COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67308 DEBRA SARRO : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL A. SARRO : : Defendant-appellee : : DATE OF ANNOUNCEMENT : MARCH 30, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. D-195745 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: MICHELE M. LAZZARO, ESQ. EGIDIJUS MARCINKEVICIUS, ESQ. 940 Leader Bldg. Algis Sirvaitis & Assoc. Cleveland, OH 44114 880 East 185th Street Cleveland, OH 44119 - 2 - PATTON, C.J. Plaintiff-appellant, Debra Sarro ("appellant") appeals the trial court's decision to adopt the referee's report with respect to her motions to show cause. Appellant and defendant-appellee, Michael Sarro ("appellee") were divorced on December 13, 1989 and their previously executed separation agreement was incorporated into the order. The order granted appellant and appellee joint custody of their two minor children, Elizabeth Sarro and Dominic Sarro. Appellee was ordered to pay $75 per week per child as child support based on his annual gross income for $33,500 per year and appellant's lack of any income. Appellee was to provide health insurance for the children. The above order further provided that appellee would retain as his sole property "all the stock . . ., personal property license, goodwill" and other assets he had in Siblex Corporation DBA: En Provence, a restaurant located in Cleveland Heights, Ohio, "except for the Wife's catering equipment listed on Exhibit A which shall be the property of Wife and picked up by her within 30 days" of the agreement. The order further provided that appellant would be entitled to forty percent of the net proceeds received by appellee in the event the restaurant was sold. The order specifically provided in language agreed to by the parties that: It is understood by Wife that there is no guarantee that such a sale will take place or that Husband will receive any amount of proceeds in the event of a sale. - 3 - By subsequent prior order, dated September 12, 1990, appellee's child support obligation was reduced to a total of $93.84 per week. This reduction was based on appellee's decrease in his salary to $20,020. Appellant filed the following motions to show cause: (1) appellee has failed to give appellant her catering equipment; (2) appellee is in contempt of court for refusing to pay her an amount equal to forty percent of the net proceeds of sale of the stock in Siblex Inc., alleging further that appellee sold the stock for less than adequate consideration with the intent to defraud appellant; (3) appellant requests the court to modify the joint custody order, to award her sole custody of the children and establish a new schedule of visitation and a further request that appellee be ordered to transport the children for visitation purposes; (4) the child support request be modified, due to increased costs for maintaining the children and a further request that she be awarded the tax exemptions for the children and (5) an award of her attor- ney fees. Appellant's motions to show cause were heard before a referee commencing July 6, 1994. The referee recommended the following: (1) appellant be named the residential parent and legal custodian of the minor children; (2) appellee have visitation with the children every Sunday from noon until Monday morning and appellant shall provide transportation to all visitations; (3) appellee be entitled to claim the children as defendants for tax purposes; (4) - 4 - appellant shall provide health insurance for the children and (5) appellant's motion for attorney fees be denied. The trial court adopted the referee's findings of fact and conclusions of law on April 26, 1994, over appellant's objections. Appellant's first assignment of error states: I. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DENIAL OF THE PLAINTIFF/APPELLANT CUSTODIAL PARENT'S REQUEST FOR AN AWARD OF BOTH DEPENDENCY EXEMPTIONS FOR THE PARTIES' MINOR CHILDREN. Appellant maintains that the trial court abused its discretion when it denied her request for an award of both dependency exemptions for the minor children. Specifically, appellant claims that Section 152(e), Title 26, U.S. Code creates a presumption that the dependency exemption is awarded to the custodial parent and the trial court abused its discretion when it gave the appellee both dependency exemptions for tax purposes. Ohio law is clear that "Section 152(e), Title 26, U.S. Code does not preempt a state court's authority to allocate the federal tax dependency exemption to the noncustodial parent." Singer v. Dickinson (1992), 63 Ohio St.3d 408, paragraph one of the syllabus. In fact, Singer, held: The allocation of the dependency exemption provided by Section 152(e), Title 26, U.S. Code may be awarded to the noncustodial parent when that allocation would produce a net tax savings for the parents, thereby furthering the best interest of the child. Id. at paragraph two of the syllabus. - 5 - In the present case, appellant is remarried and works for her current husband without pay. Appellant claims that if she were paid she would make $15,000 a year and she requested that amount imputed as her salary. The referee stated that appellant presumably files a joint tax return with her present husband and would only receive an indirect benefit if she were granted the exemptions. Appellee is actually paying from his own income for the support of the children and can benefit directly from the granting to the tax exemptions. We hold that the trial court's adoption of the referee's report complied with Singer, supra, by allocating the tax exemption to the appellee. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: II. THE TRIAL COURT ABUSED ITS DISCRETION IN RECOM- MENDING AN ALTERNATIVE TO AN ALTERNATING WEEK- END VISITATION SCHEDULE AT "DEFENDANT'S ELEC- TION" WHICH ALTERNATIVE VISITATION IS NOT IN THE BEST INTERESTS OF THE CHILDREN. Appellant maintains that the trial court abused its discretion when it recommended an alternative to the alternating weekend visitation schedule which was not in the best interest of the children. Specifically, appellant asserts that the current visita- tion schedule, every Sunday afternoon to Monday morning, is not in the best interest of the children and therefore the trial court abused its discretion by not requiring every other weekend as the visitation schedule. - 6 - The determination of visitation requests is within the sound discretion of the trial court. Goode v. Goode (1992), 89 Ohio App.3d 405, 414. The Supreme Court of Ohio held, the term "abuse of discretion" connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. State v. Adams (1981), 62 Ohio St.2d 151, 157; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The evidence adduced at the hearing showed that appellee manages a restaurant and works six days a week, from 80 to 100 hours. Appellee requested visitation every Sunday afternoon to Monday morning rather than every other weekend from Friday through Sunday because Sunday was his only day off of work. We hold that the trial court did not abuse its discretion when it permitted the appellee to chose which visitation schedule would best suit his needs considering the fact that Sunday is the only day appellee can spend time with his children. Accordingly, appellant's second assignment of error is over- ruled. Appellant's third assignment of error states: III. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDER- ING THAT DEFENDANT/APPELLEE ONLY BE REQUIRED TO TRANSPORT THE CHILDREN AT THE END OF VISITA- TIONS, THEREBY REQUIRING PLAINTIFF/APPELLANT TO PROVIDE TRANSPORTATION TO ALL VISITATIONS. Appellant asserts that the trial court abused its discretion when it ordered appellant to provide transportation to all visitations. Specifically, appellant claims that it is unfair that - 7 - she has to provide all transportation to visitations and that the appellee should be required to pick the children up in the future. The determination of whether or not a custodial parent has to provide the children with transportation to visitations with the non-custodial parent is within the discretion of the trial court. Goode, supra. The trial court found nothing in the evidence to show why the responsibility for transporting the children to and from visitation should not be shared. We do not find that the trial court abused its discretion when it required appellant to transport the children. The trial court could adopt the finding that the appel- lant was in a better position to bear the burden of transporting the children to the visitation with the appellee. Accordingly, appellant's third assignment of error is overruled. Appellant's forth assignment of error states: IV. THE TRIAL COURT'S ORDER FINDING THAT DEFENDANT/APPELLEE HAS NO INCOME OTHER THAN HIS ALLEGED $20,020.00 YEARLY SALARY WAS TOTALLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AN ABUSE OF DISCRETION. Appellant maintains that the trial court's order finding that appellee has no income other than his alleged $20,020 yearly salary was against the manifest weight of the evidence and an abuse of discretion. Specifically, appellant asserts that the trial court's finding that appellee's yearly income of $20,020 was not supplemented was against the manifest weight of the evidence. - 8 - The Ohio Supreme Court held in C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus: Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. In the present case there was testimony that appellee made only $20,020 a year as his salary. There was also testimony that appel- lee was loaned money from Siblex over the years and has made pay- ments on those loans. Appellant did not present any evidence to prove that appellee was taking money from the business as supple- mental income. Accordingly, we find that the trial court's finding that appellee's income totalled $20,020 a year was not against the manifest weight of the evidence. Appellant's fourth assignment of error is overruled. Appellant's fifth assignment of error states: V. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN COMPUTING CHILD SUPPORT PURSUANT TO THE UNIFORM CHILD SUPPORT GUIDELINES. Appellant maintains that the trial court abused its discretion and erred in computing child support pursuant to the Uniform Child Support Guidelines. Specifically, appellant asserts that the trial court erred when it failed to find that appellee receives significant amounts of additional income and failed to adjust appellee's income accordingly. - 9 - This assignment of error is rendered moot by the disposition of appellant's fourth assignment of error. See App.R. 12(A)(1)(c). Appellant's sixth assignment of error states: VI. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AT LAW IN DENYING PLAINTIFF/APPELLANT'S MOTION FOR ATTORNEY FEES. Appellant maintains the trial court abused its discretion and erred when it denied her motion for attorney fees. Specifically, appellant claims that she is unable to pay her attorney fees and therefore the trial court abused its discretion when it denied to award her attorney fees. It is well established that a decision whether to award attor- ney fees is within the sound discretion of the trial court. Blum v. Blum (1967), 9 Ohio St.2d 92. The referee found that appellant was not successful in the prosecution of her motion to show cause or of her motion seeking to increase child support. The referee also stated that although appellant is unemployed she has had the ability to be employed, and if she worked she would be able to pay her own attorney fees, albeit slowly. Moreover, the appellee is not significantly better off financially than the appellant. We hold that the trial court did not act unreasonable, arbi- trary or unconscionable when it adopted the referee's report that denied appellant's motion for attorney fees. - 10 - Accordingly, appellant's sixth assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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 DYKE, J. BLACKMON, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date here- of, this document will be stamped to indicate journalization, at .