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Shendel v. Graham

Court of Appeals of Ohio, Eleventh District, Lake

July 23, 2018

JULIE SHENDEL, Plaintiff-Appellant,
v.
GARRY R. GRAHAM, II, Defendant-Appellee.

          Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2014 CV 01832.

          Hans C. Kuenzi, Hans C. Kuenzi Co., L.P.A., (For Plaintiff-Appellant).

          Jon D. Axelrod and Rochelle M. Hellier, (For Defendant-Appellee).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, Julie Shendel, appeals the trial court's decision rendered after the case was remanded following her first appeal. She contends the trial court erred in its recalculation of child support and in its directive regarding healthcare for the parties' child. We affirm in part, reverse in part, and remand.

         {¶2} Julie and appellee, Garry Graham, have one child together. Julie is the residential parent, and Garry resides out of state and has long distance visitation.

         {¶3} As stated, Julie previously appealed the trial court's decision, and we found several errors warranting reversal and remand. Shendel v. Graham, 11th Dist. Lake No. 2016-L-100, 2017-Ohio-4236, 92 N.E.3d 43. On remand, the trial court reassessed Garry's support obligation and made additional findings regarding the parties' healthcare obligations.

         {¶4} Julie raises ten assignments of error:

         {¶5} "[1.] 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 income.

         {¶6} "[2.] The trial court erred in its calculations of appellee's child support obligation for 2012 and child support arrearage for the year by misstating his gross income.

         {¶7} "[3.] The trial court erred in its calculations of appellee's child support obligation for 2013 and child support arrearage for the year by misstating his gross income.

         {¶8} "[4.] The trial court erred in its calculations of appellee's child support obligation for 2013 and child support arrearage for the year by failing to consider all of appellant's child care expenses.

         {¶9} "[5.] The trial court erred in its calculations of appellee's child support obligation in 2014 and child support arrearage for the year by understating his gross income.

         {¶10} "[6.] The trial court erred in its calculations of appellee's child support obligation for 2014 and child support arrearage for the year by failing to consider all of appellant's child care expenses.

         {¶11} "[7.] The trial court erred in its calculations of appellee's child support obligation for 2015 and child support arrearage for the year by misstating his gross income.

         {¶12} "[8.] The trial court erred in its calculations of appellee's child support obligation in 2015 and child support arrearage for the year by failing to consider all of appellant's child care expenses.

         {¶13} "[9.] The trial court erred in its calculations of appellee's child support obligation in 2016 and child support arrearage for the year by failing to consider all of appellant's child care expenses.

         {¶14} "[10.] The trial court erred in failing to order appellee to provide healthcare insurance coverage for the minor child without qualification."

         {¶15} Julie's first nine assigned errors challenge the trial court's calculations following remand. We generally review child support determinations for an abuse of discretion, but upon considering challenges to the factual basis for a trial court's decision, we must uphold the decision if it is supported by some competent credible evidence. Shendel, supra at ¶14; Massey v. Lambert, 7th Dist. Columbiana No. 09 CO 29, 2011-Ohio-1341, ¶48. Appellate courts give deference to the trial court's findings because it is in the best position to weigh the credibility of the proffered testimony. Jenkins v. Eagle Tp. Trustees, 4th Dist. Vinton No. 01CA557, 2002-Ohio-2154, *4, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).

         {¶16} Julie's first assignment challenges the trial court's calculation of Garry's 2011 child support obligation. She claims the court understated his 2011 income by $20, 562 because it reduced the gross proceeds from the sale of his business property based on his stated cost bases for the items, which reduced his federal taxes on this income. For example, his sale of business property form 4797 reflects he sold a corral for $900 but added the depreciation taken since the item's acquisition in the amount of $1, 864 and then reduced this amount by $2, 933, which is the stated cost for the corral along with improvement costs to the corral. Thus, he reported a $169 loss for the corral in 2011, and this loss was then used to reduce his reported gains for that year. This is the same for the other business property items sold in 2011. Collectively, Julie claims his 2011 income for child support purposes should have been $97, 398, not $76, 836, based on the trial court's use of the amount after allowable deductions.

         {¶17} Without explicitly stating so, Julie appears to rely on our prior decision in which we held in part that "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, 2006 WL 2796261, ¶22-23; In re Sullivan, 167 Ohio App.3d 458, 2006-Ohio-3206, 855 N.E.2d 554, ¶ 21 (11th Dist.).

         {¶18} "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 Dist. 1991)." Shendel, supra, at ¶19-20.

         {¶19} As alleged, there was no testimony at the June 2016 trial regarding the sale of these business items, and Julie did not raise this issue in her prior appeal. However, because the trial court had not previously provided a breakdown as to how it determined Garry's income for each year, it is not ...


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