In re S.S.L.S.

[Cite as In re S.S.L.S., 2013-Ohio-3026.]
STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN THE MATTER OF: )
) CASE NO. 12 CO 8
S.S.L.S., )
)
DOB: 03-03-10. ) OPINION
)
)
)

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Juvenile Division,
Case No. C201003462.

JUDGMENT: Reversed and Remanded.

APPEARANCES:
For Appellant: Attorney Carl J. King
101 East Sixth Street
Suite 303, Little Building
East Liverpool, OH 43920

For Appellee: Attorney Tracey A. Laslo
325 East Main Street
Alliance, OH 44601

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

Dated: June 28,2013
[Cite as In re S.S.L.S., 2013-Ohio-3026.]
DeGenaro, P.J.
{¶1} Appellant Nicholas Cody Gill appeals the January 30, 2012 judgment of the
Columbiana County Court of Common Pleas, Juvenile Division, which, inter alia, granted
custody of the parties' minor child SSLS to Mother, Appellee Amber Nicole Smith. On
appeal, Father asserts that the trial court's allocation of parental rights and responsibilities
was an abuse of discretion. He also argues that the trial court erred in its income
determination for child support purposes and by failing to attach a child support
worksheet to the judgment entry. Father's arguments are meritorious in part.
{¶2} Relative to allocating parental responsibility, because the parties were
unmarried, pursuant to R.C. 3109.042 Mother was statutorily designated the residential
parent only until such time as a trial court would make an initial allocation of custody. The
motion filed by Father was not triggering a modification; rather an initial custody
determination, which simply requires the court take into account the best interests of the
child, pursuant to R.C. 3109.04(F)(1). However, in the trial court's judgment entry it
included language that appeared to place a higher burden upon Father; requiring him to
demonstrate that any harm from the proposed change would be outweighed by the
advantages, part of the test embodied in R.C. 3109.04(E)(1)(a)(iii), the custody
modification standard, which is inapplicable to this case. Because we cannot ascertain
whether the trial court applied the correct standard, and because based on the particular
facts and circumstances of this case the inclusion of the harm versus advantages
language could have prejudiced Father, we exercise our discretion to remand.
{¶3} Regarding child support, the income determination was supported by the
record, specifically Father's detailed testimony. Although the trial court properly ordered
the parties to submit proposed child support worksheets, it erred by failing to adopt a child
support worksheet as its own, which is required by law.
{¶4} Accordingly, the judgment of the trial court is reversed and remanded for
further proceedings, including a redetermination of custody under the correct test, and a
determination of child support based upon the custody decision, which must include a
child support worksheet.
Facts and Procedural History
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{¶5} Mother and Father were never married but had one child, SSLS, born March
3, 2010. When SSLS was born, both parents were approximately 18 years old, and
SSLS resided with Mother who was the primary caregiver of the child. This case came
before the Columbiana County Juvenile Court on petition from the Columbiana County
Child Support Enforcement Agency, seeking acknowledgement of its administrative
paternity finding pursuant to R.C. 3111.02(B).
{¶6} On November 15, 2010, the trial court issued a judgment entry certifying
and adopting the administrative determination of parentage and child support issued by
CCSEA as its own and ordered Father to pay $127.83 per month in support to Mother,
inclusive of processing fee. Upon Father's motion, he was granted companionship with
SSLS, which was initially supervised for a transitional period.
{¶7} On April 8, 2011, Father filed a multi-branch motion seeking reallocation of
parental rights, specifically that he be named residential parent and legal custodian of
SSLS. He also requested termination of his child support obligation, establishment of a
support obligation to be paid to him, modification of the tax dependency exemption, drug
testing, a home investigation, and the appointment of a guardian ad litem.
{¶8} On April 28, 2011, the trial court appointed a GAL, and imposed a standard
order of visitation for the pendency of the proceedings. There were some disputes
regarding visitation during this time.
{¶9} On January 23, 2012, the case came for hearing before the trial court
regarding Father's motion for reallocation of parental rights. Testimony was taken from
the parties, the paternal grandmother, the paternal great-grandmother, the GAL, and an
employee of the Columbiana County Humane Society (who testified about animal cruelty
charges against the maternal grandfather, who resides in a trailer adjacent to Mother.)
There was also evidence admitted regarding the paternal grandfather's past rape
conviction and status as a registered sex offender. The GAL, who had issued several
reports during the pendency of the proceedings, recommended that custody remain with
Mother, despite some concerns regarding the paternal grandfather's history. The GAL
opined that Father had failed to take a substantially active role in SSLS's care and
 -3-

support.
{¶10} On January 30, 2012, the trial court issued a judgment that: denied Father's
motion for reallocation of parental rights, allocated the tax dependency exemption,
ordered Father to obtain a high school diploma or GED within one year, and ordered
Father to pay child support to Mother. With regard to the support, the trial court found, via
imputing income, that Mother's gross income was $10,000.00 per year, and that Father's
gross income was $30,000.00 per year. The trial court ordered the parties to submit
proposed child support worksheets using those figures within 14 days. While the parties
did so, no worksheet was included in the trial court's judgment entry.
Allocation of Parental Rights and Responsibilities
{¶11} In his first of two assignments of error, Father asserts:
{¶12} "The trial court committed reversible error in its determination of parental
rights and responsibilities. The trial court decision that harm would be caused by
separating the child from her Mother and placing her in the custody of Father is not
outweighed by the advantages of the proposed change of custody and not in the best
interest of the minor child was an abuse of discretion and against the manifest weight of
the evidence."
{¶13} Father asserts that the trial court abused its discretion by naming Mother the
legal custodian of SSLS. As a threshold matter though, we have concerns about the
language used by the trial court in its entry granting custody to Mother; it is difficult to
ascertain whether the trial court applied the correct legal standard. Specifically, the trial
court stated: "The Court finds that the harm that would be caused by separating [SSLS]
from Mother [ ], and placing her in the custody of [Father] is not outweighed by the
advantages of the proposed change of custody and not in the best interest of the minor
child."
{¶14} Although the trial court did not cite a specific statute in its judgment, it
appears the court may have applied, at least in part, the custody modification standard
set forth in R.C. 3109.04(E)(1)(a)(iii) which provides:
 -4-

The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that
have arisen since the prior decree or that were unknown to the court at the
time of the prior decree, that a change has occurred in the circumstances
of the child, the child's residential parent, or either of the parents subject to
a shared parenting decree, and that the modification is necessary to serve
the best interest of the child. In applying these standards, the court shall
retain the residential parent designated by the prior decree or the prior
shared parenting decree, unless a modification is in the best interest of the
child and one of the following applies:
***
(iii) The harm likely to be caused by a change of environment is outweighed
by the advantages of the change of environment to the child.

{¶15} However, this statute is inapplicable to the present case. Mother and
Father were never married to one another; as the trial court correctly found, there had
"been no prior adjudication or dispute between the parents regarding the child's custody."
Instead, the controlling statute is R.C. 3109.042:

An unmarried female who gives birth to a child is the sole residential parent
and legal custodian of the child until a court of competent jurisdiction issues
an order designating another person as the residential parent and legal
custodian. A court designating the residential parent and legal custodian of
a child described in this section shall treat the mother and father as
standing upon an equality when making the designation.

{¶16} In light of this statutory language, the issue before the trial court here was
an original custody determination, not a modification. Thus, when considering Father's
motion for custody, the parties "stood on equal footing before the trial court as to who
should be named the residential parent." Francis v. Westfall, 7th Dist. Nos. 03-JE-20, 03-
 -5-

JE-21, 2004-Ohio-4543, ¶15. In making an original allocation of parental rights and
responsibilities, the trial court must apply the best interest standard. Id. at ¶16, citing
R.C. 3109.04(B)(1). There is no need for the trial court to find a change in circumstances
or to balance the potential harm from the change with the advantages where the
unmarried mother has had custody of the child not by prior judicial determination, but via
operation of law. Dunn v. Marcum, 2d Dist. No. 08-CA-112, 2009-Ohio-3015, ¶7. In
other words, where there has been no "prior decree allocating parental rights and
responsibilities," R.C. 3109.04(E)(1)(a) is inapplicable to consideration of Father's motion
for allocation of parental rights and responsibilities. DeWitt v. Myers, 2d Dist. No. 08-CA-
86, 2009-Ohio-807, ¶14-16.
{¶17} There was no previous order with respect to custody to change; Mother was
the residential parent only by operation of statute. R.C. 3109.042 dictates that the
custody of SSLS was an original determination, with Mother and Father standing on
equal footing when determining designation of the residential parent; Father did not have
to prove the benefits outweighed the harm in order to prevail on his motion; he only
needed to show that granting him custody was in the child's best interests.
{¶18} Here the trial court did apply the best interests test, but its inclusion of the
additional harm versus advantages language gives us pause, because it could mean the
trial court was placing an unnecessary burden upon Father. In some cases, this additional
layer of analysis might constitute harmless error. However, based on the particular facts
and circumstances of this case, namely, given how close the evidence was with respect
to the parties' comparative "character, family relations, past conduct, earning ability, and
financial worth of each parent," R.C. 3109.04(C), we conclude that Father could have
been prejudiced. In the end, we simply cannot ascertain whether the trial court applied the
correct standard based on the language used in the entry, and therefore out of an
abundance of caution we exercise our discretion to remand.
{¶19} Accordingly, Father's first assignment of error is meritorious in part.
 -6-

Child Support
{¶20} In his second and final assignment of error, Father asserts:
{¶21} "The trial court failed to calculate child support in its decision and attach to
its decision a worksheet for the same. The trial court erred in imputing income to Father
pursuant to R.C. 3119.01. The trial court erred in its finding that Father had an income of
approximately $30,000.00 a year as the same was not supported by the evidence."
{¶22} "[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." Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997), citing Booth
v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). The term 'abuse of discretion'
means an error in judgment involving a decision that is unreasonable based upon the
record; that the appellate court merely may have reached a different result is not enough.
See Bergman v. Bergman, 2d Dist. No. 25378, 2013-Ohio-715, ¶9; Hall-Davis v.
Honeywell, Inc., 2d Dist. Nos. 2008 CA 1, 2008 CA 2, 2009-Ohio-531, ¶35. Nevertheless,
a trial court's discretion is not unfettered and the mandatory statutory child-support
requirements must be followed in all material respects. Sapinsley v. Sapinsley, 171 Ohio
App.3d 74, 2007-Ohio-1320, 869 N.E.2d 702, ¶8; see also Marker v. Grimm, 65 Ohio
St.3d 139, 601 N.E.2d 496 (1992), paragraph two of the syllabus.
{¶23} This assignment of error has two parts, the first of which concerns the
determination of Father's gross income. When computing child support payments, the
trial court must first determine the parties' annual gross income. Gross income includes:
the "total of all earned and unearned income from all sources during a calendar year,
whether or not the income is taxable, and includes income from salaries, wages, overtime
pay, and * * * and all other sources of income." R.C. 3119.01(C)(7).
{¶24} The trial court determined that Father's income was $30,000.00 per year.
Contrary to Father's contentions, the trial court did not impute income to him. Instead,
the trial court based its income determination on Father's testimony. Father earned
approximately $55.00 per week working at his grandmother's pizza shop. During the
hearing Father identified his W-2 from his employment at the pizza shop; however for
 -7-

reasons unknown, it was not formally admitted into evidence. Father continued to testify
that he had unreported income from other sources. On cross-examination, Father also
gave detailed testimony that he was able to make $1,000.00 per week, averaged over the
course of a year, in self-generated income by purchasing vehicles, repairing and/or
updating them and then selling them for a profit. This amounts to a gross income of over
$50,000.00 per year. But the trial court actually deviated downward from this figure,
explaining:

THE COURT * * *Uh sir I am going to peg you at about $30,000.00 a year.
Your earning ability right now. You testified you can hustle make a
thousand a week I don't think you can make a thousand per week.
[FATHER]: It depends on the (interrupted)
THE COURT: I know the weather and everything else. But I think if you
really hustle you can come up with $30,000.00 a year.

{¶25} A potential problem with the trial court's income decision was that Father's
self-generated income was not verified by documentation or electronic means pursuant to
R.C. 3119.05(A) which provides both parents' "current and past income and personal
earnings shall be verified by electronic means or with suitable documents, including, but
not limited to, paystubs, employer statements, receipts and expense vouchers related to
self-generated income, tax returns, and all supporting documentation and schedules for
the tax returns." This court has concluded R.C. 3119.05(A) places the duty on the
parents to verify their respective incomes. Ellis v. Ellis, 7th Dist. No. 08 MA 133, 2009-
Ohio-4964, ¶55, citing In re Kohlhorst, 3d District No. 2-06-09, 2006-Ohio-6481, ¶10.
{¶26} However, any error in the trial court's estimation of Father's income as
$30,000.00 absent any documentation was invited by Father. "[U]nder the invited-error
doctrine, 'a party will not be permitted to take advantage of an error that he himself invited
or induced the trial court to make.' " McCarthy v. Lippitt, 150 Ohio App. 3d 367, 2002-
Ohio-6435, 781 N.E.2d 1023, ¶39 (7th Dist.), quoting State ex rel. Beaver v. Konteh, 83
Ohio St.3d 519, 521, 700 N.E.2d 1256 (1998). Here, Father testified that he makes
 -8-

$1,000.00 in self-generated income per week that he does not report to the IRS, failing to
provide any documentation.
{¶27} This is somewhat similar to the situation in In re Kohlhorst, supra. In that
case, the appellant operated a business but failed to follow good accounting habits and
failed to pay state and federal taxes at various times. For a particular year in question,
appellant failed to verify his income pursuant to R.C. 3119.05(A) and the trial court
estimated his income for that year based upon testimony and other evidence in the
record. The Third District concluded that the trial court did not abuse its discretion in so
doing. Id. at ¶12, citing Smith v. Quigg, 5th Dist. No. 2005-CA-002, 2006-Ohio-1495, ¶50
(where there was conflicting evidence of Father's income presented, father could not
complain on appeal that the trial court erred, "because he invited any possible error by
not submitting verification of his income as required by statute.") Accordingly, based on
the above, the trial court did not abuse its discretion determining that Father's gross
income for child support purposes was $30,000.00.
{¶28} Moving on to the second part of this assignment of error, Father complains
the trial court erred by not including a child support worksheet with its judgment entry. At
the end of the hearing and in its judgment entry, the trial court found Mother's income for
child support purposes was $10,000.00, imputing income to her, and Father's income was
$30,000.00. The trial court ordered the parties to submit proposed child support
worksheets using those figures, within 14 days. Mother submitted her proposed
worksheet the same day. The record does not demonstrate that Father submitted a
proposed worksheet or that the trial court adopted Mother's worksheet or issued its own,
prior to the time Father filed his notice of appeal.
{¶29} "When a court calculates child support, it is mandatory that the court use a
worksheet identical to that statutorily provided in R.C. 3119.022. Thus, such worksheet
must be completed and included in the record by the trial court." Grenga v. Bonacci, 7th
Dist. No. 08 MA 59, 2008-Ohio-6369, ¶11, citing Marker v. Grimm, 65 Ohio St.3d 139,
142, 601 N.E.2d 496 (1992). However, "[t]he trial court's failure to complete its own
worksheet is not erroneous so long as the court clearly adopts one of the parties'
 -9-

worksheets." Long v. Long, 162 Ohio App. 3d 422, 2005-Ohio-405, 833 N.E.2d 809, ¶11
(3d Dist.), citing Anderson v. Anderson, 147 Ohio App.3d 513, 2002-Ohio-1156, 771
N.E.2d 303, ¶85-86 (7th Dist.). The trial court erred by failing to either complete its own
worksheet or adopt one of the parties' worksheets. Accordingly, Father's second
assignment of error is meritorious in part.
Conclusion
{¶30} In sum, Father's arguments are meritorious in part. Relative to allocating
parental responsibility, we cannot ascertain whether the trial court applied the correct
legal standard based on the custody modification language it used in its judgment entry
granting custody to Mother. Based on the particular facts and circumstances of this case,
we cannot conclude this was harmless; Father could have been prejudiced.
{¶31} Regarding child support, the income determination was supported by the
record, specifically Father's detailed testimony. Although the trial court properly ordered
the parties to submit proposed child support worksheets, it erred by failing to adopt a child
support worksheet as its own, which is required by law.
{¶32} Accordingly, the judgment of the trial court is reversed and remanded for
further proceedings, including a redetermination of custody under the correct test, and a
determination of child support based upon the custody decision, which must include a
child support worksheet.
Donofrio, J., concurs.
Vukovich, J., concurs.