COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71870 STEVEN AMBROSE : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DOROTHY VOLLICK FKA AMBROSE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil Appeal from Domestic Relations Court, No. D-203288. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Brian M. Urban, Esq. Brian M. Urban Co. 600 Standard Building 1370 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: William D. Beyer, Esq. Kathleen M. Sasala, Esq. Fadel & Beyer 1340 Sumner Court Cleveland, OH 44115 -2- DAVID T. MATIA, P.J.: Dorothy Ambrose, defendant-appellant, appeals from a judgment of the Cuyahoga County Court of Common Pleas overruling all but one of defendant-appellant's objections to a magistrate's decision setting a child support order. Defendant-appellant raises one assignment of error for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On January 4, 1991, the trial court granted a divorce to Steven Ambrose, plaintiff-appellee, and Dorothy Ambrose, defendant- appellant, by adopting the terms and conditions set forth in a separation agreement. The parties have one minor child Brandy (d.o.b. July 22, 1986) of whom they were awarded joint custody, with plaintiff-appellee having primary custody with liberal visitation to defendant-appellant as provided by the Joint Custody, Care and Control Agreement. At the time of this agreement, plaintiff-appellee's income was $24,000 and defendant-appellee's income was $4,000 according to the Child Support Computation Worksheet filed by the parties. Moreover, at this time, the parties agreed there would be no child support order. On February 2, 1994, defendant-appellant filed several motions with the court seeking to terminate the existing joint custody plan and become Brandy's residential parent. On September 2, 1994, plaintiff-appellee filed a motion to modify the child support provision requesting that defendant-appellee now be ordered to contribute to the support of the child. Plaintiff-appellee argued -3- that in the last three years, defendant-appellant has been gainfully employed and operates her own business. Therefore, she has established adequate means to support their child according to her ability as provided in R.C. 3113.215. Thereafter the parties engaged in extensive discovery and obtained several continuances. On July 13, 1995, the parties agreed to a Shared Parenting Plan whereby defendant-appellant's time with her daughter was expanded. No provision was made for child support presumably because the support motion remained pending. On January 12, 1996, a hearing was held before the magistrate. The magistrate found plaintiff-appellee's income was $37,630 (household income at $43,500) and defendant-appellee's income at $36,830 (household income at $61,890). The magistrate held that when recalculating the amount of child support in accordance with the schedule and applicable worksheet, the change in the parties respective income levels resulted in a variance of at least ten percent (10%) between the existing child support order and the recalculation. Accordingly, pursuant to R.C. 3113.215 and Anderkin v. Landsell (1992), 87 Ohio App.3d 687, the magistrate found there existed sufficient grounds for modifying the child support order. The magistrate granted plaintiff-appellee's motion to modify child support and ordered defendant-appellant to pay $386.83 per month as child support for Brandy until the child reaches age eighteen (18) or as long as the child attends on a full-time basis, -4- any recognized and accredited high school, whichever occurs later or until the child is otherwise emancipated. On May 10, 1996, defendant-appellant filed her objections to the magistrates report seeking to either nullify or reduce her child support obligation. On June 14, 1996, plaintiff-appellee filed his objection to the magistrate's decision arguing for an upward adjustment to defendant-appellant's child support obligation. On December 10, 1996, the trial court overruled plaintiff- appellee's objections to the magistrate's decision and sustained in part defendant-appellant's objections. Specifically, the trial court reduced the magistrate's child support order by $32.57 to reflect the fact that Brandy's tuition is $65.50 and not $131.00 per month. Therefore, defendant-appellant was ordered to pay $386.83 per month as child support from September 2, 1994 through July 12, 1995 and $302.25 effective July 13, 1996 reflecting the trial court's reduction. The trial court adopted the magistrate's order in all other respects. On January 8, 1997, defendant- appellant timely filed this appeal. II. ASSIGNMENT OF ERROR Dorothy Ambrose, defendant-appellant, states as her sole assignment of error: THE COURT'S DECISION TO ORDER APPELLANT TO PAY APPELLEE ALMOST TOTAL GUIDELINES SUPPORT WAS NOT IN FURTHERANCE OF THE BEST INTERESTS OF A MINOR CHILD AND WAS OTHERWISE GROSSLY UNFAIR, UNJUST AND CONTRARY TO LAW. -5- A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE MAGISTRATES DECISION SETTING A CHILD SUPPORT ORDER. Defendant-appellant argues the trial court erred in denying all but one of her objections to the magistrates child support order. Specifically, defendant-appellant argues: 1) the trial court erred in awarding any child support at all pursuant to R.C. 3109.04(K)(6) and 3113.215(C) since under the Shared Parenting Plan, she is a residential parent, 2) defendant-appellant's right to equal protection was violated since, by her designation as obligor, she is being treated differently than plaintiff-appellee even though they are co-equals, 3) the court's decision to modify support is contrary to law since plaintiff-appellee admitted he did not need assistance, 4) the trial court erred in modifying the child support award solely on the basis that there existed a ten percent (10%) variance between the original child support order and the new calculations since defendant-appellant's rise in income was contemplated by both parties at the time of the original agreement, 5) assuming the modification of child support was warranted, the order was not proportional to the amount of time the child is in their possession, 6) assuming the modification of child support was warranted, the trial court erred in not reducing defendant- appellant's obligation by the percentage of time the child resides with her, 7) the trial court erred in basing the modification upon the fact that plaintiff-appellee had other children living in the household that are not subject to the obligation at issue, 8) the trial court arbitrarily used a base figure of $335 per month and -6- adjusted it downward to accurately reflect the actual costs of the child's tuition, 9) the trial court erred in failing to consider the monthly mortgage appellant must pay as opposed to the fact plaintiff-appellee pays no mortgage, 10) the trial court incorrectly considered the fact plaintiff-appellee pays for the child's health insurance when in fact, he does not, and 11) the trial court erred in awarding the income tax dependancy exemption to plaintiff-appellee as both parties are the residential and legal custodian of the child. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: CHILD SUPPORT. On April 12, 1990, R.C. 3113.215 became effective establishing Child Support Guidelines which require a trial court to calculate the child support obligation in accordance with a detailed child support schedule and worksheet outlined in the statute. Am. Sub. H.B. No. 591. In Marker v. Grimm (1992) 65 Ohio St.3d 139, the Court held that the procedure for computing child support obligations set forth in R.C. 3113.215 is mandatory and must be complied with fully. Graves v. Graves (Mar. 27, 1997), Cuyahoga App. No. 71021, unreported. Moreover, when a trial court *** modifies an existing child support order based on an agreement under which the custodial parent assumed sole responsibility for the support of the child, the Child Support Guidelines must be followed pursuant to the standard laid out in Marker. DePalmo v. DePalmo (1997), 78 Ohio -7- St.3d 535 that Therefore, when a trial court modifies an existing child support order based upon the agreement whereby the custodial parent assumed sole responsibility for the support of the child, R.C. 3113.215(B)(4) must be strictly adhered to. R.C. 3113.215(B)(4)states: If an obligor or obligee under a child support order requests the court to modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the amount of support that would be required to be paid under the support order in accordance with the schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, and if that amount as recalculated is more than ten per cent greater than or ten per cent less than the amount of child support that is required to be paid pursuant to the existing child support order, the deviation from the recalculated amount that would be required to be paid under the schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, shall be considered by the court as a change of circumstances that is substantial enough to require a modification of the amount of the child support order. In determining pursuant to this division the recalculated amount of support that would be required to be paid under the support order for purposes of determining whether that recalculated amount is more than ten per cent greater than or more than ten per cent less than the amount of child support that if required to be paid pursuant to the existing child support order, shall consider, in addition to all other factors required by law to be considered, the cost of health care insurance which the obligee, the obligor, or both the obligor and the obligee have been ordered to obtain for the children specified in the order. Additionally,if an obligor or obligee under a child support order requests the court to modify the amount of support required to be paid pursuant to the child support order and if the court determines that the amount of the support does not adequately meet the medical needs of the child, the inadequate coverage shall be considered by the court as a change in circumstances that is substantial enough to require a modification of the amount of the child -8- support order. If the court determines that the amount of child support required to be paid under the child support order should be changed due to a substantial change of circumstances that was not contemplated at the time of the issuance of the original child support order or the last modification of the child support order, the court shall modify the amount of child support required to be paid under the child support order to comply with the schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, unless the court determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, would be unjust or inappropriate and would not be in the best interest of the child and enters in the journal the figure, determination, and findings specified in division (B)(2)(c) of this section. Moreover, upon review we are mindful that the overriding concern of the law is the best interest of the child. Tarachiu v. Tarachiu (June 15, 1995), Cuyahoga App. No. 67557, unreported at 2; Marker, supra. Finally, we note that factual determinations and/or computations made in compliance with R.C. 3113.215 will not be disturbed on appeal absent an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142. An abuse of discretion connotes more than an error of law or judgment, it implies the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADOPTING THE MAGISTRATES ORDER OF CHILD SUPPORT. In the case sub judice, there is no dispute that there existed a variation of at least ten percent (10%) in the original calculations of child support and new calculations of child support -9- made by the magistrate. However, defendant-appellant argues her change in income which was the basis for the variation in child support was contemplated by both parties at the time the original support order was made. As such, defendant-appellant argues the ten percent (10%) variation is insufficient to warrant modification. We disagree. With regards to modification of an existing child support order, the Ohio State Supreme Court's recent pronouncement in DePalmo, supra is controlling. In that case, the Court stated unequivocally that if a support order already exists, the only test to determine whether child support shall be modified is set forth by R.C. 3113.215(B)(4) which states a ten percent (10%) variation between the existing order and the amount recalculated is a change of circumstances substantial enough to require a modification of the amount of the child support order. Id. at 539-540. Since there is no dispute that a ten percent (10%) variation exists, the trial court did not err in adopting the magistrates decision that a change in child support was warranted. Defendant-appellant also argues that her child support obligation should be proportionate to the amount of time each parent spends with the child. Initially, we note that the amount calculated through line 18 of the applicable worksheet is `rebuttably presumed' to be the correct amount of child support due. In fact, both parties stipulated that $386.83 per month was the proper child support obligation pursuant to strict compliance of the applicable worksheet in R.C. 3113.215. -10- Additionally, nothing in R.C. 3113.215 mandates a child support order be proportionate with the time spent with the child. Rather, R.C. 3109.05 and 3113.215 merely sets forth certain factors, including the time spent with the child, which can be considered when arriving at a child support award that deviates from the guidelines. See LaLiberte v. Laliberte (1995), 105 Ohio App.3d 207; Graves v. Graves (March 27, 1997), Cuyahoga App. No. 71021, unreported. As stated, deviations from the schedule and worksheet are not permitted absent full and strict compliance with the requirements of R.C. 3113.215(B)(1)(a) and (b). Rock v. Cabral (1993), 67 Ohio St.3d 108, 110. In this case, after a complete review of the record, we find there is sufficient evidence in the record establishing the magistrate considered said requirements. More specifically, in determining a set-off proportionate to the amount of time spent with the child was not warranted, the magistrate considered the health costs of the child paid by the father, the costs of the child's parochial school education paid by the father, the disparity in the mother and father's household incomes, the costs associated with visitation of the child, and the fathers obligations under the joint custody arrangement. Accordingly, from a review of the entire record, we find the magistrate factual determinations and computations were supported by the record. Moreover, the magistrate's determination that the child support obligations of defendant-appellant are in the best interest of the child is similarly supported. See Graves, supra. -11- Therefore, the trial court did not abuse its discretion in adopting the magistrate's decision and properly adjusted the child support obligation to reflect the child's tuition is $65.50 and not $131.00 per month. Defendant-appellant's sole assignment of error is not well taken. Judgment affirmed. It is ordered that appellee recover of appellant 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 Domestic Relations Court 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. SPELLACY, J., CONCURS; O'DONNELL, J., DISSENTS (WITH DISSENTING OPINION ATTACHED). DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1). COURT OF APPEALS EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71870 STEVEN AMBROSE : : Plaintiff-Appellee : DISSENTING : v. : OPINION : DOROTHY VOLLICK, f.k.a. AMBROSE : : Defendant-Appellant : : DATE: DECEMBER 18, 1997 O'DONNELL, J., DISSENTING: I respectfully dissent from the majority opinion because, in my view, the Domestic Relations court grossly miscalculated the appellant's final child support obligation. Here, the relevant facts are that the parties to this case have one minor child, Brandy, and each agreed to a shared parenting plan approved by the court whereby, according to the magistrate's calculations, Brandy resides with the appellant mother 46% of the time and with the appellee father 54% of the time. The record reflects and the parties do not dispute that the appellant earns $36,380.00 per year and the appellee earns $37,630.00 per year, for a combined annual income of $74,460.00. Based upon this combined income, the combined annual child support obligation, pursuant to R.C. 3113.215(D)(1), is $9,322.00, with the appellant owing $4,642.00 of this amount, and the appellee owing $4,680.00. The issue for our consideration becomes, under these circumstances, whether, and if so what amount, either parent should -2- pay to the other for Brandy's support. The majority opinion affirms the judgment of the court requiring appellant to pay $386.83 per month from September 2, 1994 through July 12, 1995, and $302.25 per month thereafter, which is a large part of her annual child support obligation of $4,642.00 that, pursuant to R.C. 3113.215(C), infra, is not to become part of a child support order. This determination, in my opinion, constitutes a gross abuse of discretion because, while it sets forth her annual child support obligation to be paid to the appellee, it fails to offset the appellee's annual child support obligation that should be paid to her, in proportion to the amount of time each has physical custody of Brandy, and fails to credit her for monies she expends during the periods in which Brandy lives with her and, in effect, doubles her annual child support obligation in this case. R.C. 3113.215 details the support obligation for a residential parent in a shared parenting arrangement: (C) * * * a parent's child support obligation for a child for whom the parent is the residential parent and legal custodian shall be presumed to be spent on that child and shall not become part of a child support order, and a parent's child support obligation for a child for whom the parent is not the residential parent and legal custodian shall become part of a child support order * * *. (Emphasis added). This statute follows the holding in Flynn v. Flynn (1984), 15 Ohio App.3d 34, where the court observed in relevant part, in its headnote: When a noncustodial parent obtains custody of his child *** he is not obligated to make support payments to his former wife while he -3- has custody of their child and is directly supporting the child during such time. Essentially, R.C. 3113.215(C) and Flynn, supra stand for the principle that when a residential-custodial parent has physical custody of a child, that parent presumably spends a proportionate amount of the child support obligation on that child. Significantly, R.C. 3109.04(K) assigns the status of residential parent and legal custodian to each parent in a shared parenting relationship, stating: (6) * * * if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the residential parent, the residential parent and legal custodian, or the custodial parent of the child. (Emphasis added). In accordance with this law, I conclude that during the period in which a residential parent has physical custody of a child, the law presumes that the residential parent spends a proportionate amount of that parent's child support obligation on the child, and no child support order should be made for that obligation. See R.C. 3109.04(K)(6); R.C. 3113.215(C); Flynn, supra. In this case, the child support worksheet reveals the appellee's annual child support obligation is $4,680.00, while the appellant's is $4,642.00. In accordance with R.C. 3109.04(K)(6), both the appellant and the appellee are residential parents and legal custodians of their daughter, Brandy. Hence, both are presumed to spend a portion of their annual child support -4- obligations on their daughter during the periods each enjoys custody of her. Thus, the court erred when it calculated appellant's final annual child support obligation to Brandy, because it failed to presume that appellant spent a portion of her obligation on Brandy as residential parent, and instead made that amount part of appellant's child support obligation. The majority opinion justifies the court's award of a grossly disproportionate $302.25 monthly child support obligation to appellee by delineating his payment of health care costs, which amount to only $100.00 per year of uninsured expenses after which the parties share equally in the health care costs; costs of a parochial school education, which the father is not obligated by court order or agreement to pay, but is only $65.00 per month or $585.00 for the school term; the disparity in the mother's and father's household incomes; costs associated with visitation, which both parties must necessarily incur in a 46%/54% Shared Parenting Arrangement, and other obligations, none of which justify the appellant paying $3,627.00 per year to the appellee as child support, which is approximately 80% of his child support obligation to Brandy. While the trial court did consider those factors in arriving at appellant's final annual child support obligation, it made two critical errors: one, it arbitrarily selected the appellant, not the appellee, as the child support obligor without any basis, and two, it failed to offset the annual child support obligation the parties owed to each other, and thereby calculated an inflated -5- final child support obligation for appellant in the sum of $386.83 per month, which it adjusted to $302.25 per month, not based upon the deviation factors, but based upon a mistake it discovered regarding the amount of monthly school tuition payments for Brandy. This is error. Rather, it should have determined that, since Brandy lives with the appellant 46% of the time, the appellant owes the appellee 54% of her annual child support obligation, or $2,506.68; and, since Brandy lives with the appellee 54% of the time, he owes the appellant 46% of his annual child support obligation, or $2,152.80. The offset of these amounts results in a net annual child support obligation owed by the appellant to the appellee of $353.88, or $29.49 per month, the figure from which deviation should have been considered. See Eickelberger v. Eickelberger (1994), 93 Ohio App.3d 221. The majority opinion fails to recognize the error made by the trial court in its calculations, and arbitrarily foists an unconscionable burden upon the appellant, by forcing her to expend monies for Brandy while she has physical custody and, at the same time, pay monies to the appellee during those times she does not have physical custody; appellee has no similar obligation to pay any monies to appellant. Accordingly, I respectfully dissent from the majority's conclusion which forces the appellant to pay $3,627.00 to the appellee and deprives her of any credit for these monies which she -6- .