Tennant v. Martin-Auer

936 N.E.2d 1013, 188 Ohio App. 3d 768
CourtOhio Court of Appeals
DecidedJuly 26, 2010
DocketNo. 09 CA 127
StatusPublished
Cited by65 cases

This text of 936 N.E.2d 1013 (Tennant v. Martin-Auer) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tennant v. Martin-Auer, 936 N.E.2d 1013, 188 Ohio App. 3d 768 (Ohio Ct. App. 2010).

Opinions

John W. Wise, Judge.

{¶ 1} Appellant, Mark D. Tennant, appeals the decision of the Licking County Court of Common Pleas, Domestic Relations Division, which granted appellee Melissa F. Martin-Auer’s motion to modify child support. The relevant facts leading to this appeal are as follows.

{¶ 2} On April 16, 2001, the Licking County Court of Common Pleas, Domestic Relations Division, issued a judgment entry of parentage concerning the minor child K.M., born to appellee in 1999. The court therein accepted appellant’s acknowledgement of paternity of K.M. and established a parenting-time schedule.

{¶ 3} On December 11, 2001, the court issued a judgment entry setting appellant’s child support obligation at $456.88 per month.

{¶ 4} In early 2007, appellee relocated with the child to the nation of Germany. No notice of relocation was provided to the court. Appellant responded with several motions to the court, including a request to reallocate parental rights and a motion for contempt due to appellee’s alleged denial of visitation prior to the move to Germany.

[771]*771{¶ 5} On June 1, 2007, a magistrate’s decision was filed, which found appellee in contempt for attempting to restrict appellant’s parenting times and continued the matter of determining the appropriate support amount. On August 8, 2007, a judgment entry was filed approving the magistrate’s decision and granting appellant long-distance parenting times in accordance with Licking County’s Loc.R. 19. The matter of child support was deferred for further review.

{¶ 6} On June 17, 2008, a magistrate’s decision was filed in which the court allowed a $2,500 deviation in support due to the travel cost to Germany for visitation, resulting in a support obligation of $62.63 per month. This magistrate’s decision was journalized into a judgment entry filed on July 10, 2008, in which the court stated: “It would be unjust and unreasonable and not in the best interest of the child to require the second petitioner to pay the guideline amount of support given the child’s relocation to Germany. * * *. This deviation is determined to be fair and reasonable and in the best interest of the child.” After allowing for the deviation, child support was set at $62.63 per month, plus processing fees.

{¶ 7} On March 9, 2009, appellee filed a motion to modify child support. On March 31, 2009, the motion was heard by a different magistrate. On August 3, 2009, the magistrate issued a decision that, inter alia, removed the court’s previously granted support deviation. The magistrate found that although appellant had set aside money in a savings account to travel to Germany, he could not secure consecutive days off from his employer to exercise his parenting time. Therefore, the magistrate recommended that the deviation factor be removed and that appellant pay full guideline support of $429.60 per month. In addition, the magistrate did not impute any income to appellee on the support worksheet.

{¶ 8} After obtaining transcripts, appellant filed objections on September 4, 2009. Appellant submitted three specific objections to the court: (1) the deviation factor should not have been removed, (2) appellee’s income should have been imputed at the Ohio minimum wage, and (3) the court should have set a specific parenting time schedule. Appellee did not respond to the objections. On September 17, 2009, an opinion of the court was filed that denied the objections.

{¶ 9} The court’s decision was journalized into a judgment entry filed on October 8, 2009.

{¶ 10} On November 3, 2009, appellant filed a notice of appeal.1 He raises the following five assignments of error:

[772]*772{¶ 11} “I. Because the party that violated the relocation law carries the financial burden to return the child to the jurisdiction of the court for parenting time, the trial court abused its discretion in removing a child support deviation where said party moved the child out of the United States without notice or permission.
{¶ 12} “II. Because a motion to modify support cannot be used as a substitute for an appeal, the trial court abused its discretion in removing a child support deviation.
{¶ 13} “III. The trial court abused its discretion in not making any specific parenting time orders or arrangements considering the circumstances of long distance travel, thereby effectively cutting appellant off from any visitation.
{¶ 14} “IV. The trial court abused its discretion by not imputing any income to appellee on the child support worksheet.”

I and II

{¶ 15} In his first and second assignments of error, appellant argues that the trial court abused its discretion in removing the downward deviation of his child-support obligation. We disagree.

{¶ 16} In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio Supreme Court determined that the abuse-of-discretion standard is the appropriate standard of review in matters concerning child support. In order to find an abuse of discretion, we must determine that the trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. Furthermore, as an appellate court, we are not the trier of fact. Our role is to determine whether there is relevant, competent, and credible evidence upon which the factfinder could base his or her judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, 1982 WL 2911. The trier of fact is in a far better position to observe the witnesses’ demeanor and weigh their credibility. See, e.g., Taralla v. Taralla, Tuscarawas App. No. 2005 AP 02 0018, 2005-Ohio-6767, 2005 WL 3484130, ¶ 31, citing State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212.

{¶ 17} R.C. 3119.22 provides that if the court deviates from the child-support guidelines, it shall enter in the journal the amount of child support calculated pursuant to the basic child-support schedule and the applicable worksheet, plus its determination that the amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting its determination. See also Marker v. Grimm (1992), 65 Ohio St.3d 139, 601 N.E.2d 496, paragraph three of the syllabus. A trial court abuses its discretion if [773]*773it orders a deviation that is not supported by findings of fact journalized in the record. Moore v. Moore, Guernsey App. No. 09 CA 21, 2010-Ohio-2499, 2010 WL 2225592, ¶ 86, citing DePalmo v. DePalmo (1997), 78 Ohio St.3d 535, 538, 679 N.E.2d 266.

{¶ 18} Appellant first argues that the trial court should not have removed its earlier downward deviation, which had been granted due to visitation travel costs, emphasizing that appellee had taken the child to Germany without filing a relocation notice with the court and without any discussion or agreement with appellant to do so.

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Cite This Page — Counsel Stack

Bluebook (online)
936 N.E.2d 1013, 188 Ohio App. 3d 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tennant-v-martin-auer-ohioctapp-2010.