[Cite as McCracken v. McCracken, 2014-Ohio-1411.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: PENNY MCCRACKEN : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2013CA00223 THOMAS MCCRACKEN, JR. : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2005DR01376
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DAVID AKE PAUL HERVEY 301 FirstMerit Building 116 Cleveland Ave. N.W., Ste. 802 4481 Munson St. N.W. Canton, OH 44702 Canton, OH 44718 [Cite as McCracken v. McCracken, 2014-Ohio-1411.]
Gwin, P.J.
{¶1} Appellant appeals the November 5, 2013 judgment entry of the Stark
County Common Pleas Court, Domestic Relations Division, granting appellee’s motion
to modify child support.
Facts & Procedural History
{¶2} Appellant Penny McCracken and appellee Thomas McCracken, Jr.
divorced on June 9, 2006. Appellant and appellee are the parents of two minor
children, both born on September 30, 1999. In the June 9, 2006 judgment entry
granting the divorce, the trial court found shared parenting of the children to be
appropriate and adopted a modified shared parenting plan. At the time of the divorce,
appellee’s gross income was $36,930 and appellant’s gross income was $51,227. In
2006, appellant was found to be the obligor for child support purposes. However, the
trial court made a downward deviation in her child support obligation due to her
parenting time and ordered appellant to pay $166.66 per month in child support, per
child. Appellant did not appeal the June 9, 2006 judgment entry finding her to be the
obligor for purposes of child support.
{¶3} On June 14, 2013, appellant filed a motion to modify visitation and child
support. Appellant sought to restrict appellee’s visitation, terminate child support, name
appellant as the custodial parent, and requested child support from appellee. On July
31, 2013, appellee filed a motion to modify child support based on the current financial
affidavits of the parties. The trial court held a hearing on the motions on November 4,
2013. Appellant withdrew her motion to modify or terminate shared parenting. The
parties stipulated to the fact that appellant has 57% of the parenting time and appellee Stark County, Case No. 2013CA00223 3
has 43% of the parenting time. Further, for purposes of child support calculations, the
parties stipulated that appellant’s current income is $80,366 per year and appellee’s
income is $42,513 per year. The only change in living arrangements since 2006 is that
appellant’s boyfriend moved in with her.
{¶4} The trial court issued a decision on November 5, 2013. The trial court
noted appellant’s counsel argued “that to force [appellant] to continue to pay child
support is the equivalent of requiring her to continue to pay spousal support.” However,
the trial court stated, “[t]he Court disagrees. Mother has more income in her home. The
parties have shared parenting and it makes no sense to transfer cash from Father to
Mother. Mother will continue as obligor.” The trial court attached to its entry a child
support computation worksheet. As the trial court did in 2006, it found the child support
computation worksheet amount to be unjust, inappropriate, and not in the children’s
best interest due to the time allocation in the shared parenting. Thus, appellant again
received the same approximately 50% downward deviation she received in 2006 due to
the allocation of shared parenting time. The trial court ordered appellant to pay $244.18
per child per month, plus a 2% processing fee when medical insurance is provided, and
$233.55 per month per child plus $96.79 cash medical when medical insurance is not
provided.
{¶5} Appellant appeals the November 5, 2013 judgment entry and assigns the
following as error:
{¶6} “I. THE TRIAL COURT ERRED IN FINDING THE APPELLANT TO BE
THE OBLIGOR FOR CHILD SUPPORT PURPOSES.” Stark County, Case No. 2013CA00223 4
I.
{¶7} Appellant argues the trial court erred in determining the amount of the
child support obligation because appellant should not have been found to be the child
support obligor and because the trial court improperly utilized child support as a means
of ordering appellant to pay spousal support. We disagree.
{¶8} Trial courts are given broad discretion in determining whether to modify
child support orders and determining child support. Booth v. Booth, 44 Ohio St.3d 142,
144, 541 N.E.2d 1028, 1030 (1989). Therefore, a trial court’s decision regarding a
motion to modify a child support order will not be overturned absent an abuse of
discretion. Id. In order to find an abuse of discretion, we must determine the trial
court’s decision was unreasonable, arbitrary, or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140
(1983).
{¶9} Child support is generally calculated using the child support guidelines
and worksheet. R.C. 3119.03. This figure is rebuttably presumed to be the correct
amount of child support, although the trial court may deviate from that amount. R.C.
3119.03. R.C. 3119.24 applies in the case of shared parenting and provides the trial
court may deviate from the amount of child support in the worksheet if it determines the
guideline amount would be unjust or inappropriate to the children or either parent and
would not be in the best interest of the child because of the extraordinary circumstances
of the parents or because of any other factors in R.C. 3119.23. Extraordinary
circumstances of the parents include (1) the amount of time the children spend with
each parent; (2) the ability of each parent to maintain adequate housing for the children; Stark County, Case No. 2013CA00223 5
(3) each parent’s expenses * * *; and (4) any other circumstances the court considers
relevant. R.C. 3119.24(2)(B).
{¶10} When deviating from the amount of child support determined in the
worksheet, a court should consider the factors in R.C. 3119.23, including the disparity in
income between parties or households; the need and capacity of the child for an
education and the educational opportunities that would have been available to the child
had the circumstances requiring a court order for support not arisen; and any other
factor the court deems relevant. R.C. 3119.23(G), (N), and (P).
{¶11} In this case, the trial court states its decision to maintain appellant as
obligor is because appellant has more income in her home. The parties stipulated to
the incomes of $80,366 per year for appellant and $42,513 per year for appellee. “It
has been held that, where a trial court follows the statutory guidelines for calculating
child support, designating one parent, particularly the one who earns significantly more
than the other, as obligor in a shared parenting situation is not an abuse of discretion.”
Sexton v. Sexton, 10th Dist. Franklin No. 07AP-396, 2007-Ohio-6539. In this case, we
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[Cite as McCracken v. McCracken, 2014-Ohio-1411.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: PENNY MCCRACKEN : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2013CA00223 THOMAS MCCRACKEN, JR. : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2005DR01376
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DAVID AKE PAUL HERVEY 301 FirstMerit Building 116 Cleveland Ave. N.W., Ste. 802 4481 Munson St. N.W. Canton, OH 44702 Canton, OH 44718 [Cite as McCracken v. McCracken, 2014-Ohio-1411.]
Gwin, P.J.
{¶1} Appellant appeals the November 5, 2013 judgment entry of the Stark
County Common Pleas Court, Domestic Relations Division, granting appellee’s motion
to modify child support.
Facts & Procedural History
{¶2} Appellant Penny McCracken and appellee Thomas McCracken, Jr.
divorced on June 9, 2006. Appellant and appellee are the parents of two minor
children, both born on September 30, 1999. In the June 9, 2006 judgment entry
granting the divorce, the trial court found shared parenting of the children to be
appropriate and adopted a modified shared parenting plan. At the time of the divorce,
appellee’s gross income was $36,930 and appellant’s gross income was $51,227. In
2006, appellant was found to be the obligor for child support purposes. However, the
trial court made a downward deviation in her child support obligation due to her
parenting time and ordered appellant to pay $166.66 per month in child support, per
child. Appellant did not appeal the June 9, 2006 judgment entry finding her to be the
obligor for purposes of child support.
{¶3} On June 14, 2013, appellant filed a motion to modify visitation and child
support. Appellant sought to restrict appellee’s visitation, terminate child support, name
appellant as the custodial parent, and requested child support from appellee. On July
31, 2013, appellee filed a motion to modify child support based on the current financial
affidavits of the parties. The trial court held a hearing on the motions on November 4,
2013. Appellant withdrew her motion to modify or terminate shared parenting. The
parties stipulated to the fact that appellant has 57% of the parenting time and appellee Stark County, Case No. 2013CA00223 3
has 43% of the parenting time. Further, for purposes of child support calculations, the
parties stipulated that appellant’s current income is $80,366 per year and appellee’s
income is $42,513 per year. The only change in living arrangements since 2006 is that
appellant’s boyfriend moved in with her.
{¶4} The trial court issued a decision on November 5, 2013. The trial court
noted appellant’s counsel argued “that to force [appellant] to continue to pay child
support is the equivalent of requiring her to continue to pay spousal support.” However,
the trial court stated, “[t]he Court disagrees. Mother has more income in her home. The
parties have shared parenting and it makes no sense to transfer cash from Father to
Mother. Mother will continue as obligor.” The trial court attached to its entry a child
support computation worksheet. As the trial court did in 2006, it found the child support
computation worksheet amount to be unjust, inappropriate, and not in the children’s
best interest due to the time allocation in the shared parenting. Thus, appellant again
received the same approximately 50% downward deviation she received in 2006 due to
the allocation of shared parenting time. The trial court ordered appellant to pay $244.18
per child per month, plus a 2% processing fee when medical insurance is provided, and
$233.55 per month per child plus $96.79 cash medical when medical insurance is not
provided.
{¶5} Appellant appeals the November 5, 2013 judgment entry and assigns the
following as error:
{¶6} “I. THE TRIAL COURT ERRED IN FINDING THE APPELLANT TO BE
THE OBLIGOR FOR CHILD SUPPORT PURPOSES.” Stark County, Case No. 2013CA00223 4
I.
{¶7} Appellant argues the trial court erred in determining the amount of the
child support obligation because appellant should not have been found to be the child
support obligor and because the trial court improperly utilized child support as a means
of ordering appellant to pay spousal support. We disagree.
{¶8} Trial courts are given broad discretion in determining whether to modify
child support orders and determining child support. Booth v. Booth, 44 Ohio St.3d 142,
144, 541 N.E.2d 1028, 1030 (1989). Therefore, a trial court’s decision regarding a
motion to modify a child support order will not be overturned absent an abuse of
discretion. Id. In order to find an abuse of discretion, we must determine the trial
court’s decision was unreasonable, arbitrary, or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140
(1983).
{¶9} Child support is generally calculated using the child support guidelines
and worksheet. R.C. 3119.03. This figure is rebuttably presumed to be the correct
amount of child support, although the trial court may deviate from that amount. R.C.
3119.03. R.C. 3119.24 applies in the case of shared parenting and provides the trial
court may deviate from the amount of child support in the worksheet if it determines the
guideline amount would be unjust or inappropriate to the children or either parent and
would not be in the best interest of the child because of the extraordinary circumstances
of the parents or because of any other factors in R.C. 3119.23. Extraordinary
circumstances of the parents include (1) the amount of time the children spend with
each parent; (2) the ability of each parent to maintain adequate housing for the children; Stark County, Case No. 2013CA00223 5
(3) each parent’s expenses * * *; and (4) any other circumstances the court considers
relevant. R.C. 3119.24(2)(B).
{¶10} When deviating from the amount of child support determined in the
worksheet, a court should consider the factors in R.C. 3119.23, including the disparity in
income between parties or households; the need and capacity of the child for an
education and the educational opportunities that would have been available to the child
had the circumstances requiring a court order for support not arisen; and any other
factor the court deems relevant. R.C. 3119.23(G), (N), and (P).
{¶11} In this case, the trial court states its decision to maintain appellant as
obligor is because appellant has more income in her home. The parties stipulated to
the incomes of $80,366 per year for appellant and $42,513 per year for appellee. “It
has been held that, where a trial court follows the statutory guidelines for calculating
child support, designating one parent, particularly the one who earns significantly more
than the other, as obligor in a shared parenting situation is not an abuse of discretion.”
Sexton v. Sexton, 10th Dist. Franklin No. 07AP-396, 2007-Ohio-6539. In this case, we
find the trial court specifically tailored the parenting time and child support obligation to
the specific needs and conditions of the parties. See Garner v. Boyd, 5th Dist.
Muskingum No. CT11-0050, 2012-Ohio-1489. Appellant is designated obligor because
the trial court found it was in the children’s best interest, the parties had disparate
incomes, and it was necessary to allow the children to enjoy a similar standard of living
in both homes. Appellant received a downward deviation due to the time allocation in
shared parenting. Upon review of the record, we find no abuse of discretion in the child Stark County, Case No. 2013CA00223 6
support obligation and the trial court’s continued designation of appellant as child
support obligor.
{¶12} We further find the trial court did not improperly utilize child support as a
means of awarding appellee spousal support. In its judgment entry, the trial court
specifically stated it “disagreed” with appellant’s contention “that to force [appellant] to
continue to pay child support is the equivalent of requiring her to continue to pay
spousal support.” As noted above, appellant’s income is approximately twice that of
appellee. When the trial court completed the child support computation worksheet
utilizing the numbers stipulated to by the parties, appellant’s child support obligation
increased proportionally to the increase in her income. The trial court utilized R.C.
3119.24 to deviate from this higher amount due to the time allocation in the shared
parenting plan and ordered a downward deviation proportionally similar to the deviation
she received in 2006. We find the child support amount and the deviation from this
amount to be supported by the record and the factors listed in R.C. 3119.23 and R.C.
3119.24, and are not utilized by the trial court to improperly award spousal support to
appellee. Stark County, Case No. 2013CA00223 7
{¶13} Based on the foregoing, appellant’s assignment of error is overruled. The
November 5, 2013 judgment entry of the Stark County Court of Common Pleas,
Domestic Relations Division, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur