Smith v. Smith

[Cite as Smith v. Smith, 

.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

BRITTANY M. SMITH                                    C.A. No.       21CA0079-M

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TIMOTHY J. SMITH                                     COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellee                                     CASE No.   12 DR 528

                                 DECISION AND JOURNAL ENTRY

Dated: December 27, 2023



        SUTTON, Presiding Judge.

        {¶1}    Plaintiff-Appellant Brittany Roush1 appeals from the judgment of the Medina

County Common Pleas Court, Domestic Relations Division. This Court affirms.

                                                I.

        {¶2}    Brittany Roush and Timothy Smith were married on March 29, 2006, and divorced

on February 6, 2014. Two children were born as issue of their marriage, K.S. (d.o.b. June 23,

2006) and C.S. (d.o.b. October 3, 2008).

        {¶3}    The parties entered into an agreed shared parenting plan as part of their divorce.

Pursuant to their agreement, Mr. Smith has parenting time with his children on more than 147

overnights per year. Additionally, with respect to the children, the final divorce decree ordered




        1
          The trial court’s final judgment entry captions Plaintiff-Appellant as “Brittany M. Smith
nka Roush” in the final divorce decree. To respect the restoration of Plaintiff-Appellant's name
by the trial court and for clarity, we refer to Plaintiff-Appellant as Brittany Roush.
                                                 2


Mr. Smith to pay child support to Ms. Roush in the amount of $430.96 per month per child, plus

a two percent processing fee, for a total of $861.92 per month.

       {¶4}    On September 30, 2019, Medina County Child Support Enforcement Agency gave

notice to the trial court of a request for a hearing made by Mr. Smith. Because Mr. Smith was

asking for a deviation from the child support guidelines, the agency asked the court to schedule a

hearing on the matter pursuant to R.C. 3119.67. In response, the trial court set a final hearing on

the issue of child support modification and the parties proceeded to conduct discovery. In the

meantime, Mr. Smith filed his own motion to modify child support, arguing that Ms. Roush had

“more income and resources available to her for support than she previously disclosed and,

therefore, a downward deviation is warranted.” Ms. Roush also filed a motion to modify child

support, arguing it had come to her attention “that [Mr. Smith’s] 2019 income is significantly

higher than his 2018 income, thus warranting an increase in his child support.”

       {¶5}    The matter came before a magistrate for a hearing on February 18, 2020. Following

the hearing, the magistrate issued a decision granting both motions to modify child support. The

magistrate found that a change in circumstances warranted a modification of child support. The

magistrate determined, however, that while Mr. Smith’s increased income warranted an increase

in his child support obligation under the guidelines, there was also sufficient evidence to warrant

a downward deviation from the guidelines. As a result, the magistrate deviated the amount of Mr.

Smith’s child support obligation downward and fixed it at $861.92 per month, which was the same

amount Mr. Smith was already paying prior to any modification. Subsequently, after conducting

an independent review and analysis of the magistrate’s decision, the trial court adopted the

magistrate’s findings and decision as an order of the court.
                                                 3


       {¶6}    Ms. Roush filed objections to the magistrate’s decision. Mr. Smith responded in

opposition to her objections. On October 25, 2021, the trial court issued a decision overruling Ms.

Roush’s objections and finding that a downward deviation was warranted.

       {¶7}    Ms. Roush timely appealed, assigning three errors for our review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       A FATHER’S FINANCIAL RESPONSIBILITIES TO PAY CHILD
       SUPPORT ARE NOT WAIVED BECAUSE THE CHILDREN’S
       MATERNAL GRANDFATHER HAS WEALTH.

       {¶8}    In her first assignment of error, Ms. Roush argues the trial court erred in deviating

the child support calculations. Ms. Roush’s assignment of error appears to suggest that Mr.

Smith’s entire child support obligation was waived, which is not the case, and does not accurately

reflect what Ms. Roush argues on appeal. Instead, Ms. Roush challenges the trial court’s

downward deviation of Mr. Smith’s child support obligation. For the reasons that follow, we reject

Ms. Roush’s argument.

                                       Standard of Review

       {¶9}    A domestic relations court’s decision to modify a child support order will only be

reversed for an abuse of discretion. Bettinger v. Bettinger, 9th Dist. Summit No. 22621, 2005-

Ohio-5389, ¶ 7. An abuse of discretion is more than an error of judgment; it means that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 

 (1983). An abuse of discretion demonstrates “perversity of will, passion,

prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd., 

(1993). When applying the abuse of discretion standard, this Court may not substitute its judgment

for that of the trial court. 

 In making the determination whether to modify a support order, the
                                                 4


trial court necessarily will make findings of fact. In this regard, the appellate court “should not

reverse the factual findings of the trial court, where there is some competent and credible evidence

in support of the trial court’s findings.” Keller v. Keller, 9th Dist. Wayne No. 04CA0084, 2005-

Ohio-3302, ¶ 7.

                                  Modification of Child Support

       {¶10} “Trial courts are vested with broad discretion when deciding whether to modify an

existing child support order.” Creque v. Ioppolo, 9th Dist. Summit No. 28909, 

, quoting Hill v. Hill, 9th Dist. Summit No. 27915, 

. The moving party

has the burden of proof to show the basis for a modification of the support order. See 

; 

, citing Sterns v. Sterns, 9th Dist. Summit No. 27427, 

.

       {¶11} When modifying an existing child support order, a trial court must find that a

change of circumstances has occurred. Farmer v. Farmer, 9th Dist. Medina No. 03CA0115-M,

. In doing so, the trial court must complete a new child support worksheet,

recalculating the amount of support required through the line establishing the actual obligation.

 citing R.C. 3119.79(A); Julian v. Julian, 9th Dist. Summit No. 21616, 

.

The appropriate method for calculating whether the ten-percent requirement has been met is to

take the existing child-support worksheet underlying the support order and substitute the parties’

new financial information for that contained in the worksheet, employing the same calculations as

those used for the original order. 

       {¶12} Here, the existing child support worksheet underlying the previous support order

calculated an obligation for Mr. Smith of $861.92 per month. Using the new financial information

presented by the parties, the trial court found that Mr. Smith’s child support obligation would

increase to $1,213.59 per month. This new amount included the mandatory ten percent downward
                                                  5


deviation under R.C. 3119.051 because Mr. Smith had parenting time that exceeded 90 days per

year.   The trial court then concluded that a change in circumstances had occurred, because the

new amount was ten percent greater than the amount Mr. Smith was required to pay under the

current order.

                                    Deviations of Child Support

        {¶13} This Court has held that “a trial court may deviate from the amount of child support

prescribed by use of the basic child support order and worksheet if (1) it finds that the amount

determined under the schedule is unjust or inappropriate; (2) it finds that the child support amount

calculated under the child support schedule would not be in the best interest of the child; and (3)

it states its findings of fact that support its determination.” Calvaruso v. Calvaruso, 9th Dist.

Summit No. 21392, 

, ¶ 9. Ms. Roush does not challenge the trial court’s factual

findings on appeal.

        {¶14} The trial court, in its March 24, 2020 judgment entry adopting the magistrate’s

decision, found that the basic child support calculated from the child support guidelines was unjust

or inappropriate and therefore not in the best interests of the children. Accordingly, the trial court

deviated from the support calculated from the child support guidelines.        Specifically, the trial

court stated:

        Upon consideration of R.C. 3119.22, R.C. 3119.23, R.C. 3119.231, R.C. 3119.24,
        however, the Court finds that the amount of child support calculated pursuant to the
        basic child support schedule is unjust or inappropriate and therefore not in the best
        interest of the children. The [c]ourt has considered and has given weight to R.C.
        3119.23(C), (E), (G), (H), (I), (K) and (Q).

        {¶15} In overruling the objections to the magistrate’s decision, the trial court gave a

detailed explanation of how it considered and applied each factor in granting the downward

deviation. R.C. 3119.23(C) states that a trial court may consider “[e]xtended parenting time or
                                                 6


extraordinary costs associated with parenting time, including extraordinary travel expenses when

exchanging the child or children for parenting time” when considering whether to deviate from the

child support guidelines. The trial court found that Mr. Smith exercised in excess of 147 overnights

with the children every year and considered this to be extended parenting time. The trial court

found that this factor weighed in favor of a downward deviation.

       {¶16} R.C. 3119.23(E) states that a trial court may consider “[t]he relative financial

resources, including the disparity in income between parties or households, other assets, and the

needs of each parent” when deciding to deviate child support. The trial court noted that while Ms.

Roush argued that Mr. Smith’s income far exceeded her income, Ms. Roush “enjoys a lifestyle of

someone whose earnings far exceed her own” because of the support provided by her father, who

is also her employer. The trial court found that this factor weighed toward a downward deviation.

       {¶17} R.C. 3119.23(G) states that the trial court may consider “[b]enefits that either parent

receives from remarriage or sharing living expenses with another person” when deciding to deviate

from the child support guidelines. Ms. Roush argued that because Mr. Smith was going to remarry,

this factor weighed against a downward deviation because he would be able to benefit from sharing

his living expenses with another person. However, the trial court noted Mr. Smith testified he only

receives about $150.00 per month towards his expenses from his fiancée. The trial court also noted

that Ms. Roush’s argument ignored the fact her father paid for almost all of her living expenses.

The trial court determined that this factor weighed towards a downward deviation.

       {¶18} R.C. 3119.23(H) states a trial court may consider “[t]he amount of federal, state,

and local taxes actually paid or estimated to be paid by a parent or both of the parents” when

considering whether to deviate from the child support guidelines. The trial court found “[t]he
                                                  7


primary evidence regarding this factor was that [Ms. Roush]’s refund went in its entirety to

grandfather for rent” and concluded that this factor did not weigh in either direction.

       {¶19} R.C. 3119.23(I) states that a trial court may consider “[s]ignificant in-kind

contributions from a parent, including, but not limited to, direct payment for lessons, sports

equipment, schooling, or clothing” when considering whether to deviate from the child support

guidelines. The trial court noted the shared parenting agreement provided that the parties split the

majority of costs associated with the children, and found that this factor did not weigh in either

direction.

       {¶20} R.C. 3119.23(K) states that a trial court may consider “[t]he 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” when considering a deviation from the child

support guidelines.” The trial court found “[t]he evidence presented shows that both parties

maintain an above-average standard of living” and that the “[t]he evidence presented shows that

the parties maintained a similar standard of living [when] the parties were married.” The trial court

concluded that this factor did not weigh in either direction.

       {¶21} R.C. 3119.23(Q) states the trial court may consider “any other relevant factor” in

considering a deviation from the child support guidelines. Mr. Smith testified that Ms. Roush

threatened to take him to court for more child support unless he terminated his relationship with

his fiancée. Ms. Roush testified that the comment was in response to an altercation between Mr.

Smith’s fiancée and his children of which Ms. Roush was aware. Mr. Smith maintained his

relationship with his fiancée and Ms. Roush contacted CSEA. Additionally, the trial court noted

that the magistrate took issue with Ms. Roush’s credibility “due to her apparent intention to keep

her income at a level to qualify for government assistance while [her father] primarily paid her
                                                 8


expenses.” The magistrate found Mr. Smith’s version of events more credible than Ms. Roush’s

version, a factor the court considered under R.C. 3119.23(Q), and found it weighed towards a

downward deviation.

       {¶22} Ms. Roush also argues on appeal that the trial court “failed to consider or make a

finding that the downward deviation was in the children’s best interests.” As noted above, the trial

court did make a best interest determination in its March 24, 2020 judgment entry. The record

shows the trial court did not expressly make a second best interest finding in ruling on the

objections. However, the trial court undertook an independent review of the factors considered in

making a best interest finding and overruled Ms. Roush’s objections. Ohio courts have long held

that a trial court’s silence on objections implies those objections are overruled when a trial court

proceeds to enter judgment on those objections. See Georgin v. Georgin, 12th Dist. Warren No.

CA2021-09-088, 

 (“[T]he trial court's silence as to the parties’ other

objections implies those objections were overruled by the trial court when it proceeded to enter

judgment on the objections.); Knop v. Knop, 11th Dist. Lake No. 2015-L-107, 

 (“The trial court's silence implies the objection [to the magistrate's decision] was overruled.”);

Phillips v. Phillips, 5th Dist. Stark No. 2014CA00090, 

 (“While the trial

court never expressly addressed each and every objection, it is presumed that the trial court, sub

silentio, overruled the objections when it proceeded to enter judgment disposing of the

objections.”); see also Portofe v. Portofe, 

, 

 (7th Dist.)

(“Ohio law is well established that where the court fails to rule on an objection or motion, it will

be presumed that the court overruled the objection or motion.”).

       {¶23} Accordingly, in considering the evidence in the record, we cannot conclude the trial

court abused its discretion in modifying the child support order and deviating the amount
                                                    9


warranted by the guidelines downward to the amount that Mr. Smith had previously been ordered

to pay.

          {¶24} Ms. Roush’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

          THE TRIAL COURT ERRED IN IMPUTING FULL[-]TIME
          EMPLOYMENT WAGES FOR [MS. ROUSH] WHO IS A FULL-TIME
          COLLEGE STUDENT.

          {¶25} In her second assignment of error, Ms. Roush argues that the trial court erred in

imputing income for her. Ms. Roush did not object to the imputation of income with the trial court

and, as such, has forfeited the issue for appeal.

          {¶26} Civ.R. 53(D)(3)(b)(iv) states as follows:

          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 Civ.R.
          53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
          required by Civ.R. 53(D)(3)(b).

          {¶27} Civ.R. 53(D)(3)(b)(ii) requires that “[a]n objection to a magistrate’s decision shall

be specific and state with particularity all grounds for objection.” “Where a party fails to raise an

issue in its objections to a magistrate’s decision, that issue is forfeited on appeal.” Niederst v.

Niederst, 9th Dist. Summit No. 28846, 

, quoting Bass-Fineberg Leasing,

Inc. v. Modern Auto Sales, Inc., 9th Dist. Medina No. 13CA0098-M, 

; see also

Civ.R. 53(D)(3)(b).

          {¶28} Here, Ms. Roush did not object to the magistrate’s factual finding that she was

voluntarily underemployed or unemployed, or the imputation of income to her. Ms. Roush’s

objections stated: “While [Ms. Roush] does not object to the imputed income found by the
                                                10


[m]agistrate, she does object to the deviation granted by [Mr. Smith].”2 In fact, Ms. Roush

explicitly stated in her objections to the trial court that she did not object to the imputed income

found by the magistrate. Accordingly, Ms. Roush has forfeited the issue, leaving only plain error

to be argued on appeal. Ms. Roush has not argued plain error on appeal. Because Ms. Roush has

forfeited this argument and has not argued plain error on appeal, we will not address its merits.

See Lucas v. Noel, 9th Dist. Medina No. 18CA0080-M, 

; State v. Perkins,

9th Dist. Medina No. 17CA0048-M, 

. Contrary to assertions in the dissenting

opinion, this Court takes no position regarding the trial court’s finding of underemployment or

unemployment as that issue is not before this Court.

       {¶29} Accordingly, Ms. Roush’s second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN CONSIDERING THAT [MS. ROUSH]
       WOULD NOT HAVE FILED FOR MODIFICATION TO THE CHILD
       SUPPORT ORDER ABSENT THE STATE’S MOTION FOR
       MODIFICATION OR RECALCULATION.

       {¶30} In her third assignment of error, Ms. Roush argues the trial court erred in

conducting a deviation analysis under R.C. 3119.23(Q) by considering the fact that the parties

were satisfied with the prior support order and Ms. Roush “would not have requested a child

support modification absent a personal dispute regarding [Mr. Smith’s] relationship with his

paramour.” For the reasons that follow, we overrule this assigned error.




       2
         The dissent argues, without citation to statute or case law, that the imputation of income
and the deviation analysis are “inextricably intertwined.” However, the imputation of income and
the deviation of child support involve separate statutes and analyses pursuant to R.C.
3119.01(C)(17) and R.C. 3119.23 respectively.
                                                11


                    Standard of Review – Objections to Magistrate’s Decision

       {¶31} “Generally, the decision to adopt, reject, or modify a magistrate's decision lies

within the discretion of the trial court and should not be reversed on appeal absent an abuse of

discretion.” Niederst, 

, quoting Barlow v. Barlow, 9th Dist. Wayne No.

08CA0055, 

, ¶ 5. An abuse of discretion is more than an error of judgment; it

means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore,

.

       {¶32} Here, Ms. Roush argued in her objections to the magistrate’s decision, and argues

on appeal, that the trial court erred in its R.C. 3119.23 analysis. R.C. 3119.23 outlines factors a

trial court should consider when deciding whether to deviate from the child support guidelines.

Under R.C. 3119.23(Q), the trial court may consider “[a]ny other relevant factor” when

determining whether to grant a deviation pursuant to R.C. 3119.22. In our resolution of the first

assignment of error, we outlined the seven relevant factors found in R.C. 3119.23 that the trial

court considered when granting the deviation.

       {¶33} Ms. Roush singles out and specifically challenges the trial court’s analysis under

R.C. 3119.23(Q), which states the trial court can consider “any other relevant factor,” along with

the other factors in R.C. 3119.23. The trial court’s order deviating the child support stated:

       With regard to R.C. 3119.23(Q), the [c]ourt finds that both parties were satisfied
       with the prior support order; and, that, [Ms. Roush] would not have requested a
       child support obligation, but for a recent dispute between the parties regarding [Mr.
       Smith]’s decision to continue in a relationship with his paramour, despite giving
       [Ms. Roush] assurances to the contrary.

Ms. Roush argues it was error for the trial court to consider her motivations in requesting a child

support modification, an argument she also raised in her objections to the magistrate’s decision.

       {¶34} With respect to the ruling on Ms. Roush’s objection, the trial court stated:
                                                 12


       R.C. 3119.23(Q) considers any other factor. The [m]agistrate considered [Ms.
       Roush]’s motives for requesting additional child support as a factor, to which [Ms.
       Roush] specifically objects. [Mr. Smith] testified that [Ms. Roush] threatened to
       take him to court for more child support unless he terminated his relationship with
       his fiancée. [Ms. Roush] testified that her comment was the response of an
       altercation between [Mr. Smith]’s fiancée and the minor children. Nevertheless,
       [Mr. Smith] maintained his relationship with his fiancée and [Ms. Roush] contacted
       Child Support Enforcement Agency about a modification in child support.

       The [m]agistrate took issue with [Ms. Roush]’s credibility due to the apparent
       intention to keep her income level to qualify for government assistance while
       grandfather primarily paid her expenses, as such, the [m]agistrate found [Mr.
       Smith]’s version of events more credible and considered it as part of R.C.
       3119.23(Q).

       If this were to be considered as a factor, then it would weigh towards awarding a
       downward deviation.

In ruling on Ms. Roush’s objections, the trial court stated:

       After weighing the factors, a deviation is warranted in this matter. Even without
       considering R.C. 3119.23(Q), three of the deviation factors weigh towards a
       downward deviation, four of the deviation factors do not weigh in either way, and
       none of the deviation factors weigh towards awarding an upwards deviation or not
       awarding a deviation.

(Emphasis added). The trial court made clear that even without considering R.C. 3119.23(Q),

none of the factors weighed in Ms. Roush’s favor. Because none of the factors weighed in her

favor, the record does not demonstrate that the trial court abused its discretion by overruling Ms.

Roush’s objections with respect to R.C. 3119.23(Q).

       {¶35} Accordingly, Ms. Roush’s third assignment of error is overruled.

                                                III.

       {¶36} Ms. Roush’s three assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas, Domestic Relations Division is affirmed.

                                                                               Judgment affirmed.
                                                 13




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETTY SUTTON
                                                      FOR THE COURT




STEVENSON, J.
CONCURS.

FLAGG LANZINGER, J.
DISSENTING.

       {¶37} I respectfully dissent from the majority opinion. I would sustain Ms. Roush’s first

assignment of error on the basis that the trial court abused its discretion by finding that a downward

deviation was warranted. Tustin v. Tustin, 9th Dist. Summit No. 27164, 

, ¶ 21

(“This Court reviews a trial court’s determination regarding child support matters for an abuse of
                                                  14


discretion.”); R.C. 3119.22 (providing that a court may deviate from the support amount calculated

under the basic child support schedule and the applicable worksheet if that amount “would be

unjust or inappropriate and therefore not be in the best interest of the child.”). I would also reverse

the trial court’s judgment in this regard on the basis that the trial court failed to determine that the

amount under the basic child support schedule and applicable worksheet was not in the best

interests of the children. R.C. 3119.22; Irish v. Irish, 9th Dist. Lorain No. 10CA009810, 2011-

Ohio-3111, ¶ 19.

       {¶38} In its decision, the magistrate indicated that it weighed the deviation factors

contained within R.C. 3119.23(C), (E), (G), (H), (I), (K), and (Q), but only explained its analysis

relative to “[a]ny other relevant factor” under R.C. 3119.23(Q). To that end, the magistrate noted

that Ms. Roush would not have requested a child support modification but for a recent dispute

between the parties regarding Mr. Smith’s fiancée. In her objections to the magistrate’s decision,

Ms. Roush argued that her motivation for seeking a modification of the support order was not

relevant.

       {¶39} In ruling on Ms. Roush’s objections, the trial court indicated that, even without

considering Ms. Roush’s motivation as a factor, three deviation factors weighed toward a

downward deviation: R.C. 3119.23(C) (regarding extended parenting time); (2) R.C. 3119.23(E)

(regarding relative financial resources); and (3) R.C. 3119.23(G) (regarding the benefits the parties

receive from sharing living expenses). The trial court avoided directly addressing whether the

magistrate erred by considering Ms. Roush’s motivation as a factor under R.C. 3119.23(Q),

presumably because the law is clear that a parent’s subjective motivations are not relevant to the

needs of minor children. See Collins v. Collins, 9th Dist. Wayne No. 10CA0004, 

, citing Rock v. Cabral, 

 (1993) (acknowledging that a parent’s
                                                15


subjective motivations in the context of child support proceedings are not relevant because the

“central inquiry under the statutory scheme is the best interests of the children.”); Irish, 2011-

Ohio-3111, at ¶ 13, citing Carnes v. Kemp, 

. (“The purpose of child

support is to meet the needs of the minor children.”).

       {¶40} Regarding the latter two deviation factors (i.e., R.C. 3119.23(E) regarding relative

financial resources and R.C. 3119.23(G) regarding the benefits the parties receive from sharing

living expenses), the trial court focused on the fact that Ms. Roush’s father pays for some of her

expenses. In its prior judgment entry adopting the magistrate’s decision, however, the trial court

determined that Mr. Smith failed to present “specific, quantifiable figures” as to the amount Ms.

Roush’s father pays for some of Ms. Roush’s expenses (including the amount Ms. Roush’s father

pays to maintain the home she lives in), such that the trial court determined it could not include

those “additional subsidies as income” to Ms. Roush. Additionally, the trial court’s focus on Ms.

Roush’s father’s financial support ignored the fact that Ms. Roush is a full-time student receiving

public assistance, and that some of her father’s financial support went toward providing clothing,

groceries, and orthodontia for Ms. Roush and Mr. Smith’s minor children.

       {¶41} This Court’s case law supports the proposition that, when a parent receives a

quantifiable amount of financial assistance from another source–such as that parent’s own

parent(s)–and that amount is supported by evidence in the record, then a trial court does not abuse

its discretion when it considers that amount as part of a parent’s gross income for purposes of

calculating child support. Hahn v. Hahn, 9th Dist. Medina No. 11CA0064-M, 

; see R.C. 3119.01(C)(12) (defining “[g]ross income” to include “all earned and unearned

income from all sources * * *.”). That is not what occurred here. Instead, without first determining

that the evidence supported a finding that the financial support Ms. Roush receives from her father
                                                16


was part of her gross income, the trial court used it to support its analysis under R.C. 3119.23(E)

and (G). Yet, as noted, the trial court previously concluded that Mr. Smith failed to present

“specific, quantifiable figures” as to the amount Ms. Roush’s father pays for some of Ms. Roush’s

expenses, such that the trial court determined it could not include those “additional subsidies as

income” to Ms. Roush.

       {¶42} It is Mr. Smith’s obligation to provide support for his children, not Ms. Roush’s

father’s obligation. I would conclude that the trial court abused its discretion by allowing Mr.

Smith to avoid paying more child support despite his income increasing by over $40,000 since the

last child support calculation based upon the largely unquantified amount of financial support Ms.

Roush receives from her father while she attends school full-time. See Kenney v. Carroll, 9th Dist.

Medina No. 19CA0080-M, 

 (“this Court cannot say that Mother’s parents’

assets and financial resources – without more – should have been considered for purposes of

calculating Father’s child support obligation.”); compare Hahn, 

 (holding

that “the trial court acted within its discretion in considering the money Husband received from

his parents [as] part of Husband’s gross income.”).

       {¶43} In affirming the decision of the trial court, the majority upholds a decision that

allows the government (by way of the public assistance Ms. Roush receives) and a grandparent to

pay for the needs of minor children despite those children having a parent with a six-figure income.

“[T]he domestic relations court, as a court of equity, ‘must have discretion to do what is equitable

upon the facts and circumstances of each case.’” Saari v. Saari, 

, 2011-

Ohio-4710, ¶ 8 (9th Dist.), quoting Booth v. Booth, 

 (1989). Here, the trial

court failed to do what is equitable upon the facts and circumstances of this case by allowing Mr.
                                                   17


Smith to avoid paying a higher amount of child support while erroneously considering the financial

support Ms. Roush receives from her father as part of its deviation analysis.

        {¶44} Moreover, the trial court erred by failing to determine that the amount under the

basic child support schedule and applicable worksheet was not in the best interests of the children.

R.C. 3119.22 provides that if a trial court “deviates from the amount of child support that would

otherwise result from the use of the basic child support schedule and the applicable worksheet[,]”

it must:

        enter in the journal the amount of child support calculated pursuant to the basic
        child support schedule and the applicable worksheet, its determination that the
        amount would be unjust or inappropriate and therefore not in the best interest of the
        child, and findings of fact supporting that determination.

“It is well settled that the requirements of R.C. 3119.22 are mandatory and must be literally and

technically followed.” Ohlemacher v. Ohlemacher, 9th Dist. Lorain No. 03CA008252, 2003-

Ohio-6582, ¶ 6. “If a trial court fails to comply with the literal requirements of the statute, it results

in reversible error.” 

        {¶45} Here, the trial court adopted the magistrate’s decision on the same day the

magistrate issued it. That decision indicated that “the Court finds that the amount of child support

calculated pursuant to the basic child support schedule is unjust or inappropriate and therefore not

in the best interest of the children.” The trial court’s subsequent ruling on Ms. Roush’s objections,

however, did not contain a best interests finding. The majority cites Civ.R. 53(D)(4)(e)(i) for the

proposition that, when the trial court overruled Ms. Roush’s objections, it “adhered” to its prior

decision, thereby eliminating any need for the trial court to reiterate its best interests finding. That

Rule, however, provides that, “the timely filing of objections to the magistrate’s decision shall

operate as an automatic stay of execution of the judgment until the court disposes of those

objections and vacates, modifies, or adheres to the judgment previously entered.”                 Civ.R.
                                                 18


53(D)(4)(e)(i). Here, the trial court did not simply “adhere” to its prior judgment. It provided a

new analysis, including one in which it no longer considered Ms. Roush’s motivation for seeking

a modification of support under R.C. 3119.23(Q) as a factor in its ultimate decision. I, therefore,

would hold that the trial court committed reversible error when it failed to comply with the literal

requirements of R.C. 3119.22. See Ohlemacher at ¶ 6.

       {¶46} While a reversal on Ms. Roush’s first assignment of error would be dispositive of

the appeal, I am compelled to address her second assignment of error. I would sustain Ms. Roush’s

second assignment of error on the basis that the trial court erred by determining that Ms. Roush

was voluntarily unemployed and, relatedly, by imputing income to her. As the majority points

out, “[t]his Court reviews a trial court’s factual finding that a parent is voluntarily unemployed to

determine if it was against the manifest weight of the evidence.” Stahl v. Stahl, 9th Dist. Summit

No. 27876, 

, ¶ 19. Here, the trial court acknowledged that Ms. Roush attends

college full-time and works part-time at her father’s business. The trial court also acknowledged

that Ms. Roush receives public assistance such as SNAP benefits, Medicaid, and a Pell Grant due

to her income. Despite being employed part-time and in school full-time, the trial court concluded

that Ms. Roush is voluntarily unemployed and imputed an annual income of $24,960 (calculated

as “$12.00/hour x 40 hours/week x 52 weeks/year = $24,960.00”) to Ms. Roush.

       {¶47} The fact that a parent attends school, which would ultimately advance that parent’s

career and increase that parent’s earning ability, should not render that parent voluntarily

unemployed. Winkler v. Winkler, 10th Dist. Franklin No. 02AP-1267, 

, ¶ 58

(holding, in part, that the trial court could reasonably conclude that a parent was not voluntarily

underemployed as a result of returning to school); Kellogg v. Current, 3d Dist. Marion No. 9-02-

08, 

, ¶ 9 (holding that the trial court did not err by determining that a parent was
                                                19


not voluntarily underemployed when that parent took a lesser paying job with fewer hours in order

to attend college); see Warner v. Warner, 3d Dist. Union No. 14-03-10, 

, ¶ 23 (“A

temporary reduction in salary for the purpose of advancing one’s career does not constitute

voluntary underemployment.”). I, therefore, would hold that the trial court’s factual finding that

Ms. Roush was voluntarily unemployed was against the manifest weight of the evidence.

       {¶48} Because a trial court cannot impute income to a parent without first finding that the

parent is voluntarily unemployed or underemployed, I would also hold that the trial court erred by

imputing income to Ms. Roush. Musci v. Musci, 9th Dist. Summit No. 23088, 

 (“This Court has repeatedly held that, for purposes of calculating child support, the trial court

cannot impute income to either party without first making a finding that the party is voluntarily

unemployed or underemployed.”). The majority, however, holds that Ms. Roush has forfeited any

issue regarding her imputed income because she did not object to it below and has not argued plain

error on appeal.    Yet Ms. Roush objected to the trial court’s deviation analysis, which is

inextricably intertwined with its erroneous imputed income determination under the facts of this

case. Accordingly, I would reverse and remand the matter for the trial court to re-calculate Mr.

Smith’s child support obligation without considering its previous calculation of Ms. Roush’s

imputed income.

       {¶49} For the foregoing reasons, I respectfully dissent.


APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

MARK HERTRICK, Attorney at Law, for Appellee.