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In re L.B.S.

Court of Appeals of Ohio, Ninth District, Wayne

August 19, 2019

IN RE: L.B.S.

          APPEAL 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.

          R.J. HELMUTH, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          CARR, JUDGE

         {¶1} 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 Court affirms.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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' difficulties communicating.

         {¶6} 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.

         {¶7} 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 conclusions.

         {¶8} 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. 3123.17(B).

         {¶9} After the transcript and exhibits were filed in the trial court, Mother and Father supplemented their arguments in support of their objections.

         {¶10} 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.

         {¶11} 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.

         II.

         Father's Appeal

         ASSIGNMENT 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.

         {¶12} Father asserts in his first assignment of error that the trial court erred in awarding Mother $1, 925.00 per month in child support.[1] 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.

         {¶13} "[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.

         Background

         {¶14} 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.

         {¶15} 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.

         Depreciation

         {¶16} 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. 3119.01(C)(13).

         {¶17} 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 business.

         {¶18} 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 ...


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