Million v. Million

2020 Ohio 4849

• Court: Ohio Court of Appeals
• Decided: October 9, 2020
• Docket: 28651
• Status: Published

Opinion

[Cite as Million v. Million, 2020-Ohio-4849.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

ANGELA L. MILLION : : Plaintiff-Appellee : Appellate Case No. 28651 : v. : Trial Court Case No. 2012-DR-79 : HERSHEL T. MILLION : (Domestic Relations Appeal) : Defendant-Appellant : :

OPINION

Rendered on the 9th day of October, 2020.

...........

JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

P.J. CONBOY, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Defendant-appellant Hershel T. Million appeals from a judgment of the

Montgomery County Court of Common Pleas, Domestic Relations Division, which granted

plaintiff-appellee Angela L. Million’s motion to modify child support for the parties’ son.

Father filed a timely notice of appeal on December 24, 2019.

{¶ 2} Hershel and Angela were married on July 3, 1999. The parties adopted one

child together during their marriage. The parties later divorced; the decree of divorce

and a shared parenting decree were filed on January 30, 2013. While both parties were

designated as legal custodian of their son, Angela was designated as the residential

parent for purposes of school attendance. The shared parenting decree did not order

child support to be paid by either party. Specifically, the shared parenting plan stated as

follows:

Since [son] was adopted, the parents each receive a stipend check

from the State of Ohio to cover [son]’s care. Mother is hereby awarded all

of the stipend proceeds and she is entitled to receive both stipend checks

every month. In lieu of child support, Father is hereby Ordered to give his

check to Mother each month immediately upon receipt of said check.

The parents shall cooperate to establish direct deposit of the stipend checks

into Mother’s bank account each month.

The Court shall retain jurisdiction over child support.1

Shared Parenting Decree p. 3.

{¶ 3} On October 10, 2018, Angela filed a motion to modify child support. In the

1The parties receive two adoption stipend checks, which are in the amounts of $250.00 and $791.58. Magistrate’s Decision p. 4, fn. 1. -3-

following months, the parties filed several other motions which are not relevant to this

appeal. A hearing on the motion to modify child support was held before a magistrate

on May 21, 2019, and the parties were allowed to submit post-hearing briefs further

detailing their respective positions. On August 6, 2019, the magistrate issued a decision

in which she found that the son’s stipend checks could not be applied in lieu of child

support and recommended that Hershel be ordered to pay $565.45 a month in child

support. Additionally, the magistrate recommended that Angela continue to receive both

stipend checks for the care and support of the parties’ son. On August 14, 2019, Hershel

filed objections to the magistrate’s decision, which he later supplemented in objections

filed on October 25, 2019. Angela filed a reply to Hershel’s objections on November 8,

2019.

{¶ 4} On December 2, 2019, the trial court overruled Hershel’s objections and

adopted the magistrate’s decision in its entirety. Pertinent to the instant appeal, the trial

court held that Adoptive Assistance stipend checks could not be applied in lieu of child

support and that the stipend checks were not a proper basis for a deviation in child

support.

{¶ 5} It is from this judgment that Hershel now appeals.

{¶ 6} Hershel’s sole assignment of error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DETERMINATION

WITH REGARD TO CHILD SUPPORT.

{¶ 7} Hershel contends that the trial court abused its discretion by ordering him to

pay child support without considering the Adoptive Assistance stipend checks received

by the parties for their son’s benefit. Hershel argues that he should receive a credit -4-

toward any child support obligation for the stipend checks received from the state and

federal governments. We note that Hershel acknowledges in his brief that he is not

requesting that the adoption subsidy be listed as income in the child support computation

worksheet.

{¶ 8} A trial court's decision regarding a child support obligation will not be

reversed on appeal absent an abuse of discretion. L.B. v. T.B., 2d Dist. Montgomery No.

24441, 2011-Ohio-3418, ¶ 5; Snyder v. Snyder, 8th Dist. Cuyahoga No. 95421, 2011-

Ohio-1372, ¶ 42, citing Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108.

“Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248

(1985). A decision is unreasonable if there is no sound reasoning process that would

support that decision. AAAA Ents. Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990). See also Feldmiller v. Feldmiller, 2d

Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.

{¶ 9} The Title IV-E Adoption Assistance Program set forth in Section 670 et seq.,

Title 42, U.S.Code, provides financial support for children who are adopted and have

special needs, like the Millions’ son. Weaver v. Ohio Dept. of Job & Family Servs., 153

Ohio App.3d 331, 2003-Ohio-3827, 794 N.E.3d 92, ¶ 4 (1st Dist.). The program is

administered by the states subject to certain federal requirements. Id.; Section 671, Title

42, U.S.Code. In particular, Section 673(a)(3) states that adoption assistance

* * * shall be determined through agreement between the adoptive parents

and the State or local agency * * * which shall take into consideration the

circumstances of the adopting parents and the needs of the child being -5-

adopted, and may be readjusted periodically, with the concurrence of the

adopting parents * * * depending upon changes in circumstances. * * *

{¶ 10} R.C. 3119.23 lists 16 factors a trial court may consider in determining

whether to deviate from the child support guidelines. Specifically, R.C. 3119.23 states:

The court may consider any of the following factors in determining

whether to grant a deviation pursuant to section 3119.22 of the Revised

Code:

(A) Special and unusual needs of the child or children, including

needs arising from the physical or psychological condition of the child or

children;

(B) Other court-ordered payments;

(C) Extended parenting time or extraordinary costs associated with

parenting time, including extraordinary travel expenses when exchanging

the child or children for parenting time;

(D) The financial resources and the earning ability of the child or

(E) The relative financial resources, including the disparity in income

between parties or households, other assets, and the needs of each parent;

(F) The obligee's income, if the obligee's annual income is equal to

or less than one hundred per cent of the federal poverty level;

(G) Benefits that either parent receives from remarriage or sharing

living expenses with another person;

(H) The amount of federal, state, and local taxes actually paid or -6-

estimated to be paid by a parent or both of the parents;

(I) Significant in-kind contributions from a parent, including, but not

limited to, direct payment for lessons, sports equipment, schooling, or

clothing;

(J) Extraordinary work-related expenses incurred by either parent;

(K) 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;

(L) The educational opportunities that would have been available to

the child had the circumstances requiring a child support order not arisen;

(M) The responsibility of each parent for the support of others,

including support of a child or children with disabilities who are not subject

to the support order;

(N) Post-secondary educational expenses paid for by a parent for the

parent's own child or children, regardless of whether the child or children

are emancipated;

(O) Costs incurred or reasonably anticipated to be incurred by the

parents in compliance with court-ordered reunification efforts in child abuse,

neglect, or dependency cases;

(P) Extraordinary child care costs required for the child or children

that exceed the maximum state-wide average cost estimate as described in

division (P)(1)(d) of section 3119.05 of the Revised Code, including

extraordinary costs associated with caring for a child or children with -7-

specialized physical, psychological, or educational needs;

(Q) Any other relevant factor.

{¶ 11} Hershel does not argue here that any of the above factors apply specifically

to Adoption Assistance stipends. Rather, as previously stated, Hershel argues that there

should be a downward deviation in his child support obligation because Angela receives

all of the Adoption Assistance stipend. However, we agree with the trial court that

Adoption Assistance stipends should not be used to justify a deviation from the child

support computation schedule. The trial court found that Adoption Assistance payments

were analogous to Supplemental Security Income (“SSI”) benefits received by a disabled

child, which the Ohio Supreme Court has held do not qualify as a financial resource of

the child pursuant to R.C. 3119.23. See Paton v. Paton, 91 Ohio St.3d 94, 98, 742 N.E.2d

619 (2001); see also Abrams v. Abrams, 2017-Ohio-4319, 92 N.E.3d 368, ¶ 60 (2d Dist.)

(the trial court did not abuse its discretion in applying the holding in Paton and in finding

that the magistrate did not err in failing to grant [Father] a deviation from the child support

worksheet computation as a result of [the daughter’s] social security disability benefits).

{¶ 12} In Paton, the magistrate treated the social security benefits of a child with a

disability as a financial resource of the child and deducted an amount representing the

social security benefits from the parents' combined annual support obligation. Paton at

94-95. The Supreme Court found that this treatment was inappropriate, explaining:

“While we do not dispute that SSI benefits are arguably a financial resource of a recipient,

we do not believe that SSI benefits are the type of ‘financial resource’ that justifies a trial

court's decision to deviate from the basic child support schedules.” Id. at 96. Rather, the

supreme court found that “SSI benefits received by a disabled child ‘are intended to -8-

supplement other income, not substitute for it.’ ” Id. at 97, quoting Oatley v. Oatley, 57

Ohio App.2d 226, 228, 387 N.E.2d 245 (6th Dist.1977).

{¶ 13} Upon review, we agree with the trial court that Adoption Assistance stipends

should be treated as analogous to SSI benefits received by a disabled child because the

adoption stipends are “for the benefit of the child, and not the parent, as the subsidy is

based upon the child’s special needs.” CCDJFS v. Miller, 5th Dist. Coshocton No. 11-

CA-8, 2011-Ohio-6356, ¶ 14. As previously stated, the Title IV-E Adoption Assistance

Program provides financial support for children, like H.T., who are adopted and have

special needs. Weaver, 153 Ohio St.3d 331, 2003-Ohio-3827, 794 N.E.3d 92, at ¶ 4.

The adoptive parents’ incomes are taken into account when the adoption assistance

payment is established. Ohio Adm. Code 5101:2-49-05(B). Accordingly, like the receipt

of SSI benefits, receipt of the Adoption Assistance stipend does not absolve the parents

of the necessity of providing for their child. Therefore, we conclude that the trial court

did not abuse its discretion when it found that H.T.’s Adoptive Assistance stipend checks

could not be used in lieu of child support and that the stipend checks were not a basis for

deviation from the guidelines in computing Hershel’s child support obligation.

{¶ 14} Hershel’s assignment of error is overruled.

{¶ 15} Hershel’s assignment of error having been overruled, the judgment of the

trial court is affirmed.

FROELICH, J. and WELBAUM, J., concur. -9-

Copies sent to:

John S. Pinard P.J. Conboy, II Hon. Denise L. Cross