COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70525 : ACCELERATED DOCKET JANIS E. SCHNEEBERGER : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : R. LOUIS SCHNEEBERGER : PER CURIAM : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 19, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Div. of Common Pleas Court Case No. D-223704 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: MADELON SPRAGUE, ESQ. JAMES S. CAHN, ESQ. Zamore, Luria & Gisser Hermann, Cahn & Schneider 1111 Tower East 1301 East Ninth Street, #500 20600 Chagrin Blvd. Cleveland, Ohio 44114 Shaker Hts., Ohio 44122-5334 -2- PER CURIAM: Plaintiff-appellant, Janis E. Schneeberger, appeals the trial court's order modifying defendant-appellee, R. Louis Schneeberger's child support obligation. She assigns the following errors for our review: I. THE COURT ABUSED ITS DISCRETION BY DEVIATING FROM STATUTORY GUIDELINE CHILD SUPPORT WITHOUT SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE STATUTORY MANDATED SUPPORT WAS NOT IN THE BEST INTERESTS OF THE CHILDREN. II. THE COURT ERRED IN ITS CALCULATION OF GUIDELINE CHILD SUPPORT BY FAILING TO CONSIDER APPELLEE'S REAL GROSS INCOME. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court and remand the case to the trial court for proceedings consistent with this opinion. The apposite facts follow. The parties were divorced on March 15, 1993. In the original decree, R. Louis Schneeberger was ordered to pay child support in the amount of $1,250 per child per month. On September 23, 1994, Janis Schneeberger filed a motion to modify child support. In the motion, she claimed the income of R. Louis Schneeberger had increased tremendously, but she did not request a specific amount of increase in child support. After a hearing on the matter, the trial court increased child support from $1,250 to $2000 per child per month. The evidence at the hearing revealed that Louis Schneeberger's gross income in 1993, including a salary of $932,867, was approximately $1.2 million. In 1994, his company, Olympic Steel, -3- Inc. went public, and he received $1,750,000 in dividends. His gross income for 1994 was slightly in excess of $2,000,000. In 1995, his base salary was $250,000, and he also received the maximum allowable bonus of $150,000, which was earned in 1994. Janis Schneeberger earned approximately $9,500 in interest income and dividends in 1994. After the hearing, the magistrate granted the motion to modify. The magistrate used the Basic Child Support Schedule (worksheet) and imputed R. Louis Schneeberger's income at $250,000 and bonuses of $150,000. Based upon these figures and Janis Schneeberger's income, the magistrate calculated child support to be between $2,698.16 per month per child to $3,657.21 per month per child, depending upon R. Louis Schneeberger's bonuses. The magistrate then found a change of circumstances had occurred within the meaning of R.C. 3113.215(B)(4) because there was more than a 10% increase over the existing order. However, the magistrate further found the worksheet amount of support would be "unjust or inappropriate and not in the best interest of the children where support is based purely on a straight 15% formula and not related in anyway to the needs of the children." The magistrate reasoned R. Louis Schneeberger was ordered to provide health insurance for the children and pay uninsured and unreimbursed medical and dental expenses, and R. Louis Schneeberger was required to established a trust fund for the children with a current market value of approximately $500,000 to $600,000. -4- Therefore, the magistrate determined support should be $2,000 per month per child. The trial judge overruled objections to the magistrate's decision and adopted the magistrate's decision. This appeal followed. In her first assignment of error, Janis Schneeberger argues the trial court abused its discretion in deviating from the child support guidelines. The standard of review for determining whether child support is properly awarded is abuse of discretion. Rock v. Cabral (1993), 67 Ohio St.3d 108. Abuse of discretion connotes the trial court's award was "unreasonable, arbitrary, or unconscionable." E.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. However, in determining child support, the trial court must be in "strict compliance" with R.C. 3113.215. Marker v. Grimm (1992), 65 Ohio St.3d 139. In Marker at 141, the court provided as follows: R.C. 3113.215(B)(1) requires that a calculation of the amount of an obligor's child support obligation must be made "in accordance with" the basic child support schedule set forth in R.C. 3113.215(D), the applicable worksheet in R.C. 3113.215(E) or (F), and other requirements of the law. R.C. 3113.215(E) and (F) both provide a sample or "model" worksheet and each provision directs the court to "use a worksheet that is identical in content and form" to the applicable model provided. R.C. 3113.215(B)(1) further provides that the amount calculated using the schedule and worksheet (through line 18 of the worksheet) is "rebuttably presumed" to be the correct amount of child support due and that amount must be -5- ordered to be paid unless both of the following apply. "(a) The court, after considering the factors and criteria set forth in division (B)(3) of this section, determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 18, would be unjust or inappropriate and would not be in the best interest of the child. "(b) The court enters in the journal the amount of child support calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 18, its determination that that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination." The court further held that the overriding concern is "the best interest of the child" for whom support is awarded. Id. Thus, "***any deviation from the child support guidelines must be found to be in the best interest of the children, despite any obligor's claim of 'unfairness.'" Gatliff v. Gatliff (1993), 89 Ohio App.3d 391, 394. Furthermore, "***an increased economic need is not a requirement for obtaining an increase in child support as long as it is shown that an increase in the obligor's income would result in at least a ten percent change in the amount of child support." Pratt v. McCullough (1995), 100 Ohio App.3d 479, 482. Janis Schneeberger takes issue with the magistrate's deviation from the child support guidelines and the finding that the scheduled amount would be unjust or inappropriate and would not be in the best interest of the child. R.C. 3113.215(B)(3) provides: In determining whether that amount would be unjust or inappropriate and would not be in the best interest of the child, the court may -6- consider any of the following factors and criteria: (a) Special and unusual needs of the children; (b) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination; (c) Other court-ordered payments; *** (e) The obligor obtains additional employment after a child support order is issued in order to support a second family; (f) The financial resources and the earning ability of the child; (g) Disparity in income between parties or households; (h) Benefits that either parent receives from remarriage of sharing living expenses with another person; (i) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents; (j) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing; (k) The relative financial resources, other assets and resources, and needs of each parent; (l) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married; (m) The physical and emotional condition and needs of the child; (n) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen; (o) The responsibility of each parent for the support of others; (p) Any other relevant factor. *** In this case, the magistrate stated two reasons for deviating from the child support schedule. The first reason was R. Louis -7- Schneeberger provided health insurance and was responsible for paying unreimbursed medical and dental expenses for the children. The record reveals the trial court ordered R. Louis Schneeberger to provide health insurance and to pay unreimbursed medical and dental expenses in its original decree which dissolved the marriage. Health insurance is provided to R. Louis Schneeberger through his company, Olympic Steel, Inc. and there was no evidence in the record as to the amount of unreimbursed medical and dental expenses. While the children's health is important, there is nothing in the record, nor was there a finding by the magistrate that the unreimbursed expenses were equal to or even close to the difference between the amount of child support due according to the worksheet and the deviation amount. The worksheet amount, at a minimum, not including bonuses was $2,698.16 per month per child for a total of $5,396.32. The magistrate's deviation amount was $2,000 per month per child for a total of $4,000. The difference between the worksheet amount and the deviation amount was $1,396.32 per month, and yet there is no evidence that health, medical, and dental expenses were so costly or even burdened R. Louis Schneeberger to the extent of the deviation. The magistrate's second reason for deviating from the work- sheet was Louis Schneeberger established trusts for two children. The trusts consisted of 46,000 shares each of his company. The current net worth of the shares in the trusts is $500,000 to -8- $600,000. However, there is no evidence on how the trusts were structured. The limited facts in the record about the trust fund raise two very important concerns. First and foremost, there is no evidence as to revocable or irrevocable. Although a child support obligor such as R. Louis Schneeberger, may set up trust funds for his children, the court has no authority to order him to maintain those trusts. See Pratt v. McCullough (1995), 100 Ohio App.3d 479 at 483. Thus, there is always the possibility that R. Louis Schneeberger could convert the trusts to his own use at any time before each of his two children reach the age of majority. Secondly, the trusts consist of shares of Olympic Steel, Inc. stock. Although we have no doubt Olympic Steel is a solid investment, there is no evidence the stock will hold its present value or gain in value. Therefore, absent more detailed information, the promise of trust funds when each of the Schneebergers' children reach the age of majority is speculative. In view of the record, this court concludes the impact of health insurance on R. Louis Schneeberger's income is negligible and the promise of trust funds is too speculative. The Basic Child Support Schedule worksheet is "rebuttably presumed" to be correct and the record fails to rebut that presumption. In view of R. Louis Schneeberger's windfall income in 1993 and 1994 of approximately $1.2 million and $2 million, respectively, a deviation of support upward or at least at the level calculating his bonuses should have been considered. Given his windfall income -9- in 1993 and 1994, it is difficult to imagine how an increase in child support could be anything but in the best interest of the child, just, and appropriate. In as much as R. Louis Schneeberger's windfall income may be considered as financial resources within the meaning of R.C. 3113.215(B)(3)(k), it should be considered; the income certainly should not be ignored completely as the trial court did in this case. Nonetheless, we find the trial court abused its discretion by deviating downward from the worksheet when determining child support. Therefore, the first assignment of error has merit, and the judgment of the trial court is reversed and remanded for rehearing on the motion to modify child support. In her second assignment of error, Janis Schneeberger argues the trial court erred in not considering R. Louis Schneeberger's gross income for 1993 and 1994. She specifically notes her ex- husband received a bonus of $575,000 in 1993 and dividends of $1,750,000 in 1994. In Nin v. Nin (Jan. 31, 1994), Butler App.No. CA93-01-018, CA93-03-034, unreported, the court held a one-time buy-out received by the obligor after the dissolution of his sub-chapter S corporation was not representative of his yearly income and thus was excludable from the child support calculation. In this case, the motion was filed on September 23, 1994. R. Louis Schneeberger realized a bonus of $575,000 in 1993 and Olympic Steel went public on March 10, 1994; both were "one-time" earnings which occurred, not long after the final dissolution decree, but before Janis -10- Schneeberger filed a motion to modify child support. Thus, R. Louis Schneeberger's yearly incomes of $1.2 and $2 million in 1993 and 1994, respectively, did not accurately represent R. Louis Schneeberger's yearly income for purposes of the computation of child support which was to commence after the money was earned. Therefore, the second assignment of error has no merit. Nonetheless, it would be a travesty of justice not to give consideration to these earnings and deviation from the child support worksheet, even though these "one-time" earnings do not represent yearly income. Although there is no evidence of foul play in this case, to allow "one-time" earnings which occur not long after the final decree, but before a motion to modify, would create a loop-hole for paying child support to obligors who have control over their own income distribution. Thus, it is critical that these "one-time" earnings be considered under R.C. 3113.215(B)(3)(k) for purposes of deviating from the child support worksheet. Judgment reversed and remanded. -11- It is ordered that Appellee recover of Appellant her 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, Domestic Relations 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. JAMES D. SWEENEY, PRESIDING JUDGE PATRICIA ANN BLACKMON, JUDGE TIMOTHY E. MCMONAGLE, JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .