Burns v. May

728 N.E.2d 19, 133 Ohio App. 3d 351
CourtOhio Court of Appeals
DecidedApril 5, 1999
DocketCase No. CA98-06-046.
StatusPublished
Cited by22 cases

This text of 728 N.E.2d 19 (Burns v. May) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. May, 728 N.E.2d 19, 133 Ohio App. 3d 351 (Ohio Ct. App. 1999).

Opinion

Walsh, Judge.

Defendant-appellant, Ronald J. May, appeals a Clermont County Court of Common Pleas, Domestic Relations Division, decision granting plaintiff-appellee Rochelle Burns’s motion to modify child support payments and the allocation of the federal tax dependency exemption. We affirm.

The parties were married on June 30, 1989. On July 14, 1990, Joshua Ronald May was born. On April 5, 1991, Bums filed for divorce, which was granted on September 9, 1991. Pursuant to the divorce decree (1) Burns was awarded custody of Joshua, (2) appellant was ordered to pay child support of $488.50 per month, (3) the parties would alternate years to claim Joshua as a federal tax exemption, (4) Burns would maintain health insurance on Joshua, and (5) Burns would be responsible for the first $200 of Joshua’s uninsured medical expenses, and thereafter, the parties would equally split Joshua’s uninsured medical expenses.

On October 9, 1997, Burns filed a motion to modify appellant’s child support obligations, claiming that appellant’s income and the cost for Joshua’s care had increased. Evidence established that Joshua had failed first grade and was in danger of faffing again. As a result, Burns enrolled Joshua in a tutoring program. Burns asked the trial court to increase appellant’s child support payments, require appellant to split the cost of the tutoring, and grant the federal tax exemption solely to her.

On December 8, 1997, the magistrate held a hearing. On January 9, 1998, the magistrate found that there was a change of circumstances and that it was in Joshua’s best interest to (1) increase appellant’s child support payments to $665.80 a month, (2) order appellant to pay one half of Joshua’s tutoring costs up to $4,000 annually, (3) change Burns’s uninsured medical obligation from $200 to $100, thereby requiring appellant to equally split the costs of uncovered medical *355 expenses of Joshua above $100, and (4) grant Burns’s request to be solely entitled to the federal tax exemption.

On January 22, 1998, appellant filed objections to the magistrate’s decision. On May 29, 1998, the trial court affirmed the magistrate’s decision and overruled appellant’s objections. Appellant filed a timely appeal and asserts three assignments of error.

Assignment of Error No. 1:

“The trial court erred to the prejudice of defendant-appellant when it admitted an unauthenticated document into evidence.”

In his first assignment of error, appellant asserts that the trial court erroneously admitted a pay stub into evidence without it being properly authenticated. We disagree.

Evid.R. 901(A) states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” (Emphasis added.) The evidence necessary to support a finding that the document is what a party claims it to be has a very low threshold, which is less demanding than the preponderance of the evidence. State v. Winfield (Feb. 7, 1991), Ross App. No. 1641, unreported at 7, 1991 WL 28291. One method by which a document may be authenticated is by the testimony of a witness with knowledge. Evid.R. 901(B)(1).

At the hearing, Burns introduced a pay stub into evidence from appellant’s employer indicating appellant’s earnings as of October 18, 1997.-Appellant testified that he had never seen the pay stub before. However, appellant testified that the pay stub properly contained his name and Social Security number, and that the gross amount of his wages was accurate. Appellant possesses knowledge of his name, Social Security number, and the amount of his wages; therefore, he is the best person to testify as to these facts. The sole fact that appellant claimed he never saw the pay stub before does not make the pay stub inadmissible. We hold that appellant’s testimony that the pay stub correctly identifies his name, Social Security number, and wages meets the threshold requirement of Evid.R. 901(A) that the pay stub is what it purports to be: a statement of appellant’s gross earnings as of October 18,1997. Accordingly, appellant’s first assignment of error is overruled.

Assignment of Error No. 2:

“The trial court erred to the prejudice of defendant-appellant when it awarded the tax exemption to the plaintiff.”

*356 In his second assignment of error, appellant asserts that the trial court erroneously presumed that the custodial parent is entitled to the federal tax exemption for the minor child. We disagree.

A trial court has authority to reconsider which parent is entitled to the tax exemption when it modifies a child support order. Hildenbrand v. Hildenbrand (Jan. 12, 1998), Butler App. No. CA97-02-035, unreported, 1998 WL 8699; R.C. 3113.21(C)(1)(f). A trial court acts within its discretion when it awards the tax exemption for federal income tax purposes to either parent. Eickelberger v. Eickelberger (1994), 93 Ohio App.3d 221, 225-226, 638 N.E.2d 130, 133-134. Therefore, a reviewing court will not reverse a trial court’s decision unless its decision was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482-483, 450 N.E.2d 1140, 1141-1142.

The allocation of the tax exemption is directly related to the support of the child. Singer v. Dickinson (1992), 63 Ohio St.3d 408, 414, 588 N.E.2d 806, 811. As a result, a trial court’s decision to allocate the tax exemption will be upheld provided that its decision will further the best interest of the child. Hurchanik v. Hurchanik (1996), 110 Ohio App.3d 628, 630, 674 N.E.2d 1260, 1261-1262. While there is a presumption in favor of awarding the tax exemption to the custodial parent, a trial court has authority to award the tax exemption to the noncustodial parent if it is demonstrated that there will be a net tax savings for the parents, which advances the best interest of the child. Singer, 63 Ohio St.3d at 415, 588 N.E.2d at 811-812; In re Gilliam (Mar. 30, 1998), Brown App. No. CA97-11-020, unreported, at 15, 1998 WL 142371. The fact that the noncustodial parent pays child support or the majority of it does not automatically entitle him to the exemption. Id. at 416, 588 N.E.2d at 812; Bobo v. Jewell (1988), 38 Ohio St.3d 330, 332, 528 N.E.2d 180, 182-183. The Ohio Supreme Court stated in Singer:

“[I]t would make little sense to allocate the exemption to the noncustodial parent merély because that parent is responsible for a higher percentage of the support obligation [which is a result of his higher gross income] * * *.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re J.C.
2022 Ohio 850 (Ohio Court of Appeals, 2022)
Halcomb v. Greenwood
2019 Ohio 194 (Ohio Court of Appeals, 2019)
State v. Ross
2018 Ohio 3027 (Ohio Court of Appeals, 2018)
Hendrickson v. Parrett
2014 Ohio 3997 (Ohio Court of Appeals, 2014)
Boyer v. Hacker
2014 Ohio 760 (Ohio Court of Appeals, 2014)
Prussak-Klein v. Durachinsky
2013 Ohio 4894 (Ohio Court of Appeals, 2013)
In re Yeckley
2012 Ohio 2504 (Ohio Court of Appeals, 2012)
In Matter of H.M.F., 22805 (4-17-2009)
2009 Ohio 1947 (Ohio Court of Appeals, 2009)
State v. Bell
2008 Ohio 592 (Clermont County Court of Common Pleas, 2008)
Weisbecker v. Weisbecker, Unpublished Decision (11-6-2006)
2006 Ohio 5840 (Ohio Court of Appeals, 2006)
Wilson v. Wilson, Unpublished Decision (8-17-2006)
2006 Ohio 4261 (Ohio Court of Appeals, 2006)
Wilkerson v. Wilkerson, Unpublished Decision (3-21-2005)
2005 Ohio 1236 (Ohio Court of Appeals, 2005)
Finkelman v. Davis, Unpublished Decision (7-26-2004)
2004 Ohio 3909 (Ohio Court of Appeals, 2004)
Daley v. Daley, Unpublished Decision (3-1-2004)
2004 Ohio 916 (Ohio Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
728 N.E.2d 19, 133 Ohio App. 3d 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-may-ohioctapp-1999.