COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72414 MARY ANN O. RINI : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : GUSTY A. RINI : OPINION : Defendant-Appellee : Date of Announcement of Decision: APRIL 30, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-173337 Judgment: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Date of Journalization: Appearances: For Plaintiff-Appellant: For Defendant-Appellee: CARL C. MONASTRA, ESQ. DAVID G. UMBAUGH, ESQ. 75 Public Square Bldg. 110 W. Streetsboro Street Suite 700 Hudson, Ohio 44235 Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Plaintiff-appellant Mary Ann Rini appeals from the trial court's order regarding the modification of child support, calculation of arrearage, allocation of dependency tax exemptions and bias on the magistrate's behalf. This appeal has merit in part and is therefore affirmed in part and reversed and remanded in part. The parties were married on August 7, 1971 and divorced on May 9, 1988. Plaintiff Mary Ann Rini is an assistant attorney general and defendant Gusty Rini is a staff attorney with Legal Aid. Originally plaintiff was awarded custody of the three children: Aaron (DOB 6-26-77), Blaire (DOB 8-6-80) and Drew (DOB 2-10-83). The father was ordered to pay child support and to share in medical and hospital expenses and to provide health insurance. On August 8, 1991, pursuant to a motion to allocate parental rights, the parties agreed that the oldest child, Aaron, should live with his father and defendant's child support obligation was reduced accordingly. On November 12, 1992 both parties entered into an agreement that all of the children should reside with the father and that a shared parenting plan would be in the best interests of the children. The agreement on the face page states: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all financial issues, including modification of child support and Motions to Show Cause and associated motions pending herein shall be on for hearing at a time and date to be set by the court. It went on to state in the body -3- of the agreement that financial issues of support including allocation of tax exemptions shall be by separate order. The defendant, several months later, based on the change of custody, filed pro se, two motions for modification of child support which were subsequently dismissed for lack of service. However, before the court had dismissed these motions, in order to clean up the flurry of motions that had been filed, both parties entered into an agreed journal entry in which they agreed that all other issues would be dismissed, except the following issues which were to be decided at a hearing: (1) set current support; (2) determine whether a support overage has occurred; (3) whether prior support orders should be adjusted except not in connection with defendant's motion for partial relief from judgment; (4) whether defendant owes plaintiff for incurred medical and psychological expenses; (5) whether plaintiff owes defendant Gilmour tuition reimbursements; and (6) allocation of tax exemptions. (Agreed Journal Entry, October 4, 1993). Both of the parties signed this agreement. A hearing on all of these issues had been held by Magistrate Schoby, but before they could be completed, he became ill. The matter was therefore reassigned to Magistrate Nelson, who decided not to use the transcript from Magistrate Schoby's hearing and instead heard all of the evidence again. On August 29, 1994, October 25 and 26, 1994 a hearing was held before Magistrate Nelson on the child support and tax exemption issues and all the other -4- matters were bifurcated for a separate hearing to be conducted on a later date. At the hearing, the following evidence was presented. Gusty Rini testified that he had custody of the three children. At that time the youngest of the children attended Gesu and the older two attended Gilmour Academy. He stated that his gross income at Legal Aid was $55,000 a year. Legal Aid also had a non-elective pension plan in which a percentage of his pay was placed. He carried individual insurance coverage for himself through Legal Aid as the children were on plaintiff's plan. He also taught an occasional class at Cleveland Marshall Law School for which he received $750. He had a Smith Barney Account which he depleted ($13,000) to pay back his mother for the money she had previously loaned him. Defendant then testified to his expenses. Since 1991 he had been paying the tuition for the children to attend private schools. The annual tuition for Gilmour was over $6,000 for each child and the tuition for Gesu was $1,300. If the children attending Gilmour completed their work study program, $1,000 would be deducted from their tuition. He claimed his expenses exceeded his income and that he had borrowed money from his mother. He denied that his estimate for grocery expenses was high given the fact that plaintiff had the children 14 days out of the month. He explained that the plaintiff did not see the children that often as the children do not care to visit with the plaintiff. He claimed that plaintiff does not provide any support for the children and that he was not aware of any items she purchased for them. -5- Plaintiff testified that she has been employed by the attorney general's office since March 1, 1994. Her gross income was approximately $38,000 for 1994, but that was because she had not been employed a full year at the attorney general's office. She anticipated her annual income would be $44,500 per year unless she contributed to the tax deferred annuity account that the attorney general's office provides. In 1994 she contributed $7,000 towards the tax deferred annuity plan. The deferred compensation plan was voluntary and limited to a $7,500 contribution per year. The attorney general's office offered a health plan which covered herself and her children. She estimates the health plan costs about $4,500 a year. She claimed that she was going to receive an additional $6,000 in 1994 from closing up her private practice, as the attorney general's office prohibits employees from having a private practice. She also received $22,000 in income from a court-ordered receivership for her services rendered for the Cranwood Apartments and was anticipating receiving another $22,000 from the receivership after January 1, 1995. She also received about $7,800 from the County for court appointed criminal cases. Plaintiff contended that the parties had the children an equal amount of time. She claimed that she had spent about $23,708 on the children since 1992. Included within that total was $8,123 in medical expenses and $2,000 for psychological services of which plaintiff claimed that defendant still owed his portion of reimbursement. Deducting the medical expenses left approximately $13,500. She claimed she had spent more on the children, but did -6- not have the receipts. She claimed that she bought the three children winter coats for the years 1993 and 1994; purchased the children every day clothing the previous year so that they would have clothes at her house to wear when they visited; purchased school uniforms; pays $120 month for the oldest boy's tutoring, even though Gilmour provides such a service (the boy had only undergone one week of tutoring at the time of the hearing); and purchased the children ski equipment. Plaintiff also claimed that the defendant's expense for Gilmour tuition was not a necessary expense. She claimed that Gilmour did not have the special help that the older boy needed for his learning disability. She also claimed that the second child could attend Shaker Heights School as it had a gifted children's program that would be just as good as Gilmour. On rebuttal, defendant claimed that the children rarely visited the plaintiff during unscheduled times as the children never wanted to visit with the plaintiff. Based on the above evidence, the magistrate issued a report on December 8, 1994 in which she recommended that plaintiff provide health insurance for the children with the father paying 55% of any uninsured medical expenses; father was to receive the federal tax exemption for all three children; plaintiff owed an arrearage of $6,420 in child support from November 11, 1993 to August 29, 1994, which was ordered to be paid out of the lump sum she received from the Cranwood Apartments receivership; she was also ordered to pay $699.48 a month in child support for all three children. The -7- issues of medical and psychological expenses and tuition reimbursement were continued for another hearing. Due to the many continuances filed by both parties regarding the filing of their objections to the magistrate's report, the trial court did not issue its opinion until April 1, 1997. The trial court's opinion modified the magistrate's recommendation by extending the plaintiff's arrearage back one year to when the children, pursuant to the agreed judgment entry, lived with the father; the plaintiff's new arrearage was calculated to be $15,339.60; the trial court also changed the ratio for reimbursement of medical expenses to 60% to be paid by the father and 40% by the mother; and, the court stated that the tax dependency exemption should not change from what the original dissolution decree ordered. Plaintiff now timely appeals from the trial court's order. We will address plaintiff's assignments of error in the order presented. I. WHETHER THE COURT'S LACK OF JURISDICTION UNDER DAVIS WILL RENDER VOID AB INITIO ANY ORDER FOR CURRENT SUPPORT AND ARREARAGE. In her first assignment of error, plaintiff argues that the trial court had no jurisdiction to determine the modification of child support as no motion for modification was before it. The defendant's two motions for modification had been dismissed by the trial court for lack of service. This assignment of error has no merit. -8- Although the trial court did dismiss the defendant's motions for modification of child support due to improper service, the trial court did not err in proceeding to hear evidence and deciding the modification of child support. Even though a motion was not before the court, the parties had consented to the court hearing the modification of support issue by virtue of their agreed journal entries. In the shared parenting agreement which was filed with the court on November 12, 1992, the parties agreed to changing the residency of the children so that the three children lived with the father. Also contained in this order, the parties agreed, under the heading Support , that Financial issues of support including allocation of tax exemptions shall be by separate order. This was before a motion to modify support was filed. On October 4, 1993, another agreed journal entry stated that the issue of setting current child support along with several other issues would be determined by the magistrate. Based on these agreed judgment entries, the plaintiff agreed to and was put on notice of the need for modification of child support and was aware and agreed to the magistrate hearing the issue. This is notwithstanding the fact that the magistrate later dismissed the defendant's motion for modification of child support for failure of service. Plaintiff's reliance on Davis v. Davis (March 26, 1992), Cuyahoga App. No. 60224, 60751, unreported and Richter v. Casper (Dec. 29, 1997), Cuyahoga App. No. 71892, unreported, is without -9- merit as there was no consensual conduct on the part of the parties in those cases. As the court in Cooper v. Cooper (1983), 10 Ohio App.3d 143, 145 held, a party by conduct can waive noncompliance with the Civ.R. 75(I) requirement of a motion and service. See, also, Shaffer v. Shaffer (May 16, 1990), Montgomery App. No. 11944, unreported; Naragon v. Naragon (Oct. 24, 1990), Summit App. No. 14583, unreported. Although plaintiff's counsel objected to going forward on the child support issue at the hearing, there was no evidence that he was unprepared to go forward and this objection did not undo the agreement by both parties to proceed to hearing on the matter. Plaintiff's Assignment of Error I is overruled. II. WHETHER THE COURT ERRED IN NOT HEARING EVIDENCE ON THE SHOW CAUSE MOTIONS OF IMPROPER USE OF THE TAX DEDUCTIONS, SUPPORT ARREARAGE, AND MEDICAL BILLS AGAINST THE FATHER BEFORE AWARDING THE 3 TAX DEDUCTIONS TO THE FATHER AND CHANGING THE MEDICAL BILL RATIO FROM 1/3 TO 2/3 TO 40%-60%. In her second assignment of error, plaintiff argues that the trial court erred in allocating all three tax exemptions for the children to the defendant since he was in arrears on his medical reimbursement payments. The original divorce decree stated: Provided Husband is current on his child support obligations, Husband may claim Aaron and Blair as dependents for all tax purposes ***. (Divorce Jmt. May 9, 1988 at 13). She also argues that the trial court erred in changing the ratio of the parties' obligation for reimbursement of the medical expenses. This assignment of error has merit. -10- The trial court's ruling on which party should receive the tax dependency exemptions for the children was premature. The magistrate stated in her recommendations that the issue of reimbursement for medical and psychological expenses would be heard at another hearing. (Magistrate's Report, December 8, 1994 at 7). Plaintiff contended that since the defendant had an arrearage as to the reimbursement of medical payments, he should not receive the tax dependency exemptions. Since the issue of reimbursement was to be held at a separate hearing, the magistrate did not have the evidence before her to rule on how the tax dependency exemptions should be allocated. Therefore, this matter is reversed and remanded for determination of the medical expense arrearages, if any, calculated at the separate hearing. Regarding the ratio for reimbursement for the payment of extraordinary medical expenses, the trial court changed the ratio from 33% to 40% for the mother and reduced it for the father from 67% to 60%. It is unclear why the trial court did this since there was no motion before the court requesting this change. Furthermore, as stated above, the reimbursement issue was to be decided at a separate hearing. Therefore, the proration issue for reimbursement of medical expenses is also remanded to the trial court for clarification. Plaintiff's Assignment of Error II is sustained. III. WHETHER IT WAS ERROR TO ORDER THE MOTHER TO PAY SUPPORT OF $699.48 PER MONTH AND AN ARREARAGE OF $200 PER MONTH BASED UPON OBVIOUS MISCALCULATION OF FACT. -11- In her third assignment of error the plaintiff argues that the trial court erred in ordering her to pay $699.48 a month in child support and $200 per month in arrearage as such an award is not supported by the record. This assignment of error has merit in part. Plaintiff first argues that the trial court inconsistently included her contributions to her tax deferred annuity account as income, yet did not include in the father's income his contributionsto his tax deferred annuity retirement account. The difference in these two contributions is the plaintiff's contribution to her plan is voluntary, while defendant's contribution was mandatory. R.C. 3113.215(A)(2) states as follows: Gross Income means, except as excluded in this division, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes *** pensions, *** annuities ***. Gross income does not include *** amounts paid for mandatory deductions from wages other than taxes, social security, or retirement in lieu of social security ***. The defendant testified that he had no option whether to allow 10% of his salary to go into the pension plan. Since defendant's annuity is a mandatory deduction from his salary other than taxes, social security, or retirement in lieu of social security, the court was correct in not considering it as income as defined by R.C. 3113.215(A)(2). Plaintiff contends that no arrearage could be ordered against her as there was no court order of support on her part until the -12- magistrate's report was issued on December 8, 1994. Anytime preceding this, she argues, there was no support order obliging her to pay support. The Ohio Supreme Court in Meyer v. Meyer (1985), 17 Ohio St.3d 222, syllabus held: A custodial parent is not entitled to reimbursement for child support from the non- custodial parent where no support order is made or requested at the time custody is awarded. Although no support order was made at the time the shared parenting plan was entered into on November 12, 1992, the parties agreed that the modification of child support would be heard at a separate hearing, the date to be set by the court. Since a modification of support was requested as of November 12, 1992, we find the trial court did not err in starting the arrearage on that date. Although we find that plaintiff's arrearage would be retroactive to November 12, 1992, we find the magistrate erred in using the plaintiff's income for 1994 to calculate her child support arrearages in 1992 and 1993. Plaintiff did not work for the Attorney General's Office until March 1994 and her income was substantially lower prior to obtaining that job. Although she did receive income for her Cranwood Estates receivership, this income was not received until 1994, therefore, that amount should not be added to plaintiff's income for the years 1992 and 1993 as the defendant contends. We therefore reverse the trial court's calculation of plaintiff's arrearage for the years 1992 and 1993 and remand for recalculation using her income from those years. -13- The trial court should also, in recalculating the plaintiff's arrearage, consider any in-kind payments she made which are supported by receipts. Although usually support payments that are not made through the CSEA are considered gifts, CSEA and Charlene Armstrong v. Sanders (April 2, 1998), Cuyahoga App. No. 72428, unreported at 8, in this case there was no support order obligating the mother to pay until the trial court's April 1, 1997 journal entry. Therefore, the CSEA had no way of garnishing her wages to keep track of her support payments. Plaintiff next contends that the trial court's order failed to reduce her child support payments due to the emancipation of the oldest child, Aaron. We find, and defendant's counsel agrees, that the plaintiff was relieved from her child support obligation for the oldest child once he turned 18 or graduated from high school. The trial court on remand should credit the plaintiff for any payments made for the eldest child since his emancipation. Finally, the plaintiff argues that the trial court erred in considering the father's Gilmour tuition payments in calculating her child support obligation. She claims that the father was permitted to testify regarding this issue, but she was not. A review of the record shows that the plaintiff was, in fact, permitted to testify regarding her opinion that the Gilmour tuition expense on the defendant's part was not necessary. Furthermore, a review of the child support worksheet indicates that no deviation from the guidelines was made due to the Gilmour tuition expenses. -14- Therefore, although testimony was taken on the subject, it did not effect the amount of support ordered. Plaintiff's Assignment of Error III is affirmed in part and reversed and remanded in part. IV. WHETHER THE COURT'S REFUSAL TO CONSIDER THE DEVIATION FROM THE GUIDELINES AND 50/50 POSSESSORY TIME CREDIT CONSTITUTES A VIOLATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS WHEN IMPOSING A SUPPORT ORDER UNDER A SHARED PLAN AGAINST A PARENT. In her fourth assignment of error plaintiff contends that the trial court erred in not deviating from the child support guidelines in determining the amount of her child support obligation as the parties had custody of the children equally and incurred the same expenses. She claims the court should credit her for the time she had the children. The magistrate stated in the report that: The referee further finds that based on the current visitation/possession schedule of the minor children provided by the parties' Shared Parenting Plan the parties do not have equal possession of the children; and that consideration for extra visitation is not appropriate in this case. The Ohio Supreme Court in Pauley v. Pauley (1997), 80 Ohio St.3d 386, 389 stated: Appellant seeks an automatic credit for the time he has cared for his children. R.C. 3113.215(B)(6) does not provide for an automatic credit in child support obligations under a shared parenting order. However, a trial court may deviate from the amount of child support calculated under R.C. 3113.215 if the trial court finds that the amount of child support would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child. -15- Thus, only after consideration of the extraordinarycircumstances of the parents and other factors set forth in R.C. 3113.215(B)(3) may a trial court deviate from the amount of child support listed in line 24 of the worksheet and reduce the obligor's child support obligations accordingly. Rather than requiring an automatic credit in all instances, this method permits a court to make an evaluation on a case-by-case basis and to deviate when it finds it is in the best interest of the child. In this manner, a court is able to take into account the specific facts of the case. In the case herein, the magistrate considered the time spent with the children and found that it did not warrant a deviation from the schedule. There was no finding that the time plaintiff spent with the children constituted extended times of visitation or extraordinary circumstances of the parents under R.C. 3113.215(B)(3)(d) or (B)(6)(a), therefore, the magistrate did not err in failing to deviate from the schedule. Since the trial court's decision regarding child support obligations is well within its discretion and will not be disturbed absent a showing of an abuse of discretion, we will not disturb the trial court's decision on this issue. Pauly at 390. Plaintiff's Assignment of Error IV is overruled. -16- V. WHETHER THE COURT ERRED AND ABUSED ITS DISCRETIONS AND VIOLATED SUBSTANTIVE AND PROCEDURAL DUE PROCESS WHEN ISSUING AN ORDER BASED UPON INACCURATE INFORMATION, ERRONEOUS CONCLUSIONS OF LAW AND UNETHICAL CONDUCT. In her fifth assignment of error, plaintiff essentially claims that the magistrate was biased against her. This assignment of error has no merit. Plaintiff did not file a motion regarding her objections to the magistrate's conduct until September 18, 1995 in her supplemental brief regarding her objections to the Magistrate's report. This was nine months after the magistrate issued her report and 11 months after the hearings were completed. The trial court found no merit to the plaintiff's claim as this objection was not sustained in the trial court's April 1, 1997 Journal Entry. The trial court did not err in overruling this objection. A review of the record indicates that although the magistrate seemed to become impatient with counsel, there is no evidence that she was biased against plaintiff. Although she made rulings against the plaintiff, she likewise made rulings against the defendant. We do note that a new magistrate was appointed to the case after these hearings, but there is no explanation in the record explaining why. The plaintiff's motion filed on November 2, 1995 To Remove Referee From Case and Motion to Reopen Case for Further Proceedings with Successive Factfinder was denied by the trial court on April 1, 1997 as not well-taken. Plaintiff's Assignment of Error V is overruled. -17- Assignment of Error I, IV and V are affirmed; Assignment of Error II is reversed and remanded; Assignment of Error III is affirmed in part and reversed and remanded in part. -18- It is ordered that appellant and appellee shall pay their respective 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, 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. NAHRA, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING 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 journalization of this court's announcement of decision by the .