[Cite as Welch v. Welch, 2014-Ohio-3956.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DAVID M. WELCH : JUDGES:
: Hon. W. Scott Gwin, P.J.
First-Petitioner-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
TINA L. WELCH : Case No. 14-CA-25
:
Second-Petitioner-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Divison,
Case No. 09 DS 116
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 11, 2014
APPEARANCES:
For First-Petitioner-Appellee For Second-Petitioner-Appellant
RANDY L. HAPPENEY BRADLEY S. NICODEMUS
144 East Main Street 1409 West Market Street
P.O. Box 667 Baltimore, OH 43105
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-25 2
Farmer, J.
{¶1} On September 3, 2004, appellant, Tina Welch, and appellee, David
Welch, were married. One child was born as issue of the marriage, Lincoln, born April
26, 2006. The parties' marriage was dissolved by judgment entry decree of dissolution
filed August 14, 2009. The parties agreed to an equal alternating week-to-week
parenting schedule. Appellant has another child, Regan, from a previous marriage.
{¶2} On June 3, 2011, appellee filed a motion for modification of residential
parent and legal custodian, seeking to terminate the shared parenting arrangement,
claiming appellant suffered from physical and psychological issues which affected her
ability to parent their child. A hearing before a magistrate was held on April 24, 2012.
By decision filed April 10, 2013, the magistrate terminated the shared parenting plan
and named appellee residential parent and legal custodian of the child, and ordered
appellant to pay child support in the amount of $477.59 per month.
{¶3} Both parties filed objections to the magistrate's orders. Pertinent to this
appeal, appellant claimed the magistrate's calculation of child support did not include
the amount of child support she paid for her other child, Regan. The trial court found no
evidence was presented to the magistrate concerning the additional child support
obligation and denied the objection.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED BY FAILING TO CONSIDER CHILD
SUPPORT PAID BY SECOND-PETITION/APPELLANT FOR ANOTHER CHILD WHEN
Fairfield County, Case No. 14-CA-25 3
CALCULATING A CHILD SUPPORT OBLIGATION PURSUANT TO THE CHILD
SUPPORT GUIDELINES AND R.C. §3119, ET SEQ."
I
{¶6} Appellant claims the trial court erred in failing to consider the child support
she pays for her other child in calculating the child support obligation sub judice. We
disagree.
{¶7} Determinations on child support are within a trial court's sound discretion.
Booth v. Booth, 44 Ohio St.3d 142 (1989). In order to find an abuse of discretion, we
must determine the trial court's decision was unreasonable, arbitrary or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217
(1983).
{¶8} R.C. 3119.02 governs obligor's child support obligation and states in part
"the court or agency 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. 3119.05(B)
states in part:
When a court computes the amount of child support required to be
paid under a court child support order or a child support enforcement
agency computes the amount of child support to be paid pursuant to an
administrative child support order, all of the following apply:
(B) The amount of any pre-existing child support obligation of a
parent under a child support order and the amount of any court-ordered
Fairfield County, Case No. 14-CA-25 4
spousal support actually paid shall be deducted from the gross income of
that parent to the extent that payment under the child support order or that
payment of the court-ordered spousal support is verified by supporting
documentation. (Emphasis added.)
{¶9} In her decision filed April 10, 2013 at ¶ 37, the magistrate specifically
noted appellant "has another child, Reagan, but no evidence was presented to
determine whether Ms. Welch pays child support for Reagan."
{¶10} In her objections to the trial court filed April 23, 2013, appellant specifically
stated, "[t]he Magistrate's calculation of child support does not take into consideration
other child support paid by Mother nor the extended parenting time Mother was
granted." Appellant acknowledged no evidence of additional child support was
presented, but requested that the trial court take additional evidence pursuant to Civ.R.
53(D)(4)(d). Appellant attached to her objections as Exhibit C a child support
computation summary worksheet out of Franklin County indicating her child support
obligation for her other child. A supplemental memorandum making essentially the
same arguments on this issue was filed on June 19, 2013.
{¶11} By judgment entry filed February 26, 2014, the trial court denied the
objection on this issue, finding the following:
In Tina Welch's second objection, she claims that the calculation of
child support completed by the Magistrate does not account for her child
support obligation paid for another child. The Magistrate's Decision
Fairfield County, Case No. 14-CA-25 5
indicated that no evidence was presented concerning Mother's child
support obligation for her other child. A review of the transcript and
additional Court affidavits allowed to be filed on this issue following
hearing pursuant to the transcript indicate the evidence of the amount of
Tina Welch's child support obligation for her other child was not presented
to the Magistrate. Counsel for Tina Welch argues that the Court should
accept this evidence now and correct the child support obligation in order
to avoid a mistake.
Counsel for Tina Welch claims that Civil Rule 53(D)(4)(d) supports
the position that the Court should now allow additional evidence of
Mother's child support obligation for her other child. Civil Rule 53(D)(4)(d)
provides that before ruling on objections, "the court may hear additional
evidence but may refuse to do so unless the objecting party demonstrates
that the party could not, with reasonable diligence, have produced that
evidence for consideration by the Magistrate." Clearly, with reasonable
diligence, the amount of Tina Welch's child support obligation for her other
child could have been presented as evidence in the hearing before the
Magistrate. Therefore, no additional evidence on this matter will be
considered, and the objection is denied.
{¶12} A review of the transcript indicates while appellant did make a passing
reference during the hearing, "[b]ecause I pay child support for my daughter, my
financial status had changed," she did not present any evidence of her child support
Fairfield County, Case No. 14-CA-25 6
obligation for Regan. T. at 70. Exhibit C was filed in Franklin County on June 7, 2011,
well before the magistrate's hearing of April 24, 2012. Therefore, the child support
computation summary worksheet for appellant's other child was clearly available to be
produced for consideration by the magistrate. We concur with the trial court's decision
as appellant did not meet her burden under R.C. 3119.05(B) and Civ.R. 53(D)(4)(d).
{¶13} Upon review, we find the trial court did not err in denying appellant's
objection on this issue.
{¶14} The sole assignment of error is denied.
{¶15} The judgment of the Court of Common Pleas of Fairfield, Ohio, Domestic
Relations Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Baldwin, J. concur.
SGF/sg 807