Welch v. Welch

2014 Ohio 3956

• Court: Ohio Court of Appeals
• Decided: September 11, 2014
• Docket: 14-CA-25
• Status: Published

Opinion

[Cite as Welch v. Welch, 2014-Ohio-3956.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

DAVID M. WELCH : JUDGES: : Hon. W. Scott Gwin, P.J. First-Petitioner-Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. -vs- : : TINA L. WELCH : Case No. 14-CA-25 : Second-Petitioner-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Divison, Case No. 09 DS 116

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 11, 2014

APPEARANCES:

For First-Petitioner-Appellee For Second-Petitioner-Appellant

RANDY L. HAPPENEY BRADLEY S. NICODEMUS 144 East Main Street 1409 West Market Street P.O. Box 667 Baltimore, OH 43105 Lancaster, OH 43130 Fairfield County, Case No. 14-CA-25 2

Farmer, J.

{¶1} On September 3, 2004, appellant, Tina Welch, and appellee, David

Welch, were married. One child was born as issue of the marriage, Lincoln, born April

26, 2006. The parties' marriage was dissolved by judgment entry decree of dissolution

filed August 14, 2009. The parties agreed to an equal alternating week-to-week

parenting schedule. Appellant has another child, Regan, from a previous marriage.

{¶2} On June 3, 2011, appellee filed a motion for modification of residential

parent and legal custodian, seeking to terminate the shared parenting arrangement,

claiming appellant suffered from physical and psychological issues which affected her

ability to parent their child. A hearing before a magistrate was held on April 24, 2012.

By decision filed April 10, 2013, the magistrate terminated the shared parenting plan

and named appellee residential parent and legal custodian of the child, and ordered

appellant to pay child support in the amount of $477.59 per month.

{¶3} Both parties filed objections to the magistrate's orders. Pertinent to this

appeal, appellant claimed the magistrate's calculation of child support did not include

the amount of child support she paid for her other child, Regan. The trial court found no

evidence was presented to the magistrate concerning the additional child support

obligation and denied the objection.

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶5} "THE TRIAL COURT ERRED BY FAILING TO CONSIDER CHILD

SUPPORT PAID BY SECOND-PETITION/APPELLANT FOR ANOTHER CHILD WHEN Fairfield County, Case No. 14-CA-25 3

CALCULATING A CHILD SUPPORT OBLIGATION PURSUANT TO THE CHILD

SUPPORT GUIDELINES AND R.C. §3119, ET SEQ."

{¶6} Appellant claims the trial court erred in failing to consider the child support

she pays for her other child in calculating the child support obligation sub judice. We

disagree.

{¶7} Determinations on child support are within a trial court's sound discretion.

Booth v. Booth, 44 Ohio St.3d 142 (1989). 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

(1983).

{¶8} R.C. 3119.02 governs obligor's child support obligation and states in part

"the court or agency shall calculate the amount of the obligor's child support obligation

in accordance with the basic child support schedule, the applicable worksheet, and the

other provisions of sections 3119.02 to 3119.24 of the Revised Code." R.C. 3119.05(B)

states in part:

When a court computes the amount of child support required to be

paid under a court child support order or a child support enforcement

agency computes the amount of child support to be paid pursuant to an

administrative child support order, all of the following apply:

(B) The amount of any pre-existing child support obligation of a

parent under a child support order and the amount of any court-ordered Fairfield County, Case No. 14-CA-25 4

spousal support actually paid shall be deducted from the gross income of

that parent to the extent that payment under the child support order or that

payment of the court-ordered spousal support is verified by supporting

documentation. (Emphasis added.)

{¶9} In her decision filed April 10, 2013 at ¶ 37, the magistrate specifically

noted appellant "has another child, Reagan, but no evidence was presented to

determine whether Ms. Welch pays child support for Reagan."

{¶10} In her objections to the trial court filed April 23, 2013, appellant specifically

stated, "[t]he Magistrate's calculation of child support does not take into consideration

other child support paid by Mother nor the extended parenting time Mother was

granted." Appellant acknowledged no evidence of additional child support was

presented, but requested that the trial court take additional evidence pursuant to Civ.R.

53(D)(4)(d). Appellant attached to her objections as Exhibit C a child support

computation summary worksheet out of Franklin County indicating her child support

obligation for her other child. A supplemental memorandum making essentially the

same arguments on this issue was filed on June 19, 2013.

{¶11} By judgment entry filed February 26, 2014, the trial court denied the

objection on this issue, finding the following:

In Tina Welch's second objection, she claims that the calculation of

child support completed by the Magistrate does not account for her child

support obligation paid for another child. The Magistrate's Decision Fairfield County, Case No. 14-CA-25 5

indicated that no evidence was presented concerning Mother's child

support obligation for her other child. A review of the transcript and

additional Court affidavits allowed to be filed on this issue following

hearing pursuant to the transcript indicate the evidence of the amount of

Tina Welch's child support obligation for her other child was not presented

to the Magistrate. Counsel for Tina Welch argues that the Court should

accept this evidence now and correct the child support obligation in order

to avoid a mistake.

Counsel for Tina Welch claims that Civil Rule 53(D)(4)(d) supports

the position that the Court should now allow additional evidence of

Mother's child support obligation for her other child. Civil Rule 53(D)(4)(d)

provides that before ruling on objections, "the court may hear additional

evidence but may refuse to do so unless the objecting party demonstrates

that the party could not, with reasonable diligence, have produced that

evidence for consideration by the Magistrate." Clearly, with reasonable

diligence, the amount of Tina Welch's child support obligation for her other

child could have been presented as evidence in the hearing before the

Magistrate. Therefore, no additional evidence on this matter will be

considered, and the objection is denied.

{¶12} A review of the transcript indicates while appellant did make a passing

reference during the hearing, "[b]ecause I pay child support for my daughter, my

financial status had changed," she did not present any evidence of her child support Fairfield County, Case No. 14-CA-25 6

obligation for Regan. T. at 70. Exhibit C was filed in Franklin County on June 7, 2011,

well before the magistrate's hearing of April 24, 2012. Therefore, the child support

computation summary worksheet for appellant's other child was clearly available to be

produced for consideration by the magistrate. We concur with the trial court's decision

as appellant did not meet her burden under R.C. 3119.05(B) and Civ.R. 53(D)(4)(d).

{¶13} Upon review, we find the trial court did not err in denying appellant's

objection on this issue.

{¶14} The sole assignment of error is denied.

{¶15} The judgment of the Court of Common Pleas of Fairfield, Ohio, Domestic

Relations Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.

SGF/sg 807