Wiebusch v. Wiebusch

927 N.E.2d 64, 186 Ohio App. 3d 237
CourtOhio Court of Appeals
DecidedFebruary 12, 2010
DocketNo. 23014
StatusPublished
Cited by5 cases

This text of 927 N.E.2d 64 (Wiebusch v. Wiebusch) 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
Wiebusch v. Wiebusch, 927 N.E.2d 64, 186 Ohio App. 3d 237 (Ohio Ct. App. 2010).

Opinions

Grady, Judge.

{¶ 1} Thomas L. Wiebusch appeals from an order of the domestic relations court that modified his child-support obligation to his former spouse, Teresa Wiebusch.

[239]*239{¶ 2} Thomas1 and Teresa were divorced in 2004. Teresa was granted custody of the parties’ minor child. Thomas was ordered to pay child support. On September 22, 2006, Teresa moved to increase Thomas’ s child-support obligation. The matter was referred to a magistrate.

{¶ 3} Thomas is a member of the United States Air Force and is stationed in Germany. In addition to his base pay and housing allowance, Thomas receives a monthly cost-of-living allowance (“COLA”) of $953.41 to defray the higher cost of living in Germany. Thomas began receiving the COLA subsequent to the court’s most recent child-support order. Teresa asked for an increase in child support based on the COLA Thomas now receives.

{¶ 4} The most recent child-support order also included a downward deviation of $1,282.15 from the amount of support that Thomas would otherwise owe, based on travel expenses he could incur in exercising his rights of parenting time. Thomas was then stationed in Texas, and the expenses were for airfare and lodging. Teresa argued that Thomas is not entitled to the deviation, because he has failed to exercise his parenting-time rights since the deviation was ordered.

{¶ 5} The magistrate conducted a hearing on the motion and, following that, filed a written decision. The magistrate declined to include Thomas’s COLA in calculating his gross income for purposes of child support, citing our holding in Ford v. Ford (Nov. 22, 1996), Montgomery App. No. 15613, 1996 WL 685787. The magistrate also declined to modify the prior downward deviation for travel expenses, finding that Thomas’s failure to exercise his parenting-time rights is chargeable to Teresa because she refused to allow Thomas parenting time with their child.

{¶ 6} Teresa filed objections to the magistrate’s decision. The domestic relations court sustained Teresa’s objection that Thomas’s COLA should be included in his gross income for calculation of his child-support obligation, relying on R.C. 3119.01(C)(7). The court also sustained Teresa’s objection regarding the magistrate’s failure to modify the prior downward deviation for Thomas’s travel expenses. The court then computed Thomas’ s annual gross income for purposes of calculation of his child-support obligation as $91,170, and ordered his obligation increased accordingly, retroactive to September 22, 2006, the date Teresa’s motion was filed.

{¶ 7} Thomas filed a notice of appeal from the trial court’s order.

FIRST ASSIGNMENT OF ERROR

{¶ 8} “The trial court erred in including appellant’s cost of living allowance (COLA) in gross income for the purposes of child support.”
[240]*240{¶ 9} “When reviewing a child support order, we apply the abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142[, 541 N.E.2d 1028]. ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 10} “ ‘A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.’ AAAA Enterprises, Inc. v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161[, 553 N.E.2d 597].” Fink v. Fink, Montgomery App. No. 08CA24, 2009-Ohio-4948, 2009 WL 2998119, ¶ 5-6.

{¶ 11} In Ford v. Ford (Nov. 22, 1996), Montgomery App. No. 15613, 1996 WL 685787, the parties stipulated that a service member’s COLA “is an entitlement given to soldiers to defray the high cost of living expenses while stationed in Germany.” We wrote: “As a play on words, the increase in pay for service in Germany possibly could be viewed as a cost of living allowance, but as a matter of substance, the adjustment in money rates merely puts the appellant on a monetary par with military personnel serving in the United States. The entitlement does not give any additional purchasing power to Sergeant Ford and reasonable support payments necessarily must be attuned to what the American dollar will buy at the marketplace.

{¶ 12} “ * * * Call it what you may, the increase given Ford for service overseas was not a COLA in the traditional sense. Indeed, such amount did not change the monetary potential of either Mr. or Mrs. Ford relative to the support of their son, and in the application of the guidelines, therefore, the monies derived from the foreign exchange rate should have been disregarded.”

{¶ 13} R.C. 3119.022 sets forth the child-support calculation worksheet for a sole-residential-parenting order, which is the form of order in this case. Item l.a. of the worksheet requires the court to enter the “[a]nnual gross income from employment” for each parent in calculating their total gross income. R.C. 3119.01(C)(7) provides:

{¶ 14} “Gross income includes income of members of any branch of the United States armed services or national guard, including, amounts representing base pay, basic allowance for quarters, basic allowance for subsistence, supplemental subsistence allowance, cost of living adjustment, specialty pay, variable housing [241]*241allowance, and pay for training or other types of required drills; self-generated income; and potential cash flow from any source.” (Emphasis added.)

{¶ 15} A provision similar to R.C. 3119.01(C)(7) was in effect when Ford was decided. However, R.C. 3119.01(C)(7) was enacted subsequent to our holding in Ford, and it reaffirms the General Assembly’s mandate to include a service member’s COLA in calculation of his gross income for child-support purposes. That mandate is irreconcilable with our holding in Ford. We therefore overrule our holding in Ford, to the extent that it conflicts with R.C. 3119.01(C)(7).

{¶ 16} R.C. 3119.01(C)(7)(e) provides that a parent’s gross income does not include “[njonrecurring or unsustainable income or cash flow items.” Such items are defined by R.C. 3119.01(C)(8) to mean “an income or cash flow item the parent receives in any year or for any number of years not to exceed three years that the parent does not expect to continue to receive on a regular basis.”

{¶ 17} Thomas argues that his COLA falls within the R.C.

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Bluebook (online)
927 N.E.2d 64, 186 Ohio App. 3d 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiebusch-v-wiebusch-ohioctapp-2010.