COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60706 JUDITH TURNER, ET AL. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION DONALD F. BRITTENUM : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : SEPTEMBER 3, 1992 CHARACTER OF PROCEEDING : Appeal from Court of Common Pleas : Juvenile Court Division : Case No. 8970200 JUDGMENT : AFFIRMED IN PART, : REVERSED IN PART : AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: PHYLLIS BROOKS, ESQ. RAMON BASIE, ESQ. 75 Public Square 3669 Lee Road Suite 1210 Shaker Hts., Ohio 44120 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, P.J., Appellants Judith Turner, et al appeal from the child support order entered by the trial court. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings. I. Appellants commenced this paternity action against appellee on January 25, 1989, seeking to establish a parent-child relationship between appellant, Brook S. Turner, and appellee, Donald F. Brittenum, and for expenses and support resulting therefrom. Paternity has been admitted by appellee. The only matter remaining in dispute is the award of expenses and support to be furnished appellants by appellee. This matter proceeded to hearing before a Juvenile Court referee on July 9, 1990. At that hearing, appellants presented evidence that they had incurred a total of $9,531.21 in uninsured medical expenses due to the premature birth of Brook. Further, Judith Turner earned no income in 1989 or 1990, and earned only $12,300.00 in 1988. Finally, evidence was presented that Judith Turner has a college degree, is an engineer, and has partially completed masters degrees in both engineering and business. Appellee submitted evidence that he was formerly a medical doctor, but became completely disabled in 1987. Appellee received disability income insurance benefits amounting to $53,000.00 in 1987; $61,548.00 in 1988; and $63,205.00 in 1989. - 3 - Further, appellee and his wife generate interest income in the approximate amount of $16,000.00 per year. Appellee stated that most of the assets generating such income are in his wife's name. Finally, appellee testified that he pays approximately $105.00 per week for treatment for his disability. Past care of the child is also at issue. Appellants claimed that appellee provided approximately $900.00 in support during the first four years of the child's life. Appellee contended that that figure was $1,000.00. Based upon submissions by both parties, the referee determined appellee's income to be $73,705.00 per year, and ordered current support in the amount of $163.73 per week. The referee further ordered the expenses of $9,531.21 be paid at a rate of $56.27 per week, and that back support in the amount of $33,647.03 be paid at a rate of $56.27 per week, once the maternity expenses become paid in full. Timely objection to the referee's report were made by both parties. On September 21, 1990, the trial court overruled each parties objections, and approved the report of the referee. This appeal timely follows. II. For their first assignment of error, appellants argue that the trial court erred by deviating from the Child Support Guidelines when determining the amount of child support. - 4 - In order for a reviewing court to overturn a child support award it must find that the trial court abused its discretion. This standard has been recently analyzed by the Ohio Supreme Court in the case of Booth v. Booth (1989), 44 Ohio St. 3d 142, 144, wherein it was stated that: "In general, when reviewing the propriety of a trial court's determination in a domestic relations case, this court has always applied the 'abuse of discretion' standard. This has been true in cases reviewing an order relating to alimony, see Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 5 OBR 481, 450 N.E. 2d 1140; a division of the marital property, see Martin v. Martin (1985), 18 Ohio St. 3d 292, 18 OBR 342, 480 N.E. 2d 1112; or a custody proceeding, see Miller v. Miller (1988), 37 Ohio St. 3d 71, 523 N.E. 2d 846. Since it is axiomatic that a trial court must have discretion to do what is equitable upon the facts and circumstances of each case, see Cherry v. Cherry (1981), 66 Ohio St. 2d 348, 355, 20 O.O. 3d 318, 322, 421 N.E. 2d 1293, 1299, it necessarily follows that a trial court's decision in domestic relations matters should not be disturbed on appeal unless the decision involved more than an error of judgment. Upon a review of the statute governing child support, R.C. 3109.05, as well as the Child Support Guidelines set forth in C.P. Sup. R. 75, we believe that common sense and fundamental fairness compel the application of the 'abuse of discretion' standard in reviewing matters concerning child support and visitation rights. As this court has held many times, an "'abuse of discretion' *** implies that the court's attitude is unreasonable arbitrary or unconscionable. ***". See, e.g., Blakemore, supra, at 219, 5 OBR at 482, 450 N.E. 2d at 1142." - 5 - The trial court determined appellee's income to be $73,705.00 per year, and based its calculations for both back and current support on that figure. The record reflects that the child was born on June 23, 1986, and that in 1986 appellee and his wife had a joint gross income of $156,000.00, $8,000.00 of which was earned by his wife in wages. The record further reflects that in 1987 appellee earned $119,000.00 in wages, $53,000.00 in disability insurance income, and an undetermined amount of interest income. In 1988 appellee received $61,548.00 in disability insurance income and $16,522.00 in interest income. The trial court never determined what percentage of any interest income appellee received had accrued from property owned by his wife. Under both the new Child Support Guidelines embodied in R. C. 3113.215, and the old guidelines of C.P. Sup. R. 75, a trial court has broad discretion to deviate from the guidelines where such deviation is substantiated by findings of fact. Hurdelbrink v. Hurdelbrink (1989), 45 Ohio App. 3d 5; Karlatiras v. Karlatiras (August 15, 1991), Cuyahoga App. No. 61533, unreported. In the case sub judice, the court has made a substantial deviation from the guidelines, reducing appellee's income by over 50% for purposes of determining back support. Further, the court has failed to completely differentiate appellee's earnings form those of his wife. While such a drastic deviation may not constitute an abuse of discretion considering - 6 - appellee's disability, the court's failure to substantiate said deviation with findings of fact is clearly reversible error. Hurdelbrink, supra. Based upon the foregoing, we find that the trial court's order, which failed to completely differentiate appellee's income from that of his wife, and which failed to substantiate the court's deviation from the Child Support Guidelines with findings of fact, must be reversed. Appellants' first assignment of error is well-taken. III. For their second assignment of error, appellants argue that the trial court erred in failing to provide in the support order for known and reasonably anticipated medical needs of the child. In any support order the known and reasonably anticipated medical needs of the child must be provided for. Gorman v. Gorman (1986), 28 Ohio App. 3d, 85. While it is clear that provisions for medical expenses were not spelled out in the court's order, appellee argues that they were considered in applying the Child Support Guidelines. R.C. 3109.05(A), both in its current form and as constituted throughout the pendency of this action, provided that: "The court shall include in the support order the requirement that one or both of the parents provide for the health care needs of the child." The report of the referee, which was adopted in toto by the trial court, is devoid of any reference to the health care needs - 7 - of the child. We find this contravention of R.C. 3109.05 to be clear abuse of discretion by the trial court. Appellants' second assignment of error is well-taken. IV. For their third assignment of error, appellants argue that the trial court erred in failing to reduce past maternity expenses to a lump sum judgment. R.C. 3111.13(D) provides that: "Support judgments or orders ordinarily shall be for periodic payments that may vary in amount. In the best interests of the child, a lump sum payment or the purchase of an annuity may be ordered in lieu of periodic payments of support." (Emphasis added.) Appellee has demonstrated that he is disabled, and that his income, albeit substantial, is fixed. The tax returns appellee has submitted into evidence do not indicate, as appellants contend, that the money due is currently available to appellee. Appellants have set forth no evidence indicating that it would be in "the best interest of the child" to force appellee to make the payment in a lump sum. In order for us to determine that the trial court "abused its discretion" in allowing appellee to make these periodic payments, we would have to find that the court's order was arbitrary, unreasonable, or unconscionable. Blakemore, supra. We do not find evidence to support such a claim. Appellants' third assignment of error is not well taken. Judgment affirmed in part, reversed in part, and remanded. - 9 - It is ordered that appellants and appellee equally share the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court, Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, J., and PATTON, J., CONCUR. JOHN F. CORRIGAN PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .