Wuich v. Wuich

[Cite as Wuich v. Wuich, 2013-Ohio-956.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

JEFFREY WUICH :

Plaintiff-Appellant : C.A. CASE NO. 25481

v. : T.C. NO. 07DR1399

JULIE WUICH : (Civil appeal from Common
Pleas Court, Domestic Relations)
Defendant-Appellee :

:

..........

OPINION

Rendered on the 15th day of March , 2013.

..........

JEFFREY WUICH, 2815 Fence Stone Court, Centerville, Ohio 45458
Plaintiff-Appellant

JULIE WUICH, 9630 Meadow Woods Lane, Centerville, Ohio 45458
Defendant-Appellee

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Jeffrey Wuich,
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filed November 16, 2012. Jeffrey and Julie Wuich were granted a divorce on October 20,

2009, and Jeffrey appeals from the October 18, 2012 decision of the domestic relations court

which terminated the parties’ shared parenting plan, designated Julie as the residential parent

and legal custodian of the parties’ three minor children, increased Jeffrey’s parenting time,

and decreased his child support obligation. We note that Julie did not file a response.

{¶ 2} The parties were married on September 11, 1993, in Centerville, Ohio, and

Jeffery filed his complaint for divorce on December 13, 2007. On October 20, 2009, in

addition to the Final Judgment and Decree of Divorce, the court issued a Final Decree of

Shared Parenting, in which it adopted the joint shared parenting plan proposed by the parties.

Pursuant to the plan, Jeffrey’s Centerville residence was designated as the children’s

primary residence.

{¶ 3} On November 9, 2009, Julie filed a motion for an order directing Jeffrey to

show cause why he should not be held in contempt for failure to pay child support. An

Agreed Order and Entry was filed on December 14, 2009, following a hearing, pursuant to

which Jeffrey was ordered to pay child support in the amount of $477.00 per month, per

child.

{¶ 4} On January 5, 2011, Jeffrey filed a Motion and Notice to Modify Shared

Parenting Plan, in which he requested additional parenting time and a reduction in his child

support obligation. On January 7, 2011, the court issued an Order Scheduling Mediation.

On February 23, 2011, Jeffrey filed a Motion to Modify Custody, Parental Rights &

Responsibilities; Allocation of Tax Dependency Exemption; Child Support; Dependent

Health Care Order, Terminate Shared Parenting Plan; and other Relief. On March 15, 2011,
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Julie filed a motion requesting termination of the shared parenting plan and also requesting

that she be designated as the sole residential and legal custodian of the minor children. The

court appointed a guardian ad litem. On October 18, 2011, the magistrate granted the

motion of counsel for Jeffrey to withdraw from the case, and on November 16, 2011, Jeffrey

filed a Notification of pro se Litigation.

{¶ 5} A hearing on the above motions was held on November 21, 2011, after

attempts at settlement failed, and thereafter the parties filed written closing arguments at the

magistrate’s request. At the start of the hearing, Jeffrey withdrew his motion to terminate

the shared parenting plan. He described his relationships with each of his children in detail.

Jeffrey stated that his annual income is $104,550.00, and he provided documentation

regarding his marginal health care costs. He stated that he wanted his parenting time to be

equal to Julie’s. He stated that he is concerned about the way in which Julie spends his

child support payments. Jeffrey stated that he did not have any personal knowledge

regarding Julie’s income from the Main Street Hair Salon, which she owns. Jeffrey stated

that Julie only works three days a week and is able to work five days a week. Jeffrey

presented a proposed shared parenting plan to the court as Exhibit 1. He stated that the

distance between his home and Julie’s is 2.82 miles. Jeffrey submitted multiple emails

between himself and Julie which he asserted demonstrate that Julie is “a habitual liar.” He

testified that Julie “is always pawning the kids off on someone else,” and he asked for a

“right of refusal” when Julie is not available to take care of the children. We note that in the

course of his testimony, he repeatedly attempted to introduce evidence relating to events the

occurred prior to the date of the parties’ divorce.
[Cite as Wuich v. Wuich, 2013-Ohio-956.]
{¶ 6} On cross-examination, Jeffrey stated that he was prescribed antidepressants

for depression from October, 2009 until March, 2011. He stated that his former girlfriend,

Elizabeth O’Shea, moved into his home in November, 2010, along with her two children,

and that she moved out in mid June of 2011. Jeffrey stated that he believed that he and

Julie can execute a shared parenting plan. He stated that he and Julie “do communicate but

we are not on the best of terms right now. We are - - we have been working on that. And

then every now and then a new hot button issue will come up and so we make progress and

then we fall back.” He stated for example that they had a dispute over their daughter

C.W.’s volleyball fees. He stated that he agreed that C.W. should play volleyball, but he

refused to pay for any part of the expense, citing the amount of child support Julie receives.

Jeffrey identified text messages and email exchanges between the parties that reflect an

inability to communicate on issues involving the children.

{¶ 7} Geri Anderson testified that she was employed as a secretary at Primary

Village South in Centerville, where the parties’ son W.W. attended school. She stated

that on seven occasions she had to phone Jeffrey to come pick up W.W. after he failed to

do so at the end of the school day. Geri stated that Jeffrey’s failure to pick up W.W. on

time was upsetting to the child.

{¶ 8} Julie testified as follows regarding Jeffrey’s girlfriend Elizabeth:

Q. First off, did, how did you become aware that she had moved in?

Was it something Jeff called and told you, hey, by the way, here’s what’s

going to be happening in our kids’ lives or how did you find out?

A. [W.W.], who was six at the time, came home and told me that

dad’s girlfriend Elizabeth was moving in and so are her two kids and the two
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dogs.

And so I called Jeff, * * * and asked him if that was true.

And he said, yes. * * * he went on to say how he thought everything

was going to be so wonderful and he was giving them something I could

never do which was a complete family with two dogs.

And I asked him at that time if you were going to make life changes

that involve the children don’t you think that you should be up front with me

about that.

And he didn’t seem to think that my complaint was valid.

{¶ 9} Julie stated that on Christmas Eve, 2011, the parties’ daughter C.W. called

her from Jeffrey’s home, but she was unable to understand her because the child was crying.

She stated that C.W. then put the parties’ son L.W. on the phone, who told Julie that the

children were hiding in C.W.’s room because Jeffrey and Elizabeth were fighting. Julie

stated that she went to Jeffrey’s home and picked up the children, and all three were crying.

Julie stated that she believes the home she provides is more stable than Jeffrey’s. Julie

described the parties’ communication as “poor at best.”

{¶ 10} Julie and Jeffrey jointly owned the Main Street Salon during their marriage,

and she is now the owner and also a stylist there. She stated that on Mondays she does

office work at “random” hours, she works Tuesdays from nine a.m. to five p.m.,

Wednesdays from nine to 4:30. p.m., Thursdays from nine a.m. to eight p.m., and then

randomly on Fridays and Saturdays for clients that she could not schedule during the week.

She stated that she also cleans the salon and handles maintenance and personnel issues. She
 6

stated that she receives a paycheck as well as “K-1 Income.” Julie stated that she makes a

base salary of $44,117.00. She stated that in 2008, she made an additional $18,880.00 in

K-1 income, in 2009, she made an additional $37,166.00 in K-1 income, and that in 2010,

she made an additional $11,311.00 in K-1 income. Julie stated that her K-1 income for

2011 is zero. Julie stated that her business has slowed down, that she lost four employees a

year ago, and that as a result she lost about $17,000.00 a year in “booth rent.” She stated

that she has not “had the retail sales that we’ve typically had.” On cross-examination, Julie

stated that she works 40 hours a week three weeks out of a month. She stated that the

recession impacted her business.

{¶ 11} The magistrate, after reviewing the report of the G.A.L., noted that despite

allegations by Julie of mental health issues on the part of Jeffrey at the time of the divorce,

the parties entered into a shared parenting plan that they determined was in the best interest

of the children, and at issue was whether that plan remained in the children’s best interest.

The magistrate found, based on the evidence presented, that neither Jeffrey’s nor Julie’s

mental health is at issue, and the magistrate noted that “the only evidence considered by this

magistrate is the evidence after the filing of the divorce.” Regarding the shared parenting

plan, the magistrate concluded that “both parties have an inability to communicate with each

other. When they are forced to communicate, the parties do not communicate effectively.

These parents cannot co-parent. The parents cannot cooperate and make decisions jointly

regarding these children.” The magistrate concluded that the shared parenting plan is not in

the children’s best interest. Regarding the allocation of parental rights and responsibilities,

the magistrate noted that Jeffrey orally withdrew his motion seeking custody at the hearing,
 7

and after citing the factors in R.C. 3109.04(F)(1) regarding the best interest of a child, and

the factors in R.C. 3109.04(F)(2) for determining whether shared parenting is in a child’s

best interest, the magistrate designated Julie as the residential parent and legal custodian of

the children.

{¶ 12} Regarding parenting time, the magistrate again indicated that “the focus is

on the evidence presented at this hearing and those events that have occurred after the filing

of the” Final Decree. The magistrate noted as follows:

From the evidence presented at the hearing, both of the parents have a

love for their children. The father believes that he has a special relationship

with each of his children. At some point he has been a coach or assistant

coach when each child has participated in a sport. Each parent has spent as

much time as possible with the children. The father has some concern

because he believes that the children are sometimes left alone.

Given the family dynamics, it is in the best interest of the child for the

defendant to have an extended parenting time schedule at this time. In

reaching this finding, the magistrate has reviewed case law, R.C. 3109.051

and the evidence presented. For purposes of the parties’ schedule, Thursdays

will be used as the father’s weekday since the mother has evening

appointments.

{¶ 13} The magistrate then ordered the parties to follow the Standard Order of

Parenting Time, with the following exceptions: Jeffrey was awarded parenting time on

Thursdays after school until the next morning when he returns the children either to school
 8

or to Julie’s residence at 5:00 p.m.; Jeffrey was awarded parenting time on alternating

Fridays after school until Monday morning when he returns the children to school or to

Julie’s residence at 5:00 p.m.

{¶ 14} Regarding child support, the magistrate noted that the current order of

support is $477.00 per child per month. The magistrate noted that Jeffrey is employed at

P.E. Systems, earning a base salary of $104,500.00, and that in 2010 he received overtime in

the amount of $4,758.00. The magistrate noted that Jeffrey’s “annual medical dependant

coverage is $2,390.40" and he “pays dependent costs of $186.36,” such that his “total

marginal health care costs are $2,576.76.” The magistrate further noted that Julie is

employed at the Main Street Salon, earning a combination of W-2 wages and

self-employment income, such that for 2010, her “wages were $44,117.00, $161.00 refund,

and $11,311.00 self employment for a total income of $55,000.00.”

{¶ 15} After reviewing the attached child support computation worksheet, the

magistrate noted that “child support at guideline amount pursuant to O.R.C. § 3119.022 is

$445.00 per month per child for 3 children.” The magistrate found that there “will not be a

change in the amount of child support ordered as there has not been a 10% change from the

current order of child support,” and the magistrate ordered that the current order remain in

effect. Finally, the magistrate found that the “cash medical support amount pursuant to the

basic child schedule is just, reasonable, appropriate and in the best interest of the children.”

{¶ 16} On May 8, 2012, Jeffrey filed pro se objections to the magistrate’s decision.

Jeffrey enumerated four “requests,” namely: (1) “to be an equal, legal custodian of his three

children,” in reliance upon R.C. 3109.03, (2) that he be provided “information from the
 9

Montgomery County Domestic Relations Court for the past ten (10) years that shows which

parent received legal custody of, and place of residence for, the children by gender, race and

income level,” (3) “to decrease child support and to deviate downward from the child

support guidelines because of additional parenting time and expenses * * * as well as the

adverse impact the child support payments has had on him and his children * * * and the

increased amount of time spent with Plaintiff granted per Standard Order of Parenting

Time,” and (4) “verification that the Disney Time Share has been placed in the Defendant’s

name, in accordance with the Divorce Decree * * * or the Plaintiff is granted the right to sell

the Disney Time Share.” Jeffrey also sought attorney fees.

{¶ 17} Julie filed objections on May 17, 2012, asserting that the Magistrate’s

decision awarding Jeffrey parenting time pursuant to the Standard Order and awarding

Jeffrey parenting time overnight on the Sundays of his alternating weekends was an abuse of

discretion and not in the children’s best interest. Jeffrey supplemented his objections on

June 27, 2012, and he repeated the “requests” set forth above. Julie supplemented her

objections on July 11, 2012.

{¶ 18} The domestic relations court determined initially that Jeffrey’s “reliance

upon R.C. 3109.03 as authority to designate him as ‘equal legal custodian’ of the minor

children is misplaced.” The court noted that R.C. 3109.04, and specifically the factors set

forth in sections (F)(1) and (2), govern the modification of an order pertaining to the

allocation of parental rights and responsibilities. The court then found as follows:

The parents’ ability to cooperate and make joint decisions is a

significant factor when deciding if shared parenting is in the best interest of
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the children. The [G.A.L.] submitted an initial report * * * on July 26, 2011

and supplemented the report * * * on November 16, 2011. In the initial

report, the GAL stated: “During the interview with the Guardian, Father

stated that although communication between he (sic) and Mother was

‘non-existent’ he believed it was unnecessary to vacate their shared parenting

plan but was merely requesting the parenting time be modified to allow a

50/50 split with the children.” * * * The GAL then reported that defendant

had indicated the parties’ communication was non-existent. * * * The GAL

concluded that the parties do not communicate effectively and that shared

parenting “is simply not an option.” * * * The GAL recommended that the

shared parenting was no longer in the best interest of the children. * * *

In the second report, the GAL reported that both parties acknowledge

their communications regarding the children had improved somewhat. * * *

Nevertheless, the GAL referred to the “animosity between the parents” still

existed. (Sic) He further commented that the children did not wish to spend

the Sunday overnights at plaintiff’s home because it would interfere with a

longstanding Sunday evening meal tradition and disrupt their preparation for

school on Monday morning. * * *

At the November 21, 2010 hearing, defendant testified that it was in

the children’s best interest to terminate the share[d] parenting and designate

her as the custodial parent. * * *

***
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Plaintiff testified that he was requesting modification of shared

parenting to reflect a 50/50 arrangement. He proposed defendant have the

children Monday and Tuesday and he would have them Wednesday and

Thursday. They would alternate the balance of the time each week. * * *

{¶ 19} The court next found that termination of the parties’ shared parenting plan is

in the best interest of the children, and it designated Julie the residential parent and legal

custodian. After noting the children’s concerns as expressed in the GAL report regarding

their traditional Sunday dinner, as well as the GAL’s recommendation that the court should

consider granting Jeffrey one additional overnight visitation with the children, the court

overruled Julie’s objection to the additional Sunday night parenting time. Regarding child

support, the court concluded that a five percent reduction in Jeffrey’s obligation is “a fair

and reasonable adjustment for the additional Sunday night overnight parenting time.” The

court reduced Jeffrey’s obligation to $423.00 per month per child.

{¶ 20} We initially note that Jeffrey’s pro se brief does not comply with the

requirements of Rule 16 of the Ohio Rules of Appellate Procedure, which provides that an

appellate brief must contain a statement of the assignments of error presented for review,

with reference to the place in the record where each error is reflected, as well as a statement

of the issues presented for review. Instead, Jeffrey’s brief is divided into the following

subheadings:

Judge Denise L. Cross - Decision and Judgment - October 18th, 2012

And,

Gender, Bias, Prejudice and Discrimination
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And,

Unwillingness of the Defendant (Mother) to Cooperate with Plaintiff (Father)

And,

Magistrate Annette McGee Wright - Magistrate Decision and Permanent Order
April 25th, 2012

And,

Ohio Revised Codes that were not fully considered by Magistrate Annette McGee
Wright, or Judge Denise L. Cross

And,

Child Support Computation Worksheet

And,

Motion Filed that was not Addressed in Magistrate McGee Wright’s Ruling, or Judge
Denise L. Cross’ Ruling

And,

Loss of Personal Property

And,

Behavior of the Attorneys

And,

State of Ohio Task Force on Family Law and Children

{¶ 21} Under Jeffrey’s first three subheadings, he asserts that he was subjected to

gender bias, prejudice and discrimination “during the divorce proceedings.” He asserts that

in Montgomery County, all “the Mother has to do is be unwilling to cooperate and the Father

does not have a chance of having equal custody of his children. This is not equal status for

both parents as they appear before the court, it is not a level playing field for both parents.”
 13

Jeffrey asserts that the parties’ attempt at mediation failed due to Julie’s “unwillingness to

put forth a good faith effort.” Jeffrey asserts that he “argued a very reasonable position of

shared parenting” at the hearing. Jeffrey directs our attention to R.C. 3109.03, and he

asserts he was denied due process of law.

{¶ 22} We initially note, in “accordance with Civ.R. 53, the trial court must conduct

an independent review of the facts and conclusions contained in the magistrate’s report and

enter its own judgment. * * * Thus, the trial court’s standard of review is de novo.” In re D.

E. W., 2d Dist. Miami No. 2009 CA 2, 2009-Ohio-4116, ¶ 18. Further, claims “of trial

court error must be based on the actions taken by the trial court, rather than the magistrate’s

findings or proposed decision. When an appellate court reviews a trial court’s adoption of a

magistrate’s decision, it uses an abuse of discretion standard.” Id.

{¶ 23} R.C. 3109.03 provides:

When husband and wife * * * are divorced, and the question as to

the parental rights and responsibilities for the care of their children and the

place of residence and legal custodian of their children is brought before a

court of competent jurisdiction, they shall stand upon an equality as to the

parental rights and responsibilities for the care of their children and the place

of residence and legal custodian of their children, so far as parenthood is

involved.

{¶ 24} R.C. 3109.04 (B)(1) provides: “ When making the allocation of the parental

rights and responsibilities for the care of the children under this section in an original

proceeding or in any proceeding for modification of a prior order of the court making the
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allocation, the court shall take into account that which would be in the best interest of the

children.”

{¶ 25} R.C. 3109.04(F) provides:

(1) In determining the best interest of a child pursuant to this section,

whether on an original decree allocating parental rights and responsibilities

for the care of children or a modification of a decree allocating those rights

and responsibilities, the court shall consider all relevant factors, including,

but not limited to:

(a) The wishes of the child's parents regarding the child's care;

(b) If the court has interviewed the child in chambers pursuant to division (B)

of this section regarding the child's wishes and concerns as to the allocation

of parental rights and responsibilities concerning the child, the wishes and

concerns of the child, as expressed to the court;

(c) The child's interaction and interrelationship with

the child's parents, siblings, and

any other person who may

significantly affect the child's

best interest;

(d) The child's adjustment to the child's home, school, and community;

(e) The mental and physical health of all persons involved in the situation;

(f) The parent more likely to honor and facilitate court-approved parenting

time rights or visitation and companionship rights;
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(g) Whether either parent has failed to make all child support payments,

including all arrearages, that are required of that parent pursuant to a child

support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of either parent

previously has been convicted of or pleaded guilty to any criminal offense

involving any act that resulted in a child being an abused child or a neglected

child; whether either parent, in a case in which a child has been adjudicated

an abused child or a neglected child, previously has been determined to be the

perpetrator of the abusive or neglectful act that is the basis of an adjudication;

whether either parent or any member of the household of either parent

previously has been convicted of or pleaded guilty to a violation of section

2919.25 of the Revised Code or a sexually oriented offense involving a

victim who at the time of the commission of the offense was a member of the

family or household that is the subject of the current proceeding; whether

either parent or any member of the household of either parent previously has

been convicted of or pleaded guilty to any offense involving a victim who at

the time of the commission of the offense was a member of the family or

household that is the subject of the current proceeding and caused physical

harm to the victim in the commission of the offense; and whether there is

reason to believe that either parent has acted in a manner resulting in a child

being an abused child or a neglected child;

(i) Whether the residential parent or one of the parents subject to a shared
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parenting decree has continuously and willfully denied the other parent's right

to parenting time in accordance with an order of the court;

(j) Whether either parent has established a residence, or is planning to

establish a residence, outside this state.

(2) In determining whether shared parenting is in the best interest of

the children, the court shall consider all relevant factors, including, but not

limited to, the factors enumerated in division (F)(1) of this section, the factors

enumerated in section 3119.23 of the Revised Code, and all of the following

factors:

(a) The ability of the parents to cooperate and make decisions jointly, with

respect to the children;

(b) The ability of each parent to encourage the sharing of love, affection, and

contact between the child and the other parent;

(c) Any history of, or potential for, child abuse, spouse abuse, other domestic

violence, or parental kidnapping by either parent;

(d) The geographic proximity of the parents to each other, as the proximity

relates to the practical considerations of shared parenting;

(e) The recommendation of the guardian ad litem of the child, if the child has

a guardian ad litem.

(3) When allocating parental rights and responsibilities for the care of

children, the court shall not give preference to a parent because of that

parent's financial status or condition.
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{¶ 26} As previously noted, the “discretion which a trial court enjoys in custody

matters should be afforded the utmost respect, given the nature of the proceeding and the

impact the court’s determination will have on the lives of the parties concerned. * * * Thus,

a reviewing court may not reverse a custody determination unless the trial court has abused

its discretion.” Beismann v. Beismann, 2d Dist. Montgomery No. 22323, 2008-Ohio-984, ¶

20.

{¶ 27} As the Supreme Court of Ohio determined:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were

it deciding the issue de novo, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enterprises, Inc. v. River Place

Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 28} In Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hospital Assoc., 28

Ohio St.3d 118, 124-25, 502 N.E.2d 599 (1986), the Supreme Court of Ohio noted as

follows:

The United States Supreme Court has held that “[t]he fundamental
 18

requisite of due process of law is the opportunity to be heard.” (Internal

citations omitted). The court has also held that: “An elementary and

fundamental requirement of due process in any proceeding * * * is notice

reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to

present their objections. * * * .” (Internal citations omitted).

Both the Fourteenth Amendment to the United States Constitution and

Section 16, Article I of the Ohio Constitution guarantee due process of law,

and thus guarantee “a reasonable opportunity to be heard after a reasonable

notice of such hearing.” * * *.

{¶ 29} We initially note that several of Jeffrey’s assertions are directed to events

that occurred in the course of the parties’ divorce, and they are not properly before us. We

will only address his assertions that the court erred in terminating the parties’ shared

parenting plan and designating Julie as the residential parent and legal custodian, and that he

was denied due process of law.

{¶ 30} By its plain language, R.C. 3109.03 recognizes no distinction between the

rights of a father and those of a mother to the custody of their children. R.C. 3109.04(F),

however, requires that the court determine the children’s best interest in allocating parental

rights and responsibilities. In other words, R.C. 3109.03 does not require the court to

allocate parental responsibilities equally if doing so is not in the children’s best interest. It

is clear from the record that the parties are unable to cooperate and make decisions jointly

with respect to their children, and they conceded at the hearing that they were unable to
 19

communicate with each other. Their inability to communicate, pursuant to R.C.

3109.04(F)(2)(a), was of primary significance to the court in terminating their shared

parenting plan, and we find that an abuse of discretion is not demonstrated.

{¶ 31} Finally, the record reflects that Jeffrey received proper notice and an

opportunity to be heard on the issue of custody; he was given ample opportunity to present

evidence and to cross-examine witnesses. We see no due process violation.

{¶ 32} In his fourth subheading, Jeffrey directs our attention to the following

exchange in the course of his direct testimony before the magistrate, in which he sought to

introduce his proposed shared parenting plan.

THE PLAINTIFF: It was my understanding that reading through the

Ohio Revised Code that each parent was to submit a shared parenting plan for

consideration by the court.

THE COURT: * * * So you want me to consider this as your shared

parenting plan.

THE PLAINTIFF: Correct.

THE COURT: Let’s leave out what the code is; that’s my job to

interpret that.

{¶ 33} Jeffrey asserts that he was “denied the opportunity from that point forward to

specifically state which sections from the Ohio Revised Code he believed were applicable to

this case, which sections of the Ohio Revised Code he would have requested be taken into

consideration by the court and ruled upon.” As noted above, R.C. 3109.04(F)(1) and (2) set

forth the factors that the court “shall” consider. In other words, the court was required to
 20

consider all relevant factors. Further, as indicated above, claims of trial court error must be

based on the actions taken by the trial court, and not the magistrate.

{¶ 34} Jeffrey also asserts in his fourth subheading that the court reporter omitted

certain comments by the magistrate from the transcript, and that the omitted remarks

demonstrate that the magistrate’s “mind was already made up prior to the completion of the

hearing.” Jeffrey failed to comply with App.R. 9(E), and our review of Jeffrey’s appeal is

limited to the record before us.

{¶ 35} In his fifth subheading, Jeffrey initially directs our attention to R.C. 3109.04

(F)(2)(d), and he asserts that Julie and her boyfriend, John Bobo, purchased a home in

Washington Township where they have resided since April 6, 2012. According to Jeffrey,

the distance between the parties’ homes is now 1.5 miles and no longer 2.8 miles. Again,

our review of the matter herein is limited to the record before us.

{¶ 36} Jeffrey’s remaining arguments under this and the following subheading are

addressed to his child support obligation. Jeffrey initially directs our attention to R.C.

3119.04, which provides as follows:

If the combined gross income of both parties is greater than one

hundred fifty thousand dollars per year, the court, with respect to a child

support order, * * * shall determine the amount of the obligor’s child support

obligation on a case-by-case basis and shall consider the needs and the

standard of living of the children who are the subject of the child support

order and of the parents. The court * * * shall compute a basic combined

child support obligation that is no less than the obligation that would have
 21

been computed under the basic child support schedule and applicable

worksheet for a combined gross income of one hundred fifty thousand

dollars, unless the court * * * determines that it would be unjust or

inappropriate and would not be in the best interest of the child, obligor, or

obligee to order that amount. If the court or agency makes such a

determination, it shall enter in the journal the figure, determination, and

findings.

{¶ 37} Jeffrey next directs our attention to R.C. 3119.22, which also allows for a

deviation in child support and provides as follows:

The 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, through the line

establishing the actual annual obligation, 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, through the line establishing the actual annual

obligation, would be unjust or inappropriate and would not be in the best

interest of the child.

{¶ 38} R.C. 3119.23 sets forth the factors the court may consider “in determining

whether to grant a deviation pursuant to section 3119.22 of the Revised Code,” and Jeffrey

directs our attention to R.C. 3119.23 (H),(J), and (L), which set forth the following factors as

follows:
 22

(H) Benefits that either parent receives from remarriage or sharing

living expenses with another person;

***

(J) Significant in-kind contributions from a parent, including, but not

limited to, direct payment for lessons, sports equipment, schooling, or

clothing;

***

(L) 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.

{¶ 39} As noted above, Jeffrey’s arguments regarding Julie’s cohabitation with

John Bobo are not properly before us, since the alleged relocation occurred after the hearing

on the parties’ motions.

{¶ 40} As previously noted, a “‘trial court’s decision regarding child support

obligations falls within the discretion of the trial court and will not be disturbed absent a

showing of an abuse of discretion.’” Johnson v. McConnell, 2d Dist. Montgomery No.

24115, 2010-Ohio-5900, ¶ 13. Further, in “‘any action in which a court child support order

is issued or modified * * *, the court * * *shall calculate the amount of the obligor’s child

support obligation in accordance with the basic child support schedule, the applicable

worksheet, and the other provisions of sections 3119.02 to 3119.24 of the Revised Code.’

R.C. 3119.02.” Id., ¶ 14. In Johnson this Court further noted that the Ohio Supreme Court

“has required strict compliance with the statutory procedures for an initial award or
 23

modification of a child support order. * * * ‘The trial court must include the worksheet in

the record so that an appellate court can meaningfully review the trial court’s order.’ * * *.”

Id. “Generally, the amount of child support that would be payable under a child support

order, as calculated pursuant to the basic child support schedule and applicable worksheet

through the line establishing the actual annual obligation, is rebuttably presumed to be

the correct amount of child support due. R.C. 3119.03.” Id., ¶ 15.

{¶ 41} The child support worksheet attached to the decision of the trial court

reflects at line 27(a) a 5% downward deviation in the amount of Jeffrey’s child support

obligation,

and the court noted that the deviation represented “a fair and reasonable adjustment for the

additional Sunday overnight parenting time.” R.C. 3119.23(D) provides that the court may

consider “[e]xtended parenting time or extraordinary costs associated with parenting time”

in determining whether to grant a deviation pursuant to R.C. 4119.22, and the court properly

did so in reducing Jeffrey’s monthly obligation.

{¶ 42} In his next subheading, Jeffrey contests the amount of Julie’s

self-employment income, in the amount of $11,472.00, as reflected on line 6 of the child

support computation worksheet. He asserts that the “dramatic decline in the profits of the

salon in 2010 is either a lie to protect the current level of child support, or is a strong

indication of the Defendant’s lack of financial responsibility.” He asserts that the court

should have averaged Julie’s self-employment income for 2008, 2009, and 2010.

{¶ 43} Julie testified that she lost four employees, that the recession had an adverse

impact on her business, and that her retail sales of hair care products were diminished. The
 24

worksheet identifies Julie’s 2010 Individual Income Tax Return, which was admitted into

evidence and which reflects self-employment income in the amount indicated on line 6 of

the worksheet. The court is not required to average Julie’s self-employment income, and

we note her testimony that her self-employment income for 2011 was zero. For the

foregoing reasons, an abuse of discretion in the calculation of Jeffrey’s child support

obligation is not demonstrated.

{¶ 44} In his next subheading, Jeffrey asserts that a motion was filed on his behalf

on April 11, 2011, regarding a Disney time share owned by the parties at the time of their

divorce, and that the magistrate and trial court failed to rule on the motion. According to

Jeffrey, pursuant to the parties’ divorce decree, Julie was required to title the timeshare in

her name and failed to do so. Jeffrey seeks permission to sell the time share. Jeffrey’s

arguments regarding the time share were not raised before the magistrate and are not

properly before us, and we note that the alleged April 11, 2011 motion is absent from the

record.

{¶ 45} In his next subheading, Jeffrey asserts that the Main Street Hair Salon was

improperly valued at the time of the parties’ divorce, and that he accordingly suffered

“property loss.” Again, these arguments are not properly before us. Jeffrey’s next

subheading is addressed to the actions of his attorney and counsel for Julie in the course of

the parties’ divorce and we do not reach these arguments.

{¶ 46} Finally, in his final subheading, Jeffrey again asserts that he has been

“subjected to gender bias, prejudice and discrimination,” and he “requests the Ohio Task

Force on Family Law and Children have access to information/data from the Montgomery
 25

County Domestic Relations Court for the past ten (10) years that shows which parent

received legal custody of, and place of residence for, the children by gender, race and income

level of the parents.” This Court has jurisdiction to affirm, modify or reverse the decision

of the domestic relations court. While it is unclear what specific relief Jeffrey is requesting

in this subpart, there is nothing in the record before us that supports a finding of gender bias,

prejudice or discrimination.

{¶ 47} Since Jeffrey was not denied due process of law, and since the domestic

relations court did not abuse its discretion in terminating the parties’ shared parenting plan,

increasing Jeffrey’s parenting time and decreasing his child support obligation, the judgment

of the trial court is affirmed.

..........

FROELICH, J. and HALL, J., concur.

Copies mailed to:

Jeffrey Wuich
Julie Wuich
Hon. Denise L. Cross