State ex rel. Scioto Cty. Child Support Enforcement Agency v. Gardner

• Decision Date: 25 July 1996
• Docket Number: No. 95CA2384,95CA2384
• Citation: 680 N.E.2d 221,113 Ohio App.3d 46
• Parties: The STATE ex rel. SCIOTO COUNTY CHILD SUPPORT ENFORCEMENT AGENCY et al., Appellees, v. GARDNER, Appellant.
• Court: Ohio Court of Appeals

Page 46

113 Ohio App.3d 46

680 N.E.2d 221

The STATE ex rel. SCIOTO COUNTY CHILD SUPPORT ENFORCEMENT AGENCY et al., Appellees, v. GARDNER, Appellant.

No. 95CA2384.

Court of Appeals of Ohio Fourth District, Scioto County.

Decided July 25, 1996.

[680 N.E.2d 223] Matthew W. McFarland, Portsmouth, for appellees.

Charles H. Wilson, Jr., West Union, for appellant.

KLINE, Judge.

Plaintiff-appellees Scioto County Child Support Enforcement Agency and Delana R. Boldman filed a complaint in the Scioto County Court of Common Pleas, Juvenile Division, against defendant-appellant Michael R. Gardner to determine the parentage of Paul S. Boldman, who was thirteen years old at the time. The results of blood tests indicated a 99.99 percent probability that appellant is Paul's biological father. Appellant filed an answer to the complaint denying parentage and asserting among his defenses the doctrine of laches. Subsequently, appellant agreed that he is Paul's biological father, and the court entered judgment accordingly. The court also ordered appellant to pay the Scioto County Department of Human Services $15,000 in back child support. The court allowed appellant to satisfy the judgment by paying $7,500 within thirty days of the entry of judgment, and appellant does not contest that payment in this appeal.

The case was transferred to the Domestic Relations Division of the Scioto County Court of Common Pleas for a determination of the amount of future child support. The relevant issues were submitted to the court by a memorandum and a supplemental memorandum on behalf of appellant and a memorandum in opposition on behalf of appellees. Appellant's memorandum indicated that he earns a yearly salary of $29,011 but that this amount should be adjusted for the purposes of determining child support. Specifically, appellant asserted that his income should be reduced by the amount of the tax deductions he receives due to the support of his three children, two of whom are older than eighteen years old but who still live at home and are being supported by appellant while they attend college. Appellant also contended that his income should be reduced by the amount of the business expenses he incurs while working for the Fischel Company, as appellant is required to live near the job sites and pay for hotel accommodations, food, industrial code shoes, tools, and the maintenance of a truck. Finally, appellant requested that the court consider that appellee Boldman's thirteen-year delay in informing appellant of the existence of their son Paul denied appellant visitation for thirteen years and prejudiced him by thwarting the financial plans he has made for his family. In appellees' memorandum in opposition, appellees argued that appellant has shown no basis for deviations from the child support guidelines. Appellees argued that two of appellant's children are no longer minors and therefore do not warrant a deduction in appellant's income in the amount of the relevant tax deductions. Appellees further contended that appellant is not entitled to business deductions because he is not self-employed. Appellees requested child support in the amount of $87.31 per week.

Appellant filed a supplemental memorandum to rebut appellees' arguments. In this memorandum, appellant suggested that if the issues were not clear to the court, a hearing should be held so that the issues could be more fully explained and appellees could cross-examine appellant. The court did not hold a hearing.

The trial court entered judgment ordering appellant to pay child support in the amount of $87.31 per week, apparently adopting the figures from appellees' child support worksheet. ¹ The court found that appellant's argument for reduction in his income for work expenses and his children's college expenses was not well taken. The court did not expressly rule on the laches defense raised in appellant's answer.

Appellant appeals from the trial court's judgment and asserts the following assignments of error:

FIRST ASSIGNMENT OF ERROR

"Defendant states that there was error in the proceedings and judgment of the lower court prejudicial to this defendant in that the lower court failed to hold a hearing as requested by the defendant in his supplemental memorandum."

SECOND ASSIGNMENT OF ERROR

"There was error in the proceedings and judgment of the lower court prejudicial to the defendant in that the Court failed to reduce his gross income for the purpose of determining child support by deducting the amount of the federal tax exemption for each of his two children who were over the age of 18, but living at home and attending college."

THIRD ASSIGNMENT OF ERROR

"There was error in the proceedings and judgment of the lower court prejudicial to this defendant in that the lower court failed to reduce his gross income for the purposes of determining child support for the expenses incurred in his employment while away from home."

FOURTH ASSIGNMENT OF ERROR

"There was error in the proceedings and judgment of the lower court in that it did not consider or rule upon the defense of laches that was raised by the defendant."

In his first assignment of error, appellant asserts that the trial court erred by failing to hold a hearing on the issues raised in the parties' memoranda. Appellant submits that the court is required to permit the child support obligor to present all evidence pertinent to the calculation of support.

Appellant's supplemental memorandum stated as follows: "Defendant submits that if these items are not clear to the Court, another hearing should be held so that the same can be more fully explained and plaintiff's counsel will be given an opportunity to cross-examine this defendant in regard to the same." Appellees assert, and this court agrees, that appellant's statement constituted a conditional request for a hearing, and if appellant wanted a hearing, he should have filed a formal request within the months that elapsed before the court entered judgment.

Scioto C.P.R. V(A)(2), states that "[m]otions, including motions for summary judgment, shall be submitted and determined upon the motion papers hereinafter referred to without oral argument unless specifically requested and allowed by the court." ² The record shows no specific request for a hearing by appellant. Failure to request a hearing constitutes waiver. See Aristech Chem. Corp. v. Carboline Co. (1993), 86 Ohio App.3d 251, 257, 620 N.E.2d 258, 262. Consequently, this court finds no error in the trial court's failure to hold a hearing, and we overrule appellant's first assignment of error.

In his second assignment of error, appellant contends that the trial court erred by failing to reduce the amount of his gross income in the child support calculation by the amount of the federal income tax exemption for his two children over the age of eighteen. Before addressing the merits of appellant's argument, we must first set forth the applicable standard of review of child support determinations.

An appellate court uses the abuse of discretion standard when reviewing matters concerning child support. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028, 1030-1031. A trial court will not be found to have abused its discretion unless its decision involves more than an error of judgment and can be characterized as unreasonable, arbitrary, or unconscionable. Id.; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482-483, 450 N.E.2d 1140, 1141-1142. When applying the abuse of discretion standard of review, an appellate court must not substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181, 1184-1185.

R.C. 3113.215 sets forth the guidelines a trial court must follow when calculating child support payments. This section provides a schedule and computation worksheet to be utilized in this determination. The amount of child support calculated pursuant to the child support schedule and worksheet is "rebuttably presumed to be the correct amount of child support due," and the court shall order that amount to be paid unless the court determines that the amount calculated is unjust or inappropriate and not in the best interests of the child. R.C. 3113.215(B)(1). See, also, Rock v. Cabral (1993), 67 Ohio St.3d 108, 110, 616 N.E.2d 218, 220-221; Marker v. Grimm (1992), 65 Ohio St.3d 139, 141, 601 N.E.2d 496, 497-498. If the court determines that the application of the schedule and applicable worksheet is unjust or inappropriate and not in the child's best interest, the court may deviate from the amount of support directed by the schedule and worksheet. R.C. 3113.215(B)(3). The provisions of R.C. 3113.215 are to be strictly construed by the courts in order to ensure uniform, consistent, and fair child support orders. Id. at 143, 601 N.E.2d at 499. Failure to comply with the requirements of R.C. 3113.215 constitutes reversible error. Id.

R.C. 3113.215(B)(5) provides as follows:

"(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 spousal support paid to a former spouse 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.

"(c) If a parent has other minor children living with him who were born to him and a person other than the other parent who is involved in the immediate child support determination, the court or agency shall deduct an amount from that parent's gross income that equals the number of such minor children times the federal income tax exemption for such children less child support received for them for the year, not exceeding the federal income tax exemption."

Appellant submits that both of these sections should be utilized to reduce the amount of his gross income. Appellant argues that...