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In re M.W.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018

IN RE: M.W. A Minor Child

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. SU 15709668

          ATTORNEY FOR APPELLANT Jeffrey F. Slavin.

          ATTORNEYS FOR APPELLEES For K.S. Ellen S. Mandell.

          For CCDCFS Michael C. O'Malley Cuyahoga County Prosecutor, Terri M. Hammons-Brown, Daniel A. Starett Assistant Prosecuting Attorneys.

          GUARDIAN AD LITEM Susan K. Jankite.

          BEFORE: McCormack, J., E.A. Gallagher, A.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, J.

         {¶1} Defendant-appellant J.W. ("Father") appeals from a judgment of the Cuyahoga County Common Pleas Court, Juvenile Division, establishing child support. For the reasons that follow, we affirm.

         Procedural History and Factual Background

         {¶2} Father and K.S. ("Mother") had a relationship from which a minor child, M.W., was born in 2003. Mother and Father had an "on-again-off-again" relationship for a period of time but never married.

         {¶3} In November 2013, the court issued a parenting plan and Mother was awarded custody of M.W. The parties later agreed to a modification of the parenting plan wherein Mother remained the custodial parent and Father received additional parenting time. On June 25, 2015, the Cuyahoga Job and Family Services ("CJFS") issued an administrative child support order. Father filed an objection to the child support order, alleging that he had no input into the child support calculations, he objected to the administrative order, and the child support order was based on daycare that was not being paid. Thereafter, Mother filed a motion for past care child support, seeking child support from the date of the child's birth, and Father filed a motion for child support.

         {¶4} The court heard the matter on January 4, 2017, and March 15, 2017.[1]

         {¶5} Both Mother and Father testified. Mother testified that M.W. has lived with her from the child's birth until the present. Although Father testified that he and Mother lived together for a period of time, Mother denied that they ever resided together. Initially, the parents developed their own schedule as it related to visitation with the child. When M.W. began preschool, the parenting schedule was more structured, and the parents developed a definitive parenting schedule for Tuesday and Thursday after school. M.W. attended daycare from birth until kindergarten, for which the parents equally shared the cost. For several months, Father utilized a low-income daycare voucher he obtained through Cuyahoga County, and Mother paid the difference. The parties testified that before M.W. attended parochial grade school, Father contributed $100 in tuition and $100 for aftercare programs and school lunches. Father had parenting time four to five days per week.

         {¶6} Mother and M.W. moved to Chicago for one year, during the 2012-2013 school year, when the child was ten years old. Father visited M.W. approximately twice in Chicago, and M.W. would go to Cleveland every other weekend for visits with Father. The parents both testified that when Mother and M.W. returned to Cleveland, Mother and Father shared the costs of two summer camps, which cost approximately $600 each camp. The Garfield Heights residence owned by Mother became rental property for Mother when she returned from Chicago. Mother provided that her rental income is reflected on her tax returns.

         {¶7} From kindergarten through the third grade, M.W. attended a parochial grade school. Mother testified that tuition was approximately $3, 000 annually. Mother also testified that both parents agreed upon private education for M.W. Mother stated that she wanted M.W. to continue with a parochial high school education as well, because she has always been an advocate of Catholic schools and she prefers that environment for her son. She testified that she and Father never agreed to move M.W. to public schools after the eighth grade. The tuition for the parochial high school was approximately $14, 000 at the time of trial.

         {¶8} Mother stated that from August 2013 until November 2015, Father paid for aftercare and hot lunches, which was during M.W.'s first through third grades. The actual amount paid is unknown because no receipts were exchanged. Mother testified that she requested Father to assist with basic needs of the child, such as the costs of a specific activity, sports, equipment, or a vacation. She cannot recall if Father paid for some of M.W.'s clothes prior to 2011, but she recalled that Father paid for the costs of extracurricular activities upon request 50 percent of the time. Mother testified that she requested child support in 2013 because the costs associated with M.W. increased and the amount of Father's contribution was no longer sufficient. She also testified that she did not seek more support from him prior to that time because Father would retaliate by not picking up their son. Mother stated that she pays for all of M.W.'s uncovered medical expenses, including $4, 000 for braces and additional costs incurred for emergency room visits and yearly physicals, and she never requested financial assistance from Father for these costs.

         {¶9} Mother is employed by the Sherwin-Williams Company. According to Mother's tax returns, her adjusted gross annual income increased from $56, 869 in 2011 to $106, 851 in 2015. Mother testified that her 2016 income was approximately $120, 000. Father is currently employed by the city of Cleveland. Father provided W-2's for 2011-2015, but he did not have a W-2 for 2016. He estimated his current income at approximately $57, 000. He received a tax refund of $4, 692.29 in 2015.

         {¶10} Father owns rental property. Father testified, however, that he operates the property at a loss, due to maintenance expenses and depreciation. According to Father, his rental expenses amounted to approximately $20, 000. He testified that he paid approximately $3, 000 in remodeling expenses, and his parents loaned him an additional $5, 000 for the remodeling. His rental property is a duplex, and according to Father, he has not been able to rent out one-half of the duplex. He owns a 2013 Chevy Tahoe truck, for which he pays $500 per month.

         {¶11} Father calculated that he and Mother shared the cost of daycare, which was approximately $750 per month. He testified that after the third grade, Father paid $200 each month for tuition and $50 for lunches, and he also paid approximately $300 per month when he exercised parenting time in Chicago. He stopped paying tuition when the court ordered child support. Father stated that he had possession of the child every weekend during flag football season. He also stated that he purchased a new home and moved to Mayfield Heights. He stopped paying tuition because he believed that M.W. could attend a good public school in his district. He did not discuss his intent with Mother before moving.

         {¶12} According to the parenting plan issued in November 2013, Mother remained the custodial parent, and the parenting time was designated as follows: M.W. is with Father on Tuesdays and Thursdays after school until drop-off at school the next morning; M.W. is with Father on alternate weekends from Friday evening after school until Sunday, no later than 5:00 p.m.; holidays shall be alternated, with Mother having parenting time in odd-numbered years and Father having parenting time in even-numbered years, or as otherwise agreed by the parties; Mother and Father will split each of the school's winter and spring breaks; and for summer vacation, each parent may exercise up to two weeks of uninterrupted vacation time, with the remainder of the summer on the regular schedule. In November 2015, upon Father's motion, the parties entered into a modified parenting plan. The modified plan increased Father's parenting time such that alternate Sundays were extended to Monday mornings, and if there was no school Monday morning, Father would make daytime childcare arrangements until the end of the day when Mother's parenting time commenced.

         {¶13} On June 5, 2017, the court issued a decision in which it granted Father's objections, in part; denied Father's motion for child support; and granted Mother's motion for past care child support, in part.

         {¶14} Father now appeals, raising the following assignments of error:[2]

I. The judgment of the trial court in failing to deviate from the child support obligation of the appellant, as determined by child support computation worksheets, was an abuse of discretion.
II. The judgment of the trial court in ordering the appellant to pay one-half of court costs was an abuse of discretion.
III. The judgment of the trial court, in adopting child support computation worksheets giving child support to the appellee, failed to consider the parenting time of the appellant and the incomes of the appellee and the appellant such that the appellant was entitled to child support from the appellee, which was an abuse of discretion.
IV. The failure of the trial court to issue findings of fact and conclusions of law was an abuse of discretion.

         Child Support

         {¶15} In his first assignment of error, Father contends that the trial court erred in failing to deviate from his child support obligation as determined by the child support computation worksheets. Father also contends, in his third assignment of error, that the trial court erred in failing to consider his increase in parenting time as well as the income disparity between Mother and Father. Father argues that his parenting time was two weekend overnights below 50 percent of parenting time before his parenting time increased to just over 50 percent. He also claims that despite his income being substantially less than Mother's, he contributed to the cost of tuition, daycare, and school lunches prior to the ...


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