Harbour v. Ridgeway, 2005 Ohio 2643 (OH 5/26/2005), Case No. 04AP-350.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtSadler
Citation2005 Ohio 2643
PartiesJanice C. Harbour et al., Plaintiffs-Appellees, (Cross-Appellants), v. Joseph A. Ridgeway, III, Defendant-Appellant, (Cross-Appellee).
Docket NumberCase No. 04AP-350.
Decision Date26 May 2005

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2005 Ohio 2643
Janice C. Harbour et al., Plaintiffs-Appellees, (Cross-Appellants),
Joseph A. Ridgeway, III, Defendant-Appellant, (Cross-Appellee).
Case No. 04AP-350.
Court of Appeals of Ohio, Tenth District, Franklin County.
Rendered on May 26, 2005.

APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, C.P.C. No. 96DP-388.

Jeffrey A. Grossman Co., L.P.A., and Jeffrey A. Grossman, for appellee/cross-appellant.

Chester, Willcox & Saxbe, LLP, Eugene B. Lewis and Janice M. Flowers, for appellant/cross-appellee.



{¶1} Defendant-appellant/cross-appellee, Joseph A. Ridgeway, III ("the Father"), and plaintiff-appellee/cross-appellant, Janice C. Harbour ("the Mother"), appeal from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,

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Juvenile Branch, ordering the Father to pay support to appellee on behalf of the parties' minor child, and denying the Mother's request for an order that the Father pay interest on child support arrearages that had accrued prior to the entry of judgment.

{¶2} The genesis of the present appeal occurred on February 21, 1996, when the Mother filed a complaint in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, to establish the parent-child relationship between the Father and the minor child, Anna C. Harbour, born August 16, 1995. She also requested child support. By judgment entry journalized September 17, 1997, the trial court adopted an earlier magistrate's decision finding that the parent-child relationship had been established between the Father and the minor child. On September 19, 1997, the Mother filed a motion for temporary child support. On February 18, 1998, the Father filed a motion for reallocation of parental rights and responsibilities, requesting that he be designated the residential parent and sole legal custodian of Anna. On February 25, 1998, the Mother notified the trial court, in writing, that her residence address had changed from an address in Columbus, Ohio to an address in Charlotte, North Carolina.

{¶3} On October 6, 1999, following a hearing on the Mother's motion for temporary child support, the magistrate filed an order obligating the Father to pay to the Mother $2,000 per month as and for temporary child support. This represented a roughly $700-per-month downward deviation from the amount of child support that would have resulted from a calculation pursuant to the Child Support Guidelines and applicable worksheet. The magistrate based his conclusion that such a deviation was in Anna's best

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interest on the fact that the Mother had relocated to North Carolina and the Father had agreed to exercise his visitation with Anna in North Carolina and at his own expense. By agreement of the parties, the order provided for the Father to exercise visitation with Anna during certain hours one weekend per month. The parties further agreed that the Father's visitation with Anna would be supervised, and that the Father would bear the cost of such supervision. The magistrate also ordered the Mother to maintain health insurance for Anna and the Father to pay 90 percent of Anna's extraordinary uncovered medical expenses.

{¶4} On December 22, 1999, the Mother filed a motion for contempt and for attorney fees based upon the Father's alleged failure to obey the court's order with respect to payment of temporary child support. The magistrate found the Father in contempt and, by order filed March 10, 2000, ordered that the Father pay the entire child support arrearage within 30 days thereof. The order did not set forth the specific amount of the past due support. By agreement of the parties, the magistrate ordered an enlargement, by several hours, of the Father's one weekend per month visitation time.

{¶5} On March 1, 2001, the Father filed a motion seeking expanded temporary visitation with Anna. Specifically, he sought overnight visits with Anna in North Carolina and in Ohio. The magistrate granted this motion in part, by order dated April 11, 2001. Therein, the magistrate expanded the Father's visitation with Anna to one overnight visit per month to be exercised in North Carolina. In the meantime, the Father's February 18,

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1998 motion for reallocation of parental rights and responsibilities remained pending due to numerous delays of various types.

{¶6} Finally, on September 4, 2001, the parties submitted and the court journalized an agreed order setting forth detailed agreements regarding the exercise of parenting time. The Father withdrew his request to be named residential parent and sole legal custodian of Anna. The agreed order specifically noted that the parties had not reached an agreement with respect to child support and arrearages of temporary child support. On October 22, 2001, in lieu of live testimony, the parties entered into joint stipulations and offered joint exhibits for the court's consideration of the child support issues, including the parties' tax returns for relevant years.

{¶7} On June 7, 2002, the matter came before the magistrate for a hearing, at which time the parties offered no testimony but simply reaffirmed their joint stipulations. They later supplemented the same with copies of two additional tax returns of the Father. On November 18, 2002, the magistrate issued a decision on the issues related to child support. He ordered a downward deviation in guideline child support for the time period following the Mother's relocation to North Carolina because, according to the magistrate, the Father incurred expenses in traveling there in order to exercise visitation with Anna.

{¶8} The magistrate deviated from the guideline child support figure by roughly $1,000 per month, and made specific orders of monthly child support for each year since Anna's birth. The magistrate then used these amounts to calculate the exact amount owed in arrearages. The magistrate noted that all temporary support that the Father had

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paid would be credited against the total arrearage, but did not specify the precise amount of the credit. The ongoing child support order was set at $2,900 per month. The magistrate also dealt with other matters, such as payment of extraordinary uncovered medical expenses, award of the child dependency tax exemption, and payment of attorney and expert fees. Noteworthy is the lack of specific findings or reference to any evidence regarding how many times the Father actually traveled to North Carolina or flew Anna to Ohio to exercise visitation, or how much he actually spent on travel and related expenses necessitated by visitation with Anna.

{¶9} On December 2, 2002, the Mother filed objections to the magistrate's decision. Therein, the Mother argued that the magistrate erred in determining that a $1,000 per month downward deviation was appropriate. She argued that the deviation was unwarranted because the Father incurred far less than this amount in monthly expenses associated with exercising visitation with Anna. The Mother also argued that the magistrate should have ordered the Father to pay interest on the liquidated child support arrearages.

{¶10} Also on December 2, 2002, the Father filed objections to the magistrate's decision. He argued that the magistrate erroneously calculated guideline child support for several calendar years, and erred in ordering him to pay expert fees and attorney fees. On April 25, 2003, the Father filed a supplemental memorandum in support of his objections. Therein, he argued that the magistrate incorrectly applied former R.C. 3113.215, which was repealed in March 2001, and replaced with, inter alia, R.C. 3119.04,

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which prescribes a different method for calculating child support in cases where, as here, the parents' combined gross income exceeds the sum of $150,000. The Father also argued that the magistrate erred in excluding from the Mother's gross income any portion of tax refunds she received when such portion was attributable to her having taken advantage of the federal Earned Income Credit. The Father also argued that the magistrate should have imputed income to the Mother for tax year 1996, for which she reported no income but did report childcare expenses.

{¶11} On May 5, 2003, the Mother filed a supplemental memorandum in support of her objections. Therein, she further elucidated her arguments in support of her objections, and also responded to the Father's objections. She pointed out that a statute is always presumed to apply prospectively unless the General Assembly expressly makes it retrospective in application. As such, she argued, the magistrate correctly applied R.C. 3113.215, which was in effect during the time period for which the Mother sought and received an order of support. If the magistrate had applied the current statute, the Mother urged, the Father would be rewarded for not paying child support in a timely fashion.

{¶12} The Mother also argued that the Earned Income Credit-related portions of her tax refunds constitute means-tested government assistance and thus do not fall within the definition of "income" for child support purposes. Finally, the Mother argued that it was within the magistrate's discretion to not impute income to her, noting that the Father presented no evidence with respect to the Mother's employment potential and probable earnings, including evidence regarding her occupational qualifications and work history,

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job opportunities in her area, and regional salary levels. She argued it was appropriate for the magistrate to include the Mother's childcare expenses in his calculations because the evidence adduced clearly demonstrated that these expenses resulted from the fact that the Mother attended school on a full-time basis and was working toward a degree.

{¶13} On March 5, 2004, the court journalized its decision and entry. Therein, the court overruled...

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