Tara Lattimore v. Derrick Lattimore, 97-LW-3650
| Decision Date | 06 October 1997 |
| Docket Number | 97-LW-3650,97CA2482 |
| Parties | Tara Lattimore, Plaintiff-Appellant v. Derrick Lattimore, Defendant-Appellee Case |
| Court | Ohio Court of Appeals |
Michael H. Mearan, Portsmouth, Ohio, for Appellant.
Joan M Garaczkowski, Portsmouth, Ohio, for Appellee.
DECISION
This is an appeal by Tara Lattimore from a judgment of the Scioto County Court of Common Pleas which granted the parties a divorce and established a child support award on behalf of the parties' adopted child.
Tara Lattimore ("wife") and Derrick Lattimore (husband") were married in 1990. After living separate and apart for more than one year, the wife filed a complaint for divorce in 1996. The husband answered and filed a counterclaim for divorce. After a final hearing, the trial court granted both parties' complaints for divorce on the grounds of incompatibility.
During the marriage, the parties adopted DeVante Lattimore. Since DeVante's biological mother was drug dependent, the child was placed with the Lattimores through Montgomery County Children Services. Because DeVante was considered a "special needs" child, Children Services provided the Lattimores with so-called IV-E Adoption Assistance in the amount of $528 per month.[1]
The trial court named the wife as DeVante's residential parent and ordered the husband to pay child support. Since the wife was unemployed, the husband was responsible for one hundred percent of the child support obligation. Based on the husband's annual gross income of $49,000, minus $980 as a credit for local taxes, the child support guidelines indicated an annual support obligation of $7,084 or $590.33 per month.
However, the court held that the $528 per month adoption assistance payments from Children Services were Resources of the child that could be considered as a factor justifying a deviation from the guideline figure. After deducting $6,336 ($528 per month x twelve months) for the adoption assistance payments, the court thereby reduced the husband's annual child support obligation to $748 or $62.33 per month. The wife filed a timely notice of appeal challenging the trial courts deviation from the child support guidelines.
Appellant's sole assignment of error states:
"THE COURT ERRED IN GIVING THE DEFENDANT A CHILD SUPPORT CREDIT FOR MONIES RECEIVED BY THE PLAINTIFF-APPELLANT FROM CHILDREN SERVICES."
An appellate court applies the abuse of discretion standard when reviewing matters related to child support. Booth v. Booth (1989), 44 Ohio St.3d 142, 144; State ex rel. Scioto Cty. Child Support Enforcement Agency v. Gardner (1996), 113 Ohio App.3d 46, 52. The question of whether to deviate from the child support guideline amount is a matter within the trial courts discretion. Carpenter v. Reis (1996), 109 Ohio App.3d 499, 504. An abuse of discretion involves more than a mere error of judgment; it connotes an attitude on the part of the trial court that is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion standard of review, an appellate court may not simply substitute its judgment for that of the trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 138.
Initially, we note that appellant has not provided us with a transcript of the proceedings. A document filed by appellant's counsel states that "Appellant says that no transcript of the proceedings is available in this case, for the reason that the final hearing was not taped."
Pursuant to App.R. 9(B), the duty to provide a transcript for appellate review falls upon the appellant. The duty falls upon the appellant because the appellant bears the burden of showing error by reference to the matters in the record. State v. Prince (1991), 71 Ohio App.3d 694, 595 N.E.2d 376; Columbus v. Hodge (1987), 37 Ohio App.3d 68, 523 N.E.2d 515; Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 382 N.E.2d 1179.
It is axiomatic that any error on the part of a trial court must affirmatively appear on the record or an appellate court will presume that the judgment and proceedings below were valid. See State ex rel. Fisher v. Reno Hotel, Inc. (1994), 95 Ohio App.3d 67, 641 N.E.2d 1155; Prince; Hodge; Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400 N.E.2d 384. Thus, if an appellant fails to provide a transcript of the proceedings, the reviewing court has nothing to pass upon and must affirm the judgment. Holley v. Higgins (1993), 86 Ohio App.3d 240, 620 N.E.2d 251; Lawson v. Clark Rubber Co. (1993), 84 Ohio App.3d 831, 619 N.E.2d 26; Knapp, supra, at 199.
App.R. 9(C) provides a substitute for a transcript when no record was made in the trial proceedings. Likewise, appellant has failed to provide us with an App.R. 9(C) statement of the evidence. Normally, these omissions would be fatal to appellants chances of prevailing on appeal. However, for the reasons that follow, we proceed with our review of the trial court's judgment.
R.C. 3113.215 sets forth the procedures a trial court must follow when calculating a parent's child support obligation. Rock v. Cabral (1993), 67 Ohio St.3d 108, 110. R.C. 3113.215(B)(1) requires that the trial court's calculation must be made in accordance with the basic child support schedule set forth in
R.C. 3113.215(D) and the applicable child support worksheet set forth in R.C. 3113.215(E) or (F), as well as the other provisions of that section.
The amount of child support calculated using the schedule and worksheet is rebuttably presumed to be the correct amount of child support due. R.C. 3113.215(B)(1). This presumption may only be rebutted if the trial court determines that the amount calculated pursuant to the schedule and worksheet would be unjust or inappropriate and would not be in the best interest of the child. R.C. 3113.215(B)(1)(a). Moreover, the trial court must state findings of fact which support its determination that the calculated amount would be unjust or inappropriate and not in the best interest of the child. R.C. 3113.215(B)(1)(b).
Thus, the first issue we must address is whether the use of a setoff against a parent's support obligation for payments received directly by a minor child results in a deviation within the context of R.C. 3113.215. If it does, then the trial court must comply with the requirements of R.C. 3113.25(B). We believe that the use of a setoff or credit for benefits received by the child results in a deviation for the following reasons. First, the amount of support calculated by using the schedule and the applicable worksheet is presumed to be the correct amount of child support due. R.C. 3113.215(B)(1). Second, a trial court need not consider the child's financial resources of computing the guideline amount of support. It is only upon a deviation from that amount that the court considers the criteria set forth in R.C. 3113.215(B)(3)(a)-(p). The child's financial resources appear as paragraph (f) of that subsection. Furthermore, even in cases where the total amount which the child receives may remain unchanged, there is a deviation in the amount the obligor parent(s) pay(s) when a setoff occurs.
A deviation in the obligation of the parents from the amount calculated by use of the schedule and worksheet must be predicated upon specific findings concerning the best interests of the child and the inappropriateness of the guideline amount. R.C. 3113.215(B)(1)(a) and (b). The trial court's order fails to make any such findings of fact. The Supreme Court of Ohio has held that the terms of R.C. 3113.215 are mandatory in nature and must be followed literally and technically in all material respects. Marker v. Grimm (1992), 65 Ohio St.3d 139, paragraph two of the syllabus. Any deviation from the applicable worksheet and the basic child support schedule must be entered by the court in its journal and must include findings of fact to support the court's deviation. Id. at paragraph three of the syllabus. The Supreme Court also noted that:
Id. at 141-142. In light of the specific and mandatory nature of the terms of R.C. 3113.215, a trial court's failure to comply with the literal requirements of the statute constitutes reversible error. Id. at 143. Aside from this mere technical deficiency, we are concerned with a more substantive issue in light of the nature of the payments for which the appellee has received credit.[2] While...
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