[Cite as Norman v. Norman, 2018-Ohio-3641.]


                                     COURT OF APPEALS
                                TUSCARAWAS COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT



MARK A. NORMAN                                :   JUDGES:
                                              :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                     :   Hon. William B. Hoffman, J.
                                              :   Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
MELISSA A. NORMAN                             :   Case No. 2018 AP 02 0007
                                              :
       Defendant-Appellant                    :   OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Court of Common
                                                  Pleas, Case No. 2016 TC 07 0297




JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 September 7, 2018




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

BRADLEY L. HILLYER                                JEFFREY JAKMIDES
201 North Main Street                             325 East Main Street
Uhrichsville, OH 44683                            Alliance, OH 44601
Tuscarawas County, Case No. 2018 AP 02 0007                                               2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Melissa A. Norman, appeals the January 18, 2018

judgment entry of the Court of Common Pleas of Tuscarawas County, Ohio on the issue

of child support. Plaintiff-Appellee is Mark A. Norman.

                        FACTS AND PROCEDURAL HISTORY

       {¶ 2} Appellant and appellee were married on June 13, 2005. Two children were

born as issue of the marriage. On July 8, 2016, appellee filed a complaint for divorce.

       {¶ 3} A hearing before a magistrate was held on August 10, 2017. By decision

filed October 6, 2017, the magistrate recommended a deviation in child support to zero

for appellee, the obligor. Appellant filed objections. By judgment entry filed January 18,

2018, the trial court modified the decision in part, but upheld the magistrate's zero child

support recommendation.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶ 5} "THE TRIAL COURT ERRED IN PROVIDING FOR ZERO CHILD

SUPPORT ON THE BASIS OF A DEVIATION DUE TO THE CHILDREN'S TIME SPENT

WITH EACH PARTY. THE APPELLANT HAS THE CHILDREN IN HER PHYSICAL

CARE FOR 70% OF TOTAL TIME SPENT WITH THE PARTIES.                         FURTHER, IT

APPEARS THE TRIAL COURT MADE A MATHEMATICAL ERROR EVEN IN

COMPUTING CHILD SUPPORT BASED ON ITS STATED 60/40 ASSUMPTION.

THESE ERRORS RESULTED IN THE DISMISSAL OF APPROXIMATELY $1,750 PER

YEAR IN OWED SUPPORT AS INCONSEQUENTIAL, RESULTING IN THE ZERO-
Tuscarawas County, Case No. 2018 AP 02 0007                                                3


SUPPORT ORDER. AS THESE ERRORS WERE CLEARLY UNREASONABLE AND

FLY IN THE FACE OF MATHEMATICAL REALITY, THEY CONSTITUTE REVERSIBLE

ERROR."

                                              I

       {¶ 6} In her sole assignment of error, appellant claims the trial court erred in its

calculation of child support. We disagree.

       {¶ 7} Determinations on child support are within a trial court's sound discretion.

Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). 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, 450 N.E.2d 1140 (1983).

       {¶ 8} Appellant argues the trial court erred in ordering a deviation resulting in zero

child support. Specifically, appellant argues the trial court erred in determining the

amount of companionship time assigned to appellant and then made a mathematical error

involving the stated time.

       {¶ 9} Pursuant to an agreed magistrate's order filed April 28, 2017, the parties

reached the following partial agreement as to custody:



              During the School Year:

              On Mondays Mother has the children.

              On Tuesdays Father has the children from when school lets out and

       keeps them overnight and gets them to school Wednesday morning.
Tuscarawas County, Case No. 2018 AP 02 0007                                            4


              On Wednesdays, Mother picks up the children after school and

       keeps them overnight.

              On Thursday, Father picks up the children after school and keeps

       them until 8:00 p.m.

              The parties would then alternate companionship time with the

       Norman children every other weekend from Friday when school gets out

       until Sunday at 7:00 p.m.

                              – The schedule then repeats. –

              During the Summer:

              The parties shall alternate a week on week off schedule with the

       children from Sunday at 7:00 p.m. to Sunday at 7:00 p.m.



       {¶ 10} In its decision filed October 6, 2017, the magistrate recommended: "There

should be a zero child support order, as because of the deviation related to time spent

with the children and the parties have similar income, the amount would be less than

$50.00 per month." Appellant objected, arguing there should be no deviation in child

support based upon the amount of time the parties have the children in their care. In its

judgment entry filed January 18, 2018, the trial court overrule the objection, adding the

following to the magistrate's decision:



              9(A). A deviation in child support is appropriate based upon the

       amount of time each party spends with the children. The children spend

       approximately 60 percent of the time with their mother and 40 percent of the
Tuscarawas County, Case No. 2018 AP 02 0007                                                  5


       time with their father. The parties have similar incomes. Based on these

       factors, the guideline child support amount would be less than $50.00 per

       month when health insurance is provided. (Footnote omitted.)



       {¶ 11} The trial court recalculated the child support based upon this modification

and others and determined the guideline child support would still be less than $50.00 per

month when health insurance is provided. The trial court concluded, "[t]here shall be a

zero child support order."

       {¶ 12} Appellant argues the children are with her 70 percent of the time, not 60.

Appellant counts the time the children are sleeping at her home. While we acknowledge

there is work involved in waking the children and sending them off to school, we find any

companionship time discrepancy to be nominal. Based upon the parties' agreement as

cited above, a near 50 percent division of companionship time during waking hours, we

do not find the trial court abused its discretion in finding an approximate 60/40 split.

       {¶ 13} Appellant acknowledges the monthly difference is less than $50.00, but

argues "this is only the case when no adjustment is made for companionship time."

Appellant's Brief at 5. When adjusted to reflect the 60/40 split, the monthly difference is

$76.95, annualized to $923.38 which appellant argues is "not a trivial amount." In her

brief at 6, appellant argues the trial court "made it clear that the decision to award no child

support was predicated at least in part on the assumption that the difference in awards

amounted to 'less than $50.00'." (Emphasis added.) As appellant herself pointed out,

"the less than $50.00" reference was a part of the trial court's decision. The trial court

recalculated the amounts and determined the "less than $50.00 per month" was when
Tuscarawas County, Case No. 2018 AP 02 0007                                               6


health insurance was provided and noted "[t]his result is partly due to changes in the child

support calculations based upon changes in tax law." January 18, 2018 Judgment Entry

at fn. 1. As per the Child Support Heath Care Determinations worksheet attached to its

judgment entry, the trial court took into account the time spent with the children and the

substantially similar incomes.

       {¶ 14} In addition, as appellee correctly points out, the trial court imputed income

to appellant from a twenty-four hour work week to a forty hour work week, but did not

increase appellant's tip money in correlation. The trial court assigned additional income

in the form of tips to appellant based on a twenty-four hour work week, thereby

undervaluing her income.

       {¶ 15} Upon review, we find the trial court did not abuse its discretion in its

calculation of child support.

       {¶ 16} The sole assignment of error is denied.
Tuscarawas County, Case No. 2018 AP 02 0007                                    7


      {¶ 17} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Hoffman, J. concur.




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