In re M.J.M. , 2019 Ohio 4799 ( 2019 )

[Cite as In re M.J.M., 2019-Ohio-4799.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: M.J.M. :
:
: Appellate Case No. 28396
:
: Trial Court Case No. 2016-3599
:
: (Appeal from Common Pleas Court –
: Juvenile Division)
:
:
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OPINION
Rendered on the 22nd day of November, 2019.
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MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Appellee, Montgomery County Children Services
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
Attorney for Appellant, Father
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WELBAUM, P.J.
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{¶ 1} Petitioner-appellant, the father of M.J.M. (“Father”), appeals from the
judgment of the Montgomery County Court of Common Pleas, Juvenile Division, denying
his motion to terminate or modify his child support obligation. In support of his appeal,
Father asserts that pursuant to R.C. 3119.22 and R.C. 3119.23, his child support
obligation should have been reduced to $0 due to monthly Social Security benefits
received by M.J.M. and funds that M.J.M. will receive from her guardianship when she
turns 18 years old. For the reasons outlined below, the judgment of the trial court
denying Father’s motion to terminate or modify child support will be affirmed.
Facts and Course of Proceedings
{¶ 2} M.J.M., the minor child at issue in this appeal, was born in March 2002.
Father and M.J.M.’s mother (“Mother”) were married at the time of M.J.M.’s birth, but
divorced in December 2009. After the divorce, Mother became M.J.M.’s primary
custodian and Father was awarded standard visitation time.
{¶ 3} As M.J.M. grew older, she would often refuse to go to Father’s house when
it became his time to exercise visitation. In February 2015, M.J.M. alleged that Father
had sexually abused her. Law enforcement in Clermont County, Ohio, investigated the
allegations made by M.J.M., but ultimately did not file any charges against Father. In
July 2015, Mother sent M.J.M. to live with her maternal grandfather (“Maternal
Grandfather”). This move was the result of an unresolved conflict between Mother’s
boyfriend and M.J.M. Father had not seen M.J.M. since May 2014 and had not spoken
to her since April 2015.
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{¶ 4} On October 6, 2015, Mother died as a result of suicide. Following Mother’s
passing, M.J.M. continued to reside with Maternal Grandfather. On August 12, 2016, a
juvenile court magistrate issued a decision finding that M.J.M. was a dependent child and
awarded temporary custody of M.J.M. to her maternal aunt (“Maternal Aunt”), as Maternal
Grandfather had difficulty caring for M.J.M. due to her special mental and physical needs.
In the decision, the magistrate also ordered Father not to have visitation with M.J.M. until
recommended by the child’s therapist. Father filed objections to the magistrate’s
decision, which were overruled by the juvenile court. After the juvenile court adopted the
magistrate’s decision, Father appealed. On May 25, 2018, this court affirmed the
judgment of the juvenile court in In re M.M., 2d Dist. Montgomery Nos. 27722 and 27724,
2018-Ohio-2034.
{¶ 5} On September 8, 2017, while the appeal in In re M.M. was pending, Father
filed a motion to terminate or modify his child support obligation. Shortly thereafter, on
October 31, 2017, Montgomery County Children Services (“MCCS”) filed a motion for
legal custody of M.J.M. to be granted to Maternal Aunt. A hearing on both motions was
held before a juvenile court magistrate on July 9, 2018. During this hearing, Father
testified that he did not oppose MCCS’s legal custody motion and had no objection to
Maternal Aunt being granted legal custody of M.J.M. Therefore, the main issue to be
determined at the hearing concerned whether Father’s child support obligation should be
terminated or modified.
{¶ 6} In his motion to terminate or modify child support, Father argued that his
current monthly child support obligation of $434.50 should be terminated as a result of
M.J.M. receiving Social Security benefits and guardianship funds. At the hearing on the
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motion, Maternal Aunt testified that M.J.M. receives a Social Security benefit in the
amount of $834 per month due to Mother’s death. Of that amount, Maternal Aunt
testified that $265 is used to pay for storage lockers containing Mother’s belongings that
were awarded to M.J.M. through the probate court. According to Maternal Aunt, M.J.M.
would like to keep those belongings to help furnish her own home in the future. Maternal
Aunt also testified that $325 of the Social Security benefits is paid to Maternal Grandfather
for M.J.M.’s cell phone bill and fees, and for M.J.M.’s allowance, which is a little over $100
a month.
{¶ 7} In addition to the Social Security benefits, Maternal Aunt testified that
Mother’s home had been sold and the proceeds of the sale were put into a guardianship
for M.J.M. Maternal Grandfather testified that he receives $1,634 in Worker’s
Compensation benefits for Mother’s death twice a month, which he deposits into M.J.M.’s
guardianship. Maternal Aunt and Maternal Grandfather both testified that the
guardianship money is not available to M.J.M. until she turns 18 years old, unless the
probate court approves the release of funds for a specific use. Maternal Grandfather
testified that he has petitioned the probate court for funds to purchase a car for M.J.M.
{¶ 8} Father testified that, as of the date of the hearing, he had been employed at
USF Holland in West Chester, Ohio, for three weeks. Prior to that, Father testified that
he had worked for Ryder Integrated until December 8, 2017. Father testified that his
hourly wage was $18.48 with a guaranteed 40 hours of work per week. Based on that
information, the magistrate calculated Father’s annual salary as $38,438.40. Father
testified that he was married with no other minor children. Father also testified that his
wife was employed.
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{¶ 9} On August 7, 2018, the juvenile court magistrate issued a decision granting
legal custody of M.J.M. to Maternal Aunt and denying Father’s motion to terminate or
modify child support. Ten days later, on August 17, 2018, Father filed objections to the
magistrate’s decision denying his motion to terminate or modify child support. Father
also filed supplemental objections on February 15, 2019. However, on April 19, 2019,
the juvenile court issued a judgment overruling Father’s objections and adopting the
magistrate’s decision denying Father’s motion to terminate or modify child support.
Father now appeals from that judgment, raising a single assignment of error for review.
Assignment of Error
{¶ 10} Under his sole assignment of error, Father claims that the trial court erred
in denying his motion to terminate or modify his child support obligation. In support of
this claim, Father asserts that pursuant to R.C. 3119.22 and R.C. 3119.23, his monthly
child support obligation of $434.50 should have been reduced to $0 due to the Social
Security benefits received by M.J.M. and the funds that M.J.M. will receive from her
guardianship when she turns 18 years old. Father also asserts that his child support
arrearage should have been reduced based on Social Security back pay allegedly
awarded to M.J.M. We find no merit to either of Father’s claims.
{¶ 11} A trial court’s ruling on a motion to modify child support is reviewed on
appeal for an abuse of discretion. Burks v. Burks, 2d Dist. Montgomery No. 28349,
2019-Ohio-4292, ¶ 8, citing Matlock v. Matlock, 2d Dist. Montgomery No. 28278, 2019-
Ohio-2131, ¶ 12. An abuse of discretion occurs when a trial court’s decision is
“unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place
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Community Urban Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597(1990). “[M]ost instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” Id. “A
decision is unreasonable if there is no sound reasoning process that would support that
decision.” Id.
{¶ 12} Pursuant to R.C. 3119.22, the trial court “may order an amount of child
support that deviates from the amount of child support that would otherwise result from
the use of the basic child support schedule and the applicable worksheet if, after
considering the factors and criteria set forth in section 3119.23 of the Revised Code, the
court determines that the amount calculated pursuant to the basic child support schedule
and the applicable worksheet would be unjust or inappropriate and therefore not be in the
best interest of the child.” Again, we apply an abuse-of-discretion review to a trial court’s
decision whether to deviate from child support owed under the applicable worksheet.
Burks at ¶ 9, citing Hamby v. Hamby, 2d Dist. Montgomery No. 26506, 2015-Ohio-1042,
¶ 16.
{¶ 13} In this case, Father argues that four of the factors listed under R.C. 3119.23
justify a deviation from the $434.50 support obligation calculated under the child support
computation worksheet. Specifically, Father argues that the factors listed in R.C.
3119.23 (F), (P), (K), and (Q) support finding that his child support obligation should have
been reduced to $0. Those factors are as follows:
(F) The obligee’s income, if the obligee’s annual income is equal to or less
than one hundred per cent of the federal poverty level;
***
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(K) The standard of living and circumstances of each parent and the
standard of living the child would have enjoyed had the marriage continued
or had the parents been married;
***
(P) Extraordinary child care costs required for the child or children that
exceed the maximum state-wide average cost estimate as described in
division (P)(1)(d) of section 3119.05 of the Revised Code, including
extraordinary costs associated with caring for a child or children with
specialized physical, psychological, or educational needs; [and]
***
(Q) Any other relevant factor.
R.C. 3119.23(F),(K),(P) and (Q).
{¶ 14} In discussing the aforementioned factors, Father fails to explain how they
apply to the instant case and we likewise fail to see how they are applicable. For
example, factor (F) pertains to the obligee’s income—the obligee in this case being
Maternal Aunt, a non-parent, whose income is not factored into the child support
calculation. See Child Support Computation Worksheet attached to Magistrate’s
Decision (Aug. 7, 2018), p. 7. See also R.C. 3119.07(C) (“If neither parent of a child who
is the subject of a child support order is the residential parent and legal custodian of the
child and the child resides with a third party who is the legal custodian of the child, the
court shall issue a child support order requiring each parent to pay that parent’s child
support obligation pursuant to the child support order.”) (Emphasis added.) Therefore,
because Maternal Aunt’s income is not part of the child support calculation, factor (F)
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simply did not apply here.
{¶ 15} Factor (K), concerning Father and Mother’s standard of living, is also
inapplicable, as Mother is deceased and there was no evidence of any standard of living
concerns raised in the trial court. With regard to factor (P), concerning “extraordinary
child care costs,” the record indicates that M.J.M. has been receiving trauma counseling
since 2016 and also receives treatment from other medical providers for multiple mental
and physical conditions. Assuming that the costs for those services are extraordinary
costs for purposes of factor (P), we fail to see how that factor supports Father’s claim that
his child support obligation should be reduced to $0, as those costs would require Father
to pay additional child support to Maternal Aunt so that M.J.M. could continue to receive
those services.
{¶ 16} As for factor (Q), which instructs the trial court to consider “any other
relevant factor,” Father provides no relevant factor other than that M.J.M. receives
monthly Social Security benefits. Father argues that pursuant to Williams v. Williams,
88 Ohio St. 3d 441, 727 N.E.2d 895 (2000), his child support obligation should be offset
by M.J.M.’s Social Security benefits. Father also argues that pursuant to Rice v. Rice,
177 Ohio App. 3d 476, 2008-Ohio-3518, 895 N.E.2d 198 (5th Dist.), he is entitled to have
his child support arrearage offset by Social Security back pay. However, both Williams
and Rice are distinguishable from the present case.
{¶ 17} Unlike the present case, the obligor fathers in Williams and Rice became
physically disabled and received Social Security benefits as a result of their disabilities.
Because the fathers’ children in those cases also received derivative Social Security
income for the fathers’ disabilities, the fathers moved to have their child support
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obligations and/or arrearages reduced by the amount of Social Security disability benefits
received by their children. The courts in Williams and Rice found it appropriate to credit
the fathers’ child support obligations/arrearages with the Social Security disability benefits
received by their children. Williams at syllabus; Rice at ¶ 7-10. Williams specifically
noted that “where the disabled parent has no other source of income due to his or her
disability, the receipt of Social Security payments actually ensures that their child support
obligation will be satisfied,” and that “Social Security payments are tantamount to
earnings by the disabled parent.” Williams at 444.
{¶ 18} The present case is distinguishable from Williams and Rice because Father
is not the source of the social security benefits being received by M.J.M. Rather, M.J.M.
is receiving the social security benefits as a result of Mother’s death. Therefore, the
benefits are in no way attributable to Father and not tantamount to Father’s earnings.
{¶ 19} In In re Mudrak, 7th Dist. Belmont No. 94-B-32, 1997 WL 28557 (Jan. 22,
1997), the Seventh District Court of Appeals held that, because the father in that case
was not the parent whose disability occasioned the Social Security benefits awarded to
his child, the Social Security benefits could not be credited against the father’s child
support obligation. Id. at *5 (holding that “social security derivative payments received
on behalf of a minor child as a result of a parent’s disability should be credited toward that
parent’s support obligation”). (Emphasis sic.) Like the instant case, the child in Mudrak
received Social Security benefits as a result of her mother’s death and the father
attempted to have those benefits credited against his child support obligation. The
Mudrak court likened such credit as a windfall to the father and stated that:
If, as [father] argues, he is given a dollar for dollar credit, he would pay no
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child support and would thus receive a windfall. To illustrate this, consider
what the situation would be if this were an ordinary case where [mother]
survived and had no income. [Father’s] $17,680.00 annual salary would
yield an annual child support obligation of $3,425.00 or, taking it one step
further, if [mother] had survived and she had annual income equal to the
social security benefits currently being received[,] * * * $4,044.00, [father’s]
annual child support obligation would be $3,321.00 per year. It is
inconceivable then that [father] should receive a windfall from the death of
the child’s mother and pay no support whatsoever. Further, [father] has
failed to establish through the record how a dollar for dollar credit for child
support benefits received by [the child], against his child support obligation,
would serve the best interest of the child. [Father’s] argument for a dollar
for dollar credit is rejected.
Id. at *3.
{¶ 20} Similarly, in Paton v. Paton, 91 Ohio St. 3d 94, 742 N.E.2d 619 (2001), the
Supreme Court of Ohio held that Social Security disability benefits awarded to a child due
to the child’s disability did not constitute a financial resource that justified deviating from
the basic child support schedule. Id. at syllabus. In so holding, the Supreme Court
stressed that “[p]arents, to the extent that they are able, have an obligation to support
their minor children. In situations where a child is eligible to receive [Social Security
Income], these benefits are intended to supplement the parents’ support obligation, not
to reduce it.” (Emphasis added.) Id. at 97.
{¶ 21} Based on the foregoing, we find that M.J.M.’s receipt of monthly Social
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Security benefits resulting from Mother's death did not warrant reducing Father’s child
support obligation or arrearage. Except for referencing M.J.M.’s guardianship funds,
which M.J.M. cannot access until she turns 18 years old, Father provided no other basis
on which to terminate or reduce his child support obligation. Therefore, because Father
otherwise failed to establish that his monthly child support obligation of $434.50 was
unjust or inappropriate and not in M.J.M.’s best interest, it was not an abuse of discretion
for the trial court to deny Father’s motion to terminate or modify his child support
obligation.
{¶ 22} Father’s sole assignment of error is overruled.
Conclusion
{¶ 23} Having overruled Father’s assignment of error, the judgment of the trial
court is affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Robert Alan Brenner
Michael Booher
Christopher Deal
Theodore Valley
Lori Byrd
Hon. Helen Wallace