Duff v. Duff

2014 Ohio 3750

Opinion

[Cite as Duff v. Duff, 2014-Ohio-3750.]

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

MEEKA D. DUFF : : Appellate Case No. 26043 Plaintiff-Appellee/Cross-Appellant : : Trial Court Case No. 07-DR-278 v. : : JOHN T. DUFF, II : (Civil Appeal from Common Pleas : (Court, Domestic Relations) Defendant-Appellant/Cross Appellee : :

........... OPINION Rendered on the 29th day of August, 2014. ...........

MELYNDA COOK, Atty. Reg. #0066596, Repper, Pagan & Cook, Ltd., 1501 First Avenue, Middletown, Ohio 45044 Plaintiff-Appellee/Cross-Appellant

PAULETTE J. LILLY, Atty. Reg. #0021404, 4853 Brixston Drive, Hilliard, Ohio 43012 Defendant-Appellant/Cross Appellee

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

HALL, J.

{¶ 1} Defendant-appellant John Duff appeals from a decision and judgment denying

his motion for child support. Plaintiff-appellee Meeka Duff (now known as “DeBevoise”) has 2

filed a cross-appeal from that judgment with regard to the calculation of her actual child support

obligation and the trial court’s decision to require her to carry primary insurance coverage for the

parties’ children and to pay all uninsured medical expenses after Mr. Duff pays the first $100 in

such expenses per child per year. For the reasons set forth below, we Affirm.

I. Course of Proceedings

{¶ 2} The parties were married in 1994 and have two minor children as a result of the

marriage. They were divorced in October 2007. Of relevance hereto, the parties entered into a

shared parenting agreement pursuant to which both were designated as legal custodians of the

children. Further, the agreement specified that both parents would have equal parenting time,

and thus neither would pay child support to the other.1 The agreement provided that Mr. Duff

would provide primary health insurance coverage and that Ms. DeBevoise would provide

secondary coverage. Mr. Duff was required to pay all remaining medical, dental, optical and

psychological expenses incurred on behalf of the children. The parties also agreed to equally

divide all costs of the children’s private school, including tuition, books, uniforms, lab fees,

lunches and extracurricular activities.

{¶ 3} In March 2012, Ms. DeBevoise filed a motion seeking to terminate the shared

parenting plan and to designate her as the residential parent. She further sought child support

from Mr. Duff. Subsequently, in October 2012, Mr. Duff filed a motion for sole custody and for

child support.

1 A child support worksheet was generated which allocated the sum of $11,271.79 as the annual support obligation for Mr. Duff, and $8,253.23 as the obligation for Ms. DeBevoise. [Cite as Duff v. Duff, 2014-Ohio-3750.] {¶ 4} A hearing on the motions was held on February 25, 2013. At the beginning of

the hearing, both parties agreed to withdraw their motions to terminate the shared parenting plan

and further agreed that they would have a hearing only on the issue of Mr. Duff’s motion to

modify child support. At the hearing, it was demonstrated that Mr. Duff’s gross income at the

time of the divorce was $75,121.99 and that in 2013 his gross income would be $90,084.80.2

Ms. DeBevoise had a gross income of $55,000 at the time of the divorce. Her base salary

beginning in 2013 was $100,000 and she is eligible to earn performance bonuses of up to

$39,000. Mr. Duff testified that he estimates he spends approximately four to five thousand

dollars per year for health insurance as well as uninsured medical expenses. His premium

expense is $186.68 per month with a deductible of $2,400. His health insurance plan covers

him, his current spouse, his stepson and both of the parties’ two children. The family plan for

which Mr. Duff pays does not experience a premium increase for adding his stepson. Ms.

DeBevoise has available health insurance coverage with a annual premium of $453.70.

{¶ 5} Following the hearing, the magistrate issued a decision finding that the best

interests of the children would be served by requiring Ms. DeBevoise to assume more of the

shared expenses rather than to impose a requirement that she pay child support. Thus, the

magistrate concluded that there should be no change in the child support order except that Mr.

Duff would not be required to reimburse Ms. DeBevoise for his one-half portion of the shared

expenses until such expenses exceeded the amount of $4,969.22. The magistrate arrived at this

figure by subtracting Ms. DeBevoise’s prior child support obligation of $8,253.23 from the

2 This amount includes a government disability payment of $130 per month. Both the magistrate and the trial court found this payment was $127 per month despite Mr. Duff’s testimony that it had increased to the higher amount. Tr. p. 95. We find the difference de minimis. 4

updated obligation of $13,222.45. In the updated child support worksheet, the magistrate used

Ms. DeBevoise’s base salary of $100,000 and a three-year average bonus of $20,000.

{¶ 6} Mr. Duff objected to the magistrate’s decision. The trial court issued a decision

and judgment finding that the magistrate erred in using the sum of $20,000 as Ms. DeBevoise’s

bonus amount, and found that the correct amount is $30,000. The trial court further found Ms.

DeBevoise’s total support obligation is $19,405.28. 3 The trial court then found that, after

subtracting the 2007 child support obligation from the current obligation [$19,405.28 -

$8,253.23], Ms. DeBevoise’s annual child support obligation is $11,152.05 [$929.36 per month].

However, the court concluded that both parties still have equal parenting time, both parties have

increased income, and the children still enjoy the same standard of living that they had during the

marriage. The trial court further found that despite the disparity in income, Mr. Duff is still able

to meet the needs of the children and his current wife and stepson. Thus, the trial court found it

equitable to maintain the one-hundred percent deviation from the child support calculation and to

follow the magistrate’s decision that Ms. DeBevoise pay all shared expenses up to the sum of

$4,969 with any excess being equally split by the parties. The trial court imposed an additional

requirement that Ms. DeBevoise provide the primary health care coverage for the children and

that she be responsible for payment of one hundred percent of any uninsured costs.

{¶ 7} Mr. Duff appeals the trial court decision and Ms. DeBevoise cross-appeals.

II. Was the trial court’s decision continuing a deviation from the

3 We note that the record does not contain a child support worksheet using the $30,000 bonus amount. Thus, we do not have the trial court’s actual calculations before us. 5

child support calculation an abuse of discretion?

{¶ 8} Mr. Duff’s First and Second Assignments of Error state:

THE TRIAL COURT ERRED IN DEVIATING TO ZERO THE CHILD

SUPPORT OBLIGATION OF THE APPELLEE, MEEKA DEBEVOISE.

THE TRIAL COURT ERRED IN MODIFYING THE TERM OF THE

SHARED PARENTING PLAN REGARDING THE ALLOCATION OF

EXPENSES FOR EXTRA-CURRICULAR ACTIVITIES AND EDUCATION

AS AN ALTERNATIVE TO AN AWARD OF CHILD SUPPORT.

{¶ 9} Mr. Duff contends that the trial court erred by deviating from the child support

calculation and by instead allocating more of the shared expenses to Ms. DeBevoise.

{¶ 10} A “trial court's decision regarding child support obligations falls within the

discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.”

Johnson v. McConnell, 2d Dist. Montgomery No. 24115, 2010–Ohio–5900, ¶ 13. When

modifying a child support order, a trial court must follow the procedures set forth in R.C.

3119.022. The Ohio Supreme Court “has required strict compliance with the statutory

procedures for an initial award or modification of a child support order. The trial court must

include the worksheet in the record so that an appellate court can meaningfully review the trial

court's order.” Johnson at ¶ 14, internal citations omitted. “Generally, the amount of child

support that would be payable under a child support order, as calculated pursuant to the basic

child support schedule and applicable worksheet through the line establishing the actual annual

obligation, is rebuttably presumed to be the correct amount of child support due. R.C. 3119.03.”

Id., at ¶ 15. [Cite as Duff v. Duff, 2014-Ohio-3750.] {¶ 11} However, R.C. 3119.22 permits a deviation from the amount set forth in the

worksheet if, after considering the factors set forth in R.C. 3119.23, the trial court finds that the

amount calculated in the worksheet is unjust or inappropriate. R.C. 3119.23 provides that “in

determining whether to grant a deviation pursuant to section 3119.22 of the Revised Code” the

court may consider the following:

(D) Extended parenting time or extraordinary costs associated with

parenting time, * * *;

***

(H) Benefits that either parent receives from remarriage or sharing living

expenses with another person;

(I) The amount of federal, state, and local taxes actually paid or estimated

to be paid by a parent or both of the parents;

(J) Significant in-kind contributions from a parent, including, but not

limited to, direct payment for lessons, sports equipment, schooling, or clothing;

(K) The relative financial resources, other assets and resources, and needs

of each parent;

(L) 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;

(M) The physical and emotional condition and needs of the child;

(N) The need and capacity of the child for an education and the educational

opportunities that would have been available to the child had the circumstances

requiring a court order for support not arisen; 7

(O) The responsibility of each parent for the support of others;

(P) Any other relevant factor.

{¶ 12} Further, R.C. 3119.24 provides that a trial court must consider any “extraordinary

circumstances of the parents” which include the following:

(1) The amount of time the children spend with each parent;

(2) The ability of each parent to maintain adequate housing for the

children;

(3) Each parent's expenses, including child care expenses, school tuition,

medical expenses, dental expenses, and any other expenses the court considers

relevant;

(4) Any other circumstances the court considers relevant.

{¶ 13} In this case, we conclude that the trial court did not abuse its discretion in finding

that a deviation is still warranted. Although there is now a larger discrepancy in income than

there was at the time of the divorce, and the higher earner has switched from father to mother,

there is no change in the other factors that originally led the parties to conclude that child support

is inappropriate. Both parties share equally in parenting time. The children are still enjoying

the same standard of living they enjoyed during the marriage. Mr. Duff has not experienced a

decrease in his income or standard of living. He now lives in a five bedroom home in a

residential golf community. His wife receives child support for her son. Mr. Duff’s own

testimony indicates that he is able to meet the needs of himself, his spouse, his stepson and both

of his children without any change in child support.

{¶ 14} Additionally, the parties agreed that they share the approximately $12,000 in 8

annual expenses of the children’s private schooling and extracurricular activities. The trial court

ordered Ms. DeBevoise to pay the first $4,969 (or approximately forty-one percent) of those costs

at which point she and Mr. Duff would then share equally in the remaining $7,031 in expenses.

The trial court also ordered that Ms. DeBevoise, rather than Mr. Duff, would be responsible for

all of the uninsured medical expenses of the child. Thus, the trial court’s decision eases Mr.

Duff’s financial expenses regarding the children by at least $5,755 per year.

{¶ 15} We cannot say that the trial court’s decision to deviate from the standard child

support order or to allocate more of the shared expenses to Ms. DeBevoise constitutes an abuse

of discretion. It merely mirrors, in reverse, the parties’ relative obligations as agreed to in their

original shared parenting plan.

{¶ 16} Mr. Duff’s First and Second Assignments of Error are overruled.

III. The trial court did not err with respect to 2012 expenses

{¶ 17} Mr. Duff’s Third Assignment of Error states:

THE TRIAL COURT ERRED IN ITS DETERMINATION OF THE

RESPONSIBILITY OF THE APPELLEE FOR THE MONTHS OF OCTOBER,

NOVEMBER AND DECEMBER 2012.

{¶ 18} Mr. Duff contends that the trial court erred in its calculation of Ms. DeBevoise’s

financial obligation for the months of October, November and December 2012. He filed his

motion for child support in October 2012. The trial court’s decision regarding Ms. DeBevoise’s

additional obligations was made effective January 2013. The trial court ordered that for the

months following the filing of Mr. Duff’s motion and the effective date of its order that Ms. 9

DeBevoise would only receive fifty-percent reimbursement of any shared expenses over the

amount of $828. Mr. Duff contends that since the trial court assigned Ms. DeBevoise “the

responsibility of an additional $414.00 per month toward the education and extracurricular

activity expenses ($4969.00/12 = $414.00)” it should have made her pay the sum of $1,242

before receiving any reimbursement for those months.

{¶ 19} We cannot say that the trial court abused its discretion in this regard as Ms.

DeBevoise’s total income in 2012 was approximately $30,000 less than her projected total

income for 2013.

{¶ 20} Accordingly, Mr. Duff’s Third Assignment of Error is overruled.

IV. Bonus income is income

{¶ 21} Ms. DeBevoise states the following for her First Assignment of Error on

Cross-Appeal:

THE TRIAL COURT ERRED IN INCLUSION OF MOTHER’S BONUS

INCOME FROM PAST EMPLOYERS TO CALCULATE MOTHER’S TOTAL

ANNUAL INCOME.

{¶ 22} Ms. DeBevoise contends that the trial court erred by determining for purposes of

the child support worksheet that her approximate annual income from bonuses is $30,000.

{¶ 23} We find no merit in this argument. Ms. DeBevoise testified that beginning

January 1, 2013 she will have a base salary of $100,000 with eligibility to earn performance

bonuses of up to $39,000. More importantly, there is evidence in the record to support a finding

that for the three years prior to the hearing Ms. DeBevoise received bonuses totaling 10

approximately $30,000 per year. There is nothing in this record to suggest that Ms. DeBevoise

will not be eligible to receive bonus income. Thus, we find no error in using this amount for

purposes of the child support worksheet.

{¶ 24} Ms. DeBevoise’s First Assignment of Error on cross-appeal is overruled.

V. The trial court’s reference to an incorrect support

calculation is not reversible error

{¶ 25} Ms. DeBevoise’s Second Assignment of Error on cross-appeal states:

THE COURT ERRED IN DETERMINING THE 2013 ANNUAL

OBLIGATION PRIOR TO DEVIATION TOTALLED [SIC] $19,405.28.

{¶ 26} Ms. DeBevoise contends that the trial court erred in its child support calculation.

As indicated, the magistrate arrived at a new child support obligation for Ms. DeBevoise of

$13,222.45, which utilized $20,000 as a figure for her bonus income. Ultimately, to adjust for the

income difference, the magistrate recommended that Ms. DeBevoise be responsible for the first

$4,969.00 of the shared additional expenses for the children. DeBevoise did not object to this

specific recommendation.

{¶ 27} The trial court determined that Ms. DeBevoise’s bonus income figure should

have been $30,000, meaning her income was found to be $10,000.00 higher. Nonetheless, the

trial court also held that DeBevoise would be responsible for the identical amount of the shared

additional expenses, the first $4,969.00, despite $10,000.00 more income.

{¶ 28} We agree with the appellee that the trial court’s statement “John is correct that

the 2013 support obligation totals $19,405.28 annually” (decision pg. 5) is incorrect. That figure 11

is apparently based on a one-page child support computation worksheet that was attached to Mr.

Duff’s Supplemental Objections filed September 24, 2013. That worksheet does not truncate the

support obligation for combined incomes, as here, in excess of $150,000.00. We also note that

the trial court did not include a child support worksheet with its decision. However, this error is

harmless. The trial court’s adjustment of $4,969 for shared expenses is the same figure

recommended by the magistrate whose full-form calculation worksheet did limit support for the

income over $150,000.00, even though the trial court determined Ms. DeBevoise’s income was

$10,000 more. The adoption of this recommendation was reasonable. We fail to see how Ms.

DeBevoise was prejudiced by the trial court’s quoted statement. We further recognize that in light

of the additional $10,000.00 income, the trial court ordered that Ms. DeBevoise be required to

provide medical insurance, at a cost to her of $453.70 annually, and she was required to pay all of

the children’s uninsured medical expenses, which she stated she was willing to do. Finally, as

noted above, the trial court determined that the evidence merited a one-hundred percent deviation

in child support. Thus, in our analysis any error in determining the actual annual obligation

calculation had no impact on the result herein.

{¶ 29} Ms. DeBevoise’s Second Assignment of Error is overruled.

VI. The trial court’s re-allocation of health insurance

and expenses was not an abuse of discretion

{¶ 30} For her final Assignment of Error on cross-appeal, Ms. DeBevoise asserts the

following:

THE TRIAL COURT ERRED IN RE-ALLOCATION OF ALL 12

UNINSURED MEDICAL, DENTAL, OPTICAL AND PSYCHOLOGICAL

EXPENSES AND RE-ALLOCATION THAT MOTHER WAS TO MAINTAIN

PRIMARY INSURANCE.

{¶ 31} Ms. DeBevoise contends that the trial court should not have made her responsible

to provide the primary health insurance for the children. She further contends that it was error to

make her responsible for all uninsured medical costs.

{¶ 32} Again, the trial court maintained the essence of the parties’ shared parenting

agreement and merely switched the responsibility for primary insurance coverage and payment of

uninsured expenses to Ms. DeBevoise, who testified that she would be willing to pay the

uncovered medical bills. As we indicated in our discussion of the previous assignment of error,

the magistrate recommended, and the court ordered, that Ms. DeBevoise be responsible for the

first $4,969.00 of shared expenses. In light of the fact that the trial court determined Ms.

DeBevoise’s income was $10,000.00 more than calculated by the magistrate, it was reasonable

for the trial court to modify the magistrate’s recommendations to allocate primary insurance and

uninsured medical expenses to Ms. DeBevoise.

{¶ 33} Further, there is no evidence that the premium she pays, which already covers both

children, would increase merely by making it the primary insurance.

{¶ 34} We cannot say that the trial court abused its discretion with regard to the

allocation of insurance coverage or payment of uninsured expenses. Accordingly, Ms.

DeBevoise’s Third Assignment of Error is overruled.

VI. Conclusion [Cite as Duff v. Duff, 2014-Ohio-3750.] {¶ 35} All of the parties’ Assignments of Error being overruled, the judgment of the trial

court is Affirmed.

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

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Melynda W. Cook Paulette J. Lilly Hon. Timothy D. Wood