[Cite as Sable v. Sable, 2013-Ohio-2635.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
BRENDA SABLE : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff - Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : MICHAEL SABLE : Case No. 2012CA00230 : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2011DR01556
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 17, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
TRACEY A. LASLO BEVERLY PROCTOR-DONALD JOHN T. JAKMIDES 401 Tuscarawas Street 325 East Main Street Suite 500 Alliance, OH 44601 Canton, OH 44702 Stark County, Case No. 2012CA00230 2
Baldwin, J.
{¶1} Appellant Brenda Sable appeals a divorce judgment of the Stark County
Common Pleas Court, Domestic Relations Division. Appellee is Michael Sable.
STATEMENT OF FACTS AND CASE
{¶2} The parties were married on April 5, 1985, in Billings, Montana. They
have one son, born February 1, 2004.
{¶3} The instant divorce action was filed on December 14, 2011. At a hearing
on September 27, 2012, the parties indicated to the court that they had signed a
separation agreement resolving most issues. However, the parties could not agree to
the extent of appellee’s visitation with the child, who would receive the tax deduction for
the child, and the value of the real estate. The court conducted an evidentiary hearing
on these issues.
{¶4} The parties’ marriage was terminated by a Judgment Entry of Divorce on
November 20, 2012. The court gave appellee extended visitation every Tuesday,
Wednesday and Friday from 3:00 p.m. to 7:00 p.m. The court awarded appellee the tax
exemption for the child, and valued the real estate at $85,000.00. The court found the
parties’ equity in the property to be $16,000.00, and ordered appellee to pay appellant
$8,000.00 for her share of the equity in the residence. Appellant assigns three errors:
{¶5} I. THE TRIAL COURT ERRED IN GRANTING EXTENDED
VISITATION TO APPELLEE DESPITE EVIDENCE THAT DOING SO WOULD
DISRUPT THE CHILD’S SCHOOLWORK AND WEEKLY SCHEDULE.
{¶6} II. THE TRIAL COURT ERRED IN ASSIGNING THE TAX
EXEMPTION TO APPELLEE DESPITE THE FACT THAT THIS WAS NOT EVEN Stark County, Case No. 2012CA00230 3
SOUGHT BY THE APPELLEE, AND FURTHER FAILED TO REVIEW TAX
DOCUMENTS IN MAKING ITS DECISION.
{¶7} III. THE TRIAL COURT ERRED IN FAILING TO ESTABLISH A
SCHEDULE FOR HUSBAND’S PAYMENT TO WIFE FOR HER ONE-HALF OF THE
EQUITY IN THE MARITAL RESIDENCE.
I.
{¶8} Appellant argues that the court erred in giving appellee extended visitation
with the child, as the evidence demonstrated the extra evenings of visitation would
disrupt the child’s schoolwork and weekly schedule. The standard visitation schedule,
requested by appellant, would allow appellee a minimum of one week day of parenting
time from 5:00 p.m. to 8:00 p.m. The court’s order gives appellee visitation on three
week days, from 3:00 p.m. to 7:00 p.m. During the pendency of the divorce, appellee
visited with the child two week days.
{¶9} Matters concerning visitation rest in the trial court's sound discretion.
Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). In order to find an abuse
of discretion, we must find that 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).
{¶10} Appellant argues that appellee was uninvolved with the child’s school, as
he was unable to name the child’s teacher the previous year or his current teacher. She
argues that he was unaware that his son was playing soccer, and had not helped pay
with extracurricular activity fees. She argues that appellee does not help the child with
his homework, and that her boyfriend, a retired teacher, helped the child with homework Stark County, Case No. 2012CA00230 4
at her home during the evenings. She also argues that the child does not want to go to
his father’s house for visitation.
{¶11} However, there was also evidence that despite his inability to recall the
names of teachers, appellee attended school conferences and was aware that at his
last school, the child had problems with being bullied. Appellee testified that he helped
with homework, and he was able to identify the problem subjects for the child. Appellee
testified that appellant did not inform him of any costs associated with extracurricular
activities other than Boy Scout camp, which he paid for when made aware of the
expense. Further, appellant herself admitted that she did not discuss enrolling their son
in Scouts and soccer with appellee, and that her boyfriend participated in scouting with
the child. In addition, appellant was found in contempt of court for denying appellee
parenting time.
{¶12} The trial court did not abuse its discretion in giving appellee extended
visitation. The visitation order is a mere four hours a week more than the temporary
visitation order. The evidence does not support appellant’s claim that this extra
visitation time is disruptive to the child’s school schedule. From the record, the court
could conclude that appellant has attempted to limit appellee’s involvement with the
child, preferring that the child spend time with her new boyfriend.
{¶13} The first assignment of error is overruled.
II.
{¶14} Appellant argues that the court erred in awarding appellee the tax
exemption for the child. Stark County, Case No. 2012CA00230 5
{¶15} As with other domestic relations issues, a trial court's decision awarding
the tax dependency exemption to a party is reviewed for an abuse of discretion. Corple
v. Corple, 123 Ohio App.3d 31, 33, 702 N.E.2d 1234 (1997). Thus, pursuant to
Blakemore, supra, we must determine whether the trial court's decision in awarding the
exemption to appellee was arbitrary, unconscionable or unreasonable.
{¶16} The trial court must find that “the interest of the child has been furthered”
before it can allocate the tax exemption to the noncustodial parent. Bobo v. Jewell, 38
Ohio St.3d 330, 332, 528 N.E.2d 180 (1988). The best interest of the child is furthered
when the allocation of the tax exemption to the noncustodial parent produces a net tax
savings for the parents. Singer v. Dickinson, 63 Ohio St.3d 408, 588 N.E.2d 806,
paragraph two of the syllabus (1992). Such net tax savings for the parents can only
occur when the noncustodial parent's taxable income falls into a higher tax bracket. Id.
at 415-416, 588 N.E.2d 806. When determining the net tax savings to the parties, a trial
“court should review all pertinent factors, including the parents' gross incomes, the tax
exemptions and deductions to which the parents are otherwise entitled, and the relevant
federal, state, and local income tax rates.” Id.
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[Cite as Sable v. Sable, 2013-Ohio-2635.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
BRENDA SABLE : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff - Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : MICHAEL SABLE : Case No. 2012CA00230 : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2011DR01556
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 17, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
TRACEY A. LASLO BEVERLY PROCTOR-DONALD JOHN T. JAKMIDES 401 Tuscarawas Street 325 East Main Street Suite 500 Alliance, OH 44601 Canton, OH 44702 Stark County, Case No. 2012CA00230 2
Baldwin, J.
{¶1} Appellant Brenda Sable appeals a divorce judgment of the Stark County
Common Pleas Court, Domestic Relations Division. Appellee is Michael Sable.
STATEMENT OF FACTS AND CASE
{¶2} The parties were married on April 5, 1985, in Billings, Montana. They
have one son, born February 1, 2004.
{¶3} The instant divorce action was filed on December 14, 2011. At a hearing
on September 27, 2012, the parties indicated to the court that they had signed a
separation agreement resolving most issues. However, the parties could not agree to
the extent of appellee’s visitation with the child, who would receive the tax deduction for
the child, and the value of the real estate. The court conducted an evidentiary hearing
on these issues.
{¶4} The parties’ marriage was terminated by a Judgment Entry of Divorce on
November 20, 2012. The court gave appellee extended visitation every Tuesday,
Wednesday and Friday from 3:00 p.m. to 7:00 p.m. The court awarded appellee the tax
exemption for the child, and valued the real estate at $85,000.00. The court found the
parties’ equity in the property to be $16,000.00, and ordered appellee to pay appellant
$8,000.00 for her share of the equity in the residence. Appellant assigns three errors:
{¶5} I. THE TRIAL COURT ERRED IN GRANTING EXTENDED
VISITATION TO APPELLEE DESPITE EVIDENCE THAT DOING SO WOULD
DISRUPT THE CHILD’S SCHOOLWORK AND WEEKLY SCHEDULE.
{¶6} II. THE TRIAL COURT ERRED IN ASSIGNING THE TAX
EXEMPTION TO APPELLEE DESPITE THE FACT THAT THIS WAS NOT EVEN Stark County, Case No. 2012CA00230 3
SOUGHT BY THE APPELLEE, AND FURTHER FAILED TO REVIEW TAX
DOCUMENTS IN MAKING ITS DECISION.
{¶7} III. THE TRIAL COURT ERRED IN FAILING TO ESTABLISH A
SCHEDULE FOR HUSBAND’S PAYMENT TO WIFE FOR HER ONE-HALF OF THE
EQUITY IN THE MARITAL RESIDENCE.
I.
{¶8} Appellant argues that the court erred in giving appellee extended visitation
with the child, as the evidence demonstrated the extra evenings of visitation would
disrupt the child’s schoolwork and weekly schedule. The standard visitation schedule,
requested by appellant, would allow appellee a minimum of one week day of parenting
time from 5:00 p.m. to 8:00 p.m. The court’s order gives appellee visitation on three
week days, from 3:00 p.m. to 7:00 p.m. During the pendency of the divorce, appellee
visited with the child two week days.
{¶9} Matters concerning visitation rest in the trial court's sound discretion.
Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). In order to find an abuse
of discretion, we must find that 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).
{¶10} Appellant argues that appellee was uninvolved with the child’s school, as
he was unable to name the child’s teacher the previous year or his current teacher. She
argues that he was unaware that his son was playing soccer, and had not helped pay
with extracurricular activity fees. She argues that appellee does not help the child with
his homework, and that her boyfriend, a retired teacher, helped the child with homework Stark County, Case No. 2012CA00230 4
at her home during the evenings. She also argues that the child does not want to go to
his father’s house for visitation.
{¶11} However, there was also evidence that despite his inability to recall the
names of teachers, appellee attended school conferences and was aware that at his
last school, the child had problems with being bullied. Appellee testified that he helped
with homework, and he was able to identify the problem subjects for the child. Appellee
testified that appellant did not inform him of any costs associated with extracurricular
activities other than Boy Scout camp, which he paid for when made aware of the
expense. Further, appellant herself admitted that she did not discuss enrolling their son
in Scouts and soccer with appellee, and that her boyfriend participated in scouting with
the child. In addition, appellant was found in contempt of court for denying appellee
parenting time.
{¶12} The trial court did not abuse its discretion in giving appellee extended
visitation. The visitation order is a mere four hours a week more than the temporary
visitation order. The evidence does not support appellant’s claim that this extra
visitation time is disruptive to the child’s school schedule. From the record, the court
could conclude that appellant has attempted to limit appellee’s involvement with the
child, preferring that the child spend time with her new boyfriend.
{¶13} The first assignment of error is overruled.
II.
{¶14} Appellant argues that the court erred in awarding appellee the tax
exemption for the child. Stark County, Case No. 2012CA00230 5
{¶15} As with other domestic relations issues, a trial court's decision awarding
the tax dependency exemption to a party is reviewed for an abuse of discretion. Corple
v. Corple, 123 Ohio App.3d 31, 33, 702 N.E.2d 1234 (1997). Thus, pursuant to
Blakemore, supra, we must determine whether the trial court's decision in awarding the
exemption to appellee was arbitrary, unconscionable or unreasonable.
{¶16} The trial court must find that “the interest of the child has been furthered”
before it can allocate the tax exemption to the noncustodial parent. Bobo v. Jewell, 38
Ohio St.3d 330, 332, 528 N.E.2d 180 (1988). The best interest of the child is furthered
when the allocation of the tax exemption to the noncustodial parent produces a net tax
savings for the parents. Singer v. Dickinson, 63 Ohio St.3d 408, 588 N.E.2d 806,
paragraph two of the syllabus (1992). Such net tax savings for the parents can only
occur when the noncustodial parent's taxable income falls into a higher tax bracket. Id.
at 415-416, 588 N.E.2d 806. When determining the net tax savings to the parties, a trial
“court should review all pertinent factors, including the parents' gross incomes, the tax
exemptions and deductions to which the parents are otherwise entitled, and the relevant
federal, state, and local income tax rates.” Id. at 416, 588 N.E.2d 806.
{¶17} R.C. 3119.82 provides in pertinent part:
{¶18} “Whenever a court issues, or whenever it modifies, reviews, or otherwise
reconsiders a court child support order, it shall designate which parent may claim the
children who are the subject of the court child support order as dependents for federal
income tax purposes as set forth in section 151 of the “Internal Revenue Code of 1986,”
100 Stat. 2085, 26 U.S.C. 1, as amended. If the parties agree on which parent should
claim the children as dependents, the court shall designate that parent as the parent Stark County, Case No. 2012CA00230 6
who may claim the children. If the parties do not agree, 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 purposes only if the court determines that
this furthers the best interest of the children and, with respect to orders the court
modifies, reviews, or reconsiders, the payments for child support are substantially
current as ordered by the court for the year in which the children will be claimed as
dependents. In cases in which the parties do not agree which parent may claim the
children as dependents, the court shall consider, in making its determination, 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 factor concerning the best interest of the children.”
{¶19} The evidence at the hearing reflected that appellant’s income was
$17,000.00, while appellee’s income was just over $50,000.00. The child support
worksheet reflects that appellant’s adjusted gross income, including division of
appellee’s military retirement benefits, was just over $26,000.00, while appellee’s
adjusted gross income was slightly over $40,000.00. The trial court’s entry states that
the court reviewed all pertinent factors, including the income of the parties, the
exemptions and deductions to which the parties are otherwise entitled, and all relevant
tax rates. Based on the disparity of income of the parties, we find no abuse of
discretion in the allocation of the exemption to appellee.
{¶20} The second assignment of error is overruled. Stark County, Case No. 2012CA00230 7
III.
{¶21} In her third assignment of error, appellant argues that the court erred in
failing to establish a payment schedule for appellee to pay her for her share of equity in
the marital residence. The judgment states in pertinent part:
{¶22} “Husband shall refinance the real estate into his name within twelve (12)
months and remove Wife’s name from the loan. Wife shall sign a Quit Claim Deed
transferring all interest in the real estate to the Husband . . . Husband shall pay the sum
of $8,000.00 to the Wife as and for her one-half of the equity in the marital residence.”
{¶23} At the time of the hearing, the issue before the court was the valuation of
the property, not the timing of the payment from appellee to appellant. Further, appellee
has twelve months to remove appellant’s name from the loan, and she is to sign a quit
claim deed transferring all interest in the real estate to him. It appears from the
judgment that the timing of that payment is tied to the twelve month period in which the
remainder of the issues concerning transfer of the property must be resolved. If at that
time appellee has not paid appellant for her share of the equity, the issue concerning
timing of the payment will be ripe for review. Stark County, Case No. 2012CA00230 8
{¶24} The third assignment of error is overruled. The judgment of the Stark
County Common Pleas Court, Domestic Relations Division, is affirmed. Costs
assessed to appellant.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY [Cite as Sable v. Sable, 2013-Ohio-2635.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BRENDA SABLE : : Plaintiff - Appellant : : -vs- : JUDGMENT ENTRY : MICHAEL SABLE : : Defendant - Appellee : CASE NO. 2012CA00230
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs
HON. PATRICIA A. DELANEY