Kitzberger v. Kitzberger

2025 Ohio 1721

• Court: Ohio Court of Appeals
• Decided: May 14, 2025
• Docket: C-240264
• Status: Published

Opinion

[Cite as Kitzberger v. Kitzberger, 2025-Ohio-1721.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

AMANDA MARIE KITZBERGER, : APPEAL NO. C-240264 TRIAL NO. DR-1801607 Plaintiff-Appellee, :

vs. : JUDGMENT ENTRY RUSSELL LADDIE KITZBERGER, :

Defendant-Appellant. :

This cause was heard upon the appeal, the record, and the briefs. The judgment of the trial court is reversed and the cause is remanded for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs are taxed under App.R. 24. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 5/14/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as Kitzberger v. Kitzberger, 2025-Ohio-1721.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

AMANDA MARIE KITZBERGER, : APPEAL NO. C-240264 TRIAL NO. DR-1801607 Plaintiff-Appellee, :

vs. : OPINION RUSSELL LADDIE KITZBERGER, :

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 14, 2025

Stagnaro Hannigan Koop Co., LPA, and Michaela M. Stagnaro, for Plaintiff- Appellee,

Tibbs Law Office, LLC, and Sarah E. Michel, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Defendant-appellant Russell Kitzberger (“father”) appeals from the

judgment of the Hamilton County Court of Common Pleas, Domestic Relations

Division, reducing the child-support obligation of plaintiff-appellee Amanda

Kitzberger (“mother”) to $0. For the reasons that follow, we reverse the judgment of

the trial court and remand the cause for the trial court to properly determine child

support under R.C. 3119.04.

I. Factual and Procedural History

{¶2} The parties were divorced in 2019. At that time, mother was ordered to

pay father $3,309 a month for spousal support for 42 consecutive months, effective

May 1, 2019, and $1,490.19 per month—plus the processing fee—for child support for

the parties’ two children, for which a separate decree of shared parenting was issued.

In the decree of shared parenting, the parties were ordered—among other things—to

equally split the costs associated with the children’s extracurricular activities.

{¶3} In February 2023, father filed a motion to modify child support. The

motion asserted, “The spousal support award has now terminated by order and

[father] would like child support to be modified consistent with [mother]’s income,

not accounting for the deduction of spousal support to [sic] which was factored into

the original calculation.” Father later filed an additional motion to modify the

allocation of expenses for the children’s extracurricular activities.

{¶4} The matters proceeded to trial in front of a magistrate in October 2023.

At the hearing, father and mother each testified and provided numerous exhibits. In

December 2023, the magistrate entered an order reducing the child-support order to

$0 but ordering that the costs of extracurricular activities be born solely by mother.

In doing so, the magistrate first found that father was voluntarily underemployed or OHIO FIRST DISTRICT COURT OF APPEALS

unemployed and therefore imputed potential income to father for purposes of

calculating his annual income. The magistrate then found that a downward deviation

for the full amount of support owed by mother was warranted under R.C. 3119.231.

{¶5} Father objected to the magistrate’s decision, arguing that the

magistrate’s decision to award the downward deviation was an abuse of discretion.

Among other things, father argued that (1) a full deviation was not proper under R.C.

3119.231 and (2) the magistrate was required to determine the child support by

considering the needs and the standard of living of the children and the parents under

R.C. 3119.04.

{¶6} In April 2024, the trial court entered an order overruling father’s

objection and adopting the decision of the magistrate as the judgment of the court.

The entry stated, “Upon a careful and independent analysis of the record herein,

including the transcript, the Court finds that the Magistrate’s Decision is supported by

competent and credible evidence.”1

{¶7} Father has appealed, raising a single assignment of error related to the

court’s downward-deviation award. Father does not challenge the trial court’s

imputed-income determination.

II. Standard of Review

{¶8} This court “will not disturb a trial court’s decision regarding child

support absent an abuse of discretion.” Bohannon v. Lewis, 2022-Ohio-2398, ¶ 39

(1st Dist.), citing Rummelhoff v. Rummelhoff, 2022-Ohio-1224, ¶ 18 (1st Dist.). “An

abuse of discretion occurs when a court exercises its judgment, in an unwarranted way,

1 Although the phrase “competent, credible evidence” is generally associated with appellate standards of review, we interpret this language, as a whole, to indicate a concurrence with the magistrate’s decision after an independent review, not deference to the magistrate’s decision. See generally Civ.R. 53(D)(4)(d); compare In re C.R., 2025-Ohio-557, ¶ 8 (1st Dist.) (applying the analogous Juv.R. 40(D)(4)(d)).

4 OHIO FIRST DISTRICT COURT OF APPEALS

in regard to a matter over which it has discretionary authority.” (Cleaned up.) Mallory

v. Mallory, 2024-Ohio-5458, ¶ 13 (1st Dist.), citing Johnson v. Abdullah, 2021-Ohio-

3304, ¶ 39. However, “[t]rial ‘courts lack discretion to make errors of law, particularly

when the trial court’s decision goes against the plain language of a statute or rule.’”

Gadson v. Scott, 2025-Ohio-7, ¶ 16 (8th Dist.), citing Johnson at ¶ 39.

III. Statutory Background for Calculating Child Support

A. Standard Calculation of Child Support

{¶9} In any action in which a court child-support order is issued or modified,

the court “shall calculate the amount of the parents’ child support . . . in accordance

with the basic child support schedule, the applicable worksheet, and the other

provisions of Chapter 3119. Of the Revised Code.” R.C. 3119.02. The court “shall

specify the support obligation as a monthly amount due and shall order the support

obligation to be paid in periodic increments as it determines to be in the best interest

of the children.” Id.

{¶10} A court calculating the amount to be paid under a child-support order

is required to “reduce by ten per cent the amount of the annual individual support

obligation for the parent or parents when a court has issued . . . a court-ordered

parenting time order that equals or exceeds ninety overnights per year.” R.C.

3119.051(A). “This reduction may be in addition to the other deviations and

reductions.” Id.

{¶11} Further,

[a] court that issues a shared parenting order in accordance with

section 3109.04 of the Revised Code shall order an amount of child

support to be paid under the child support order that is calculated in

accordance with the schedule and with the worksheet, except that, if

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that amount would be unjust or inappropriate to the children or either

parent and therefore not in the best interest of the child because of the

extraordinary circumstances of the parents or because of any other

factors or criteria set forth in section 3119.23 of the Revised Code, the

court may deviate from that amount.

R.C. 3119.24(A)(1).

The court shall consider extraordinary circumstances and other

factors or criteria if it deviates from the amount described in division

(A)(1) of [R.C. 3119.24] and shall enter in the journal the amount

described in division (A)(1) of [R.C. 3119.24] [and] its determination

that the amount would be unjust or inappropriate and therefore not in

the best interest of the child, and findings of fact supporting its

determination.

R.C. 3119.24(A)(2).

{¶12} For purposes of R.C. 3119.24, “‘extraordinary circumstances of the

parents’ includes . . . the ability of each parent to maintain adequate housing for the

children . . . , [e]ach parent’s expenses, . . . [and] any . . . circumstances the court

considers relevant.” R.C. 3119.24(B)(3).

{¶13} Beyond that, the court

may order an amount of child support that deviates from the

amount of support that would otherwise result from the use of the basic

child support schedule and the applicable worksheet if, after

considering the factors and criteria set forth in section 3119.23 of the

Revised Code, the court determines that the amount calculated

pursuant to the basic child support schedule and the appliable

6 OHIO FIRST DISTRICT COURT OF APPEALS

worksheet would be unjust or inappropriate and therefore not be in the

best interest of the child.

R.C. 3119.22.

If the court deviates, the court must enter in the journal the

amount of child support calculated pursuant to the basic child support

schedule and the applicable worksheet, its determination that the

amount would be unjust or inappropriate and therefore not in the best

interest of the child, and findings of fact supporting that determination.

{¶14} The factors and criteria set forth in R.C. 3119.23 to be considered by the

court when determining whether to grant a deviation include—among other things—

(1) extended parenting time or extraordinary costs associated with parenting time, (2)

the relative financial resources, including the disparity in income between the parties

or households, other assets, and the needs of each parent, (3) the obligee’s income, (4)

benefits that either parent receives from sharing living expenses with another person,

(5) significant in-kind contributions from a parent, (6) 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, and (7) any other

relevant factor.

{¶15} “If court-ordered parenting time exceeds ninety overnights per year, the

court shall consider whether to grant a deviation pursuant to section 3119.22 of the

Revised Code for” reasons related to parenting time or extraordinary costs associated

with parenting time under R.C. 3119.23(C). R.C. 3119.231(A). “This deviation is in

addition to any adjustments provided under Division (A) of section 3119.051 of the

Revised Code.” Id. Further, “[i]f the court-ordered parenting time is equal to or

7 OHIO FIRST DISTRICT COURT OF APPEALS

exceeds one hundred forty-seven overnights per year, and the court does not grant a

deviation under division (A) of this section, it shall specify in the order the facts that

are the basis for the court’s decision.” R.C. 3119.231(B).

{¶16} The court “in its discretion and in appropriate circumstances, may . . .

issue an order not requiring the obligor to pay any child support amount.” R.C.

3119.06. “The circumstances under which a court . . . may issue such an order include

. . . any . . . circumstances considered appropriate by the court . . . .” Id.

B. Calculation of Child Support When Combined Annual Income Exceeds Maximum Listed on Basic Child Support Schedule

{¶17} Under R.C. 3119.04,

If the combined annual income of both parents is greater than

the maximum annual income listed on the basic child support schedule

established pursuant to section 3119.021 of the Revised Code, the court,

with respect to a court child support order . . . , shall determine the

amount of the obligor’s child support obligation on a case-by-case basis

and shall consider the needs and the standard of living of the children

who are the subject of the child support order and of the parents.”

(Emphasis added.)

{¶18} In such a case,

[t]he court . . . shall compute a basic combined child support

obligation that is no less than the obligation that would have been

computed under the basic child support schedule and applicable

worksheet for a combined annual income equal to the maximum annual

income listed on the basic child support schedule established pursuant

to section 3119.021 of the Revised Code, unless the court . . . determines

8 OHIO FIRST DISTRICT COURT OF APPEALS

that it would be unjust or inappropriate and therefore not in the best

interest of the child, obligor, or obligee to order that amount.

(Emphasis added.) R.C. 3119.04. “If the court makes such a determination, it shall

enter in the journal the figure, determination, and findings.” Id.

IV. Law and Analysis

{¶19} The maximum annual income listed in the basic child-support schedule

under R.C. 3119.021 is $336,467.04. See R.C. 3119.021(B)(1). The magistrate

calculated the parties’ combined gross income to be $349,144. This determination has

not been disputed. Thus, in this case, the combined annual income of both parents is

greater than the maximum annual income listed on the basic child-support schedule

established pursuant to R.C. 3119.021. Therefore, R.C. 3119.04 is applicable in this

case.

{¶20} Consequently, the trial court was required to calculate a case-specific

amount of child support considering the needs and the standard of living of the

children and of the parents. See R.C. 3119.04. In doing so, the court was required to

order an amount that is no less than the obligation that would have been computed

under the basic child-support schedule and applicable worksheet for a combined

annual income equal to the maximum annual income listed on the basic child-support

schedule, unless the court determined that it would be unjust or inappropriate and

therefore not in the best interest of the child, obligor, or obligee to order that amount.

See id.

{¶21} Rather than do so, the trial court appears to have calculated mother’s

support obligation utilizing the standard worksheet and R.C. 3119.231. There is no

mention of R.C. 3119.04 anywhere in the trial court’s order.

{¶22} Father argues that the trial court “clearly” abused its discretion by

9 OHIO FIRST DISTRICT COURT OF APPEALS

“incorrectly apply[ing] the standards set forth in the case law and fail[ing] to take into

account the children’s needs and standard of living they were accustomed to during

the marriage as well as in both households after the parties[’] separation.” In support

of his argument, he points to V.C. v O.C., 2021-Ohio-1491 (8th Dist.), and In re J.C.,

2021-Ohio-2451 (8th Dist.).

{¶23} In V.C., the court held that the trial court abused its discretion in

applying R.C. 3119.02 and the standard child-support guidelines, rather than R.C.

3119.04, when determining the father’s child-support obligation where the parents’

combined annual income exceeded the maximum annual income listed on the basic

child-support schedule established pursuant to R.C. 3119.021. V.C. at ¶ 74-83. Of

note, the court said “the trial court made no mention of R.C. 3119.04 and there is

nothing [in the entry] to otherwise suggest that the trial court considered the needs

and the standard of living of the children and the parents in determining the amount

of father’s child support obligation in this case.” Id. at ¶ 80. Consequently, the court

found it “evident from the face of the trial court’s . . . final judgment entry,” that the

trial court applied the wrong legal standard. Id. at ¶ 82. Therefore, the court reversed

the trial court’s judgment and remanded the cause for the trial court to determine

father’s child-support obligation in accordance with R.C. 3119.04. Id.

{¶24} In J.C., the court held that the trial court abused its discretion in failing

to impose a child-support obligation on either parent based on equal parenting time

where the trial court failed to make the requisite findings under R.C. 3119.04 that child

support would be unjust or inappropriate. J.C. at ¶ 14-21.

{¶25} Similarly, in Siebert v. Taverez, 2007-Ohio-2643 (8th Dist.), the court

held that the trial court erred by adopting the magistrate’s decision where the

magistrate analyzed the request for a modification of child support under R.C. 3119.22

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and 3119.23 rather than R.C. 3119.04. Id. at ¶ 27, 45-46.

{¶26} Further, this court has stated that “the failure to consider the needs and

the standard of living of the children who are the subject of the child support order

and the parents [under R.C. 3119.04] constitutes an abuse of discretion.” (Cleaned up.)

See Krasik v. Newstate, 2022-Ohio-1775, ¶ 18 (1st Dist.), citing Strimbu v. Strimbu,

2011-Ohio-3629, ¶ 14 (11th Dist.).

{¶27} Here, the parties’ combined annual income is greater than the

maximum annual income listed on the basic child-support schedule, yet there is no

indication in the trial court’s entry that it conducted an analysis under R.C. 3119.04.2

Rather, the court entered its order based on R.C. 3119.231 and the equal parenting

time between the parties. Thus, just like in V.C., it is evident on the face of the trial

court’s order that it applied the wrong legal standard when making its child-support

determination. Consequently, we hold that the trial court abused its discretion in

entering the child-support order.

{¶28} Further, even going beyond the trial court’s failure to conduct an

analysis under R.C. 3119.04, R.C. 3119.231 only permits a deviation pursuant to R.C.

3119.22 “for the reasons set forth in division (C) of R.C. 3119.23 of the Revised Code.”

See R.C. 3119.231(A). The reasons set forth in R.C. 3119.23(C) are “[e]xtended

parenting time or extraordinary costs associated with parenting time, including

extraordinary travel expenses when exchanging the child or children for parenting

time.” The trial court did consider R.C. 3119.23(C) when making its determination,

finding that mother exercised parenting-time in an amount equal to or in excess of

2 One of the factors in R.C. 3119.23, factor (K), does pertain to the standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued, which overlaps to a certain extent with the requisite considerations under R.C. 3119.04. However, there is nothing in the magistrate’s entry to indicate that the court made findings under this factor. The court only cites to factors (C), (E), (F), and (G).

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father. However, the court went well beyond this factor and made substantial findings

under R.C. 3119.23(E), (F), and (G) when granting the deviation under R.C. 3119.231.

{¶29} The court’s order provides that the full deviation is granted based on

parenting time that exceeds 147 overnights under R.C. 3119.231(B) and “express

consideration of the factors outlined under R.C. 3119.23, particularly factors (C), (E),

(F), and (G).” The court deemed this deviation “to be in the best interest of the children

common to the parties.” The worksheet attached to the court’s entry reflects that the

full deviation was granted under R.C. 3119.231.

{¶30} However, based on the statutory language, the court must have also

made the requisite findings under either R.C. 3119.22 or 3119.24 in order to consider

factors beyond R.C. 3119.23(C) when granting the deviation. Under R.C. 3119.22, the

court was required to find that the standard child-support amount would be unjust or

inappropriate and therefore not in the best interest of the children in order to grant a

deviation. Under R.C. 3119.24, the court was required to find that the standard child-

support amount would be unjust or inappropriate to the children or either parent and

therefore not in the best interest of the children in order to grant a deviation. Of note,

to grant a deviation under either section, the court must have entered into the journal

a determination “that the amount would be unjust or inappropriate and therefore not

in the best interest of child, and findings of fact supporting [the] determination.”

(Emphasis added.) See R.C. 3119.22(B) and 3119.24(A)(2).

{¶31} In reviewing the magistrate’s decision, which was adopted by the trial

court, the magistrate only made a determination that mother’s obligation for cash

medical support would be “unjust, inappropriate and not in the best interest of the

child(ren).” The court did not expressly make any finding that the child-support

amount would be unjust or inappropriate under either R.C. 3119.22 or 3119.24. While

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the court’s consideration of the R.C. 3119.23 factors may serve as a sufficient basis for

the requisite findings under either section, the court did not actually enter a

determination connecting the factors to either section that would permit a deviation

based on those factors.

{¶32} “A court-ordered deviation from the schedule and worksheet is not

permitted absent full and strict compliance with the statutory requirements.”

Rummelhoff v. Rummelhoff, 2020-Ohio-2928, ¶ 33 (1st Dist.), citing Rock v. Cabral,

67 Ohio St.3d 108, 110 (1993), and Marker v. Grimm, 65 Ohio St.3d 139, 141-142

(1992); see generally Ayers v. Ayers, 2024-Ohio-1833, ¶ 12 (“The terms within the

statutory scheme governing child-support orders are ‘mandatory in nature and must

be followed literally and technically in all material respects.’”).

{¶33} Here, the trial court’s entry indicates that the full deviation was granted

under R.C. 3119.231. However, because the court considered factors beyond that

which are permitted by this statute and also did not make any other requisite

determination under R.C. 3119.22 or 3119.24, this court is unable to determine

whether the deviation was appropriately granted given that it is unclear what factual

basis the trial court relied on in granting any certain amount of the deviation. See

generally Mangen v. Mangen, 2021-Ohio-3693, ¶ 27-31 (2d Dist.) (reversing and

remanding a trial court’s child-support determination where the trial court’s entry was

inconsistent and caused confusion as to whether the trial court granted the

appropriate deviations under the correct statutes).

{¶34} Consequently, even going beyond the trial court’s failure to conduct an

analysis under R.C. 3119.04, it is unclear from the entry whether the trial court

properly granted a deviation under R.C. 3119.231.

{¶35} Accordingly, for all the foregoing reasons, we sustain father’s

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assignment of error and reverse the judgment of the trial court.

V. Conclusion

{¶36} The judgment of the trial court is reversed, and the cause is remanded

for the trial court to properly determine child support under R.C. 3119.04.

Judgment reversed and cause remanded.

NESTOR and MOORE, JJ., concur.