COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73435 WYNONA WAKEFIELD, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : PAUL REVERE WOODS, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 8, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-108631 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Veronica M. Dever Assistant County Prosecutor Support Enforcement Division P.O. Box 93923 Cleveland, Ohio 44101-5923 For defendant-appellee: Paul Revere Woods, Pro Se 10921 Gay Avenue Cleveland, Ohio 44105 -2- NAHRA, J.: Appellant, Wynona Wakefield appeals the trial court's ruling concerning the amount of child support her former husband and appellee, Paul Revere Woods, was ordered to pay. In 1979, the state of Tennessee, which had established paternity, filed a petition for support against Woods in the Cuyahoga County Common Pleas Court, Domestic Relations Division. In December of that same year, the parties agreed to an entry that stipulated Woods pay $50 per month plus 1% poundage, to commence on January 9, 1980. On July 31, 1990, appellant filed a motion to show cause, alleging that appellee had failed to pay the child support as ordered. A hearing was held on November 26, 1990, at which appellant was properly represented, but appellee failed to attend. At that hearing it was determined that since the effective date of the child support order, December 26, 1979, a total of 119 months had elapsed. During that time period appellee's obligation of payment totaled $6,550, Woods had paid a total of $5,895.91, leaving an arrearage of $654.09. Moreover, these payments were not voluntary in nature as they consisted of $4,465.17 through the Cuyahoga Support Enforcement Agency, and $1,430.74 by virtue of Internal Revenue Service interception of his 1983, 1987, and 1988 federal income tax returns. As a result, appellee was found in contempt of court, but his sentence was suspended as long as he continue to pay the current spousal support of $50 per month, along with $25 per month toward the arrearage, and a 2% statutory fee, -3- amounting to a total monthly payment of $76.50 per child. Woods was further ordered to seek immediate employment. A motion to modify was filed on February 25, 1994, citing changed circumstances. After many failed appearances by appellee and an order for appellee to bring all relevant financial data on March 6, 1995, appellee finally appeared, but did so without the subpoenaed information. At the hearing it was determined that appellant was unemployed, cares for her sick mother as well as the children, and receives Aid for Dependant Children in the amount of $185.00 per month plus $160 in food stamps. Appellee on the other hand, although at the time of the hearing on leave for a disability, received an annual base salary of $36,000; however, with overtime his average annual income for the three years prior was $40,818.56. As a result, this motion was granted, making the child support payments $150 per month per child, said payment plus poundage for a total of $306 per month. Each monthly payment was to be secured through a separate wage addendum issued against the appellee's income source, North American Wire, and paid through the Cuyahoga Support Enforcement Agency. However, the referee noted that in reaching her decision, she took into consideration R.C. 3109.05 and R.C. 3113.215, and found reason to deviate from their applicable guidelines due to appellee's year of disability, and his recent divorce which had left him in financial hardship. Objections to the referee's report were filed by appellant claiming that the referee had abused her discretion in deviating -4- from the applicable recommended child support obligation under R.C. 3113.215 by more than 60%. These objections were sustained by the trial court and, as a result, the referee was ordered to issue a supplemental report consistent with the appellant's objections. In the amended report, which was issued on June 13, 1997, the referee stated that the previous report would remain in full force except for the following changes: The OCCS recommended support obligation pursuant to O.R.C. 3113.25 would be unjust or inappropriate and would not be in the best interests of the child or Respondent where Respondent has not worked since February 16, 1994 due to injury. Respondent is in the process of a divorce which has resulted in financial problems; and the Respondent's income is thereby effected further where there is no showing of the Petitioner's inability to contribute to support. (Emphasis added). Once again, objections to the referee's report were filed by appellant; however, this time the trial court sustained the report as written. Appellant timely filed an appeal and assigns three errors for our review. All three of appellants assignments of error are interrelated in both law and fact and will thus be treated together. Appellant's assignments of error state: I. THE COURT FAILED TO FOLLOW THE OHIO REVISED CODE, SECTION 3115.215 WITH REGARD TO THE PROPER AMOUNT OF CHILD SUPPORT. II. THE FINDINGS OF THE COURT WITH REGARD TO THE AMOUNT OF CHILD SUPPORT WAS NOT SUSTAINED BY THE EVIDENCE PRESENTED. -5- III. THE MAGISTRATE ABUSED HER DISCRETION BY DEVIATING FROM THE CHILD SUPPORT GUIDELINES SO AS TO CAUSE IRREPARABLE DAMAGE TO THE MINOR CHILDREN AND THE STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES. In these assignments of error appellant maintains that the trial court abused its discretion in calculating the child support payments which deviate from the child support guidelines provided for in R.C. 3113.215 by nearly 60%. In consideration of child support appeals, this court is guided by an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028. An abuse of discretion implies that the trial court's attitude is arbitrary, unreasonable or unconscionable. Id. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. Powell v. Powell (1996), 11 Ohio App.3d 418, 676 N.E.2d 556. The applicable statute concerning child support payments is R.C. 3113.215(B)(3) which states: (3) The court, in accordance with divisions (B)(1) and (2)(c) of this section, may deviate from the amount of support that otherwise would result from the use of 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, in cases in which the application of 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, would be unjust or inappropriate and would not be in the best interest of the child. In determining whether that amount would be unjust or inappropriate and would not be in the best interest of the child, the court may consider any of the following factors and criteria: (a) Special and unusual needs of the children; -6- (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; (d) Extended times of visitation or extraordinary costs associated with visitation, provided that this division does not authorize and shall not be construed as authorizing any deviation from 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, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of companionship or visitation granted by court order; (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 or 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; -7- (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. Moreover, R.C. 3113.215(B)(2)(c) provides that a court shall not order an amount of support which deviates from the amount set forth in the child support guidelines unless the court: (i) *** determines that the amount calculated pursuant to the basic child support schedule *** would be unjust or inappropriate and would not be in the best interests of the child; (ii) *** enters in the journal *** that that amount would be unjust or inappropriate and would not be in the best interests of the child and findings of fact supporting that determination. Further, in Marker v. Grimm (1992), 65 Ohio St.3d 139, 601 N.E.2d 496, the Ohio Supreme Court reviewed the parameters of R.C. 3113.215 and stated in its second and third syllabus': The terms of R.C. 3113.215 are mandatory in nature and must be followed literally and technically in all material respects. Any court ordered deviation from the applicable worksheet and the basic child support schedule must be entered by the court in its journal and must include the findings of fact to support such determination. In the instant case, the referee noted, after properly computing the support computation worksheet, that pursuant to the statutory guidelines the rebuttably presumed correct amount of current child support was $8,212 for 1995. However, after consideration of the applicable guidelines in R.C. 3113.215(B)(3) the referee decided that due to appellee's current situation of -8- unemployment and his recent divorce, the proper sum of child support would be $3,600 per year, or $150 per month per child. The question now before the court is was this deviation from the prescribed worksheet amount an abuse of discretion by the trial court. Since the statutory guidelines are presumed correct, R.C. 3113.215(B)(1), and the overriding concern of the statute is the `best interest of the child' for whom the support is being awarded, it follows that the appellee and the trial court bear the burden of demonstrating why it was proper to deviate from the statutorily prescribed amount. Grimm, supra. See, also, Seegart v. Zietlow (1994), 95 Ohio App.3d 451, 642 N.E.2d 697. In the instant case, the trial court stated that the deviation from the statutorily prescribed amount was due to appellee's unemployment because of a disability, and to his financial hardship because of a recent divorce. However, what the trial court failed to note was that his wage statement shows that he worked everyday in 1994, contrary to his assertion, and when he was on disability from January 1995 through February 1995, he received 60% of his base salary. In other words, the appellee only received less than his full salary for a period of two months. In determining child support, the overriding concerns in each case are the best interests of the children, and in the present case it appears they were not given the proper consideration. As a result, the trial court abused its discretion in modifying the child support payments from the statutorily -9- prescribed amount by more than 60%. Accordingly, appellant's assignment of error is well taken. Judgement reversed and remanded. -10- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said 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. JOSEPH J. NAHRA JUDGE BLACKMON, A.J., and SPELLACY, J., CONCUR. 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 .