Glover v. Canann , 2021 Ohio 2641 ( 2021 )

[Cite as Glover v. Canann, 2021-Ohio-2641.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
SYDNEY GLOVER, CASE NO. 2020-T-0081
Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas,
Juvenile Division
REBECCA LYNN CANANN,
Defendant-Appellee. Trial Court No. 2018 JP 00059
OPINION
Decided: August 2, 2021
Judgment: Affirmed
John H. Chaney, III, Daniel Daniluk LLC, 1129 Niles-Cortland Road, S.E., Warren, OH
44484 (For Plaintiff-Appellant).
Robert L. Root, III, 175 Franklin Street, S.E., Warren, OH 44481 (For Defendant-
Appellee).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Sydney Glover (“Father”), appeals the judgment allocating
parental rights and responsibilities and ordering him to pay child support. We affirm.
{¶2} Father and appellee, Rebecca Lynn Canann (“Mother”), had a brief
relationship resulting in the birth of one child on 5/13/2018. Shortly after the child was
born, the parties reached an impasse on parenting time, resulting in Father filing a
complaint in the trial court. Father also submitted a proposed shared parenting plan
(“initial plan”), whereby the parties would enjoy regular parenting time with the child on a
week-on/week-off schedule. Thereafter, Mother submitted a proposed parenting plan
naming her as residential parent and legal custodian, providing Father with regular
parenting time pursuant to the court’s standard order, and obligating Father to pay child
support.
{¶3} On May 28, 2019, the trial court adopted a magistrate’s decision of the same
date ordering that Father pay child support in the amount of $396.31 per month. Father
objected to the magistrate’s decision, and the trial court sustained the objection and
remanded the matter to the magistrate for hearing.
{¶4} The matter proceeded to evidentiary hearing before the magistrate on the
issues of child support and the allocation of parental rights and responsibilities. Toward
the conclusion of the hearing, the magistrate indicated that he would permit the parties to
submit updated proposed shared parenting plans:
THE COURT: I’m going to allow you both to rethink your
proposed shared parenting plans based on the evidence here,
if you want to. Okay? And submit new ones. Because these
are old. These are from the beginning before all of this
happened.
[FATHER’S ATTORNEY]: Correct, exactly.
THE COURT: And this will give you time maybe to implement
some things and maybe make it more yours, each of yours.
And I have an opportunity to draw from both of them, you
know, reviewing them, I can draw from both of them and try to
get the best of both of them out. * * *
{¶5} Both parties submitted proposed modified plans. In Father’s modified
shared parenting plan, he proposed that he enjoy regular parenting time with the child
three overnights per week, from Thursday at 10:00 a.m. until Sunday at 2:00 p.m., as well
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as week-on/week-off parenting time during the summer, and that child support be set at
$0. On November 21, 2019, the magistrate issued an order finding Father’s modified
shared parenting plan to be in the child’s best interest, except to the extent that it included
the deviation of child support to $0. The magistrate ordered that the modified plan be
amended to provide for child support in the amount of $245.74 per month. The order
required that the parties implement the modification to the shared parenting plan and
submit the amended shared parenting plan to the court for review. Mother filed an
“objection and motion to stay magistrate’s decision,” in which she challenged the
magistrate’s November 21, 2019 order, and Father filed a motion to set aside the same
order, which he represented was “solely due to the filing of Objections by Mother.”
{¶6} On March 25, 2020, the trial court issued a journal entry denying both
Father’s motion to set aside and Mother’s objection, which it treated as a motion to set
aside pursuant to Juv.R. 40(D). However, the court instructed the magistrate to file an
order nunc pro tunc to incorporate Father’s modified shared parenting plan and to correct
a typographical error with respect to the child’s birthdate.
{¶7} Father then attempted to appeal from the March 25, 2020 journal entry.
This court dismissed the appeal for lack of jurisdiction because the March 25, 2020 entry
did not constitute a final appealable order, as it did “not contain a statement of relief or
terminate the action.” Glover v. Canann, 11th Dist. Trumbull No. 2020-T-0026, 2020-
Ohio-4361, ¶ 7.
{¶8} On September 23, 2020, the magistrate issued a decision, adopted by the
trial court on the same date, which incorporated and approved Father’s proposed
modified shared parenting plan with an amendment of child support, which the magistrate
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set at $245.74. The magistrate determined that the child support reflected a deviation
“due to the Natural Father having the child approximately 44% of the year and the
discrepancy of the parties’ incomes.” Father appeals from the September 23, 2020 entry
adopting the magistrate’s decision and entering judgment accordingly. He assigns two
errors:
{¶9} “[1.] Whether the trial court erred in refusing to adopt and approve
Appellant’s Shared Parenting Plan (T.d. at 26), when Ohio Revised Code §3109.042(A)
requires that Appellant and Appellee stand on equal footing in the allocation of parental
rights and responsibilities, and Appellant’s Shared Parenting Plan (T.d. at 26) awarded
equal parenting time, shared responsibilities, and equal treatment to both Appellant and
Appellee in relation to the minor child.
{¶10} “[2.] Whether [the] trial court erred, and abused its discretion, in calculating
the child support obligation, when Appellee’s entire gross income was not considered,
Appellee’s income for child support purposes was greater than Appellant’s income, and
a deviation was correctly awarded for extended time under the Shared Parenting Plan,
but was incorrectly applied by the trial court.”
{¶11} Initially, we note pursuant to Juv.R. 40(D)(3)(b)(iv), “Except for a claim of
plain error, a party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding
or conclusion as required by Juv.R. 40(D)(3)(b).” Here, neither party filed objections to
the magistrate’s decision of September 23, 2020. However, due to the peculiar
procedural posture of this case, the September 23, 2020 decision appears to have merely
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implemented the March 25, 2020 ruling on the motions to set aside the magistrate’s order.
Therefore, to the extent that Father raised his challenges in his motion to set aside, we
conclude that, under the unique facts and circumstances of this case, such challenges
were preserved for appeal.
{¶12} In his motion to set aside, Father argued that his initial plan should be
approved, specifically the week-on/week-off, equal parenting time schedule, “after seeing
the extreme actions taken by Mother to keep Father from having additional parenting time
with the minor child including, but not limited to, the request to stay the magistrate’s order,
and to limit Father’s parenting time to only ‘six (6) hours a week[.]’” On appeal, however,
Father argues that the failure to approve his initial plan was due to the court neglecting to
place the parties on equal footing as required by R.C. 3109.042(A), which provides:
An unmarried female who gives birth to a child is the sole
residential parent and legal custodian of the child until a court
of competent jurisdiction issues an order designating another
person as the residential parent and legal custodian. A court
designating the residential parent and legal custodian of a
child described in this section shall treat the mother and father
as standing upon an equality when making the designation.
{¶13} Father did not make any argument with respect to R.C. 3109.042 in the trial
court. Accordingly, having not been raised below, Father has forfeited all argument with
respect to R.C. 3109.042(A) except for plain error. Juv.R. 40(D)(3)(b)(iv); see also
Dinardo v. Dinardo, 11th Dist. Lake No. 2016-L-111, 2017-Ohio-4379, ¶ 17 (pursuant to
Civ.R. 53(D)(3)(b)(iv), failure to object on a particular issue forfeits all but a plain error
argument on appeal with respect to that issue) and Civ.R. 53(D)(3)(b)(iv) (containing
language equivalent to that set forth in Juv.R. 40(D)(3)(b)(iv)).
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{¶14} “Plain error in civil cases is defined as error that ‘seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself.’” Dinardo at ¶ 19, quoting Goldfuss v.
Davidson, 79 Ohio St.3d 116, 579 N.E.2d 1099 (1997), syllabus.
“In applying the doctrine of plain error in a civil case, reviewing
courts must proceed with the utmost caution, limiting the
doctrine strictly to those extremely rare cases where
exceptional circumstances require its application to prevent a
manifest miscarriage of justice, and where the error
complained of, if left uncorrected, would have a material
adverse effect on the character of, and public confidence in,
judicial proceedings.”
Dinardo at ¶ 20, quoting Goldfuss at 121.
{¶15} Here, Father has not alleged plain error, and the record is devoid of any
indication that the trial court failed to place the parties on equal footing.1 To the contrary,
the court adopted Father’s modified parenting time schedule, and, in his filings, Father
indicated that his modified shared parenting plan was in the child’s best interests, and his
motion to set aside was filed only because Mother had challenged the magistrate’s order
approving Father’s modified plan with amendment. Accordingly, Father’s first assigned
error lacks merit.
{¶16} With respect to Father’s second assigned error, he raises two arguments
made in his motion to set aside with respect to child support: (1) the child support order
contains mathematical errors in computing the deviation due to Father’s extended
parenting time, and (2) the computation erroneously fails to include in Mother’s gross
1. Because Father’s argument pertains to the court failing to place the parties on equal footing by not
adopting his initial plan, we limit our discussion accordingly. Our decision should not be read as
expressing any opinion as to the method used by the trial court in amending and adopting Father’s
modified shared parenting plan. See R.C. 3109.04(D)(1)(a)(iii).
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income the social security benefits that she receives for providing care for her disabled
sister.
{¶17} With respect to the deviation, Father maintains that the court incorrectly
calculated his parenting time at 44%, when he instead has possession of the child 46%
of the time based upon an hourly calculation. Father then appears to argue that he is
entitled to a downward deviation in child support precisely proportionate to the percentage
of time that he has possession of the child.
{¶18} However, Father points to no law, and we are aware of no law, requiring a
strict deviation reflecting the proportion of parenting time enjoyed by an obligor. To the
contrary, pursuant to the statutory guidelines, if an obligor enjoys more than 90 overnight
visits with the child per year, the obligor is generally entitled to an automatic 10%
deviation. R.C. 3119.051. If the obligor enjoys more than 147 overnights per year, as
Father does here, the guidelines provide that the court will consider a deviation in addition
to the R.C. 3119.051 deviation. See R.C. 3119.231(B). In reviewing whether a deviation
is appropriate, the trial court considers whether the calculated amount is inappropriate or
unjust and not in the best interests of the child by applying the relevant factors contained
in R.C. 3119.23 and, in the case of shared parenting, considering any extraordinary
circumstances of the parents pursuant to R.C. 3119.24.
{¶19} Pursuant to the child support worksheet, Father’s annual support obligation
without deviation was $4964.39 per year. This amount was reduced by the R.C. 3119.051
automatic 10% deviation of $496.44 in lines 19-22 of the worksheet, leaving an adjusted
child support obligation of $4467.95 per year, or $372.33 per month. The court then
granted the additional R.C. 3119.231(B) deviation on lines 25(a)-(c) of the child support
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worksheet, reducing Father’s support obligation by $126.59 per month. Although Father
argues this does not equate to a 46% percent deviation, as set forth above, the guidelines
do not require an adjustment equally commensurate with parenting time. Further, the
guidelines speak of extended parenting time in terms of “overnight” companionship, and
not based upon hourly calculations. When calculated based upon overnight parenting
time, Father has the child for approximately 44% of the overnights per year, as stated by
the trial court. Moreover, the trial court based the deviation upon both the extended
parenting time and the disparity in the parties’ income, with Father making $41,000 per
year and Mother making $22,929 per year. See R.C. 3119.23(C) (extended parenting
time is a factor to consider in determining an appropriate deviation) and 3119.23(E)
(disparity in income between parties is a factor to consider in determining an appropriate
deviation). Father’s argument does not account for any reduction in the deviation due to
the disparity in the parties’ incomes.
{¶20} With respect to Mother’s income, Father argues that Mother receives $900
per month to care for her disabled sister who lives with her, and this amount should have
been included in Mother’s gross income for child support purposes.
{¶21} “Gross income” for purposes of child support
means, except as excluded in division (C)(12) of this section,
the total of all earned and unearned income from all sources
during a calendar year, whether or not the income is taxable,
and includes income from salaries, wages, overtime pay, and
bonuses to the extent described in division (D) of section
3119.05 of the Revised Code; commissions; royalties; tips;
rents; dividends; severance pay; pensions; interest; trust
income; annuities; social security benefits, including
retirement, disability, and survivor benefits that are not
means-tested; workers’ compensation benefits;
unemployment insurance benefits; disability insurance
benefits; benefits that are not means-tested and that are
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received by and in the possession of the veteran who is the
beneficiary for any service-connected disability under a
program or law administered by the United States department
of veterans’ affairs or veterans’ administration; spousal
support actually received; and all other sources of income.
“Gross income” includes income of members of any branch of
the United States armed services or national guard, including,
amounts representing base pay, basic allowance for quarters,
basic allowance for subsistence, supplemental subsistence
allowance, cost of living adjustment, specialty pay, variable
housing allowance, and pay for training or other types of
required drills; self-generated income; and potential cash flow
from any source.
R.C. 3119.01 (C)(12). “For a parent who is employed to full capacity,” “income” refers to
the “gross income of the parent[.]” (Emphasis added.) R.C. 3119.01(C)(9)(a).
{¶22} At the hearing, the limited testimony as to Mother’s guardianship of her
sister indicated that her sister’s social security check lists Mother as payee, and Mother
uses this money toward her sister’s bills, which includes some of their joint living
expenses, and Mother does not receive a fee for serving as guardian. Mother’s receipt
of the social security funds on behalf of her sister does not transform the funds from her
sister’s to her own. Instead, based upon the testimony, it appears that Mother is a
representative payee, and, as such, she has a duty to use those funds for the benefit of
her sister. See 42 U.S.C.A. 1383 (governing payment procedure and imposing liability
on representative payee who misuses funds).
{¶23} Accordingly, the second assigned error lacks merit.
{¶24} The judgment is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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