In re B.A.K.

2022 Ohio 1443

• Court: Ohio Court of Appeals
• Decided: May 2, 2022
• Docket: CA2021-10-093
• Status: Published

Opinion

[Cite as In re B.A.K., 2022-Ohio-1443.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

IN RE: :

B.A.K. : CASE NO. CA2021-10-093

: OPINION 5/2/2022 :

:

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 20-S000133

Strauss Troy Co., LPA, and Matthew J. Worth, for appellant.

Heyman Law, LLC, and Arrianna S. Sacks, for appellee.

HENDRICKSON, J.

{¶ 1} Appellant ("Mother") appeals from a decision of the Warren County Court of

Common Pleas, Juvenile Division, determining the child support obligations of appellee

("Father"). For the reasons set forth below, we affirm the effective date of the child support

order and the court's use of the federal child care tax credit in determining Father's child

support obligation. However, we reverse the trial court's determination of Father's income

and remand the matter for the trial court to calculate Father's potential income and Warren CA2021-10-093

recalculate his child support obligation accordingly.

{¶ 2} Mother and Father entered a romantic relationship and began cohabitating in

2018. In October 2019, their daughter, B.A.K., was born. Mother and Father separated

and ceased living together in April 2020. Since that time, Mother has been the sole

residential parent and legal custodian of B.A.K. Father has visitation two alternating

weekends per month from Saturday morning through Sunday night.

{¶ 3} On August 20, 2020, Mother requested that child support be established. The

Warren County Child Support Enforcement Agency ("CSEA") held an administrative

hearing on October 1, 2020, and ordered Father to pay $1,147.29 per month in child

support, effective October 16, 2020. The CSEA calculated Father's annual gross income

as $70,502.50, and Mother's annual gross income as $70,894.25. Mother was given credit

for health insurance and child care costs. Following the hearing, Father gave Mother $500

cash in December 2020 for Christmas presents for B.A.K., and $400 cash in January 2021

but provided no further support.

{¶ 4} Mother filed an objection to the administrative hearing decision on the grounds

that (1) it did not accurately reflect Father's income and (2) it should have been applied

retroactively to the child's birth. The matter was referred to a magistrate, and a hearing was

held on May 21, 2021. The magistrate heard testimony from both parents.

{¶ 5} The record reveals that Father is a self-employed truck driver who owns and

operates a successful shipping business. In 2018, Father's gross business receipts totaled

over $476,000, and in 2019 they totaled over $412,000. In 2020, however, his business

was affected by the COVID-19 pandemic. That year, he earned $135,000 in gross receipts,

received a long-term, low interest Small Business Administration ("SBA") loan of $149,000,

and worked for two months for a different trucking company earning $13,500. Father's

business has both expanded and contracted during the five year period the magistrate

-2- Warren CA2021-10-093

examined. He employed one other driver in 2017, but began to purchase additional trucks

in 2018, acquiring up to five vehicles at one point before reducing to one vehicle in 2021.

Father testified that as of the hearing, he fully owned his own truck and trailer, and that with

present load rates, he could earn around $5,000 per week. However, he testified that he

voluntarily opts to work an average of only three weeks per month and that he takes

summers off. Father testified that he had no plans to re-expand his business in the future,

nor to increase his working hours.

{¶ 6} The magistrate issued its decision on June 22, 2021. Using the average of

Mother's 2018–20 tax returns, the trial court calculated that Mother earns roughly $72,000

per year and has $3,120 of annual out-of-pocket medical expenses and $11,960 in annual

child care expenses for B.A.K. Given the fluctuations in his business in previous years, the

magistrate extrapolated Father's 2021 earnings to date, estimating his net income to be

$110,691.66. The magistrate additionally found that Father was underemployed. The

magistrate ordered Father to pay $1,432.86 per month in support of B.A.K., an increase in

his total obligation from the amount ordered by the CSEA. However, Mother's objection to

the effective date of the child support was overruled by the magistrate.

{¶ 7} Mother timely objected to the magistrate's decision. After review, the trial

court adopted the magistrate's decision in full on September 7, 2021. Mother now appeals,

raising the following assignments of error.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED IN CALCULATING FATHER'S INCOME FOR

PURPOSES OF CHILD SUPPORT.

{¶ 10} Mother first argues that the trial court erred by failing to impute a higher

income to Father reflective of a fulltime work schedule despite finding that he was

underemployed. "Trial courts enjoy considerable discretion on child support issues, and

-3- Warren CA2021-10-093

their decisions on such matters will not be reversed absent an abuse of discretion." (Citation

omitted.) Shonebarger v. Nelson, 12th Dist. Warren No. CA2011-04-032, 2012-Ohio-315,

¶ 9. "An abuse of discretion suggests the trial court's decision was unreasonable, arbitrary

or unconscionable." C&D Trading, Inc. v. Total Quality Logistics, LLC, 12th Dist. Clermont

No. CA2020-05-026, 2020-Ohio-6905, ¶ 30. A review for abuse of discretion is a deferential

review. Id.

{¶ 11} "In calculating child support, a trial court must determine the annual income

of each of parent." McLaughlin v. Kessler, 12th Dist. Fayette No. CA2011-09-021, 2012-

Ohio-3317, ¶ 13. In the case sub judice, the court adopted the magistrate's order finding

that Father was underemployed. For a parent who is underemployed, "income" is "the sum

of the gross income of the parent and any potential income of the parent." R.C.

3119.01(C)(9)(b). If the trial court finds a parent is voluntarily underemployed, it must

consider the criteria set forth in R.C. 3119.01(C)(11)(a) to determine the amount of potential

income to impute to the parent. Jestice v. Jestice, 12th Dist. Warren No. CA2013-07-133,

2014-Ohio-3777, ¶ 8.

{¶ 12} In determining Father's gross income, the magistrate divided Father's gross

receipts for the period of January 1, 2021 to May 19, 2021 ($70,887.26) by the number of

days during that period (138). The magistrate then multiplied Father's per diem earnings

($513.68) by 365 days to find that Father could make $187,491.66 per year. The magistrate

subtracted Father's business expenses ($6,400 per month, or $76,800 per year) to establish

a projected gross income of $110,691.66 for 2021. See Combs v. Walsh, 12th Dist. Butler

No. CA2005-07-198, 2006-Ohio-7026, ¶ 20 ("When determining the gross income of a self-

employed parent, the trial court is to deduct ordinary and necessary expenses from the

parent's gross receipts."). Notably, the evidence at the hearing established that during this

period, Father only worked three days in January and four days in February, though he

-4- Warren CA2021-10-093

worked "every week" in March, April, and May, up to the time of the hearing.

{¶ 13} The magistrate's methodology was a sound way to produce a reasonably

accurate gross income for Father. The magistrate's decision to extrapolate Father's 2021

earnings to the rest of the year rather than look back to previous years was also reasonable.

Unlike in past years, at the time of the hearing, Father had no employees to perform

additional work and no future plans to hire employees. However, the magistrate erred in its

calculation of Father's income by neglecting to determine his potential income. "Potential

income includes imputed income that a trial court determines the parent would have earned

if fully employed * * *." Whitaker v. Whitaker, 12th Dist. Fayette Nos. CA2019-05-008 and

CA2019-05-009, 2020-Ohio-2774, ¶ 51. After finding that Father was underemployed, the

magistrate was required to determine Father's potential income and use that number in

calculating his support obligation. DiPasquale v. DiPasquale, 12th Dist. Warren No.

CA2016-04-024, 2016-Ohio-8457, ¶ 21, fn. 2. This could have been done by determining

the number of additional days Father should have worked and imputing the previously

established per diem rate to calculate his income as if fully employed.

{¶ 14} Although the magistrate's order states that "the Court has considered factors

listed in R.C. 3119.01(C)(17)(a) to determine any potential income attributed to Father,"

there is no evidence in the order that this was actually done. Even though the order

increased Father's child support obligation, this increase was based solely on the

magistrate's calculation of Father's gross income, rather than Father's "income" as an

underemployed parent. The record before us does not contain enough information to

ascertain Father's income pursuant to R.C. 3119.01(C)(9)(b). We find that the trial court

abused its discretion by adopting the magistrate's order finding Father underemployed

without subsequently determining Father's potential income. Mother's first assignment of

error is therefore sustained.

-5- Warren CA2021-10-093

{¶ 15} Assignment of Error No. 2:

{¶ 16} THE TRIAL COURT ERRED IN ORDERING AN EFFECTIVE DATE OF

OCTOBER 16, 2020, FOR THE CHILD SUPPORT ORDER.

{¶ 17} Mother next argues that the trial court abused its discretion by setting October

16, 2020, as the effective date of its child support order. Specifically, Mother asserts that

"[i]t is an abuse of discretion for the court to make no award of child support for that period

in the absence of an affirmative demonstration of some circumstance which ought to

reasonably relieve the parent of the obligation of support and the child of entitlement to the

support." That proposition is taken from Baugh v. Carter, 3 Ohio App.3d 139, syllabus (1st

Dist.1981). However, Baugh was decided under a version of R.C. 3111.13 that has long

since been revised, and though it was occasionally considered by courts in the years

immediately following the statute's revision, it no longer reflects the law of Ohio and we

need not consider it. See Shockey v. Blackburn, 12th Dist. Warren No. 98-07-085, 1999

WL 326174, *3 (May 17, 1999) (Noting the statutory revision).

{¶ 18} "A father has a duty to support his marital and nonmarital children, alike, * * *

[and] may be ordered to pay child support from the date of the child's birth." Shonebarger,

2012-Ohio-315, at ¶ 12; see also R.C. 3111.13(F)(2). When a court renders child support

payment retroactive, the court "shall consider all relevant factors, including, but not limited

to, any monetary contribution either parent of the child made to the support of the child prior

to the court issuing the order requiring the parent to pay an amount for the current support

of the child." R.C. 3111.13(F)(2).

{¶ 19} Notably, R.C. 3111.13 "does not institute a per se rule that requires or

disallows awards of retroactive child support." Evans v. Richardson, 10th Dist. Franklin No.

01AP-1328, 2002-Ohio-3555, ¶ 12. Rather, "the statute vests the trial court with the

discretion to determine whether a parent must pay a retroactive amount of child support,

-6- Warren CA2021-10-093

and specifies the factors the court can consider in making its decision." Id. Contrary to

Mother's assertions, and to her citations, "the decision of whether to establish retroactive

support is entrusted to the trial court's discretion." Soukup v. Kirchner, 11th Dist. Geauga

No. 2012-G-3095, 2013-Ohio-2818, ¶ 21.

{¶ 20} In the present case, Mother initially argued that the effective date of the order

should be applied retroactively to the child's date of birth, before requesting that child

support be applied retroactively to the date of her separation from Father. The trial court

weighed the factors enumerated in R.C. 3111.13(F)(2) in determining that the evidence did

not support a retroactive award of child support to that date. In doing so, the court found

that there was no evidence that Father failed to support B.A.K. prior to the parties separating

in April 2020. Additionally, the magistrate found that there was no evidence presented that

the child's needs were not being met between April 2020 and October 2020 to justify

retroactive support.

{¶ 21} In reviewing the evidence, we find that the trial court did not abuse its

discretion in adopting the magistrate's order denying retroactive child support. The

magistrate considered "all relevant factors" in deciding not to order retroactive support. R.C.

3111.13. Mother's arguments in support of her position are unsupported and ultimately

unconvincing. Mother's second assignment of error is therefore overruled.

{¶ 22} Assignment of Error No. 3:

{¶ 23} THE TRIAL COURT ERRED IN CREDITING MOTHER WITH RECEIVING

$4,000 FOR THE FEDERAL CHILD CARE CREDIT.

{¶ 24} Mother next argues that the trial court abused its discretion by including the

federal child care tax credit on the Child Support Computation Worksheet "without any

evidence on the record to support the decision." Mother notes that "no evidence concerning

the federal child care credit was offered to the trial court by either party," and that "[n]either

-7- Warren CA2021-10-093

party's proposed child support worksheets included the credit."

{¶ 25} "An appellate court reviews a trial court's decision allocating tax exemptions

for dependents under an abuse of discretion standard." Rainey v. Rainey, 12th Dist. No.

CA2010-10-083, 2011-Ohio-4343, ¶ 38. This discretion is both guided and limited by the

statutory requirements of R.C. 3119.82. Ornelas v. Ornelas, 12th Dist. Warren No.

CA2011-08-094, 2012-Ohio-4106, ¶ 52. "The Internal Revenue Code creates a

presumption in favor of the custodial parent in the allocation of the federal income tax

dependency exemption." Pahls v. Pahls, 12th Dist. Butler No. CA2009-05-001, 2009-Ohio-

6923, ¶ 22. Here the court determined that Mother, as the residential parent and sole legal

custodian, should receive all federal tax exemptions for B.A.K. The court then completed

the Child Support Computation Worksheet.

{¶ 26} When a court calculates a child support order, the court must use the Child

Support Computation Worksheet. Ohio Adm.Code 5101:12-1-17(A)(2)(a). When

completing the worksheet, the court shall "[e]xclude any reimbursed or subsidized child care

cost, including any state or federal tax credit, whether or not claimed * * *." Ohio Adm.Code

5101:12-1-17(C)(3) (Emphasis added.) Specifically, the court "shall exclude any federal

dependent care tax credit allowed under section 21 of the Internal Revenue Code 26 U.S.C.

21(revised 12/29/2007)." Id. Ohio law similarly provides that the child care cost used in the

child support calculation "[s]hall exclude any reimbursed or subsidized child care cost,

including any state or federal tax credit for child care available to the parent or caretaker,

whether or not claimed." R.C. 3119.05(P)(1)(c) (Emphasis added.) Hence, Mother's

eligibility for the federal child care tax credit is the determinative factor for the court to

consider when calculating Father's support obligation, not whether she actually received

the tax credit.

{¶ 27} In support of her argument that evidence was required, Mother cites Pentzer

-8- Warren CA2021-10-093

v. Thomas, 12th Dist. Fayette No. CA99-09-026, 2000 WL 190019 (Feb. 14, 2000).

However, we find Pentzer is inapposite. In that case, the mother appealed the trial court's

order that child tax exemptions should alternate between the parties, even though the

mother was the residential parent. We reversed, finding that the trial court failed to make

the appropriate findings to award the nonresidential parent with tax benefits. Additionally,

the record failed to show the basis for the trial court's decision. Id. at *3.

{¶ 28} In the case sub judice, the court found that Mother was eligible to receive the

dependent tax benefits provided under 26 U.S.C. 21(a)(1). This includes the increased

amount creditable and increased applicable percentage provided by the American Rescue

Plan Act of 2021. See 26 U.S.C. 21(g); Pub.L. 117-2, Title IX, § 9631(a), (b), (Mar. 11,

2021). The record demonstrates that the court reached this determination based on

Mother's income and her expenditures on child care, which enabled it to calculate the

$4,000 credit. The court did not err in including the federal child care tax credit in the

worksheet; in fact, it was required to include this information. See also Coulter v. Coulter,

12th Dist. Warren No. CA95-11-112, 1996 WL 586777, *4 (Oct. 14, 1996) (reversing the

trial court's judgment when it failed to deduct the tax credit from the child care expenses

parent incurred before calculating appellant's child support obligation); Schneider v.

Schneider, 12th Dist. Butler No. CA200-05-089, 2001 WL 76329, *5 (Jan. 22, 2001) (noting

that parent erroneously failed to deduct the child care tax credit on the worksheet).1

{¶ 29} We are sympathetic to Mother's concern that, because the American Rescue

Plan Act of 2021 increased the amount creditable and applicable percentage for the federal

child care tax credit for the year 2021 only, she will have to request the court recalculate

1. The requirement to deduct the child care tax credit from the obligor's child support obligation in Coulter and Schneider arose from R.C. 3113.215(E) which has since been repealed. However, our analysis in both cases nonetheless also applies under R.C. 3119.05(P)(1)(c).

-9- Warren CA2021-10-093

(and increase) Father's child support obligation for future years. However, this does not

mean the court erred in calculating Father's obligations at the hearing in this matter. As

such, Mother's final assignment of error is overruled.

{¶ 30} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.

PIPER, P.J., and BYRNE, J., concur.

- 10 -