

determination it is required to make by law. The third assignment of error is

overruled.

       {¶11} The trial court erred in ordering Scott to pay child support to

Danielle for Zackery when Zackery was a ward of the juvenile court and was not

placed in Danielle’s custody. The trial court did not err in awarding the tax

exemptions to Danielle for 2008 when the motion to modify child support was

filed in that year and the statute requires the trial court to address the issue.

Having found error in the particulars assigned and argued, the judgment of the trial

court is affirmed in part and reversed in part. The matter is remanded to the trial

court for further proceedings in accord with this opinion.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part, and
                                                                Cause Remanded

SHAW and PRESTON, J.J., concur.

/hlo

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