Gosiewski v. Gosiewski

7 Ohio App. Unrep. 414
CourtOhio Court of Appeals
DecidedSeptember 25, 1990
DocketCase No. 89AP-998
StatusPublished

This text of 7 Ohio App. Unrep. 414 (Gosiewski v. Gosiewski) 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
Gosiewski v. Gosiewski, 7 Ohio App. Unrep. 414 (Ohio Ct. App. 1990).

Opinions

STRAUSBAUGH, J.

This is an appeal by plaintiff from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, dismissing both his and defendant's counterclaim for divorce. Defendant has also filed a cross-appeal from the trial court's decision. The trial court ordered that the prior orders for custody, support, and visitation which were journalized on November 25, 1988 were to remain in effect with the exception that the child support awarded would be increased to $1,112.33 per month to be paid, plus poundage to the Franklin County Child Support Enforcement Agency. The trial court also ordered that the temporary orders as to expense money of $1,700 and additional expense money of $1,500 were to be paid by plaintiff within sixty days of the trial court's order.

On March 3, 1988, plaintiff, Joseph M. Gosiewski, Jr., filed a complaint for divorce to which defendant, Marleen Gosiewski, filed an answer and counterclaim for divorce on March 11, 1988. On April 5, 1988, defendant was granted expense money of $1,000 and awarded temporary custody of the four minor children of the marriaga The trial court referred the issue of permanent custody to a referee who rendered her report on November 23, 1988, in which she recommended that custody of the children be placed with defendant and that plaintiff have liberal visitation righta The referee recommended that, as the children had bank accounts designed to provide for college education, these accounts should be transferred to the custodial parent. The referee also found that plaintiffs [415]*415obligation for child support amounted to a total of $484.34 every two weeks minus any deduction that the court may grant due to extended visitation travel costs since defendant had moved out of state with the children. The referee also recommended that plaintiff be ordered to maintain medical and dental insurance on the children, that defendant be ordered to bear the costs of any uncovered ordinary medical or dental expenses, and that the parties would share equally any extraordinary uncovered medical or dental expenses of the children. Both partes filed objections to the referee's report which were subsequently overruled by the trial court on April 5, 1989.

On May 24, 1989, defendant filed a supplemental cross-complaint adding extreme cruelty to the grounds for which she sought divorce. Subsequently, plaintiff dismissed his complaint for divorce while defendant proceeded on her counterclaim. On August 18, 1989, the trial court dismissed defendant's counterclaim for divorce finding that plaintiff had not been guilty of gross neglect or extreme cruelty. The trial court ordered that the prior orders for custody, support, and visitation were to remain in effect with the exception that child support would be increased to $1,112.33 per month and that defendant be awarded temporary expense money of an additional $1,500.

On appeal, plaintiff has set forth nine assignments of error for this court's review:

"1. The trial court erred in awarding the tax deductions to the mother.

"2. The trial court erred in not expanding the visitation as recommended by the referee.

"3. The court erred in not ordering the custodial parent to provide sufficient clothing for visitation periods.

"4. The trial court erred in not reducing child support below the guideline level.

"5. The trial court erred in accepting a report of the referee containing inadequate facts.

"6. The use of the report is flawed by the time gaps between hearings and that the referee only had part of the case assigned to her.

"7. It is error to award expense money in a situation where a party has failed to prove their right to relief.

"8.The rigid adherence to the guidelines create an unconstitutional denial of due process.

"9. The trial court erred in granting custody to the mother."

Initially, it should be noted that plaintiff does not appeal the trial court's decision dismissing his complaint for divorce. In his first assignment of error, plaintiff argues that the tax deductions for the children were unfairly awarded to the custodial parent. Plaintiff argues that as defendant's taxable income is substantially lower than that of plaintiff, the children's personal exemptions were in essence wasted by the trial court in its award of those deductions to defendant.

In reviewing plaintiff's assignment of error, we recognize that the trial court's decision may only may be reversed by an appellate court when the trial court's judgment demonstrates that its attitude was unreasonable, arbitrary, or unconscionable Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217.

R.C. 3111.13(C) provides that a court may make any order "*** concerning the duty of support *** or any other matter in the best interest of the child. ***" In Hughes v. Hughes (1988), 35 Ohio St. 3d 165, the Supreme Court of Ohio held that a domestic relations court could allocate the child dependency exemption embodied in Section 151, Title 26, U.S. Code, to a noncustodial parent.1 The court held that while it could not force a custodial parent to execute the requisite declaration necessary for the noncustodial parent's tax return, it nevertheless upheld the trial court's order awarding the exemption to the noncustodial parent. The Supreme Court further noted that should a custodial parent disobey the court's order to execute the exemption declaration, then the noncustodial parent's options included seeking a contempt of court action.

Subsequently, in Bobo v. Jewell (1988), 38 Ohio St. 3d 330, the Supreme Court extended the Hughes, supra, decision so as to apply to a parentage casa As there would be no property rights to divide in a parentage case, the court interpreted R.C. 3111.13(C) to permit the allocation of the dependency exemption when if the best interest of the child. The court held that "*** if a trial court exercises the authority to allocate a child dependency deduction to the noncustodial parent, the record must show that the interest of the child has been furthered." Id. at 332.

In the present case, we conclude that the trial court abused its discretion in failing to award the child dependency exemption to plaintiff. Under the facts and circumstances of this case, the dependency exemption should be [416]*416awarded to plaintiff since by doing so, the tax burden imposed upon plaintiff will be lessened, and this will in turn ultimately benefit the parties' minor children. Should this court reach an opposite result, the exemption would be in effect wasted since the record clearly demonstrates that it is the plaintiff who will be able to use the exemption advantageously. Accordingly, plaintiffs first assignment of error is well-taken and is sustained and defendant is hereby ordered to execute the necessary waiver to allow plaintiff the benefit of the dependency exemption.

Plaintiff next argues in his second assignment of error that the trial court erred in not expanding the visitation rights as recommended by the referee. Plaintiff contends that as he is only allowed scattered visitation several months apart, he is precluded from being a part of his children's lives. It is clear from the record that both parents had considerable concern for their children.

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Related

Thompson v. Thompson
501 N.E.2d 108 (Ohio Court of Appeals, 1986)
Zacek v. Zacek
463 N.E.2d 391 (Ohio Court of Appeals, 1983)
Blum v. Blum
223 N.E.2d 819 (Ohio Supreme Court, 1967)
Blakemore v. Blakemore
450 N.E.2d 1140 (Ohio Supreme Court, 1983)
Hughes v. Hughes
518 N.E.2d 1213 (Ohio Supreme Court, 1988)
Bobo v. Jewell
528 N.E.2d 180 (Ohio Supreme Court, 1988)

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Bluebook (online)
7 Ohio App. Unrep. 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gosiewski-v-gosiewski-ohioctapp-1990.