Glover v. Canann

2021 Ohio 2641

• Court: Ohio Court of Appeals
• Decided: August 2, 2021
• Docket: 2020-T-0081
• Status: Published

Opinion

[Cite as Glover v. Canann, 2021-Ohio-2641.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

SYDNEY GLOVER, CASE NO. 2020-T-0081

Plaintiff-Appellant, Civil Appeal from the -v- Court of Common Pleas, Juvenile Division REBECCA LYNN CANANN,

Defendant-Appellee. Trial Court No. 2018 JP 00059

OPINION

Decided: August 2, 2021 Judgment: Affirmed

John H. Chaney, III, Daniel Daniluk LLC, 1129 Niles-Cortland Road, S.E., Warren, OH 44484 (For Plaintiff-Appellant).

Robert L. Root, III, 175 Franklin Street, S.E., Warren, OH 44481 (For Defendant- Appellee).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Sydney Glover (“Father”), appeals the judgment allocating

parental rights and responsibilities and ordering him to pay child support. We affirm.

{¶2} Father and appellee, Rebecca Lynn Canann (“Mother”), had a brief

relationship resulting in the birth of one child on 5/13/2018. Shortly after the child was

born, the parties reached an impasse on parenting time, resulting in Father filing a

complaint in the trial court. Father also submitted a proposed shared parenting plan (“initial plan”), whereby the parties would enjoy regular parenting time with the child on a

week-on/week-off schedule. Thereafter, Mother submitted a proposed parenting plan

naming her as residential parent and legal custodian, providing Father with regular

parenting time pursuant to the court’s standard order, and obligating Father to pay child

support.

{¶3} On May 28, 2019, the trial court adopted a magistrate’s decision of the same

date ordering that Father pay child support in the amount of $396.31 per month. Father

objected to the magistrate’s decision, and the trial court sustained the objection and

remanded the matter to the magistrate for hearing.

{¶4} The matter proceeded to evidentiary hearing before the magistrate on the

issues of child support and the allocation of parental rights and responsibilities. Toward

the conclusion of the hearing, the magistrate indicated that he would permit the parties to

submit updated proposed shared parenting plans:

THE COURT: I’m going to allow you both to rethink your proposed shared parenting plans based on the evidence here, if you want to. Okay? And submit new ones. Because these are old. These are from the beginning before all of this happened.

[FATHER’S ATTORNEY]: Correct, exactly.

THE COURT: And this will give you time maybe to implement some things and maybe make it more yours, each of yours. And I have an opportunity to draw from both of them, you know, reviewing them, I can draw from both of them and try to get the best of both of them out. * * *

{¶5} Both parties submitted proposed modified plans. In Father’s modified

shared parenting plan, he proposed that he enjoy regular parenting time with the child

three overnights per week, from Thursday at 10:00 a.m. until Sunday at 2:00 p.m., as well

Case No. 2020-T-0081 as week-on/week-off parenting time during the summer, and that child support be set at

$0. On November 21, 2019, the magistrate issued an order finding Father’s modified

shared parenting plan to be in the child’s best interest, except to the extent that it included

the deviation of child support to $0. The magistrate ordered that the modified plan be

amended to provide for child support in the amount of $245.74 per month. The order

required that the parties implement the modification to the shared parenting plan and

submit the amended shared parenting plan to the court for review. Mother filed an

“objection and motion to stay magistrate’s decision,” in which she challenged the

magistrate’s November 21, 2019 order, and Father filed a motion to set aside the same

order, which he represented was “solely due to the filing of Objections by Mother.”

{¶6} On March 25, 2020, the trial court issued a journal entry denying both

Father’s motion to set aside and Mother’s objection, which it treated as a motion to set

aside pursuant to Juv.R. 40(D). However, the court instructed the magistrate to file an

order nunc pro tunc to incorporate Father’s modified shared parenting plan and to correct

a typographical error with respect to the child’s birthdate.

{¶7} Father then attempted to appeal from the March 25, 2020 journal entry.

This court dismissed the appeal for lack of jurisdiction because the March 25, 2020 entry

did not constitute a final appealable order, as it did “not contain a statement of relief or

terminate the action.” Glover v. Canann, 11th Dist. Trumbull No. 2020-T-0026, 2020-

Ohio-4361, ¶ 7.

{¶8} On September 23, 2020, the magistrate issued a decision, adopted by the

trial court on the same date, which incorporated and approved Father’s proposed

modified shared parenting plan with an amendment of child support, which the magistrate

Case No. 2020-T-0081 set at $245.74. The magistrate determined that the child support reflected a deviation

“due to the Natural Father having the child approximately 44% of the year and the

discrepancy of the parties’ incomes.” Father appeals from the September 23, 2020 entry

adopting the magistrate’s decision and entering judgment accordingly. He assigns two

errors:

{¶9} “[1.] Whether the trial court erred in refusing to adopt and approve

Appellant’s Shared Parenting Plan (T.d. at 26), when Ohio Revised Code §3109.042(A)

requires that Appellant and Appellee stand on equal footing in the allocation of parental

rights and responsibilities, and Appellant’s Shared Parenting Plan (T.d. at 26) awarded

equal parenting time, shared responsibilities, and equal treatment to both Appellant and

Appellee in relation to the minor child.

{¶10} “[2.] Whether [the] trial court erred, and abused its discretion, in calculating

the child support obligation, when Appellee’s entire gross income was not considered,

Appellee’s income for child support purposes was greater than Appellant’s income, and

a deviation was correctly awarded for extended time under the Shared Parenting Plan,

but was incorrectly applied by the trial court.”

{¶11} Initially, we note pursuant to Juv.R. 40(D)(3)(b)(iv), “Except for a claim of

plain error, a party shall not assign as error on appeal the court’s adoption of any factual

finding or legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding

or conclusion as required by Juv.R. 40(D)(3)(b).” Here, neither party filed objections to

the magistrate’s decision of September 23, 2020. However, due to the peculiar

procedural posture of this case, the September 23, 2020 decision appears to have merely

Case No. 2020-T-0081 implemented the March 25, 2020 ruling on the motions to set aside the magistrate’s order.

Therefore, to the extent that Father raised his challenges in his motion to set aside, we

conclude that, under the unique facts and circumstances of this case, such challenges

were preserved for appeal.

{¶12} In his motion to set aside, Father argued that his initial plan should be

approved, specifically the week-on/week-off, equal parenting time schedule, “after seeing

the extreme actions taken by Mother to keep Father from having additional parenting time

with the minor child including, but not limited to, the request to stay the magistrate’s order,

and to limit Father’s parenting time to only ‘six (6) hours a week[.]’” On appeal, however,

Father argues that the failure to approve his initial plan was due to the court neglecting to

place the parties on equal footing as required by R.C. 3109.042(A), which provides:

An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.

{¶13} Father did not make any argument with respect to R.C. 3109.042 in the trial

court. Accordingly, having not been raised below, Father has forfeited all argument with

respect to R.C. 3109.042(A) except for plain error. Juv.R. 40(D)(3)(b)(iv); see also

Dinardo v. Dinardo, 11th Dist. Lake No. 2016-L-111, 2017-Ohio-4379, ¶ 17 (pursuant to

Civ.R. 53(D)(3)(b)(iv), failure to object on a particular issue forfeits all but a plain error

argument on appeal with respect to that issue) and Civ.R. 53(D)(3)(b)(iv) (containing

language equivalent to that set forth in Juv.R. 40(D)(3)(b)(iv)).

Case No. 2020-T-0081 {¶14} “Plain error in civil cases is defined as error that ‘seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself.’” Dinardo at ¶ 19, quoting Goldfuss v.

Davidson, 79 Ohio St.3d 116, 579 N.E.2d 1099 (1997), syllabus.

“In applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.”

Dinardo at ¶ 20, quoting Goldfuss at 121.

{¶15} Here, Father has not alleged plain error, and the record is devoid of any

indication that the trial court failed to place the parties on equal footing.1 To the contrary,

the court adopted Father’s modified parenting time schedule, and, in his filings, Father

indicated that his modified shared parenting plan was in the child’s best interests, and his

motion to set aside was filed only because Mother had challenged the magistrate’s order

approving Father’s modified plan with amendment. Accordingly, Father’s first assigned

error lacks merit.

{¶16} With respect to Father’s second assigned error, he raises two arguments

made in his motion to set aside with respect to child support: (1) the child support order

contains mathematical errors in computing the deviation due to Father’s extended

parenting time, and (2) the computation erroneously fails to include in Mother’s gross

1. Because Father’s argument pertains to the court failing to place the parties on equal footing by not adopting his initial plan, we limit our discussion accordingly. Our decision should not be read as expressing any opinion as to the method used by the trial court in amending and adopting Father’s modified shared parenting plan. See R.C. 3109.04(D)(1)(a)(iii). 6

Case No. 2020-T-0081 income the social security benefits that she receives for providing care for her disabled

sister.

{¶17} With respect to the deviation, Father maintains that the court incorrectly

calculated his parenting time at 44%, when he instead has possession of the child 46%

of the time based upon an hourly calculation. Father then appears to argue that he is

entitled to a downward deviation in child support precisely proportionate to the percentage

of time that he has possession of the child.

{¶18} However, Father points to no law, and we are aware of no law, requiring a

strict deviation reflecting the proportion of parenting time enjoyed by an obligor. To the

contrary, pursuant to the statutory guidelines, if an obligor enjoys more than 90 overnight

visits with the child per year, the obligor is generally entitled to an automatic 10%

deviation. R.C. 3119.051. If the obligor enjoys more than 147 overnights per year, as

Father does here, the guidelines provide that the court will consider a deviation in addition

to the R.C. 3119.051 deviation. See R.C. 3119.231(B). In reviewing whether a deviation

is appropriate, the trial court considers whether the calculated amount is inappropriate or

unjust and not in the best interests of the child by applying the relevant factors contained

in R.C. 3119.23 and, in the case of shared parenting, considering any extraordinary

circumstances of the parents pursuant to R.C. 3119.24.

{¶19} Pursuant to the child support worksheet, Father’s annual support obligation

without deviation was $4964.39 per year. This amount was reduced by the R.C. 3119.051

automatic 10% deviation of $496.44 in lines 19-22 of the worksheet, leaving an adjusted

child support obligation of $4467.95 per year, or $372.33 per month. The court then

granted the additional R.C. 3119.231(B) deviation on lines 25(a)-(c) of the child support

Case No. 2020-T-0081 worksheet, reducing Father’s support obligation by $126.59 per month. Although Father

argues this does not equate to a 46% percent deviation, as set forth above, the guidelines

do not require an adjustment equally commensurate with parenting time. Further, the

guidelines speak of extended parenting time in terms of “overnight” companionship, and

not based upon hourly calculations. When calculated based upon overnight parenting

time, Father has the child for approximately 44% of the overnights per year, as stated by

the trial court. Moreover, the trial court based the deviation upon both the extended

parenting time and the disparity in the parties’ income, with Father making $41,000 per

year and Mother making $22,929 per year. See R.C. 3119.23(C) (extended parenting

time is a factor to consider in determining an appropriate deviation) and 3119.23(E)

(disparity in income between parties is a factor to consider in determining an appropriate

deviation). Father’s argument does not account for any reduction in the deviation due to

the disparity in the parties’ incomes.

{¶20} With respect to Mother’s income, Father argues that Mother receives $900

per month to care for her disabled sister who lives with her, and this amount should have

been included in Mother’s gross income for child support purposes.

{¶21} “Gross income” for purposes of child support

means, except as excluded in division (C)(12) of this section, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses to the extent described in division (D) of section 3119.05 of the Revised Code; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; benefits that are not means-tested and that are

Case No. 2020-T-0081 received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a program or law administered by the United States department of veterans’ affairs or veterans’ administration; spousal support actually received; and all other sources of income. “Gross income” includes income of members of any branch of the United States armed services or national guard, including, amounts representing base pay, basic allowance for quarters, basic allowance for subsistence, supplemental subsistence allowance, cost of living adjustment, specialty pay, variable housing allowance, and pay for training or other types of required drills; self-generated income; and potential cash flow from any source.

R.C. 3119.01 (C)(12). “For a parent who is employed to full capacity,” “income” refers to

the “gross income of the parent[.]” (Emphasis added.) R.C. 3119.01(C)(9)(a).

{¶22} At the hearing, the limited testimony as to Mother’s guardianship of her

sister indicated that her sister’s social security check lists Mother as payee, and Mother

uses this money toward her sister’s bills, which includes some of their joint living

expenses, and Mother does not receive a fee for serving as guardian. Mother’s receipt

of the social security funds on behalf of her sister does not transform the funds from her

sister’s to her own. Instead, based upon the testimony, it appears that Mother is a

representative payee, and, as such, she has a duty to use those funds for the benefit of

her sister. See 42 U.S.C.A. 1383 (governing payment procedure and imposing liability

on representative payee who misuses funds).

{¶23} Accordingly, the second assigned error lacks merit.

{¶24} The judgment is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

Case No. 2020-T-0081