COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78593 RONALD J. TADA, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : PHYLLIS DELEVA, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Domestic Relations Division : Case No. D-263665 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: William T. Wuliger, Esq. The Brownell Building 1340 Sumner Court Cleveland, Ohio 44115 For defendant-appellee: Patrick M. Farrell, Esq. HILDEBRAND, WILLIAMS & FARRELL 21430 Lorain Road Fairview Park, Ohio 44126 Richard M. Summers, Esq. 29400 Harvard Road Orange Village, Ohio 44122-4381 Phyllis Deleva, Pro Se 1249 West 69th Street Cleveland, Ohio 44102 MICHAEL J. CORRIGAN, J.: Plaintiff-appellant, Ronald Tada, appeals from the decision of the Cuyahoga County Court of Common Pleas Domestic Relations Division determining property division, child custody and child support. Specifically, appellant contends that the trial court -2- erred in not requiring defendant-appellee, Phyliss DeLeva, to pay child support to appellant after appellant was awarded residential parent status of the parties' child. Because we conclude that the trial court did not abuse its discretion in not awarding child support, and because its decision to deviate from the basic child support guidelines was well-reasoned and supported by the underlying facts of the case, we affirm the judgment of the trial court. The within case was filed on October 20, 1998. The parties were married on September 14, 1996. One child was born as issue of the parties' relationship, (DOB March 14, 1996). Somewhat contemporaneously with the instant case, another case was pending between the within litigants in the General Division of the Cuyahoga County Court of Common Pleas. In that litigation, case number 380275, the appellant maintained causes of action against the appellee for assault, false arrest, malicious prosecution, intentional infliction of emotional distress and fraud. On November 24, 1999, a hearing was had on the record in case number 380275 for the purposes of confirming the terms of the parties' settlement of that case. During the course of that proceeding, the attorney for each party also represented to the court that the terms of the settlement of case number 380725 also amounted to a settlement of the outstanding issues in the instant case, subject to a decision by the magistrate in the instant case on custodial rights of each party and child support. -3- On December 1, 1999 and December 2, 1999, a hearing was had before the trial magistrate in the instant case on the issues that the parties had previously agreed to submit to the magistrate. On March 3, 2000, the magistrate's Decision with Findings of Fact and Conclusions of Law was journalized. In the decision the magistrate stated that prior to trial the parties reached an agreement on all issues except for the allocation of parental rights and responsibilities and incorporated by reference the settlement agreement as contained in the November 24, 1999 transcript of proceedings. The hearing before the magistrate consisted of testimony from two witnesses. Dr. Nancy Huntsman, a child psychiatrist, testified that the child was highly valued and very much loved in both parents' homes. Dr. Huntsman recommended a shared parenting schedule for the parties' child, with the appellant as the primary residential parent, but allowing the appellee greater visitation privileges than normally granted non-primary residential parents. This plan was adopted in toto by the magistrate in her decision. Arlene Spencer testified that as an employee of the Cuyahoga County Department of Children and Family Services her job is to investigate calls made to the child abuse hotline, 696-KIDS. Spencer testified that in October of 1998 the appellant had called the hotline to report that the appellee was not providing proper care to the parties' child. Spencer interviewed the appellee as well as the appellee's three other children from other relationships in an attempt to ascertain the truth of the -4- allegations. Spencer concluded from her investigation that there was no evidence of neglect of the parties' child. In her opinion, the magistrate awarded primary custody to the appellant, with the appellee to have possession on alternate weekends, Thursday evenings, Monday evenings following weekends spent with the appellant, certain holidays and for stated periods during summer vacation. This schedule was in accordance with the recommendations of Dr. Huntsman. The magistrate's opinion stated that as the primary residential parent the appellant would normally be entitled to child support from the appellee in the amount of $257.59 per month. Yet the magistrate further found that strict application of the schedule and worksheet would be unjust and inappropriate and not in the best interest of the child in this case. The primary reason given for the deviation from the worksheet was the disparity in income between the parties1 and the fact that appellee maintained a home and had custody of and provided most of the support for her three other children, while the appellant had no other children and lived with his parents. The magistrate also noted that the appellee had greater possession time than usually provided a non- custodial parent under the court's standard schedule and thus would incur greater expenses than anticipated by the schedule's guidelines. 1For the purposes of setting child support, the parties stipulated that the appellant had a gross annual income of $40,000, while the appellee had a gross annual income of $27,000. -5- In recognition of the fact that the appellant was the primary residential parent and would not be receiving child support from the appellee, the magistrate also awarded the appellant the tax exemption for the child beginning in the year 2000, despite the fact that the parties had agreed as part of their settlement of case number 380275 that the tax exemption would alternate on an annual basis between the parties. On March 14, 2000, the appellant filed objections to the decision of the magistrate. In an order journalized on August 17, 2000, the trial court overruled the appellant's objections and adopted the opinion of the magistrate. The within appeal was thereafter timely commenced on September 18, 2000. The appellant presents a total of three assignments of error for this court's review. The three assignments of error are interrelated, having a common basis in law and fact, and will, therefore, be addressed concurrently in this opinion. The three assignments of error state: I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR AS A MATTER OF LAW IN IGNORING ESSENTIAL TERMS OF THE PARTIES' STIPULATED SETTLEMENT AGREEMENT. II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN REFUSING TO ORDER APPELLEE TO PAY CHILD SUPPORT UNDER THE FACT OF THIS CASE. III. THE MAGISTRATE EXCEEDED HER JURISDICTIONAL AUTHORITY AND COMMITTED REVERSIBLE ERROR BY DEVIATING FROM THE TERMS OF THE SHARED PARENTING PLAN SUBMITTED BY APPELLANT. At the November 24, 1999 hearing on the parties' settlement agreement in the other case that had been pending, the appellant's attorney stated the following on the record: -6- The party who is are (sic) awarded the residential parenting status, or its equivalent, will be awarded child support based upon current state guidelines. *** The tax exemption for the minor child will be alternated on an annual basis between the parties. *** In sum and substance, all issues by and between these parties will be resolved, save and except the issue (sic) of custody and/or parenting status and child support. Those issues will be determined by Magistrate LoPresti. She will base her decision upon the testimony of the two witnesses previously indicated and any rebuttal testimony as it relates to their testimony. And that is my understanding of the agreement. (Emphasis added.) 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, 616 N.E.2d 218. Abuse of discretion connotes the trial court's award was "unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. In calculating child support obligation, the overriding concern is "the best interest of the child" for whom support is awarded. Marker v. Grimm (1992), 65 Ohio St. 3d 139, 601 N.E.2d 496. The standard employed in evaluating any deviation from the child support guidelines is the best interest of the children, rather than any party's claim of unfairness. Gatliff v. Gatliff (1993), 89 Ohio App.3d 391, 394, 624 N.E.2d 779; Schneeberger v. Schneeberger(Dec. 19, 1996), Cuyahoga App. No. 70525, unreported. -7- R.C. 3113.215(B)(1) creates a rebuttable presumption that the amount of support calculated pursuant to the basic child support schedule is correct unless the court determines that the amount would be unjust or inappropriate or would not be in the best interest of the child and makes a journal entry to that effect supported by appropriate findings of facts. R.C. 3113.215(B)(3), which enumerates the factors to be considered by a court prior to deviating from the amount of support that would otherwise result from the use of the schedule where such amount would be unjust or inappropriate and would not be in the best interest of the child, 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 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; (d) Extended times of visitation or extraordinary costs associated with visitation, ***; (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; -8- (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; (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. (Emphasis added.) The child support statute permits courts to deviate from the basic child support schedule and order an alternative level of support where the court enters in the journal the amount of child support calculated pursuant to the basic child support schedule and its determination that that amount would be unjust or inappropriate and would not be in the best interests of the child -9- together with findings of fact supporting that determination. R.C. 3113.215(B)(2)(c)(i)-(ii). The magistrate in this case specifically stated in her decision that the strict application of the basic support schedule would be unjust and inappropriate and not in the best interest of the child, after first listing the amount of child support the appellee would have been responsible for under the basic child support schedule, as is required by statute. The basis for this conclusion, as stated in the decision, was the income disparity between the parties, the fact that the appellee has three other children to support while the appellant lived at home with his parents and the greater possession time afforded the appellee under the plan recommended by Dr. Huntsman than she would have received under the court's standard shared parenting schedule. These reasons for deviating from the basic child support schedule were each authorized by statute and were appropriate factors to be considered by the court under R.C. 3113.215(B)(3). Contrary to the assertion of the appellant in the within appeal, the fact that the appellee is responsible for the support of her three other children from different relationships was an appropriate factor for the court to consider in setting support levels in this case. See R.C. 3113.215(B)(3)(b) & (o). Likewise, the magistrate also properly considered the appellee's enhanced time with the child, despite her not being the primary residential parent, under the shared parenting arrangement in determining an -10- appropriate level of support to further the best interest of the child. R.C. 3113.215(B)(3)(d). Also, we again note the fact that the magistrate awarded the appellant the tax exemption for the couple's child rather than annually alternating the exemption as the parties had agreed. Given the recent changes in the federal tax law, including the increased per child deduction and credit, this modification by the magistrate could potentially result in significant financial savings for the appellant that will at least partially offset the lost child support of which the appellant complains. We are compelled to conclude based upon our review of the magistrate's decision as well as the facts of this case that the magistrate did not abuse her discretion in deviating from the basic child support guidelines as such deviation was clearly in the best interest of the child and the amount of support called for by the guidelines was not appropriate. Accordingly, each of the appellant's assignments of error is overruled and the judgment of the trial court is affirmed in its entirety. -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. MICHAEL J. CORRIGAN JUDGE KENNETH A. ROCCO, P.J., and COLLEEN CONWAY COONEY, 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. 22. 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). .