COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72630 SANDRA A. TIKTIN : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : : OPINION ROGER D. TIKTIN : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1998 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Case No. CP D-138250 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DAWN M. GARGIULO 35000 Kaiser Court Suite 304 Willoughby, Ohio 44094 For Defendant-Appellee: ROGER D. TIKTIN, Pro Se 5005 Rockside Road Suite 425 Independence, Ohio 44131 O'DONNELL, TERRENCE, J.: -2- Roger Tiktin appeals and Sandra Woolf, f.n.a. Sandra Tiktin, cross-appeals from an order of the Domestic Relations Division of the common pleas court which modified Roger's child support obligation from $50 per week to $470.06 per month for their son Daniel. Because the court did not abuse its discretion in modifying the child support, we affirm that order of the court. The case history reveals that when the parties divorced in 1983, the court awarded Sandra custody of Daniel and ordered Roger to pay child support of $50 per week. In 1995, however, Sandra filed a motion to increase the amount of child support, and the Cuyahoga Support Enforcement Agency recommended an increase to $559.17 per month; Roger then appealed that decision to the Domestic Relations Court, and the court referred the matter to a magistrate, who after conducting a hearing, found: Defendant earned $54,533 from his law practice but had expenses of $30,056 for an adjusted income of $24,497. Defendant's four (4) investment properties had total rent receipts of $18,410 less expenses for mortgage, condominium fees, taxes and repairs ($11,326) for an adjusted income of $7,084. An additional $10,000 annual gift from Defendant's father provides Defendant with a gross income of $41.581 per year. Pursuant to R.C. 3113.215(A)(4)(b) ordinary and necessary expenses. . . does not include depreciation expenses and other non cash items that are allowed on any federal tax return. The magistrate then ordered Roger to pay child support in the amount of $470.06 per month. Both Roger and Sandra filed objections to the magistrate's recommendations, which the court overruled when it adopted the magistrate's decision. Roger now appeals from the court's order and presents the following assignment of error for our consideration: -3- IN AN ACTION FOR MODIFICATION OF CHILD SUPPORT, THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION WHICH (A) DID NOT GIVE APPELLANT CREDIT FOR ORDINARY AND NECESSARY BUSINESS EXPENSES INCURRED IN CALCULATING SELF-GENERATED INCOME; (B) IMPUTED INCOME TO APPELLANT FROM FOUR INVESTMENT PROPERTIES WHEN ONLY TWO PRODUCE INCOME; AND (C) INCLUDED NONRECURRING OR UNSUSTAINABLE INCOME IN DETERMINING APPELLANT'S CHILD SUPPORT OBLIGATION. Sandra cross-appeals and raises two cross-assignments of error: I. THE TRIAL COURT ERRED IN ITS CALCULATION OF A SELF- EMPLOYED OBLIGOR'S INCOME FROM HIS LAW PRACTICE BY RELYING ON A SINGLE TAX RETURN AND FAILING TO ENSURE THAT THE SELF-EMPLOYED OBLIGOR PRODUCE ALL VERIFICATION OF HIS INCOME. II. THE TRIAL COURT ERRONEOUSLY CALCULATED APPELLANT'S INCOME FROM RENTAL PROPERTY. Roger complains that the court erred when it adopted the magistrate's findings which failed to credit him for certain business expenses, imputed income to him from certain rental property interests, and included gifts from his father as income for purposes of assessing his child support obligation. Sandra complains the court erred in calculating Roger's law practice income by using only his 1994 tax return and also erred in not imputing more income to Roger from the rental properties. The issue before us, then, is whether the court abused its discretion when it adopted the magistrate's findings regarding Roger's income and modified the child support to $407.60 per month. We note initially, the phrase abuse of discretion connotes more than an error of law or judgment; it implies that the court's -4- attitude is unreasonable, arbitrary, or unconscionable. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112. Further, R.C. 3113.215(A)(2) defines gross income for the purposes of child support orders as: the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes, but is not limited to, * * * self-generated income; and potential cash flow from any source. Essentially appellant presents three bases upon which he claims that his income has been overstated: business expenses, rental property income, and gift income. Regarding Roger's claimed business expenses, at the hearing before the magistrate, he reviewed canceled checks and bank statements of his checking account for the years 1992 through 1995 which he used for both his law practice and his personal expenses. He argues that the court failed to give him credit for what he termed necessary expenses in generating income, including items such as haircuts, clothing, meals, transportation, and health care costs; however, our examination of the record reflects that while the court did not allow him to deduct these personal expense items, it did allow him credit for business expenses claimed on his federal tax return. Accordingly, we find no abuse of discretion. Regarding Roger's rental property income, he claims rent from the Wickliffe house occupied by co-owner Nathan Simon and from the commercial property occupied by co-owner Avram Bendoly should not be considered as income to him because these payments only satisfy mortgage, taxes, and insurance expenses and do not result in cash -5- flow to him. Sandra claims, however, the court should have imputed more rental income to him for these properties. After a thorough review of this issue, we have concluded the court did not abuse its discretion in adopting the magistrate's findings, because the record supports the basis used by the magistrate to arrive at the income figure attributed to Roger in this case. Accordingly, Roger and Sandra's assignments of error on this issue are overruled. Regarding the gift income Roger receives from his father, we recognize R.C. 3113.215(a)(2)(e) provides nonrecurring or unsustainable income or cash flow items should not be included in gross income and that R.C. 3113.215(a)(11) defines nonrecurring income as income the parent receives for any number of years not to exceed three years and which the parent does not expect to continue to receive on a regular basis. At the hearing, Roger testified that he lives off the money he receives from his father, which permitted the magistrate to infer he expects to continue to receive it in the future. Accordingly, we cannot conclude the court abused its discretion in adopting the magistrate's findings in this regard. Finally, regarding Sandra's claim that the court abused its discretion by relying on a single tax return instead of requiring further documentation, the record reflects that she withdrew her pending motion to compel Roger's production of documentation prior to the beginning of the hearing before the magistrate and thus waived her right to claim this as error on appeal. Furthermore, in Mallin v. Mallin (1995), 102 Ohio App.3d 717, 723, this court held -6- that the trial court did not abuse its discretion in adopting a referee's findings when the referee estimated the income of a self- employed parent based on a single tax return and his testimony at a hearing. Accordingly, this assignment of error is not well taken. Finding no abuse of discretion, the judgment of the trial court is affirmed. Affirmed. -7- 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 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. JOSEPH J. NAHRA, P.J., and KENNETH A. ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .