Brokaw v. Brokaw

[Cite as Brokaw v. Brokaw, 2012-Ohio-2630.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97477

KARA BROKAW
PLAINTIFF-APPELLANT

vs.

KEVIN BROKAW
DEFENDANT-APPELLEE

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-315403

BEFORE: Rocco, J., Stewart, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEYS FOR APPELLANT

Richard J. Stahl
Loretta A. Coyne
18051 Jefferson Park
Suite 102
Middleburg Heights, Ohio 44130

ATTORNEY FOR APPELLEE

Randall M. Perla
19443 Lorain Road
Fairview Park, Ohio 44126
KENNETH A. ROCCO, J.:

{¶1} Defendant-appellant Kevin Brokaw appeals from the order of the Cuyahoga

County Court of Common Pleas, Domestic Relations Division (the “DR court”) that

overruled his objections to the magistrate’s decision with respect to several motions filed

by Kevin and his ex-wife, plaintiff-appellee Kara Brokaw, but also modified the

magistrate’s decision in certain respects.

{¶2} Kevin presents eight assignments of error. In the four that relate to his child

support obligation, Kevin asserts the DR court lacked authority to order retroactive child

support and improperly declined to deviate from the statutory guidelines. In the three

assignments of error that relate to parenting, Kevin asserts that the DR court’s denial of

his request to modify the parenting schedule and designation of Kara as the residential

parent for school purposes (“RPSP”) both lack support. Finally, Kevin argues the DR

court should have granted his motion for the appointment of a guardian ad litem (“GAL”)

for the children.

{¶3} After a review of the record, this court finds the DR court did not abuse its

discretion in making its decisions with respect to child support and parenting. In

addition, because Kevin did not mention the DR court’s denial of his motion to appoint a

GAL in his notice of appeal, this court cannot consider the issue he raises in his eighth

assignment of error. The DR court’s order, therefore, is affirmed.

{¶4} This is the second appeal resulting from the parties’ divorce. In Brokaw v.
Brokaw, 8th Dist. No. 92729, 2010-Ohio-1053 (“Brokaw I”), this court discussed Kara’s

appeal from the judgment entry of divorce and decided the parties’ case in pertinent part

as follows.

Plaintiff-appellant, Kara Brokaw, appeals from a judgment of
divorce that terminated her marriage to defendant-appellee, Kevin Brokaw.
Prior to trial on the complaint, the parties [failed to settle these] differences:
(1) the amount and effective date of child support; [and] (2) the amount and
duration of spousal support * * * . We find that the court made several
errors when making child support calculations, so we reverse and remand
that aspect of this case; we affirm in all other respects.
* * * [In t]he second assignment of error [Kara] complains that the
court erred by miscalculating the child care costs when completing the child
support computation worksheet. Kara claims that the court overstated
Kevin’s obligation for annual daycare expenses, presumably with the result
that his increased expenses diminished the amount of child support he
would have to pay.
The court incorporated into the divorce decree a separation
agreement entered into by the parties. The separation agreement
contained a shared parenting plan in which the parties agreed that Kevin
would assume liability for 70 percent of daycare costs for the parties’ two
children, and that Kara would assume liability for the remaining 30 percent
cost of daycare.
At trial, Kara gave uncontradicted testimony that the child care costs
were $1,640.20 per month, or $19,682.40 per year. Kevin’s 70 percent
obligation amounted to $13,777.68 and Kara’s 30 percent obligation
amounted to $5,904.72. In his testimony, Kevin confirmed that he paid
$1,149.14 per month, or $13,789.68 per year, and that figure constituted 70
percent of the total cost.
Despite this evidence, the court’s child support guidelines computation sheet listed
Kara’s child care expenses as $5,910 and Kevin’s child care expenses as $19,700. The
stated figure for Kevin is plainly in error because it constitutes the entire amount of child
care expenses, not Kevin’s 70 percent share. We therefore sustain this assignment of
error.
The third and fourth assignments of error raise issues relating to the court’s
factual finding that Kevin earned income of $120,000 per year. Kara complains that * * *
the court should have imputed income to him in the amount of $185,000 per year. She
also complains that * * * the court erred by using the $120,000 per year income amount
to compute past due child support that had accrued before he took the reduction in pay.
* * * We find no error with the court’s factual finding that Kevin was not
voluntarily underemployed by accepting a pay cut to $120,000 [after October 2008].
* * * The court’s findings of fact and conclusions of law state that Kevin earned an
annual income of “$185,000 up until October 31, 2008.” The court made the child
support order retroactive to December 1, 2007. But in doing so, the court failed to use
Kevin’s higher income during the period from December 2007 through October 2008.
The child support computation worksheet appended to the divorce decree lists Kevin’s
annual gross income as $120,000, even though he earned $185,000 annually during the
period from December 2007 through October 2008.
We thus find that the court erred by computing Kevin’s retroactive child support
and sustain this assignment of error.
* * * The sixth assignment of error is that the court erred by failing to award Kara
temporary spousal support.
At the time she filed her complaint, Kara also filed a motion for support pendente
lite. The parties settled Kara’s pretrial motion for support pendente lite * * * .
* * * With no motion for support pendente lite before it, the court did not abuse its
discretion by failing to order that which Kara had previously agreed to settle.
* * * [W]e cannot say the court abused its discretion by refusing to award spousal
support to Kara [as she argues in her seventh assignment of error].
The eighth assignment of error is that the court erred by ordering a downward
deviation in child support from that indicated by the child support guidelines. The court
ordered the deviation because the shared parenting plan adopted by the parties gave Kevin
a number of overnight visitations that were “substantially greater than the standard
visitation order.” Kara maintains that the shared parenting plan only gave Kevin six
additional nights per month during the school year, a number she believes is too
insignificant to warrant a downward deviation from the child support guidelines.
The amount of child support calculated using the child support schedule is
“rebuttably presumed” to be the correct amount of child support due. Marker v. Grimm
(1992), 65 Ohio St.3d 139, 601 N.E.2d 496. The party seeking to rebut the basic child
support schedule calculation has the burden of presenting evidence that would
demonstrate that the calculated award is unjust, inappropriate, and would not be in the
best interest of the child. Spencer v. Spencer, 5th Dist. No. 2005-CA-00263,
2006-Ohio-1913, at ¶ 44; Chittock v. Chittock (Apr. 3, 1998), 11th Dist. No. 97-A-0042.
The decision to deviate from the actual obligation is discretionary and will not be
reversed absent an abuse of discretion. See In re Custody of Harris, 168 Ohio App.3d 1,
857 N.E.2d 1235, 2006-Ohio-3649, at ¶ 60-61.
R.C. 3119.24 states that in cases with shared parenting plans, the court “may”
deviate from the amount that is calculated according to the child support schedule, but
that the court must consider “extraordinary circumstances” and other factors or criteria if
it deviates and it must enter in the journal that the amount would be unjust or
inappropriate and would not in the best interest of the child, and it must enter findings of
fact to support its determination. R.C. 3119.24(B) sets forth a nonexclusive list of
factors that might constitute “extraordinary circumstances of the parents,” including “(1)
 The amount of time the children spend with each parent[.]” See R.C. 3119.24(B)(1).
The child support computation worksheet appended to the court’s divorce decree
indicated that Kevin’s income constituted 61.54 percent of the parties’ income. As we
noted in our discussion of Kara’s second assignment of error, the child support
computation worksheet erroneously stated that Kevin paid $19,700 in net child care
costs, when that sum actually constituted the entire child care cost and not the 70 percent
allocation that he agreed to pay. This error would have caused Kevin’s support
obligation to be understated. We therefore sustain this assignment of error to the extent
that the misstatement of Kevin’s obligation for child care expenses might have affected
the court’s decision to grant a downward deviation from the support guidelines. On
remand, the court should ensure the correctness of its support guidelines computations
and then consider whether a deviation from the child support guidelines is warranted
under the circumstances.
This cause is affirmed in part, reversed in part and remanded for further
proceedings consistent with this opinion. * * * (Emphasis added.)

{¶5} Just prior to the release of this court’s decision in Brokaw I, the parties filed several motions

in the DR court. These included Kara’s January 2010 motions: (1) to terminate shared parenting; (2)

for full custody of the parties’ two children; and, (3) to modify Kevin’s child support obligation in line

with statutory guidelines, along with Kevin’s March 2010 motions: (1) to modify the parenting

schedule set out in the parties’ shared parenting plan (“SPP”); and, (2) to designate him as the RPSP.

{¶6} After the decision in Brokaw I, Kara additionally filed in the DR court a formal motion for

recalculation of Kevin’s child support obligation. A short time later, Kevin filed a motion seeking the

appointment of a GAL for the parties’ children. On May 7, 2010, the DR court issued a journal entry

denying the latter motion.

{¶7} In June 2010, Kara filed a “supplemental” motion to more specifically request the DR court

to designate her as the RPSP. In July 2010, the parties’ outstanding motions, along with the matters

remanded pursuant to Brokaw I, proceeded to a hearing before a magistrate.

{¶8} The record reflects that the magistrate waited nearly a year, until May 4, 2011,
before issuing his decision. In pertinent part, the magistrate made the following findings

of fact and conclusions of law.

(1) Allocation of the child care expenses had been incorrectly calculated in the

judgment entry of divorce, because the SPP called for Kevin to pay 70% of the

$19,700.00 total annual cost rather than 100%.1

(2) As of the date of the hearing, the parties’ child care expenses were $19,998.00

annually.

(3) Kevin’s “income”2 was $185,000.00 from December 2007 to October 2008,

$120,000.00 from October 2008 to December 2008, $0 from January 2009 to July 2009

because he was unemployed, $85,000.00 from August 2009 to October 2009, and

$125,000.00 from November 2009 to the date of the hearing.

(4) Kevin received $70,000.00 in severance pay in January 2009.

(5) The children had attended preschool in Independence at the time of the divorce,

but the older child was ready for Kindergarten in August 2010, and, by the time of the

hearing, both parents had relocated to different cities.

(6) Pursuant to Brokaw I, retroactive temporary “child” support was inappropriate

because Kara had not invoked the DR court’s jurisdiction for an award of “support

1As previously stated, this figure was set forth in Brokaw I as the cost at the
time of the judgment entry of divorce.

The magistrate apparently meant these figures to represent “annual”
2

incomes rather than monthly incomes in spite of the fact that Kevin was not
employed for a full year at any of these jobs.
pendente lite.”

(7) Pursuant to the statutory guidelines, Kevin’s monthly child support obligation

at the time of the judgment entry of divorce “should have been $927.85,” but this amount

was not appropriate; therefore, for the period of November 26, 2008 through January 3,

2010, Kevin’s obligation was $645.93 monthly.

(8) Pursuant to statutory guidelines, Kevin’s “proper” monthly child support

obligation after January 4, 2010 was $747.69, but this amount was not appropriate;

therefore, the amount should be $450.00.

(9) Termination of the SPP was inappropriate.

(10) The best interests of the children would not be served by either modifying the

SPP’s parenting schedule or designating Kevin as the RPSP.

{¶9} Kevin filed objections to the magistrate’s decision. Specifically, he

challenged the decisions to designate Kara as the RPSP and to deny Kevin’s request for a

change to the parenting schedule. Kevin did not challenge the magistrate’s calculations

with respect to the parties’ incomes.

{¶10} On October 3, 2011, the DR court issued its judgment entry in this case.

After reviewing the magistrate’s decision, the DR court found several errors that it

corrected and overruled Kevin’s objections.

{¶11} For instance, the DR court noted that Kevin’s “annualized income” should

be calculated as follows: $185,000.00 from the date the marriage ended until October 1,

2008, $120,000.00 for the remainder of 2008, $70,000.00 in 2009, and $125,000.00 after
January 1, 2010.

{¶12} Based upon these figures, the DR court recalculated Kevin’s child support

obligation according to the statutory guidelines. For the period of December 1, 2007

through September 30, 2008, his obligation was $1,263.01 per month. For the period

from October 1, 2008 through December 31, 2008, his obligation was $804.10 per month.

For the period from January 1, 2009 through December 31, 2009, his obligation was

$764.13 per month. For the period after January 1, 2010, his obligation was $861.82 per

month.

{¶13} Thus, the DR court determined that Kevin had been underpaying child

support for the entire time. Moreover, because the parties’ combined incomes had been

over $150,000.00 at all times, the DR court noted it was not limited to the child support as

calculated in the guidelines. Nevertheless, the SPP provided Kevin with significant time

with the children, so the court found it was in the children’s best interest to keep his

support at “the presumed figures.”

{¶14} The DR court determined that Kevin’s share of the child care expenses at the

time of the divorce caused his monthly child support obligation to amount to $820.18.

The DR court agreed with the magistrate’s decision with respect to making Kara the

RPSP and to maintaining the original parenting schedule.

{¶15} Kevin filed his notice of appeal from the foregoing order. He presents eight

assignments of error that will be addressed together where appropriate.

“I. The trial court abused its discretion by sua sponte ordering retroactive
child support pendente lite in violation of this Honorable Court’s prior ruling.

“II. The trial court abused its discretion by failing to deviate [from] the child

support guidelines in violation of this Honorable Court’s prior ruling and the

rationale of the final decree.

“III. The trial court abused its discretion by modifying the child support

obligation between the date of the final decree and the Motion to Modifying [sic]

filing.

“IV. The trial court abused its discretion by modifying the child support

obligation by ignoring relevant testimony and failing to deviate.

“V. The trial court abused its discretion in its designation of Residential

Parent for School Purposes by failing to adhere to the best interest standard.

“VI. The trial court abused its discretion in its designation of Residential

Parent for School Purposes by disregarding the testimony and evidence presented at

court and the rationale of the courts within the state of Ohio.

“VII. The trial court abused its discretion by failing to modifying [sic] the

parenting time schedule.

“VIII. The trial court abused its discretion by denying the request of

Defendant/Appellant, Kevin Brokaw, for a guardian ad litem.”

{¶16} Kevin argues in his first assignment of error that the DR court ignored this

court’s mandate in Brokaw I when it awarded Kara child support for the period between

December 2007 and October 2008, i.e., the period the parties’ divorce was pending. He
argues that Brokaw I held Kara was not entitled to child support before their divorce

became final. Kevin misreads the relevant portion of the opinion.

{¶17} Brokaw I clearly was addressing Kara’s request for an award of spousal

support pendente lite when it held she had waived that request. Brokaw I equally clearly

ordered the DR court to recalculate Kevin’s child support obligation for the period

between when the divorce was pending and forward. Because the DR court followed the

order issued in Brokaw I when calculating Kevin’s child support obligation, his first

assignment of error is overruled.

{¶18} In his second, third, and fourth assignments of error, Kevin argues that the

DR court should have acceded to the magistrate’s recommendation to allow Kevin

downward deviations from the child support guidelines for the relevant time periods.

Kevin essentially contends the magistrate’s recommendation was entitled to a

presumption of regularity. This court disagrees.

{¶19} Civ.R. 53 places upon the court the ultimate authority and responsibility over

the magistrate’s findings and rulings. Hartt v. Munobe, 67 Ohio St.3d 3, 615 N.E.2d 617

(1993). In ruling on objections to a magistrate’s decision, the trial court is required to

make a full and independent judgment of the referred matter, and should not adopt the

findings of the magistrate unless the trial court fully agrees with them. DeSantis v.

Soller, 70 Ohio App.3d 226, 232, 590 N.E.2d 886 (10th Dist. 1990). A trial court retains

its authority to decide an issue independent of the magistrate, because the grant of

authority to a magistrate does not affect a trial court’s inherent jurisdiction. Davis v. Reed,
8th Dist. No. 76712, 2000 WL 1231462 (Aug. 31, 2000), citing Proctor v. Proctor, 48

Ohio App.3d 55, 59, 548 N.E.2d 287 (3d Dist. 1988).

{¶20} Furthermore, Civ.R. 53(D)(4)(b) grants the trial court discretion to “adopt *

* * a magistrate’s decision in whole or in part, with or without modification. A court may

hear a previously-referred matter, [or] take additional evidence, or return a matter to a

magistrate.” Civ.R. 53(D)(4)(d), too, grants the trial court authority to “hear additional

evidence.” This same subsection, however, permits the trial court to “refuse to do so * *

* .” In reviewing the DR court’s order, this court presumes a proper independent

analysis of the magistrate’s decision. Bradach v. Bradach, 8th Dist. No. 88622,

2007-Ohio-3417, ¶ 19.

{¶21} A DR court’s decision regarding a child support obligation will not be

reversed on appeal absent 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). An abuse of discretion is more than an error of law, it connotes that the

court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983). Moreover, as long as the decision of the DR

court is supported by some competent, credible evidence, the reviewing court will not

disturb it. Masitto v. Masitto, 22 Ohio St.3d 63, 488 N.E.2d 857 (1986).

{¶22} R.C. 3119.02 requires the trial court to calculate the amount of a 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”; the trial court must
determine the obligation that is “in the best interest of the children.” R.C. 3119.04(B)

expressly prohibits a trial court from awarding less than the amount computed under the

basic child support schedule and applicable worksheet corresponding to a combined gross

income of $150,000 unless the court finds 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.”

This court has consistently held that in determining child support obligations pursuant to

R.C. 3119.04, trial courts must proceed on a case-by-case basis and generally do not have

to state reasons for doing so. Keating v. Keating, 8th Dist. No. 90611, 2008-Ohio-5345,

¶ 84.

{¶23} R.C. 3119.23(D) permits a deviation in child support based upon a parent’s

increased time with the child. Dyson v. Dyson, 8th Dist. No. 96285, 2011-Ohio-4826.

Nevertheless, the relevant statutes and the accompanying guidelines contemplate an

obligation that is based upon the parties’ annual incomes and expenses. Id. The best

interest of the child remains the paramount concern. The trial court must also consider

that the costs associated with housing and clothing a child remain fixed, and do not

change, even with an increase in parenting time. Id.

{¶24} As do most SPPs, a review of the Brokaws’ SPP reveals that it seeks to have

the children spend as close to fifty percent of their time with each parent as possible.

Nothing in the record indicates Kevin spent any additional time with the children after the

SPP was drafted. Moreover, the magistrate incorrectly calculated Kevin’s annual

incomes for the relevant time periods, thus rendering his decision to allow Kevin
downward deviations without an evidentiary basis. Kevin failed to challenge the

magistrate’s calculation of Kara’s income. The DR court, therefore, did not abuse its

discretion in counteracting the magistrate’s downward deviations for Kevin. Roberts v.

Roberts, 10th Dist. No. 08AP 27, 2008-Ohio-6121, ¶ 10-11.

{¶25} The DR court simply followed this court’s mandate in Brokaw I and the

statutory guidelines in calculating Kevin’s child support obligations. Because the DR

court either reduced or increased Kevin’s child support obligations commensurate with

his changes in employment, it did not abuse its discretion. Kevin’s second, third, and

fourth assignments of error, accordingly, also are overruled.

{¶26} Kevin argues in his fifth and sixth assignments of error that the DR court’s

“parenting” decisions, i.e., to designate Kara as the RPSP and to deny his request for a

modification of the parenting schedule, are not in his children’s best interest. Kevin

contends the evidence adduced at the hearing demonstrates the opposite. This court

disagrees.

{¶27} R.C. 3109.04 provides in relevant part as follows:

(F)(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;
***
(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;
***
(f) The parent more likely to honor and facilitate court-approved parenting time
rights or visitation and companionship rights;
 ***
(j) Whether either parent has established a residence, or is planning to establish a
residence, outside this state.

{¶28} The DR court’s decision on the allocation of parental rights is reviewed for an abuse of

discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). In this case, the DR

court’s designation of Kara as the children’s RPSP does not constitute an abuse of discretion. The

court explicitly stated that it considered the children’s best interest, and its decision finds support in the

record.

{¶29} The testimony presented at the hearing established the following facts. Both

parents wanted the older child to attend the school in the district near their respective

residences. Both parents were willing to keep the younger child in the day care facility

in which he was currently enrolled, which was close to Kevin’s new home, although Kara

preferred that the court would permit her to enroll him in a facility closer to her home.

The children interacted well with both Kara’s and Kevin’s families.

{¶30} Kevin, however, had moved twice in the wake of the divorce proceedings,

had changed employment a few times, and by the time of the hearing lived with his

fiancée. The children seem well-adjusted to both parents’ homes, but were more used to

Kara’s because she had been the residential parent and had lived in the same residence

since instituting the divorce proceedings. The children had made friends in that

neighborhood and would benefit from having their maternal grandparents within a

two-hour drive. Moreover, Kara had a more consistent but flexible work schedule than

Kevin; she stated she would be available in case of an emergency.
 {¶31} In contrast, Kevin’s focus was on himself. His main concern was not so

much his children’s welfare, but his own perceived ability to foster good relationships

with school authorities, and the distance he would have to travel to ensure his

involvement in the children’s lives. The DR court weighed these factors and concluded

that they favored Kara as the RPSP. Grein v. Grein, 11th Dist. No. 2009-L-145,

2010-Ohio-2681.

{¶32} Similarly, Kevin’s reasons for requesting an additional weekly overnight

visit with his children seemed mainly for his own convenience. He testified that the

current schedule made it difficult to get the children to bed at night. He stated it caused

“stress” because they also resisted going to school the next morning; he wanted everyone

to be able to “relax.”

{¶33} A DR court need not set out its analysis regarding every best interest factor if

the court’s judgment is supported by some competent, credible evidence. Blakeman v.

Blakeman, 4th Dist. No.07CA768, 2008-Ohio-2948. Because the DR court’s decision

with respect to the allocation of parental responsibilities is supported in the record, this

court will not disturb it. Id. Compare Bunten v. Bunten, 126 Ohio App.3d 443, 710

N.E.2d 757 (3d Dist. 1998).

{¶34} Consequently, Kevin’s fifth and sixth assignments of error also are

overruled.

{¶35} In his seventh assignment of error, Kevin complains that the DR court

denied his motion for the appointment of a GAL for the children. This court cannot
address this argument.

{¶36} The record reflects the DR court denied Kevin’s motion prior to the hearing

before the magistrate. Kevin neither objected to that denial, nor brought the matter to the

magistrate’s attention during the hearing. Consequently, the magistrate did not address the

matter, and the issue was waived. Civ.R. 53(D)(3)(b)(iv).

{¶37} In addition, in filing his notice of appeal, Kevin did not indicate he

challenged that order. This court’s jurisdiction is limited to those that are designated in

the notice of appeal. Hollis v. Hi-Point Aerosol, Inc., 8th Dist. No. 90546,

2008-Ohio-4230, ¶ 9-10; App.R. 3(D) and 12(A)(1)(a).

{¶38} For the foregoing reasons, the DR court’s order is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

____________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR