FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
WAYNE, OHIO CASE No. 2015 JUV-G 000278
KENNETH C. MARTIN, Attorney at Law, for Appellant.
HELMUTH, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
Plaintiff Julee K. ("Mother") and Defendant Mark S.
("Father") have appealed from the judgment of the
Wayne County Court of Common Pleas, Juvenile Division. This
Mother and Father began dating in 2013. Although they were
never married, one child, L.B.S., was born of their
relationship on September 16, 2014. Subsequently, Mother and
Father ended their relationship.
In March 2015, Mother filed a complaint seeking to be named
the sole residential parent of L.B.S. and also seeking an
award of child support. In April 2015, after Mother and
Father temporarily resumed their relationship, Mother
dismissed her complaint.
In August 2015, Father filed a motion for custody or shared
parenting. In September 2015, Mother filed a motion seeking
to be designated the sole residential parent and also an
award of child support. Mother also filed a motion for
"temporary and permanent attorney fees[.]" Father
thereafter filed a motion for a psychological evaluation of
Mother. Subsequently, Mother requested a
psychological/custody evaluation of the parties to be
performed by Dr. Marianne Bowden. Mother requested that the
Substance Abuse Subtle Screening Inventory be included in the
evaluation. A magistrate issued an order granting the motions
for psychological evaluations and ordered that Dr. Bowden
conduct the evaluations and file a copy of her report with
the trial court. The magistrate issued another order denying
Mother's motion for temporary attorney fees. Mother did
not move to set aside that order.
The matter proceeded to a final hearing before a magistrate,
held over three days. Dr. Bowden, Mother, and Father
testified at the hearing. Dr. Bowden recommended that Mother
be named the residential parent and that Father should
receive visitation pursuant to the trial court's local
rule. Dr. Bowden did not believe that shared parenting was in
L.B.S.'s best interests in light of the parties'
Subsequent to Dr. Bowden's testimony, Father moved to
strike and/or exclude Dr. Bowden's testimony because of
an alleged conflict of interest that Dr. Bowden failed to
disclose. Father maintained that Dr. Bowden was biased
against him. Following the final hearing date, both parties
submitted written briefs.
The magistrate issued a decision designating Mother as the
sole residential parent and granting Father visitation
pursuant to the trial court's local rule. The magistrate
awarded Mother $1, 912.03 per month in child support and the
tax dependency exemption for 2016 and every year thereafter.
The magistrate denied Mother's motion for permanent
attorney fees. In addition, the magistrate ordered that
Father should be responsible for Dr. Bowden's witness fee
and the total cost of the evaluation. Finally, the magistrate
denied Father's motion to strike and/or exclude the
testimony and evaluation of Dr. Bowden. The trial court
issued a judgment entry mirroring the magistrate's
Both parties filed objections to the magistrate's
decision. Father asserted that: (1) the magistrate abused its
discretion in awarding Mother $1, 912 in child support; (2)
the magistrate abused its discretion in adding depreciation
back into Father's income when calculating child support;
(3) the magistrate abused its discretion in averaging
Father's income over a three-year period; (4) the
magistrate abused its discretion in awarding Mother the tax
dependency exemption; (5) the magistrate abused its
discretion in ordering Father to pay for Dr. Bowden's
witness fee and the entire cost of the evaluation; and (6)
the magistrate abused its discretion in failing to strike
and/or exclude the testimony and evaluation of Dr. Bowden.
Mother asserted that the magistrate abused its discretion in
denying her request for attorney fees. Mother maintained that
the decision denied her due process and equal protection of
the law afforded to married or previously married women as
provided by R.C. 3105.73. In addition, Mother asserted that
she was entitled to attorney fees pursuant to R.C.
After the transcript and exhibits were filed in the trial
court, Mother and Father supplemented their arguments in
support of their objections.
The trial court overruled the objections. Subsequently, the
trial court issued an entry labeled as a nunc pro tunc entry
that reflected that the trial court adhered to its prior
judgment entry but extended the deadline for Father to make
certain payments outlined therein.
Father and Mother both appealed the trial court's
judgment and the appeals were subsequently consolidated.
Father has raised six assignments of error, which will be
addressed out of sequence to facilitate our review, and
Mother has raised a single assignment of error.
OF ERROR I
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY AWARDING $1,
925 PER MONTH IN CHILD SUPPORT COSTS, IN ADDITION TO
APPLICABLE PROCESSING CHARGES.
Father asserts in his first assignment of error that the
trial court erred in awarding Mother $1, 925.00 per month in
child support. Father's argument centers around the
trial court's finding concerning his income. Father
appears to make two separate arguments: (1) that the trial
court erroneously added depreciation back into his income for
purposes of calculating child support; and (2) that the trial
court erroneously averaged Father's incomes from
2013-2015 in calculating his income for purposes of
calculating child support.
"[W]e generally review a trial court's action on a
magistrate's decision for an abuse of discretion, but do
so with reference to the nature of the underlying
matter." (Internal quotations and citations omitted.)
Brosky v. Krebs, 9th Dist. Lorain No. 17CA011161,
2018-Ohio-5261, ¶ 6. "The propriety of a trial
court's determination regarding child support is reviewed
for an abuse of discretion." Seegert v.
Seegert, 9th Dist. Summit No. 28932, 2018-Ohio-5119,
¶ 8. "'In determining the appropriate level of
child support, a trial court must calculate the gross income
of the parents.'" Brosky at ¶ 6,
quoting Stahl v. Stahl, 9th Dist. Summit No. 27876,
2017-Ohio-4170, ¶ 19.
Father owns several businesses and rental properties. Among
them is a restaurant in Wooster. In 2013, Father opened a
second restaurant; however, that restaurant closed in 2014,
and led to a substantial financial loss for Father. Father
estimated that he lost close to $700, 000 on the failed
restaurant. Thus, Father's 2014 adjusted gross income, as
reported on his tax returns, was -$73, 146. Whereas, in 2013
Father's adjusted gross income was $151, 871 and it was
$190, 784 in 2012.
After adding back in numerous depreciation expenses, the
lower court calculated that Father's income for child
support purposes was $20, 934 for 2014, $335, 020 for 2013,
and $338, 706 for 2012. The lower court then averaged the
three figures and came to an average income figure of $231,
553.33 for purposes of calculating child support.
Mother's gross income for child support purposes was
calculated to be $20, 800.
Gross income includes self-generated income. Former R.C.
3119.01(C)(7). "'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 receipts." Former R.C.
Former R.C. 3119.01(C)(9) states:
(a) "Ordinary and necessary expenses incurred in
generating gross receipts" 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.
(b) Except as specifically included in "ordinary and
necessary expenses incurred in generating gross
receipts" by division (C)(9)(a) of this section,
"ordinary and necessary expenses incurred in generating
gross receipts" does not include depreciation expenses
and other noncash items that are allowed as deductions on any
federal tax return of the parent or the parent's
This Court has concluded that, "to exclude the
depreciation deduction from the calculation of gross receipts
under R.C. 3119.01(C)(9)(b), the actual cash expenditure must
be incurred in the same tax year. Absent evidence
illustrating that the depreciation deduction represents
actual cash expenses (and not noncash items) in the year the
deduction was taken, R.C. 3119.01(C)(9) requires the court to
include the depreciation deduction when computing the
parent's gross income for ...