[Cite as K.L.F. v. E.A.B., 2024-Ohio-812.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
K.L.F. JUDGES: Hon. W. Scott Gwin, P.J. First Petitioner/Appellee- Hon. William B. Hoffman, J. Cross Appellant Hon. John W. Wise, J. -vs- Case No. 2023 CA 00047 E.A.B.
Second Petitioner/Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2012 DR 01031 RPW
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 6, 2024
APPEARANCES:
For First Petitioner/Appellee For Second Petitioner/Appellant
DEBORAH L. KENNEY VICKY M. CHRISTIANSEN DEBORAH L. KENNEY, L.P.A. CHRISTIANSEN CO, L.P.A. One South Park Place 172 Hudson Avenue Newark, Ohio 43055 Newark, Ohio 43055 Licking County, Case No. 2023 CA 00047 2
Wise, J.
{¶1} Second Petitioner-Appellant father, E.A.B., appeals from the May 3, 2023
Judgment of the Common Pleas Court of Licking County, Domestic Relations Division.
{¶2} First Petitioner-Appellee mother, K.L.F., cross appeals from the May 3,
2023 Judgment of the Common Pleas Court of Licking County, Domestic Relations
Division.
FACTS AND PROCEDURAL HISTORY
{¶3} Appellant father and Appellee mother are the parents of M.I.B., who was
born on March 9, 2011. Father and mother never married and parentage was formally
established by court judgment entry on August 16, 2012 when the Licking County Child
Support Enforcement Agency filed a petition to adopt administrative determination of
parentage. On April 17, 2013, Father was ordered to pay $300 per month in child support,
a deviation from the Child Support Guidelines Worksheet but agreed to by the parties.
Some three months later, the support was increased to $1,000 per month and orders
were made relating to medical expenses and income tax dependency deduction for the
child.1
{¶4} There was no formal agreement relating to visitation and it was established
on a voluntary basis by father and mother. The record reflects that both parties and their
extended families have participated in the caring and nurturing of M.I.B. since birth,
allowing both mother and father to develop successful professions. In 2019, father owned
1 There was evidence in the record that the parties reached an agreement whereby father
would provide a house for mother and M.I.B. to live in valued at $700 per month and father would pay, in addition, $300 per month in child support for the reason that mother could obtain financial assistance for college. Licking County, Case No. 2023 CA 00047 3
several dairy farms and a thriving cattle nutrition consultant to dairy farmers throughout
the country, and mother was an accountant working for a local company. Father’s
businesses grossed incomes in the range of over one million dollars, and mother made
approximately $81,000 as an accountant. Both parties married other partners and live in
the same area in Central Ohio with no plans to move.
{¶5} In October, 2019, father filed a motion for change of custody of M.I.B. or, in
the alternative, a share- parenting plan that he had drawn up which essentially provided
an equal amount of time for each parent with the child. Mother then opposed the motion
and filed a motion to increase child support. These actions started a flurry of activity.
Copious amounts of money have been spent by both parties on this litigation including
deposition costs, attorneys’ fees, guardian ad litem fees and expert witness fees. So too,
the court in Licking County has spent a considerable amount of time assisting the parties
in resolving their issues. Mediation has failed.
Magistrate’s Decision
{¶6} On January 4, 2021, September 14, 2021, December 6, 2021 and March 8,
2022, the Court’s Magistrate held evidentiary hearings on the matters. The Magistrate
heard testimony from the mother, father, various relatives, friends, accountants and the
guardian ad litem. The guardian ad litem was available for cross-examination. An in-
camera interview of the child was also held by the Magistrate in the guardian ad litem’s
presence.
{¶7} On September 20, 2022, the Magistrate made a number of decisions
regarding the issues before him. Magistrate’s Decision, Sept. 20, 2022. The Magistrate Licking County, Case No. 2023 CA 00047 4
held a non-oral hearing in June, 2022 to consider child support calculations and a motion
to strike an affidavit.
{¶8} With regard to custody, he recognized that no court had before the father’s
2019 motion for custody made a finding regarding custody and therefore, the parents
were treated as if on equal footing. Magistrate’s Decision Sept. 20, 2022, Finding No. 8
at 15. After considering the evidence presented, including the report of the guardian ad
litem and an in-camera interview with the child, the Magistrate found that it is in the best
interest of M.I.B. for mother to be designated the sole residential parent and legal
custodian of M.I.B. Magistrate’s Decision, Sept. 20, 2022, Finding No. B (i) at 21.
{¶9} With regard to child support, he ordered father the child support obligor and
to pay $3,000 per month together with cash medical support of $30.24 per month,
effective “as of the date the Judgment Entry adopting this Decision is filed.” Magistrate’s
Decision, Sept. 20, 2022, Finding No. 2 B (i) at 21. In support, the Magistrate attached
the child support worksheet he used to calculate child support. Magistrate’s Decision,
Sept. 20, 2022, appendix.
{¶10} Recognizing that the order of $3,000 per month deviated downward from
the child support worksheet number of $4,924.28 by about 40%, the Magistrate
considered several factors contained in R.C. 3119.23, found that the amount would meet
the child’s needs and that R.C. 3119.231 was applicable. Id. Recognizing the father’s
business holdings, including farms, dairy cattle and nutrition business, the Magistrate
made several findings outlining the father’s income. Magistrate’s Decision, Sept. 20,
2022, Findings at 21-26. Licking County, Case No. 2023 CA 00047 5
{¶11} Findings were made relating to health insurance, and tax dependency
exemptions, and parenting time was adopted for father.
{¶12} Father’s request for attorneys’ fees was denied and the Magistrate applied
the “American Rule” to each of the party’s request for attorneys’ fees finding each party
is responsible for his or her own attorneys’ fees. Magistrate’s Decision, Sept. 20, 2022,
Finding No. 6 at 31.
{¶13} In all, the Magistrate’s Decision contained thirty-three pages with
appendices.
{¶14} Both mother and father filed objections to the Magistrate’s Decision.
Transcripts of the Magistrate’s evidentiary hearings were ordered and filed, and on
February 15, 2023, the trial court issued an amended opinion.
Trial Court’s Judgment
{¶15} The trial court conducted a de novo review and affirmed the Magistrate’s
Decision with respect to the sole residential parent and to the parental time allowed to the
father. The trial court found the Magistrate’s Decision regarding child support was
“thoughtful and attentive to each of the arguments raised by both of the parties in this
matter. Amended Opinion, Feb. 15, 2023 at 5. He affirmed the amount of $3,000 per
month to be paid by father as child support.
{¶16} The trial court changed the date of the modified child support to be
retroactive to September 14, 2021, the date on which the trial could have concluded if
there had not been extensive delays caused by COVID and the parties’ schedules. Licking County, Case No. 2023 CA 00047 6
{¶17} In short, the Amended Opinion of the trial court approved and adopted all
of the Magistrate’s Decision except for one – changing the effective date of the modified
child support to September 14, 2021. Amended Opinion, Feb. 15 at 9.
{¶18} On April 12, 2023, the trial court ruled on a motion for clarification on how
child support arrearage was to be paid.
{¶19} The final judgment entry incorporating the trial court’s and magistrate’s
decisions was entered into the record on May 3, 2023.
{¶20} The appeal of Second Petitioner-Appellant father and Cross Appeal of First
Petitioner-Appellee mother followed. Appellant assigns four errors for review and
appellee/cross appellant raises six. The Assignments of Error follow:
ASSIGNMENTS OF ERROR
{¶21} “I. THE COURT ERRED BY DESIGNATING THE MOTHER THE
CHILD’S SOLE RESIDENTIAL PARENT WHEN SHARED PARENTING IS IN THE BEST
INTEREST OF THE CHILD.
{¶22} “II. THE TRIAL COURT ERRED IN NOT AWARDING FATHER EQUAL
PARENTING TIME.
{¶23} “III. THE TRIAL COURT ERRED WHEN ORDERING THAT THE
FATHER PAY $3,0000/MO. IN CHILD SUPPORT.
{¶24} “IV. THE TRIAL COURT ERRED WHEN IT BACKDATED CHILD
SUPPORT.”
CROSS ASSIGNMENTS OF ERROR OF MOTHER
{¶25} “V. THE COURT ERRED IN ESTABLISHING PARENTING TIMES FOR
APPELLANT. Licking County, Case No. 2023 CA 00047 7
{¶26} “VI. THE TRIAL COURT ERRED IN FAILING TO ORDER CHILD
SUPPORT BASED UPON THE PARTIES ACTUAL INCOMES.
{¶27} “VII. THE TRIAL COURT ERRED IN FAILING TO UTILIZE AN EARLIER
COMMENCEMENT DATE FOR THE REVISED CHILD SUPPORT ORDER.
{¶28} “VIII. THE TRIAL COURT ERRED IN AWARDING APPELLANT THE
INCOME TAX EXEMPTION AND CREDIT EVERY OTHER YEAR.
{¶29} “IX. THE TRIAL COURT ERRED IN FAILING TO AWARD APPELLEE
ATTORNEY FEES AND LITIGATION EXPENSES.
{¶30} “X. THE TRIAL COURT ERRED IN FAILING TO REQUIRE THE
APPELLANT TO ALSO CARRY HEALTH INSURANCE FOR THE CHILD.”
ANALYSIS
ASSIGNMENTS OF ERROR I AND II
{¶31} In his first assignment of error, appellant-father claims that the trial court
erred in designating appellee-mother the sole residential parent. In his second
assignment of error, appellant-father claims that the trial court erred in rejecting his plan
for equal parenting time. We will consider the assignments together.
{¶32} We disagree and affirm the decision of the trial court.
Standard of Review – Abuse of Discretion
{¶33} The standard of review in initial custody cases is whether the trial court
abused its discretion. In Hartman v. Eggar, 5th Dist., Fairfield No. 09CA0055, 2015-Ohio-
6357, this Court noted that a trial court’s discretion in a custody case will be given
“paramount deference because the trial court is best suited to determine the credibility of
testimony and integrity of evidence.” Id. ¶ 64. This Court said: Licking County, Case No. 2023 CA 00047 8
[T]he knowledge a trial court gains through observing witnesses and
the parties in a custody proceeding cannot be conveyed to a reviewing court
by a printed record. Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d
846. Therefore, giving the trial court due deference, a reviewing court will
not reverse the findings of a trial court when the award of custody is
supported by a substantial amount of credible and competent evidence.
Davis, supra, at 418, 674 N.E.2d 1159.
{¶34} Accord, E. S. v. C. S., 5th Dist., Stark No. 2023CA00014, 2024-Ohio-206, ¶
13.
{¶35} Abuse of discretion is more than mere error of judgment; an abuse of
discretion requires that the court’s attitude was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d
1140.
R.C. 3109.042 applies
{¶36} As noted by both parties, R.C. 3109.042 is applicable here where the parties
never married. R.C. 3109.042 confers a default status on the mother as the residential
parent until an order is issued by the trial court designating the residential parent and
legal custodian. In determining custody, R.C. 3109.042 requires the court to treat each
parent as standing upon equal footing. In other words, neither party is entitled to a strong
presumption in his or her favor. The trial court’s custody determination is based on the
best interest of the child, R.C. 3109.04(F)(1).
Best Interests
{¶37} R.C. 3109.04(F)(1) states as follows: Licking County, Case No. 2023 CA 00047 9
{¶38} In determining the best interest of a child pursuant to this section ... the court
shall consider all relevant factors, including but not limited to:
(a) the wishes of the child’s parents regarding the child’s care;
(b) if the court has interviewed the child in chambers pursuant to
division (B) ... the wishes and concerns of the child, as expressed to the
court;
(c) the child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect the
child’s best interest;
(d) the child’s adjustment to the child’s home, school and community;
(e) the mental and physical health of all persons involved in the
situation;
(f) the parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights.
(g) whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent pursuant
to a child support order under which that parent is an obligor;
(h) whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any criminal
offense involving any act that resulted in a child being an abused child or a
neglected child; … Licking County, Case No. 2023 CA 00047 10
(i) whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent’s right to parenting time in accordance with an order of the court;
(j) whether either parent has established a residence or is planning
to establish a residence, outside this state.
{¶39} In a custody determination, there is no requirement that a trial court
separately address each factor. Bashale v. Quaicoe, 5th Dist., Delaware No. 12CAF10
0075, 2013-Ohio-3101, ¶ 45. “ ‘No one factor is dispositive.’ ” Baker-Chaney v. Chaney,
5th Dist., Holmes No. 16CA005, 2017-Ohio-5548, ¶ 25, quoting Carr v. Carr, 12th Dist.,
Warren Nos. CA2015-02-015, CA2015-03-020, 2016-Ohio-6986, ¶ 22. The trial court has
discretion to weigh any and all factors. Id.
{¶40} Father claims that the trial court did not adequately consider these factors
in determining that mother should be the sole residential parent and legal custodian and
failed to acknowledge his equal footing in the initial custody determination. We disagree.
{¶41} In our review of the record and the evidence presented, we find the
Magistrate did, indeed, consider the mother and father on equal footing specifically citing
to R. C. 3109.042, Magistrate’s Decision, Sept. 20, 2022 at 4-5. The Magistrate
specifically stated in its decision that it considered all the factors in R.C. 3109.04(F)(1).
Indeed, he spent a considerable amount of time in his decision discussing the factors and
concluded that the child’s best interest is best served with the mother being named the
sole residential parent and legal custodian, with the father being granted extended
parenting time. Magistrate’s Decision, Sept. 20, 2022 at 12-13. The Magistrate was
particularly concerned with the parties’ inability to cooperate and found that the mother Licking County, Case No. 2023 CA 00047 11
was more likely to honor and facilitate court approved parenting time schedule.
Magistrate Decision at 17. In rejecting father’s plan for shared parenting as an alternative
to sole custody, he noted the unlikelihood that such a plan would succeed, given that
father and his witnesses “pointedly assassinated the First Petitioner-mother’s character
and reputation in their testimony.” Magistrate’s Decision, Sept. 20, 2022 at 20.
{¶42} The trial court, upon the parties’ objections, conducted an independent
review and concurred with and adopted the Magistrate’s Decision in this regard,
Judgment Entry, May 3, 2023; Amended Opinion, Feb. 15, 2023.
Shared Parenting
{¶43} In determining whether shared parenting is in the best interest of the
children, the court shall consider all relevant factors, including, but not limited to, the
factors enumerated in R.C. 3109.04(F) [best interests of child], the factors enumerated in
R.C. 3119.23 [deviation], and all of the following factors:
(a) The ability of the parents to cooperate and make decisions jointly,
with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other ...
(e) The recommendation of the guardian ad litem of the child …
{¶44} R.C. 3109.04(F)(2). Licking County, Case No. 2023 CA 00047 12
{¶45} The Magistrate’s Decision and the trial court’s judgment entry on the parties’
objections to the Magistrate’s Decision thoroughly and independently examined the
record and the best interest considerations under R.C. 3109.04(F).
{¶46} In rejecting shared parenting, the most telling and obvious factor here was
the parties’ inability to cooperate and make decisions jointly with respect to the child. The
record is replete with instances of vitriolic behavior by both parties to the point where the
parties do not have the ability to cooperate at this time. So, too, the guardian ad litem
recommendation negated a shared-parenting plan. While the record establishes that both
parties love their daughter and she is well adjusted and healthy, a shared parenting plan
was doomed to fail. Such a plan is not in the child’s best interests.
{¶47} We do not find the trial court abused its discretion in designating mother as
sole residential parent and legal custodian of the child and rejecting the father’s plan for
shared parenting time. Appellant’s assignments of error one and two are overruled.
III
{¶48} In his third assignment of error, appellant-father contends that the trial court
erred when it held that he was obligated to pay $3,000 per month in child support. In
support, appellant makes two arguments. One, the trial court erred when it did not apply
the “cap” on the child support worksheet. According to father, he should only be paying
$973.74 per month. He reached this figure by applying a 40% deviation to the maximum
guideline amount with “cap enabled” of $1,622.57. Second, he argues that a reduced
amount in monthly child support would meet the child’s need and middle-class standard
of living. We reject both arguments and find that the trial court correctly applied R.C.
3119.04. Licking County, Case No. 2023 CA 00047 13
{¶49} Child support orders are reviewed under an abuse of discretion standard.
Morrow v. Becker, 138 Ohio St. 3d 11, 2013-Ohio-4542, ¶ 9; Booth v. Booth, 44 Ohio
St.3d 142, 144, 541 N.E.2d 1028 (1989). If, in exercising its discretion, the trial court’s
reasoning is sound, a reviewing court will not disturb its judgment. AAA Enterprises, Inc.
v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 552
N.E.2d 597 (1990). The abuse of discretion standard also applies to the decision of the
trial court as to the issue of deviation in the amount of child support owed by an obligor.
Gulley v. Gulley, 5th Dist., Stark No. 2018 CA 00013, 2018-Ohio-4192, ¶ 26.
High Income Case
{¶50} R.C. 3119.04 governs the child support obligations of high-income earners
and states if the combined annual income of both parents is greater than the maximum
annual income listed on the basic child support schedule, the court 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. The current child support schedule begins at an
income of $8,400 and increases at $600 increments through a guideline income of
$300,000. R.C. 3119.021. Relevant in this case, for one child, the income range is more
than $258,292.92 but not more than $336,467.04. Id. Appellant-father argues that
support should be limited as if the combined income of both parents was not more than
$336,467.04, and the trial court erred when it used the actual extrapolated figure for
income over $336,467.04. (Appellant’s brief at 26). Licking County, Case No. 2023 CA 00047 14
{¶51} In this appeal, father does not dispute the amount of gross income attributed
to him of over one million dollars. (Child Support Worksheet attached to appellant’s brief).
While he makes mention that the trial court did not correctly calculate his gross income,
he makes no argument or demonstrates how the trial court erred. Indeed, the Magistrate
spent several pages of his decision outlining the factors he considered in calculating the
income of the father.
{¶52} In this case, the combined income of both parents is greater than the
maximum annual income listed on the child support schedule of $336,467.04. Child
support guideline calculations are not available by statute in situations where parents’
combined income exceeds $336,467.04 for one child.
{¶53} Therefore, a trial court in a high-income case such as this is not required to
use the child support figure derived when the “cap” is used from the child support This
Court has held that it is error when a trial court automatically places a “cap” on child
support at the amount of child support set forth in the child support guidelines; in this case
$336,467.04. A trial court may award more than such amount on a case by case basis
after consideration of the needs and standard of living of the parents involved. Deasey
v. Deasey, 5th Dist., Delaware No. 02CAF09044, 2003-Ohio-3576, ¶ 13
{¶54} In this case, the trial court extrapolated the actual income reported by the
parents and reached a figure of $4,924.28 in monthly child support. “The Magistrate finds
that amount of child support is the result received when the “cap” on the child support
work sheet program used by the Court is ‘turned off’ or is ‘disabled.” Magistrate’s
Decision, Sept. 20, 2022 at 22. The Magistrate then deviated from this figure by 40.9
percent under R.C. 3119.23 (C), (E) and (G) and R.C. 3119.231. Id. Licking County, Case No. 2023 CA 00047 15
{¶55} We find that the trial court did not abuse its discretion in disabling the “cap”
under the child support guidelines and extrapolating a child support figure based on actual
income of the parties.
Needs of child and standard of living
{¶56} Appellant-father also argues that the child’s needs and middle-class
standards of living were met when he was paying $300 per month in child support.
(Appellant’s brief at 24). He relates the testimony at the evidentiary hearings that both
parents live in spacious homes and provide the child with all the necessaries of life and
then some, recounting the vacations the child takes with her mother and the expensive
extracurricular activities the child enjoys, all under the existing child support order of $300
per month. (Appellant’s brief at 23-24).
{¶57} As noted by appellee-mother, the trial court did consider the needs of the
child when it deviated downward from the amount of $4,924.28 and recommended
monthly child support of $3,000.
{¶58} As found by the trial court, the Magistrate’s Decision was thoughtful and
thorough, considering the needs of the child and her best interests. Amended Opinion,
Feb. 15, 2023 at 3. “Although it may be true that the child’s standard of living has been
modest, and the child’s basic needs have been met adequately, under the prior court
orders, it doesn’t necessarily follow that it was appropriate given the circumstances of the
parties and the child.” Id
{¶59} The trial court did not abuse it discretion in the amount of child support it
ordered obligor-father to pay. Appellant’s third assignment of error is overruled. Licking County, Case No. 2023 CA 00047 16
IV
{¶60} In his last assignment of error, appellant-father claims that the trial court
erred in backdating child support.
{¶61} Again, the issue of retroactivity of a child support order is within the sound
discretion of the trial court. Meyer v. Meyer, 5th Dist., Licking No. 2006CA00145, 2008-
Ohio-436, ¶ 38.
{¶62} When the trial court performed its independent review of the Magistrate’s
Decision, it affirmed the decision with one exception – the retroactivity of the modified
child support order. It changed the date from the final judgment filing date to September
14, 2021.
{¶63} This Court has held that absent special circumstances, an order of a trial
court modifying child support should be retroactive to the date the parties received notice
of the request for modification. Wayco v. Wayco, 5th Dist., Stark No. 1998CA00279, 1999
WL 174918 (March 8, 1999) *3. The Wayco Court reasoned that this standard would
provide the best way of making the decision predictable and fair, allowing the parties to
adjust their financial lives around the number. The general rule is also set forth in R. C.
3119.84 (“A court with jurisdiction over a court support order may modify an obligor’s duty
to pay a support payment that becomes due after notice of a petition to modify the court
support order has been given to each obligee and to the obligor before a final order
concerning the petition for modification is entered.”) [Emp. Added].
{¶64} In this case, the trial court noted this general rule, but found that the case
involved special circumstances. It cited the significant delays caused by the pandemic
and the parties circumstances made the date of notice of the request for modification – Licking County, Case No. 2023 CA 00047 17
November 20, 2020 – inappropriate. Accordingly, the trial court found the date of
September 14, 2021, the date the trial should have concluded, as the more reasonable
and appropriate date. We disagree.
{¶65} This case involved almost a three-year delay between the time the motion
for a modification was filed in November, 2020 to the final resolution on May 3, 2023. We
agree with the trial court that this case involved special circumstances and the trial court
did not abuse its discretion in finding September 14, 2021 as the date when the child
support modification took effect.
{¶66} Appellant’s fourth assignment of error is overruled.
{¶67} We now turn to the cross appeal of appellee/cross appellant-mother.
CROSS APPEAL V
{¶68} In the mother’s first assignment of error, she contends that the trial court
erred in establishing parenting times for appellant-father.
{¶69} Not satisfied with the determination that she is the sole residential parent
and legal custodian, she argues that the trial court abused its discretion when it deviated
somewhat from the visitation schedule set forth in Local Rule 19.0 [Parenting Times] of
the Licking County Court.
{¶70} We find no abuse of discretion for the same reasons that we rejected
appellant father’s argument on custody and shared parenting. (Assignments of Errors
Nos. 1 and 2).
{¶71} The record demonstrates that while the parents separated shortly after the
birth of M.I.B., appellant-father remained extensively in his child’s life. There is no dispute
that both parents love their daughter. The evidence includes the testimony at the hearing, Licking County, Case No. 2023 CA 00047 18
the report and testimony of the guardian ad litem and the in-camera interview of the child.
The record reflects that M.I.B. wishes to remain in close contact with both of her parents.
She has a close relationship with her half siblings, the wife of the father and her paternal
grandmother. Notably, the trial court rejected mother’s request for first refusal,
recognizing that such a right would undermine the father’s role in his daughter’s life and
potentially usurp attempts to spend time with his family.
{¶72} The Magistrate who heard the testimony, and the trial court that
independently reviewed the Magistrate’s decision correctly found that it is in the best
interests of M.I.B. to have a relationship and companionship with both her parents. While
rejecting the shared parenting plan submitted by the father, it recognized the child’s needs
to have an extended time with her father and father’s family.
{¶73} Cross Appellant’s assignment of error is overruled.
CROSS APPEAL VI
{¶74} In this assignment of error, mother contends that the trial court erred when
it failed to award monthly child support of $4,925.28, the amount shown on the worksheet
when child support was computed. 2 As discussed in response to father’s argument that
$3,000 is too much, this Court reviews the trial court’s order under an abuse of discretion.
Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989).
{¶75} As noted above, when the combined annual income of both parties exceeds
$336,467.04, a child support worksheet is prepared, but there is no presumption that the
2 The trial court in its Amended Opinion on the Magistrate’s Decision calculated the
monthly support as $5,053.61. Amended Opinion, Feb. 15, 2023 at 5. Licking County, Case No. 2023 CA 00047 19
worksheet amount is appropriate. Rather, the trial court considers the amount on a case-
by-case basis considering the needs and standard of living of the child.
{¶76} As noted by the trial court, the awarded amount of $3,000 per month is not
a deviation from the child support guidelines but rather considerations made on a case
by case basis.
{¶77} The Magistrate carefully considered the needs of the child, the parenting
time schedule granted to the father which amounted to approximately 40 percent, and
awarded child support of $3,000 per month. The Magistrate awarded over 90 overnight-
parenting times with the child per year. Magistrate’s Decision, Sept. 20, 2022 at 22.
{¶78} Mother is not entitled to the “extrapolated” worksheet amount, given the best
interest of the child and the parental time ordered for father. The trial court, therefore, did
not abuse its discretion and the assignment of error is overruled.
CROSS APPEAL VII
{¶79} In this assignment of error, mother argues that the commencement date for
the revised child support order should be either October 14, 2019 or November 23, 2020.
It is unclear from mother’s argument which date she claims is appropriate. October, 2019
is when the father brought his motion for parental rights and shared parenting. November,
2020 is when mother filed her motion to increase child support.
{¶80} The trial court determined that the monthly child support payment of $3,000
should be retroactive to September 14, 2021, the date the case should have been
concluded on the second day of trial.
{¶81} As stated above, we find no abuse of discretion in the retroactive date
determined by the trial court. Accordingly, mother’s assignment of error is overruled. Licking County, Case No. 2023 CA 00047 20
CROSS APPEAL VIII
{¶82} In this assignment of error, mother contends that the trial court erred in
awarding alternate years for tax exemption.
{¶83} The Magistrate found that before 2019, when father filed his motion for
custody and/or shared parenting, the parties agreed the right to claim the child in alternate
years. The Magistrate continued that precedent and the trial court found no error in that
determination. Amended Opinion, Feb. 15, 2023 at 7.
{¶84} We review a trial court’s decision allocating tax exemptions for dependents
under an abuse of discretion standard. Hughes v. Hughes, 35 Ohio St.3d 165, 518 N.E.2d
1213 (1988); Doyle v. Metzger, 5th Dist., Stark No. 2015CA00002, 2015-Ohio-3738, ¶ 25.
In order to find an abuse of discretion, we must find that the trial court’s decision in
awarding the exemption to mother and father in alternate years was arbitrary,
unconscionable or unreasonable and not merely an error or law or judgment. Blakemore,
supra.
{¶85} R.C. 3119.82 provides that if the parties are not in agreement the court in
its order may permit the parent who is not the residential parent and legal custodian to
claim the children as dependents for federal income tax purpose only if the court
determines that this furthers the best interests of the children. It further provides that in
cases which the parties do not agree, the court shall consider any net tax savings, the
relative financial circumstances and needs of the parents and children, the amount of time
the children spend with each parent, the eligibility of either or both parents for the federal
earned income tax credit or other state or federal tax credit and any other relevant fact
concerning the best interest of the children. Licking County, Case No. 2023 CA 00047 21
{¶86} “The best interest of the child is furthered when the allocation of the tax
exemption to the noncustodial parent produces a net savings for the parents.” Doyle v.
Metzger, supra, at ¶ 29 citing Nist v. Nist, 5th Dist., Delaware No. 02CAF11060, 2003-
Ohio-3292.
{¶87} The Magistrate, fully aware of the statute, considered the tax exemption
question with particular consideration to “any other relevant factor concerning the best
interest of the children.” Magistrate’s Decision, Sept. 20, 2022 at 28. The trial court
independently reviewed that Decision and adopted it. Amended Opinion, Feb. 15, 2023;
Judgment Entry, May 3, 2023.
{¶88} We find no abuse of discretion. The mother’s assignment of error is
overruled.
CROSS APPEAL IX
{¶89} In this assignment of error, mother claims that the trial court erred in failing
to award her attorneys’ fees and litigation expenses. The record shows that father was
ordered to pay mother $2,500 for expert witness fees. The record also shows that father’s
request for attorneys’ fees was denied by the trial court. Notably, the father’s request for
attorneys’ fees cited the same statute, R.C. 3105.73(B), as mother cites as authority for
such request. The Magistrate questioned whether the statute was applicable, given that
this case arose out of a parentage action and not an action for divorce, dissolution, legal
separation, or an annulment of marriage or an appeal of that motion or proceeding.
Magistrate’s Decision, Sept. 20, 2022 at 29. Likewise, we question mother’s use of R. C.
3105.73(B) here. Licking County, Case No. 2023 CA 00047 22
{¶90} This Court has held that the request for attorney fees is vested in the sound
discretion of the trial court. Dotts v. Schaefer, 5th Dist., Tuscarawas No. 2014 AP 06 0022,
2015-Ohio-782, ¶ 17 (“The resolution of a request for attorney fees is vested in the sound
discretion of the trial court and will not be overturned upon review absent a showing of an
abuse of discretion.” Accord, Brown v. Brown, 5th Dist., Stark No. 2017CA00017, 2017-
Ohio-8175, ¶ 58.
{¶91} When the father asked for attorneys’ fees, the Magistrate applied the
“American Rule” regarding attorneys’ fees that holds that each party is responsible for its
litigation expenses.
{¶92} Mother requested attorneys’ fees in a motion filed on February 7, 2020. It
was set for oral hearing and on February 27, the Magistrate ordered father to pay $5,000
towards mother’s financial expert, which was later amended to $2500. At the final
hearing, the Magistrate considered the evidence presented, in light of the relevant factors
and determined that it would not be appropriate to grant the request for attorneys’ fees of
either mother or father.
{¶93} After objections to the Magistrate’s Decision were heard, the trial court
considered the issue of attorneys’ fees for mother as the custodial parent. It rejected the
payment of attorneys’ fees to either parent saying:
As indicated above, the delays which occurred during the trial of this
matter were due to COVID 19 and a funeral for which neither party was
specifically at fault. However, both parties had the opportunity to resolve
this matter through mediation, but failed to reach an agreement in
mediation. Licking County, Case No. 2023 CA 00047 23
Instead, the parties chose to pursue these matters on a contested
basis and both parties incurred substantial fees as a result. In review of all
of the evidence produced at trial, the court cannot find error in the
Magistrate’s decision that an additional award of attorney fees to either
party would not be reasonable.
{¶94} Amended Opinion, Feb. 15, 2023 at 8. See also Judgment Entry, May 3,
2023 at 24.
{¶95} This Court does not find that the trial court abused its discretion. Mother’s
assignment of error is, therefore, overruled.
CROSS APPEAL X
{¶96} In her last assignment of error, mother contends that the trial court erred in
failing to order the father to obtain duplicate health insurance for the child.
{¶97} Again, the argument is reviewed by this Court under an abuse of discretion
standard.
{¶98} The Magistrate’s Decision provided as follows:
(ii) Health Care Coverage for the Child
Based upon the relevant evidence admitted into the record, the
Magistrate determines that it is appropriate for an order to be entered
providing for the First Petitioner-Mother to maintain private health care
insurance coverage for the child, provided such coverage is available to her
at a ‘reasonable cost’ and is ‘accessible’ as these terms are defined by
Revised Code 3119.29. The Magistrate finds from the evidence admitted Licking County, Case No. 2023 CA 00047 24
into the record that the First Petitioner-Mother has such insurance coverage
in effect for the child at this time.
{¶99} Magistrate’s Decision, Sept. 20, 2022 at 27.
{¶100} As to extraordinary medical expenses, the Magistrate ordered the father to
pay ninety percent of the extraordinary medical expenses as defined by R.C.
3119.01(C)(7).
{¶101} In its Amended Opinion/Judgment Entry independently reviewing the
objections to Magistrate’s Decision, the trial court found that the calculation in determining
child support was based on the determination that mother would maintain private health
care insurance. Amended Opinion, Feb. 15, 2023 at 7.
{¶102} Mother argues that by ordering the father and mother to both maintain
health insurance, this would “ensure that should either party lose health insurance, that
the child would be covered.” Cross Appeal Brief at 29. This argument fails to consider
the order of the trial court which states that if medical insurance is no longer available to
mother, alternative options are available.
{¶103} This Court finds that the trial court did not abuse its discretion in affirming
the decision of the Magistrate. The record shows that mother maintained health insurance
for the child, and this fact was taken into consideration in the determination of monthly
child support. In the event, such medical insurance is no longer accessible at a
reasonable cost, the matter may be reopened based on new considerations. The record
shows that the father is self-employed and medical insurance that would duplicate the
insurance maintained by the mother is unnecessary. So, too, father was ordered to pay Licking County, Case No. 2023 CA 00047 25
ninety percent of all extraordinary medical costs, $30.24 per month in cash medical
support and the sum of $600 per month on the arrearage.
{¶104} This Court overrules mother’s assignment of error.
CONCLUSION
{¶105} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Domestic Relations Division, Licking County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/kt 0222