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Babe v. Babe

Court of Appeals of Ohio, Seventh District, Carroll

June 15, 2017

DIANA M. BABE PLAINTIFF-APPELLANT
v.
ALLEN H. BABE DEFENDANT-APPELLEE

         Appeal from the Court of Common Pleas, Domestic Relations Division, of Carroll County, Ohio Case No. 2011 DRA 26842

          For Plaintiff-Appellant Attorney Arnold Glantz

          For Defendant-Appellee Attorney Jason Reese

          JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          DeGENARO, J.

         {¶1} Plaintiff-Appellant, Diana M. Babe, appeals the decision of the trial court ordering her to pay $220.18 plus a 2% processing charge per month in child support to her ex-husband, Defendant-Appellee, Allen H. Babe, Jr., following the trial court's termination of the parties' shared parenting plan and allocation of sole custody of the parties' three minor children to Allen. On appeal, Diana argues the trial court abused its discretion by failing to deviate downward from the child support guidelines because the support obligation places too great a financial burden on her. For the following reasons, Diana's sole assignment of error is meritless and the judgment of the trial court is affirmed.

         Facts and Procedural History

         {¶2} In 2012, Diana and Allen divorced; at the time the parties had four minor children. Diana was named the residential and custodial parent, and visitation was set for Allen, who was ordered to pay child support to Diana. Diana subsequently moved to Columbiana County while Allen maintained residency in Carroll County. In June 2014, the parties entered into a shared parenting agreement where Allen's parenting time with the children was increased; he continued to pay child support to Diana.

         {¶3} On December 1, 2014, Allen filed a motion for change of legal custody, requesting he be named residential parent of the party's minor children, thus terminating the shared parenting plan. As the parties' oldest child has since emancipated, only three children are minors.

         {¶4} In June 2015, Allen also filed a motion for contempt against Diana, alleging that he had been denied visitation and that Diana had moved out of the county without informing him or the court. Diana filed her own motion to terminate the shared parenting plan, which included a request that she be named residential parent of the children.

         {¶5} On September 22, 2015 and October 9, 2015, the pending motions came for hearing. Among other witnesses, the trial court heard testimony from Diana, Allen, the guardian ad litem Melissa Pitinii, and Columbiana County Department of Jobs & Family Services childcare investigator Kelly Stoffer. The trial court also conducted in camera interviews of the children, transcripts of which were filed under seal. Additionally, the trial court took judicial notice of public records that Diana's new boyfriend, David Coulter, was a registered sex offender, whose victim had been a 13 year old girl. While Diana denied that Coulter was living with her, there was substantial evidence presented that he did in fact reside with her.

         {¶6} With regard to the parties' finances, a financial affidavit filed by Diana on September 15, 2015-just prior to the hearing-lists her expenses, and states that she is employed as an officer for a Canton based security company, but fails to specify her current wages. During the hearing, Diana confirmed her employment and stated she earns $8.10 per hour and averages between 32 and 40 hours per week for an annual gross income of about $14, 742.00. She further testified her rent is $900.00 per month, for a total of $10, 800.00 per year and that she spends approximately $200.00 per month in gasoline for her car to commute to work in Canton. However, there is no documentary evidence to support her testimony regarding her income.

         {¶7} After considering all of the evidence, the trial court sustained both motions to terminate the shared parenting plan. Based upon the witness testimony and the recommendation by the guardian ad litem, the trial court found that it was in the best interest of the minor children to designate Allen as the sole residential and legal custodian of the three children. Further, the trial court not only suspended all of Diana's visitation rights with the children, pending further order of the court, but also strictly prohibited any type of direct or indirect contact by Diana, or any third party on behalf of Diana, with the three minor children. In addition to receiving sole custody of his three children, the trial court ordered Diana to pay child support to Allen and Allen was ordered to provide medical insurance for the minor children through his employer. The trial court also found Diana in contempt for her willful failure to permit Allen to exercise visitation with one of the minor children in April and May of 2015.

         {¶8} In a separate entry, the trial court ordered the Carroll County Child Support Enforcement Agency to "conduct an administrative review of the wages and incomes of the parties and report its findings and recommendations to the Court within twenty (20) days of this entry." The trial court further directed CSEA to "prepare and submit standard child support computation worksheets for one (1) custody scenario, to-wit: ...


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