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DiBiase v. DiBiase

Court of Appeals of Ohio, Seventh District

June 24, 2013

KYRA A. DiBIASE nka SNIDER PLAINTIFF-APPELLEE
v.
PAUL A. DiBIASE, JR. DEFENDANT-APPELLANT

Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 02 DR 244

For Plaintiff-Appellee: Kyra A. DiBiase nka Snider, Pro Se

For Defendant-Appellant: Atty. Gary M. Stern Stern, Stern & Stern Co., LPA

JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro.

OPINION

WAITE, J.

{¶1} Appellant Paul A. DiBiase, Jr. appeals a decision of the Jefferson County Court of Common Pleas modifying his child support obligation. The parties had four children together, and Appellant was ordered to pay child support as part of the divorce. The oldest child recently reached the age of majority, thus leading to a request to modify child support. Since Appellant and his ex-wife Kyra DiBiase ("Appellee") have a combined income of over $150, 000, child support is not based on a specific formula, but rather, on the needs and standard of living of the children and parents. See R.C. 3119.04(B). The magistrate examined the needs and standard of living of the children and parents, but ultimately decided to extrapolate child support based on the formula used for parents earning less than $150, 000. We have approved of this method of extrapolation in Cho v. Cho, 7th Dist. No. 03 MA 73, 2003-Ohio-7111 and Ellis v. Ellis, 7th Dist. No. 08 MA 133, 2009-Ohio-4964. The trial judge adopted the magistrate's decision and findings based on the extrapolation method, and this appeal followed.

{¶2} Appellant argues that the trial court did not properly consider the needs and standard of living of the children when computing child support. Appellant further argues that there was no documentary evidence for most of the expenses claimed by Appellee. Appellant also claims that the magistrate improperly acted as Appellee's advocate during the entire proceeding out of sympathy for the fact that Appellee was acting pro se. Appellee has not responded to this appeal. Appellant is correct that, when the combined income of both parents exceeds $150, 000 per year, child support must be decided on a case by case basis after considering the needs and standard of living of the parents and children. The record reflects that the trial court did consider the needs and standard of living of the children, as is evidenced by the hearing transcript, the magistrate's report, the magistrate's findings of fact, and the trial court's final judgment. Appellant also objects to specific expense items that may have been incorrectly calculated by the magistrate. Since the court did not base its child support decision on specific expenses, but on the extrapolation of presumed child support using the guidelines for parents earning less than $150, 000, any errors in the line by line expense items is harmless.

{¶3} Appellant contends that the trial court did not make an independent review of the magistrate's decision, but the record indicates the opposite. Finally, Appellant argues that the magistrate was biased against him. Appellant does not support this with any evidence and made no attempt to have the magistrate removed from the case. Appellant's alleged errors are not supported by the record, and the judgment of the trial court is affirmed.

History of the Case

{¶4} Appellant and Appellee were divorced in 2003 and had four minor children at the time of the divorce. Appellee was named as the residential parent, and Appellant was ordered to pay child support of $5, 417 per month. Appellant is a physician, and his income at the time of the divorce was $521, 561. In 2009, Appellant's income had decreased to $237, 000, and child support was modified to $4, 000 per month. The oldest child was emancipated in May of 2011, and new hearings were held to recalculate child support. In July, 2011, a magistrate reduced child support to $3, 000. Appellee requested reconsideration of the magistrate's order, which was granted. In August of 2011, the magistrate recalculated child support, using the extrapolation method, to $4, 529.63 per month. This was an interim order effective while the matter was being litigated. Hearings were held on August 23, 26, and November 18, 2011. Appellant was represented by counsel, and Appellee appeared pro se. The magistrate issued its decision on December 15, 2011. The magistrate once again used the extrapolation method to calculate child support in the amount of $4, 529.63.

{¶5} Appellant filed objections, and the trial court held a hearing on the objections on February 13, 2012. The matter was referred back to the magistrate to prepare findings of fact addressing the issue of the needs and standard of living of the children and the reasonable monthly expenses of the parties. The magistrate issued those findings on March 15, 2012. The magistrate found that Appellant's income had increased from $237, 000 in 2009, to $317, 450 at the time of the final hearing. The magistrate also found that Appellee's income had decreased since the previous child support order. The magistrate made findings regarding each of the expenses discussed at the hearings. The magistrate found that child support would be $4, 500.94 per month, based on the calculations arising from the income, expenses, and in-kind contributions of the parties. The magistrate found that this amount was not significantly different than the extrapolated child support amount as calculated from the schedule in R.C. 3119.021. The magistrate also found that the presumed amount of $4, 529.63, based on the extrapolation method, was just, appropriate and in the best interests of the children. Appellant filed further objections on March 20, 2012. On April 26, 2012, the trial court overruled the objections and issued its judgment entry adopting the magistrate's decision. The judgment entry stated:

The Court has now reviewed the magistrate's findings and the magistrate's supplemental findings, as well as defendant's objections and each parties [sic] memorandums and responses.
The Court finds that the magistrate correctly considered all evidence presented at the hearings, that the magistrate analyzed the evidence presented, addressed all necessary issues, appropriately considered any conflicting evidence, that the magistrate's decision is supported by the evidence presented, that the magistrate properly determined the factual issues and that the magistrate ...

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