[Cite as R.G. v. N.G., 2022-Ohio-1886.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
R.G. : JUDGES: : Hon. Earle E. Wise, Jr., P.J. First Petitioner-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : N.G. : Case No. 2021 CA 00093 : Second Petitioner-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2012 DR 01063 DF
JUDGMENT: Affirmed/Reversed in Part and Remanded
DATE OF JUDGMENT: June 3, 2022
APPEARANCES:
For First Petitioner-Appellant For Second Petitioner-Appellee
CHRISTOPHER L. TROLINGER NINA M. GETREU 175 South Third Street 683 West Broadway Street Suite 720 Apt. 1 Columbus, OH 43215 Granville, OH 43023 Licking County, Case No. 2021 CA 00093 2
Wise, Earle, P.J.
{¶ 1} First Petitioner-Appellant, R.G., appeals the November 3, 2021 judgment
entry of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division,
on the issue of child support. Second Petitioner-Appellee is N.G.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee were granted a dissolution on October 16, 2012.
The parties have two children. Pursuant to a shared parenting plan and separation
agreement signed by the parties, appellant was to pay child support in the amount of $300
per month, per child.
{¶ 3} On September 21, 2018, child support for the parties' older child terminated
because the child attained the age of majority.
{¶ 4} On April 2, 2020, appellant filed a motion for termination or modification of
shared parenting decree that contained a motion to modify child support. Appellee filed
her own motion to modify and/or increase child support on May 6, 2020.
{¶ 5} On November 30, 2020, the parties submitted and the trial court signed an
agreed judgment entry wherein they agreed to maintain the shared parenting plan. The
contested issues were child support modification, summer parenting time, and tax
exemption. A hearing was held on December 2, 2020. At the start of the hearing, the
trial court noted the parties would have “limited time." By judgment entry filed December
11, 2020, the trial court issued orders relative to child support. The trial court determined
appellant's income, imputed income to appellee, adjusted appellant's obligation by $4,500
per year because he provides health insurance for the child, deviated appellant's
obligation by 10% because appellant had overnight parenting in excess of ninety days, Licking County, Case No. 2021 CA 00093 3
and further deviated his obligation by $76.29 per month because it was "just, appropriate,
and in the child's best interest and the reason for the deviation is the extended parenting
time and support provided by Father." The trial court set appellant's child support
obligation at $700.42 per month, alternated years for tax purposes, and determined the
parties could each take the child on a 9-day summer vacation each year, with notification
requirements. An additional judgment entry was filed on December 16, 2020, to correct
a scrivener's error.
{¶ 6} On December 30, 2020, appellant filed an appeal, challenging the
imputation of income for appellee and claiming the trial court arbitrarily determined the
amount of deviation and violated his rights by limiting his presentation of evidence. On
appeal, this court found "the trial court committed error in only imputing full-time minimum
wage to Mother instead of $24,585.60" and erred and abused its discretion by failing to
apply the statutory factors in determining the amount of deviation in child support. Getreu
v. Getreu, 5th Dist. Licking No. 2020 CA 00083, 2021-Ohio-2761, ¶ 46-47 ("Getreu I").
On the issue of a limited hearing, "we find the imposition by the trial judge of such a limited
time period on both parties in this case concerning, [however] Father did not appropriately
object to the time limitation imposed by the trial court." Id. at ¶ 64. We concluded,
"counsel for Father did not appropriately object to the time limitation, made no proffer,
and did not state either at the trial court level or on appeal what additional evidence he
sought to introduce, or how this evidence may have impacted the trial court's decision."
Id. at ¶ 66. We remanded the case for further proceedings.
{¶ 7} Upon remand, in a judgment entry filed August 13, 2021, the trial court
imputed appellee's income to that of $24,585.60 per this court's opinion. On October 11, Licking County, Case No. 2021 CA 00093 4
2021, the trial court held a supplemental hearing on the deviation issue and heard
additional evidence from both parties. By judgment entry filed November 3, 2021, the
trial court considered the deviation statutory factors and found a monthly downward
deviation of $74.98 per month ($899.76 annually) as well as a monthly upward deviation
of $75.00 ($900.00 annually).
{¶ 8} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 9} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
CONSIDERING AND FINDING AN UPWARD DEVIATION AS SUCH WAS
CONSIDERATION AND FINDING WAS BARRED BY THE LAW OF THE CASE
DOCTRINE IN THE MANDATE RULE."
II
{¶ 10} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ARBITRARILY DETERMINING THE AMOUNT OF DEVIATION IN CHILD SUPPORT
FOR APPELLANT-OBLIGOR."
III
{¶ 11} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO PROVIDE THE CASH MEDICAL DEVIATION ON THE GUIDELINE CHILD
SUPPORT WORKSHEET."
I Licking County, Case No. 2021 CA 00093 5
{¶ 12} In his first assignment of error, appellant claims the trial court erred and
abused its discretion in considering and finding an upward deviation as such was barred
by the law of the case doctrine. We disagree.
{¶ 13} In Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984), the Supreme
Court of Ohio explained "law of the case doctrine" as follows:
Briefly, the doctrine provides that the decision of a reviewing court in
a case remains the law of that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.
The doctrine is considered to be a rule of practice rather than a
binding rule of substantive law and will not be applied so as to achieve
unjust results. However, the rule is necessary to ensure consistency of
results in a case, to avoid endless litigation by settling the issues, and to
preserve the structure of superior and inferior courts as designed by the
Ohio Constitution.
In pursuit of these goals, the doctrine functions to compel trial courts
to follow the mandates of reviewing courts. Thus, where at a rehearing
following remand a trial court is confronted with substantially the same facts
and issues as were involved in the prior appeal, the court is bound to adhere
to the appellate court's determination of the applicable law. (Citations
omitted.) Licking County, Case No. 2021 CA 00093 6
{¶ 14} In Getreu I, appellant specifically argued in Assignment of Error III: "THE
TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ARBITRARILY
DETERMINING THE AMOUNT OF DEVIATION IN CHILD SUPPORT FOR
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[Cite as R.G. v. N.G., 2022-Ohio-1886.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
R.G. : JUDGES: : Hon. Earle E. Wise, Jr., P.J. First Petitioner-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : N.G. : Case No. 2021 CA 00093 : Second Petitioner-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2012 DR 01063 DF
JUDGMENT: Affirmed/Reversed in Part and Remanded
DATE OF JUDGMENT: June 3, 2022
APPEARANCES:
For First Petitioner-Appellant For Second Petitioner-Appellee
CHRISTOPHER L. TROLINGER NINA M. GETREU 175 South Third Street 683 West Broadway Street Suite 720 Apt. 1 Columbus, OH 43215 Granville, OH 43023 Licking County, Case No. 2021 CA 00093 2
Wise, Earle, P.J.
{¶ 1} First Petitioner-Appellant, R.G., appeals the November 3, 2021 judgment
entry of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division,
on the issue of child support. Second Petitioner-Appellee is N.G.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee were granted a dissolution on October 16, 2012.
The parties have two children. Pursuant to a shared parenting plan and separation
agreement signed by the parties, appellant was to pay child support in the amount of $300
per month, per child.
{¶ 3} On September 21, 2018, child support for the parties' older child terminated
because the child attained the age of majority.
{¶ 4} On April 2, 2020, appellant filed a motion for termination or modification of
shared parenting decree that contained a motion to modify child support. Appellee filed
her own motion to modify and/or increase child support on May 6, 2020.
{¶ 5} On November 30, 2020, the parties submitted and the trial court signed an
agreed judgment entry wherein they agreed to maintain the shared parenting plan. The
contested issues were child support modification, summer parenting time, and tax
exemption. A hearing was held on December 2, 2020. At the start of the hearing, the
trial court noted the parties would have “limited time." By judgment entry filed December
11, 2020, the trial court issued orders relative to child support. The trial court determined
appellant's income, imputed income to appellee, adjusted appellant's obligation by $4,500
per year because he provides health insurance for the child, deviated appellant's
obligation by 10% because appellant had overnight parenting in excess of ninety days, Licking County, Case No. 2021 CA 00093 3
and further deviated his obligation by $76.29 per month because it was "just, appropriate,
and in the child's best interest and the reason for the deviation is the extended parenting
time and support provided by Father." The trial court set appellant's child support
obligation at $700.42 per month, alternated years for tax purposes, and determined the
parties could each take the child on a 9-day summer vacation each year, with notification
requirements. An additional judgment entry was filed on December 16, 2020, to correct
a scrivener's error.
{¶ 6} On December 30, 2020, appellant filed an appeal, challenging the
imputation of income for appellee and claiming the trial court arbitrarily determined the
amount of deviation and violated his rights by limiting his presentation of evidence. On
appeal, this court found "the trial court committed error in only imputing full-time minimum
wage to Mother instead of $24,585.60" and erred and abused its discretion by failing to
apply the statutory factors in determining the amount of deviation in child support. Getreu
v. Getreu, 5th Dist. Licking No. 2020 CA 00083, 2021-Ohio-2761, ¶ 46-47 ("Getreu I").
On the issue of a limited hearing, "we find the imposition by the trial judge of such a limited
time period on both parties in this case concerning, [however] Father did not appropriately
object to the time limitation imposed by the trial court." Id. at ¶ 64. We concluded,
"counsel for Father did not appropriately object to the time limitation, made no proffer,
and did not state either at the trial court level or on appeal what additional evidence he
sought to introduce, or how this evidence may have impacted the trial court's decision."
Id. at ¶ 66. We remanded the case for further proceedings.
{¶ 7} Upon remand, in a judgment entry filed August 13, 2021, the trial court
imputed appellee's income to that of $24,585.60 per this court's opinion. On October 11, Licking County, Case No. 2021 CA 00093 4
2021, the trial court held a supplemental hearing on the deviation issue and heard
additional evidence from both parties. By judgment entry filed November 3, 2021, the
trial court considered the deviation statutory factors and found a monthly downward
deviation of $74.98 per month ($899.76 annually) as well as a monthly upward deviation
of $75.00 ($900.00 annually).
{¶ 8} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 9} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
CONSIDERING AND FINDING AN UPWARD DEVIATION AS SUCH WAS
CONSIDERATION AND FINDING WAS BARRED BY THE LAW OF THE CASE
DOCTRINE IN THE MANDATE RULE."
II
{¶ 10} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ARBITRARILY DETERMINING THE AMOUNT OF DEVIATION IN CHILD SUPPORT
FOR APPELLANT-OBLIGOR."
III
{¶ 11} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO PROVIDE THE CASH MEDICAL DEVIATION ON THE GUIDELINE CHILD
SUPPORT WORKSHEET."
I Licking County, Case No. 2021 CA 00093 5
{¶ 12} In his first assignment of error, appellant claims the trial court erred and
abused its discretion in considering and finding an upward deviation as such was barred
by the law of the case doctrine. We disagree.
{¶ 13} In Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984), the Supreme
Court of Ohio explained "law of the case doctrine" as follows:
Briefly, the doctrine provides that the decision of a reviewing court in
a case remains the law of that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.
The doctrine is considered to be a rule of practice rather than a
binding rule of substantive law and will not be applied so as to achieve
unjust results. However, the rule is necessary to ensure consistency of
results in a case, to avoid endless litigation by settling the issues, and to
preserve the structure of superior and inferior courts as designed by the
Ohio Constitution.
In pursuit of these goals, the doctrine functions to compel trial courts
to follow the mandates of reviewing courts. Thus, where at a rehearing
following remand a trial court is confronted with substantially the same facts
and issues as were involved in the prior appeal, the court is bound to adhere
to the appellate court's determination of the applicable law. (Citations
omitted.) Licking County, Case No. 2021 CA 00093 6
{¶ 14} In Getreu I, appellant specifically argued in Assignment of Error III: "THE
TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ARBITRARILY
DETERMINING THE AMOUNT OF DEVIATION IN CHILD SUPPORT FOR
APPELLANT-OBLIGOR INSTEAD OF APPLYING THE STATUTORY FACTORS." This
court agreed and stated the following at ¶ 53-55:
Pursuant to sections R.C. 3119.231(A), R.C. 3119.22, and R.C.
3119.24, in determining whether a deviation is appropriate and the amount
of the deviation in a shared parenting case, the trial court considers whether
the calculated amount is inappropriate or unjust and not in the best interest
of the child by applying the relevant factors in R.C. 3119.23 and the
extraordinary circumstances in R.C. 3119.24.
In this case, the trial court did not state whether or how it considered
the relevant factors in R.C. 3119.23 or the extraordinary circumstances in
R.C. 3119.24 in its judgment entry and did not include any facts to support
how it arrived at the additional 10% deviation.
***
The statutory language provides that, unlike the automatic or
standard deviation of 10% contained in R.C. 3119.051, the additional
deviation is not standard. The additional deviation should be based upon
the facts and circumstances of each case, taking into consideration the
factors and circumstances as contained in R.C. 3119.23, R.C. 3119.231,
and R.C. 3119.24, such that this Court can conduct a meaningful review as Licking County, Case No. 2021 CA 00093 7
to whether the trial court abused its discretion in determining whether to
deviate and in determining the deviation amount. (Citations omitted.)
{¶ 15} This court remanded the matter to the trial court "for proceedings consistent
with this opinion." Id. at ¶ 77.
{¶ 16} In Getreu I, appellant specifically challenged in Assignments of Error IV and
V the hearing conducted by the trial court, arguing the trial court erred, abused its
discretion, and violated his due process rights by limiting the presentation of evidence
and the cross-examination of witnesses. This court denied the assignments, finding,
"[a]lthough we find the imposition by the trial judge of such a limited time period on both
parties in this case concerning, Father did not appropriately object to the time limitation
imposed by the trial court." Id. at ¶ 64. This court found appellant did not appropriately
object to the time limitation or the manner of cross-examining the witnesses, "made no
proffer, and did not state either at the trial court level or on appeal what additional
evidence he sought to introduce, or how this evidence may have impacted the trial court's
decision" as well as "what further questions he sought to ask the witnesses upon cross-
examination." Id. at ¶ 64, 66.
{¶ 17} In its November 3, 2021 judgment entry after remand, the trial court noted
the following: "The Court of Appeals found that the Second Petitioner should have been
imputed higher income, further that the Court did not properly address the deviation
factors to be considered, and finally, that the Court failed to give the parties adequate
time to present evidence of the same." Although this court commented the limited hearing
was concerning, this court did not make a specific finding that the trial court failed to give Licking County, Case No. 2021 CA 00093 8
the parties a full hearing. Nevertheless, this court did instruct the trial court to conduct
"proceedings" to determine the statutory factors relative to deviation in child support as
requested by appellant. Based upon the remand, the deviation issue was reopened and
the trial court was free to conduct a supplemental hearing in aid of its determination of the
statutory factors. After hearing and conducting a statutory analysis, the trial court found
a downward deviation as well as an upward deviation. The trial court did as instructed by
this court.
{¶ 18} Upon review, we do not find the law of the case doctrine to apply in this
case.
{¶ 19} Assignment of Error I is denied.
{¶ 20} In his second assignment of error, appellant claims the trial court erred and
abused its discretion in determining the amount of deviation in child support. We
disagree.
{¶ 21} Appellant argues the trial court arbitrarily determined the downward
deviation, and the upward deviation was improper for the reasons set forth in Assignment
of Error I. As we found above, the upward deviation was a proper consideration for the
trial court.
{¶ 22} As this court stated in Getreu I at ¶ 48:
When issuing an order of child support, the trial court must calculate
the amount of support "in accordance with the basic child support schedule,
the applicable worksheet, and the other provisions of Chapter 3119." R.C. Licking County, Case No. 2021 CA 00093 9
3119.02. The child support amount that results from the use of the basic
worksheet is presumed to be the correct amount of child support due. R.C.
3119.03. However, under R.C. 3119.22, a court may deviate from the
guideline amount of child support, if, after consideration of the factors set
forth in R.C. 3119.23, the court determines that the guideline amount "would
be unjust or inappropriate and therefore not in the best interest of the child."
R.C. 3119.22. The trial court is vested with the discretion to determine when
and whether to grant a deviation from the guideline child support amount.
Caleshu v. Caleshu, 10th Dist. Franklin No. 19AP-742, 2020-Ohio-4075;
Bible v. Bible, 5th Dist. Coshocton No. 2018CA0001, 2018-Ohio-5147.
{¶ 23} Pursuant to R.C. 3119.22, if a trial 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." R.C. 3119.23 lists seventeen factors for the trial court to
consider. Subsection (C) provides for a deviation for extended parenting time. R.C.
3119.231 governs requirements for court when court-ordered parenting time equals or
exceeds certain number of overnights per year and states as follows:
(A) 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 the reason set forth in division (C) Licking County, Case No. 2021 CA 00093 10
of section 3119.23 of the Revised Code. This deviation is in addition to any
adjustments provided under division (A) of section 3119.051 of the Revised
Code.
(B) If court-ordered parenting time is equal to or 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.
{¶ 24} R.C. 3119.051(A) states:
Except as otherwise provided in this section, a court or child support
enforcement agency calculating the amount to be paid under a child support
order shall reduce by ten per cent the amount of the annual individual
support obligation for the parent or parents when a court has issued or is
issuing a court-ordered parenting time order that equals or exceeds ninety
overnights per year. This reduction may be in addition to the other
deviations and reductions.
{¶ 25} In Getreu I, this court found the following at ¶ 55:
Based upon the lack of discussion of the factors and/or extraordinary
circumstances in the judgment entry and the statement by the trial court at
the hearing that an obligor who has more than 147 overnights is given a Licking County, Case No. 2021 CA 00093 11
"standard" 10% additional deviation, we find the trial court committed error
in its determination of the amount of additional deviation. The statutory
language provides that, unlike the automatic or standard deviation of 10%
contained in R.C. 3119.051, the additional deviation is not standard. The
additional deviation should be based upon the facts and circumstances of
each case, taking into consideration the factors and circumstances as
contained in R.C. 3119.23, R.C. 3119.231, and R.C. 3119.24, such that this
Court can conduct a meaningful review as to whether the trial court abused
its discretion in determining whether to deviate and in determining the
deviation amount.
{¶ 26} In its November 3, 2021 judgment entry after remand, the trial court
considered the R.C. 3119.23 factors and found a downward deviation in the amount of
$74.98 per month was appropriate for extended parenting time, as the child support
obligor (appellant) "has approximately one hundred and eighty-three overnights of
parenting time which justifies a deviation for the same." The trial court did not explain
how it arrived at the $74.98 per month figure. However, the amount is very close to the
ten percent given in the automatic downward deviation for ninety overnights pursuant to
R.C. 3119.051(A) ($77.04). Appellant has an additional ninety-three overnights. We do
not find the $74.98 amount to be an abuse of discretion to account for basically the same
number of overnights. We do not find the amount to be arbitrary. Licking County, Case No. 2021 CA 00093 12
{¶ 27} The trial court also found an upward deviation in the amount of $75.00 per
month was appropriate. The trial court listed five reasons with an assigned value
explaining how it arrived at the $75.00 per month figure.
{¶ 28} The trial court reviewed the evidence presented, analyzed the statutory
factors, and assigned values to R.C. 3119.23(C), (E), (G), (I), (K), and (N). The trial
court's findings are supported in the record. T. at 8, 11, 14, 15, 51-52, 59, 63, 69-70, 75,
77, 86.
{¶ 29} Upon review, we find the trial court did not abuse its discretion in
determining the amount of deviation in child support.
{¶ 30} Assignment of Error II is denied.
{¶ 31} In his third assignment of error, appellant claims the trial court erred and
abused its discretion in failing to provide the cash medical deviation on the guideline child
support worksheet. We agree.
{¶ 32} In its December 11, 2020 judgment entry, the trial court determined the
"cash medical that is due and owing shall be deviated down to $0.00, so long as private
health insurance is being provided for the minor child." October 11, 2021 T. at 8, 46-47.
A review of the child support worksheet attached to the November 3, 2021 judgment entry
does not indicate that the cash medical was deviated down to $0.00. Licking County, Case No. 2021 CA 00093 13
{¶ 33} The matter is remanded to the trial court to deviate the cash medical down
to $0.00.
{¶ 34} Assignment of Error III is granted.
{¶ 35} The judgment of the Court of Common Pleas of Licking County, Ohio,
Domestic Relations Division, is hereby affirmed in part and reversed in part, and the
matter is remanded to said court to deviate the cash medical down to $0.00.
By Wise, Earle, P.J.
Delaney, J. and
Baldwin, J. concur.
EEW/db