Court of Appeals of Ohio, Eleventh District, Lake
from the Lake County Court of Common Pleas, Juvenile
Division, Case No. 2014 CV 01832.
C. Kuenzi, Hans C. Kuenzi Co., LPA, (For
Axelrod, (For Defendant-Appellee).
R. WRIGHT, J.
Appellant, Julie Shendel, appeals the trial court's
decision adopting the magistrate's decision following a
hearing on several issues involving the parties' minor
Shendel and appellee, Gary R. Graham, II, were never married,
but dated for a few years. They had one child. The parties
lived together in Tennessee at the time of the child's
birth in August 2010, but Garry moved to North Carolina the
following spring when their child was an infant. Julie and
the child continued to reside in Tennessee until she
relocated to Lake County, Ohio to attend nursing school in
Prior to the hearing, the parties agreed that Julie would
remain the custodial parent and that Garry would enjoy long
distance visitation since he lives in Illinois.
The issues to be addressed at the hearing included
Julie's request for child support retroactive to the
child's birth and Garry's request that Julie share
equally in the transportation costs associated with his long
distance visitation. The magistrate also noted that tax
exemption issues and health insurance obligations remained.
Appellant asserts eighteen assigned errors. Her first
assigned error avers:
"The trial court erred in its allocation of
transportation costs incurred by appellee to exercise
visitation with the minor child."
Pursuant to R.C. 3109.12(B), a trial court is vested with
discretion to make reasonable orders with respect to parental
visitation issues. Appleby v. Appleby, 24 Ohio St.3d
39, 41, 492 N.E.2d 831 (1986). In exercising this discretion,
the court is required to consider the best interest of the
child and the sixteen factors in division (D) of section
3109.051 of the Revised Code. R.C. 3109.12; Harbottle v.
Harbottle, 9th Dist. Summit No. 20897, 2002-Ohio-4859,
We review a trial court's visitation decisions for an
abuse of discretion.
"'[T]he term "abuse of discretion" is one
of art, connoting judgment exercised by a court, which does
not comport with reason or the record.' State v.
Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089,
2009 WL 1177050, ¶ 30, citing State v.
Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362
(1925). * * * [A]n abuse of discretion is the trial
court's 'failure to exercise sound, reasonable, and
legal decision-making.' State v. Beechler, 2d
Dist. No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶
62, quoting Black's Law Dictionary (8 Ed.Rev.2004) 11.
When an appellate court is reviewing a pure issue of law,
'the mere fact that the reviewing court would decide the
issue differently is enough to find error (of course, not all
errors are reversible. Some are harmless; others are not
preserved for appellate review). By contrast, where the issue
on review has been confined to the discretion of the trial
court, the mere fact that the reviewing court would have
reached a different result is not enough, without more, to
find error.' Id. at ¶ 67." Ivancic
v. Enos, 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639,
978 N.E.2d 927, ¶70.
The trial court's order on this issue states: "Ms.
Shendell shall bear 25% of the travel expenses. Mr. Graham
shall pay all travel expenses and shall receive a deviation
on past and future support. The yearly deviation for travel
expenses is $735.00."
Julie contends the trial court erred in imposing 25 percent
of Garry's costs associated with visitation because Garry
was the parent who initially moved away from the child, and
as such, he should bear the costs associated with long
distance visitation. Contrary to Julie's argument,
however, which parent initially moved away from the child is
Further, Garry remains responsible for 75 percent of his
visitation costs, and he testified in detail about the cost
of each visit that includes an 11-hour drive each way from
Quincy, Illinois to Eastlake, Ohio, and a one-night stay at a
hotel when the child is with him on his return trip to
Illinois. Julie fails to direct our attention to anything
evidencing that the trial court's imposition of part of
the costs associated with Garry's visitation constitutes
an abuse of discretion. Her first assignment of error lacks
Julie's second through thirteenth assigned errors
challenge the trial court's calculation and determination
of Garry's support obligation and arrearage.
Our standard of review for child support determinations is
abuse of discretion. Booth v. Booth, 44 Ohio St.3d
142, 541 N.E.2d 1028 (1989); Beiers v. Phillips, 5th
Licking Dist. No. 08CA0127, 2009-Ohio-3278, ¶15.
"However, 'challenges to factual determinations upon
which the child support order is based are reviewed using the
'some competent credible evidence'
standard.'" (Citations omitted.) Massey v.
Lambert, 7th Dist. Columbiana No. 09-CO-29,
Julie's second assigned error claims:
"The trial court erred in its calculation of
appellee's child support obligations for 2011 and each
year thereafter by giving consideration to his alleged
Julie argues the trial court erred as a matter of law by
finding that Garry's business expense deductions reduced
his income for child support purposes in 2011 and every year
thereafter because Garry did not provide any evidence
establishing his business deductions were of the type
permitted as reducing a parent's income for child support
purposes or that the expenses were actually incurred in the
A parent's gross income for child support calculations
includes self-generated income. R.C. 3119.01. R.C.
3119.01(C)(13) provides in part that
"'self-generated income' means gross receipts
received by a parent from self-employment, proprietorship of
a business, joint ownership of a partnership or closely held
corporation, and rents minus ordinary and necessary
expenses incurred by the parent in generating the gross
Further "ordinary and necessary" expenses
"means actual cash items expended by the parent or the
parent's business and includes depreciation expenses of
business equipment as shown on the books of a business
entity." R.C. 3119.01(C)(9)(a). However, R.C.
3119.01(C)(9)(b) specifically excludes "depreciation
expenses and other noncash items that are allowed as
deductions on any federal tax return of the parent or the
parent's business" as ordinary and necessary
expenses that reduce a parent's gross receipts for child
support purposes. Hale v. Hale, 11th Dist. Lake Nos.
2005-L-101 & 2005-L-114, 2006-Ohio-5164, ¶22-23;
In re Sullivan, Ohio App.3d 458, 2006-Ohio-3206, 855
N.E.2d 554, ¶21 (11th Dist.).
The exclusion of depreciation expenses and noncash deductions
"is designed to ensure that a parent's gross income
is not reduced by any sum that was not actually expended in
the year used for computing child support." Baus v.
Baus, 72 Ohio App.3d 781, 784, 596 N.E.2d 509 (9th
We have twice before considered comparable cases addressing
this issue. In Hale, the obligor father claimed the
trial court erred because it failed to reduce his gross
income earned from rental income based on his business
expenses. In In re Sullivan, 167 Ohio App.3d 458,
2006-Ohio-3206, 855 N.E.2d 554 ¶21 (11th Dist.), the
obligor argued that the trial court erred by including more
than $20, 000 in depreciation expenses in his income for
child support purposes. We found no error in either.
Further, we held in Sullivan that "it is not
the duty of the trial court to ferret out those expenses that
qualify as ordinary and necessary. Rather, it is the duty of
the obligor to assert that certain items are exempt from
inclusion as gross income pursuant to this exception."
And because no evidence was presented establishing the basis
for the claimed deductions in Sullivan, we found no
abuse of discretion in the trial court's decision not to
reduce the obligor's income based on the claimed
deductions. Id. at ¶25-27; Wittbrot v.
Wittbrot, 2d Dist. Clark No. 2002 CA 19, 2002-Ohio-6075,
at ¶44 (ruling that a trial court did not abuse its
discretion in refusing to allow deduction for depreciation
where there was no evidence of business expenses other than
obligor's bald assertion as to the amount of the
expenses.); Janecek v. Marshall, 11th Dist. Lake No.
2010-L-059, 2011-Ohio-2994, ¶19.
In Foster v. Foster, 150 Ohio App.3d 298,
2002-Ohio-6390, 780 N.E.2d 1041, the Twelfth District Court
of Appeals held that "absent evidence that the
depreciation deduction represents actual cash expenses
incurred in the year that the deduction was taken, R.C.
3119.01(C)(9) mandates that the depreciation deduction be
included in the parent's gross income for that
year." Id. at ¶23; Cunningham v.
Cunningham, 3d Dist. Paulding No. 11-13-08,
2014-Ohio-1684, ¶24-25 (finding that depreciation
expenses carried forward from a previous year are not cash
expenses for that year for child support purposes.)
Pursuant to Foster, and our holdings in
Hale and Sullivan, Julie avers that the
trial court abused its discretion by reducing Garry's
self-generated income based on any of his reasonable
and necessary business expenses because he carried the burden
of proof. We agree that Garry, as the obligor, had to come
forward with some evidence that he actually paid for the
expense in the year it was claimed and that the expense was
necessary and ordinary. He provided none.
Garry submitted his tax returns to establish his income for
the years in issue, i.e. 2011 through 2015. He did not,
however, provide any corresponding testimony or evidence as
to his alleged necessary and ordinary business expenses that
he paid that were listed on his returns as associated with
his self-generated income during any years in question.
While the magistrate expressly agreed that Garry's income
should not be reduced by his depreciation expenses, it
nevertheless allowed Garry's other business expenses
identified on his returns to reduce his income without any
evidence that the same were ordinary, necessary, or were
actual cash expenditures made in the year claimed. Thus, the
trial court erred to the extent that it reduced Garry's
income based on any of his business expenses since he failed
to satisfy his burden of proof. Accordingly, Julie's
second assigned error has merit.
Appellant's third assigned error claims:
"The trial court erred in its calculations of
appellee's child support obligation for 2011 and child
support arrearage for the year by misstating his gross
Julie's argument here is twofold. First, she claims the
court should have included Garry's $32, 930 in income
received from the liquidation of his retirement benefit as
income. And, assuming we disagree with her first argument,
Julie also claims the court's calculation of Garry's
2011 income nevertheless was still understated by $4, 000.
Julie relies on R.C. 3119.01(C)(7) in claiming that
Gary's withdrawal should have been included in his 2011
income since "gross income" includes "the
total of all earned and unearned income from all sources
during a calendar year * * *, and includes income from
salaries, wages, overtime pay, and bonuses * * *; pensions;
interest; trust income; annuities * * *."
Gary testified that he had $32, 930 in pension and annuity
income in 2011. He withdrew the money to pay off his farm
R.C. 3119.01(C)(7) also provides in part:
"'Gross income' does not include * * *:
"* * *
"(e) Nonrecurring or unsustainable income or cash flow