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Byers v. Cartechine

Court of Appeals of Ohio, Eleventh District, Lake

December 29, 2017

DANA R. BYERS, Plaintiff-Appellant,
v.
MARK CARTECHINE, Defendant-Appellee.

         Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2007 PR 01809.

          Gary S. Okin, Dworken & Bernstein Co., L.P.A., For Plaintiff-Appellant.

          Sandra A. Dray, Sandra A. Dray Co., L.P.A., For Defendant-Appellee.

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Dana R. Byers, and appellee, Mark Cartechine, never married, have one child together. Byers appeals the trial court's decision modifying child support and designating her the obligor. We affirm.

         {¶2} The parties' son was born September 29, 2007. The parties have had a shared parenting plan since 2009. At the outset, Byers was designated the residential parent for school purposes, and Cartechine the child support obligor. Byers has another child from a separate relationship.

         {¶3} In September 2013, the court adopted the parties' agreed judgment entry modifying the shared parenting plan and maintaining Byers as the residential parent for school purposes. The parties had one midweek visit with the child from 6-8 p.m. with each providing transportation for their respective visits. The September 2013 order likewise retained Cartechine's status as the child support obligor with a monthly support obligation of $687.52 when health insurance is provided. The child support worksheet attached to this 2013 agreed judgment entry identifies Byers as the residential parent and imputes her with a minimum wage annual income of $16, 328. It lists $73, 230.73 as Cartechine's annual income, earning 81.77 percent of the parties' income, and Byers at 18.23 percent.

         {¶4} On July 30, 2014, Cartechine filed an ex parte motion for temporary custody and to suspend visitation due to Byers' inpatient treatment for alcoholism. Cartechine also moved the court to terminate the shared parenting plan, grant him custody, and modify child support. On the same date, the trial court granted Cartechine temporary legal custody of the child and ceased the collection of child support.

         {¶5} Cartechine again moved the court to modify child support on January 11, 2016 and asked that Byers be designated as obligor. The parties eventually agreed to a modified shared parenting plan changing Cartechine to the residential parent for school purposes, but they disagreed about parenting schedules. Thus a trial was held in April 2016 during which Byers urged the court to permit her mid-week overnight visits during the school year. Cartechine disagreed arguing that their son would spend too much time in the car. The trial court adopted Byers' recommended parenting time schedule resulting in additional transportation responsibilities for her.

         {¶6} The parties also did not agree about child support. Thus, a trial was held August 18, 2016 on Cartechine's motion to modify support, which the magistrate ultimately granted. She found Byers voluntarily unemployed and imputed a minimum wage income and ordered her to pay child support to Cartechine retroactive to August 1, 2014, the date father's temporary custody of the child began.

         {¶7} Byers filed objections to the decision, which were overruled. The trial court adopted the magistrate's decision designating Byers as the obligor and ordering her to pay pursuant to the statutory guidelines.

         {¶8} Byers raises four assigned errors:

         {¶9} "[1.] The trial court committed prejudicial error in modifying the previous child support order by designating Appellant as the child support obligor when there is a significant disparity in the incomes of Appellant and Appellee and Appellant's transportation costs have increased dramatically.

         {¶10} "[2.] The trial court committed prejudicial error in concluding that Appellant was voluntarily unemployed and by ascribing potential income to Appellant where the evidence adduced at trial established that Appellant was unable to work considering her responsibilities to her child and her mother, and where no evidence was presented which would establish Appellant's potential income.

         {¶11} "[3.] The trial court committed prejudicial error in refusing to deviate from the calculated child support obligation by failing to properly apply and consider the deviation factors set forth in R.C. 3119.23.

          {¶12} "[4.] The trial court committed prejudicial error in refusing to deviate from the calculated child support obligation by failing to properly apply and consider the deviation factors set forth in R.C. 3119.23."

         {¶13} Byers' first assigned error challenges the trial court's decision making her the obligor for child support purposes. She asserts the court misapplied the factors and that a change in obligor status was not warranted. In support, Byers claims the trial court improperly imputed $51, 800 in income to her via benefits she receives from her mother based on facts not in evidence, but based instead on counsel's arguments. She also argues the court failed to consider her increased transportation costs for midweek visitation. Byers argues these factors support a decision maintaining Cartechine as the obligor.

         {¶14} Absent an abuse of discretion, a trial court's determination regarding child support obligations will not be disturbed on appeal. Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997).

         {¶15} "[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, 2012-Ohio-3639, 978 N.E.2d 927, ¶70 (11th Dist.).

         {¶16} The trial court granted Cartechine's motion to modify child support after the parties agreed to continue their shared parenting plan with modifications. The trial court made Byers the obligor and ordered her to pay the amount pursuant to the child support worksheet.

         {¶17} Following the trial to the magistrate and after imputing a minimum wage income to Byers, the magistrate found in part: "it is just and appropriate to designate Mother as the obligor for child support purposes." The magistrate distinguished the case relied on by Byers, i.e., Kilgore v. Kilgore, 11th Dist. Ashtabula Nos. 2008-A-0006 and 2008-A-0008, 2008-Ohio-5858, and found that Byers should be the obligor. The trial court agreed.

         {¶18} Byers continues to argue on appeal that a close reading of Kilgore dictates that Cartechine should be identified as the obligor. We disagree.

         {¶19} In Kilgore, the parties entered a shared parenting plan and the same month the plan was adopted by the court, the father moved an hour away. As a result of father's move, their parenting schedule became unworkable. Father subsequently sought sole custody of the parties' child. The trial court denied his request and maintained the shared parenting plan with modifications. The trial court likewise maintained its prior child support order based on mother's increased transportation costs resulting from father's move and based on the large disparity in the parties' incomes. Id. at ¶2-6. Father argued that mother should be the obligor. The court disagreed, citing father's unilateral decision to relocate as causing the need to modify the parenting schedule and mother's increased transportation expenses. Id. at ¶12.

         {¶20} Here, the modifications to the shared parenting plan, including the changes in the parties' parenting schedules, were precipitated by Byers. Her inpatient treatment necessitated Cartechine's ex parte motion for custody of the child. Thereafter, their shared parenting plan was changed identifying Cartechine as the residential parent for school purposes. However, the court adopted Byers' preferred parenting schedule requiring her to transport the child during the school year for midweek, overnight visits. As indicated earlier, Cartechine disagreed with this arrangement based on the distance between the parties' residences and the time their son would have to spend in the car. Unlike Kilgore, the changes in the residential parent status and the increased transportation costs for Byers were not caused by Cartechine.

         {¶21} Although Cartechine continues to have a significantly higher income than Byers, this is only one of several factors a court is to consider in determining whether a deviation is appropriate. Kilgore at ¶25. The trial court emphasized that Byers was a college-degreed individual who had the ability to work, but simply chose not to since their child was born in 2007. Byers enjoys a comfortable lifestyle without working due to the significant generosity of her ailing mother. Thus, although there is substantial disparity in the parties' income, the trial court found this disparity was offset by the financial benefits Byers receives from her mother. This finding does not constitute an abuse of discretion.

         {¶22} Contrary to Byers' argument that the trial court improperly imputed her with $51, 800 in income via benefits she receives from her mother, neither the trial court nor the magistrate relies on this fact in rendering its decision naming Byers the ...


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