Doyle v. Metzer , 2015 Ohio 3738 ( 2015 )

[Cite as Doyle v. Metzer, 2015-Ohio-3738.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
MICHAEL J. DOYLE, JR. : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2015CA00002
MINDY MARIE METZER : 2015CA00019
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2013JCV01294
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 14, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROSEMARY G. RUBIN TRACEY LASLO
1435 Market Avenue North 325 East Main Street
Canton, OH 44714 Alliance, OH 44601
[Cite as Doyle v. Metzer, 2015-Ohio-3738.]
Gwin, P.J.
{¶1} Appellant appeals the December 10, 2014 and January 8, 2015 judgment
entries of the Stark County Court of Common Pleas, Juvenile Division.
Facts & Procedural History
{¶2} On December 30, 2013, appellee Michael J. Doyle, Jr. filed a complaint for
establishment of paternity and custody of H.D., born April 21, 2013. CSEA filed a
motion for child support on June 11, 2014. On July 16, 2014, appellee filed a motion to
adopt shared parenting plan. A hearing was held before a magistrate on August 5,
2014. Appellant is H.D.'s mother, Mindy Metzgar.
{¶3} Appellee testified that to exercise his visitation with H.D., he travels to his
parents' house in Euclid, Ohio. While he previously worked for a construction company,
in 2013, appellee accepted temporary employment in Illinois with a moving company
and believes it will benefit his career and earning potential. In 2013, appellee earned
$23,073, while he is now paid $36,000 annually. Appellee's company provides him with
a place to live for some period of months. Appellee has not yet obtained insurance for
H.D. because he does not have her birth certificate or social security card. He testified
that a birth certificate for H.D. with his last name on it would assist him in providing
health insurance for H.D.
{¶4} Appellee requested that he be allowed to claim H.D. on his tax return. He
testified that he will receive a benefit. Appellee testified that it is a long drive from
Illinois to Ohio and it costs him $220 each weekend that he visits. Appellant's attorney
stipulated to the amount of money that it costs appellee to travel to visit H.D. on the
weekends that he receives visitation. Appellee asked the magistrate to consider travel
Stark County, Case No. 2015CA00002 & 2015CA00019 3
expenses as a deviation in child support. Appellee testified that when completing the
child support worksheet, he did not know appellant's income, so he imputed it as
minimum wage.
{¶5} With regards to H.D.'s last name, appellee testified that he wanted her to
have his last name and did not think it was a good idea for H.D. to have the last name of
someone who is not her father and who she is not related to. H.D.'s guardian ad litem
recommended that appellant receive custody of H.D. and appellee receive visitation.
Further, that visitation with appellee is in H.D.'s best interest.
{¶6} Appellant did not testify or present any evidence.
{¶7} The magistrate issued a decision on September 2, 2014. The magistrate
found appellee's testimony to be credible. With regards to the findings of the
magistrate, the magistrate specifically stated that the "court has reviewed the necessary
factors within the Ohio Revised Code and applicable case law in making the findings."
The magistrate found shared parenting was not in the best interest of H.D. due to the
distance between appellant and appellee. Rather, the best interest of H.D. would be
served with appellant as the residential parent and legal custodian, with frequent and
continuing contact with appellee and his family. The magistrate found that having
appellee claim H.D. as a tax exemption will further H.D.'s best interest pursuant to R.C.
3119.82.
{¶8} The magistrate calculated the child support guideline pursuant to Ohio law
and found the amount to be unjust and not in H.D.'s best interest due to the travel
expenses incurred by appellee that are necessary to his visits. A deviation of $2,400
per year was granted based upon appellee's testimony. The magistrate awarded
Stark County, Case No. 2015CA00002 & 2015CA00019 4
appellant child support in the amount of $220.88 per month when appellee provides
health insurance, or $196 per month plus cash medical of $80 if appellee does not
provide health insurance.
{¶9} The magistrate further found that it is in the best interest of H.D. to change
her surname to appellee's last name from the name of the individual who appellant
thought was the actual father of H.D.
{¶10} Appellant filed objections to the magistrate's decision on September 16,
2014 regarding child support, the tax exemption, and the change of the child's last
name.
{¶11} At a November 26, 2014 hearing before the trial court, appellant argued
that the magistrate incorrectly granted appellee a deviation for travel expenses as
appellee chose to move. Further, that the magistrate failed to look at the statutory
factors in R.C. 3119.23 with regards to the tax exemption. Finally, that appellant
wanted H.D.'s last name to be hyphenated rather than solely have appellee's last name.
Appellee argued that appellant presented no testimony or evidence at the hearing
before the magistrate and that had appellee testified as to travel time and deviation,
child support, and the change of name.
{¶12} The trial court issued a judgment entry on December 10, 2014 and
sustained appellant's objections in part and overruled appellant's objections in part. The
trial court "considered whether taxes would be saved by allocating federal tax
dependency exemption" to appellee, the non-custodial parent. The trial court
specifically stated it reviewed all pertinent factors, including parents' gross incomes,
exemptions, deductions, and relevant federal, state, local tax rates, and approved and
Stark County, Case No. 2015CA00002 & 2015CA00019 5
adopted the magistrate's decision with regards to the tax exemption allocated to
appellee. The trial court stated that, with regards to the name change issue, it
considered the factors set forth in Bobo v. Jewell and, when applying them to the
evidence presented to the magistrate, the magistrate's determination as to H.D.'s last
name should be adopted and approved.
{¶13} The trial court found that the amount of child support and deviation
amount as decided by the magistrate was supported by the evidence presented and the
court approved the amount of child support and deviation. The trial court sustained
appellant's objection with regards to the commencement date of child support, but
approved and adopted all other aspects of the magistrate's decision. The trial court
directed the attorneys to prepare a final judgment entry. On January 8, 2015, the trial
court entered a final judgment entry containing the rulings made by the trial court on
December 10, 2014.
{¶14} Appellant appeals the judgment entries of the Stark County Court of
Common Pleas, Juvenile Division, and assigns the following as error:
{¶15} "I. THE TRIAL COURT ERRED IN PROVIDING A CHILD SUPPORT
DEVIATION OF $200.00 PER MONTH FOR FATHER'S TRAVEL EXPENSES
DESPITE HIS VOLUNTARY MOVE FROM THE JURISDICTION AND IN IMPUTING
INCOME TO MOTHER WITH NO CONSIDERATION OF CHILD CARE COSTS.
{¶16} "II. THE TRIAL COURT ERRED IN AWARDING THE TAX EXEMPTION
TO FATHER DESPITE THE FACT THAT MOTHER IS THE CUSTODIAL PARENT.
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{¶17} "III. THE TRIAL COURT ERRED IN CHANGING THE CHILD'S LAST
NAME TO FATHER'S LAST NAME AND IN DENYING MOTHER'S REQUEST THAT
THE CHILD'S LAST NAME BE HYPHENATED."
I.
{¶18} In her first assignment of error, appellant argues the trial court abused its
discretion by granting appellee a deviation in his monthly child support obligation based
on the travel expenses associated with the exercise of his parenting time.
{¶19} In reviewing matters concerning a child support deviation, the decision of
the trial court should not overturned absent an abuse of discretion. Booth v. Booth, 44
Ohio St.3d 142, 541 N.E.2d 1028 (1989). In order to find an abuse of discretion, we
must find that the court's action is unreasonable, arbitrary, or unconscionable and not
merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1989).
{¶20} A trial court may order 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 the amount calculated would be unjust or inappropriate and
would not be in the best interest of the child. Marker v. Grimm, 65 Ohio St.3d 139, 601
N.E.2d 496 (1992). When determining whether a departure from the guideline child
support amount is warranted, the trial court may consider whether a parent incurs
extraordinary costs associated with visitation. Hurst v. Hurst, 12th Dist. Warren No.
CA2013-10-100, 2014-Ohio-4762, citing R.C. 3119.23(D); Kemp v. Kemp, 5th Dist.
Stark No. 2009CA00035, 2009-Ohio-6089. If the parent incurs extraordinary travel
costs, a downward deviation will only be granted if the trial court further finds that such
Stark County, Case No. 2015CA00002 & 2015CA00019 7
deviation is in the child’s best interests. Hurst v. Hurst, 12th Dist. Warren No. CA2013-
10-100, 2014-Ohio-4762, citing R.C. 3119.23(D); Ornelas v. Ornelas, 978 N.E.2d 946,
2012-Ohio-4106 (12th Dist. Warren); see also Marker v. Grimm, 65 Ohio St.3d 139, 601
N.E.2d 496 (1992).
{¶21} In this case, the magistrate stated that he “reviewed the necessary factors
within the Ohio Revised Code and applicable case law.” The magistrate specifically
found appellee’s testimony credible. The magistrate, “calculated the child support
guidelines pursuant to Ohio law” and found the amount to be unjust and not in H.D.’s
best interest due to the travel expenses incurred by appellee necessary to his visits.
The magistrate granted a deviation of $2,400 per year based on appellee’s testimony.
The trial court found that the child support amount and deviation as determined by the
magistrate was supported by the evidence presented.
{¶22} Appellee testified that it costs him $220 per weekend that he visits H.D.
Appellant’s attorney stipulated to the cost per weekend. While appellee testified to his
travel expenses, appellant failed to controvert his testimony or present any evidence
with regard to the potential deviation.
{¶23} The trial court thoroughly considered the evidence related to travel
expenses. The magistrate found appellee’s testimony to be credible. The magistrate
expressly stated it considered all the factors included in the Ohio Revised Code and
applicable case law. We find no record demonstration to show otherwise. After
considering such factors, the magistrate and trial court determined it is in H.D.’s best
interest to deviate in the calculation of child support. In this case, we find there was
competent and credible evidence to support the trial court’s decision and the deviation
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is not unreasonable, arbitrary, or unconscionable. See Hurst v. Hurst, 12th Dist. Warren
No.CA2013-10-100, 2014-Ohio-4762; Kemp v. Kemp, 5th Dist. Stark No.
2009CA00035, 2009-Ohio-6089.
{¶24} Appellant additionally argues the trial court erred in imputing her income at
minimum wage on the child support worksheet. The imputation of income is a matter to
be determined by the trial court based upon the facts and circumstances of each case.
Tennat v. Martin-Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, 936 N.E.2d 1013 (5th
Dist. Licking); Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993). A
determination with respect to these matters will be reversed only upon a showing of
abuse of discretion. Id.{¶25} In this case, the magistrate found appellee’s testimony to be credible and
explicitly stated that he “considered the applicable case law.” Appellee testified that he
utilized minimum wage for appellant in the child support worksheet. Appellant did not
challenge any portion the child support worksheet provided by appellee or argue during
the hearing before the magistrate that the income imputed to her was incorrect.
Further, appellant provided no evidence or testimony on her earnings or income. Based
upon these facts and circumstances, we find the trial court did not abuse its discretion
regarding imputation of income.
{¶26} Appellant’s first assignment of error is overruled.
II.
{¶27} Appellant argues the trial court abused its discretion in awarding appellee
the tax exemption for the child because appellant is the custodial and residential parent.
Stark County, Case No. 2015CA00002 & 2015CA00019 9
{¶28} We review a trial court's decision allocating tax exemptions for dependents
under an abuse of discretion standard. Hughes v. Hughes, 35 Ohio St.3d 15, 518
N.E.2d 1213 (1988). Thus, pursuant to Blakemore v. Blakemore, we must determine
whether the trial court's decision in awarding the exemption to appellee was arbitrary,
unconscionable, or unreasonable, and not merely an error of law or judgment. 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1989). However, this discretion is both limited and guided
by the statutory requirements of R.C. 3119.82, which provides that:
Whenever a court issues * * * a court child support order, it shall designate
which parent may claim the children who are the subject of the court child
support order as dependents for federal income tax purposes as set forth
in section 151 of the Internal Revenue Code of 1986 * * * if the parties do
not agree, the court, in its order, may permit the parent who is not the
residential parent and legal custodian to claim the children as dependents
for federal income tax purposes only if the court determines that this
furthers the best interest of the children and * * * In cases which the
parties do not agree which parent may claim the children as dependents,
the court shall consider, in making its determination, any net tax savings,
the relative financial circumstances and needs of the parents and children,
the amount of time the children spend with each parent, the eligibility of
either or both parents for the federal earned income tax credit or other
state or federal tax credit, and any other relevant factor concerning the
best interest of the children.
Stark County, Case No. 2015CA00002 & 2015CA00019 10
{¶29} Accordingly, the trial court must find that the "interest of the child has been
furthered" before it can allocate the tax exemption to the non-custodial parent and must
consider any relevant factor concerning the best interest of the child in making such a
decision. Nist v. Nist, 5th Dist. Delaware No. 02 CAF 11060, 2003-Ohio-3292; In re
Custody of Harris, 2nd Dist. Champaign Nos. 2005-CA-42, 2005-CA-4, 2006-Ohio-
3649. The best interest of the child is furthered when the allocation of the tax
exemption to the noncustodial parent produces a net savings for the parents. Nist v.
Nist, 5th Dist. Delaware No. 02 CAF 11060, 2003-Ohio-3292.
{¶30} In this case, the magistrate stated that he "reviewed the necessary factors
within the Ohio Revised Code and applicable case law" and allocating the tax
exemption to appellee will "further H.D.'s best interest pursuant to R.C. 3119.82." The
trial specifically stated it "reviewed all pertinent factors, including parents' gross
incomes, exemptions, deductions, and relevant federal, state, local tax rates" and
approved and adopted the magistrate's decision with regards to the tax exemption
allocated to appellee.
{¶31} The trial court and magistrate expressly stated they reviewed all the
pertinent factors with regard to the best interest of H.D. when allocating the tax
exemption to appellee. We find no record demonstration to show otherwise. Appellee
testified that he will receive a benefit if he claims H.D. on his tax return. Appellant
presented no testimony or evidence that she would receive a benefit for the tax
exemption or that allocating the tax exemption to her would be in the best interest of
H.D. Accordingly, we find the trial court did not abuse its discretion in allocating the tax
exemption to appellee. Appellant's second assignment of error is overruled.
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III.
{¶32} Appellant argues that the trial court erred in changing the child's last name
to appellee's last name and in denying appellant's request that the child's last name be
hyphenated.
{¶33} When reviewing a trial court's decision determining that a child's name
either should or should not be changed, a reviewing court may not substitute its own
judgment for that of the trial court, but it must consider whether the trial court abused its
discretion. D.W. v. T.L., 134 Ohio St.3d 515, 2012-Ohio-5743, 983 N.E.2d 1273. In
order to find an abuse of discretion, we must find that the court's action is unreasonable,
arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1989).
{¶34} The Ohio Supreme Court has held that the same rationale applies to a
name change action in probate court pursuant to R.C. 2717.01 and a name change in a
juvenile court paternity action pursuant to R.C. 3111.13(C). D.W. v. T.L., 134 Ohio
St.3d 515, 2012-Ohio-5743, 983 N.E.2d 1273. Pursuant to R.C. 3111.13(C), a court of
common pleas may determine the surname by which the child shall be known after
establishment of the existence of the parent and child relationship, and a showing that
the name determination is in the best interest of the child. Bobo v. Jewell, 38 Ohio
St.3d 330, 528 N.E.2d 180 (1988).
{¶35} In deciding whether to grant such an application, the court, in determining
whether reasonable and proper cause has been established, must consider if such a
change is in the child's best interests. In re: Willhite, 85 Ohio St.3d 28, 706 N.E.2d 778(1999). In assessing whether the change of a minor surname is in the child's best
Stark County, Case No. 2015CA00002 & 2015CA00019 12
interest, a court should consider: the effect of the change on the preservation and
development of the child's relationship with each parent; the identification of the child as
part of a family unit; the length of time a child has used a surname; the preference of the
child if the child is of sufficient mature age expressing meaningful preference; whether
the child's surname is different from the surname of the child's residential parent; the
embarrassment, discomfort, or inconvenience that may result when a child bears a
surname different from the residential parent's; parental failure to maintain contact with
and support of the child; and any other factor relevant to the child's best interest. Bobo
v. Jewell, 38 Ohio St.3d 330, 528 N.E.2d 180 (1988).
{¶36} In this case, the magistrate specifically stated that he "reviewed the
necessary factors within the Ohio Revised Code and applicable case law" and
determined it is in the best interest of H.D. to change her surname from that of the
individual appellant thought could be her father to that of appellee. The trial court stated
that it "considered the factors set forth in Bobo v. Jewell" and, when applying them to
the evidence presented to the magistrate, found it is in H.D.'s best interest to change
her surname to that of appellee.
{¶37} Further, H.D. was just over one year old at the time of the hearing. The
surname appellant originally chose for H.D. was not appellant's last name and was not
hyphenated. H.D. was not in school at the time of the hearing.. Appellee testified
before the magistrate that he wanted H.D. to have his last name and did not think it was
in H.D.'s interest to have the last name of someone that she is not related to. In
contrast, appellant did not testify before the magistrate and presented no evidence as to
why hyphenation would be in the best interest of H.D.
Stark County, Case No. 2015CA00002 & 2015CA00019 13
{¶38} Based upon the record and the evidence presented, we find the trial
court's action of changing H.D.'s surname to appellee's surname is not unreasonable,
arbitrary, or unconscionable. Appellant's third assignment of error is overruled.
{¶39} The judgment of the Stark County Court of Common Pleas, Juvenile
Division, is affirmed.
By Gwin, P.J.,
Farmer, J.,and
Baldwin, J., concur