Tisci v. Smith

[Cite as Tisci v. Smith, 2016-Ohio-635.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY

CARMELLA TISCI,

PLAINTIFF-APPELLANT, CASE NO. 5-15-30

v.

KENT SMITH, OPINION

DEFENDANT-APPELLEE.

Appeal from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 20144159

Judgment Affirmed

Date of Decision: February 22, 2016

APPEARANCES:

Howard A. Elliott for Appellant

James S. Adray for Appellee
Case No. 5-15-30

SHAW, P.J.

{¶1} Plaintiff-appellant Carmella M. Tisci (“Tisci”) brings this appeal from

the October 2, 2015, judgment of the Hancock County Common Pleas Court,

Juvenile Division, granting her child support from defendant-appellee Kent L.

Smith, II (“Smith”), and entering a companionship schedule for the parties.

Relevant Facts and Procedural History

{¶2} On October 6, 2014, Tisci filed a “Complaint for Custody and to

Establish Child Support” against Smith. Tisci sought an order allocating parental

rights and responsibilities for the minor child, K.S., and an order granting her child

support from Smith backdated to K.S.’s birth in April of 2014.

{¶3} On January 23, 2015, a judgment entry was filed setting temporary

orders as to, inter alia, parenting time for K.S.

{¶4} On March 23, 2015, Smith filed a “motion to show cause” contending

that pursuant to the temporary orders Tisci was supposed to provide parenting time

for Smith every other Sunday for four hours and Tisci was supposed to provide the

transportation for that parenting time. Smith argued that Tisci was not abiding by

that order.

{¶5} On June 22, 2015, a hearing was held before a magistrate on all of the

pending issues. At the beginning of the hearing, the parties presented a number of

stipulations resolving the majority of the issues. Tisci’s attorney read the

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stipulations into the record, which included stipulations that K.S. would take

Smith’s last name, that Smith would carry medical insurance for K.S., that the tax

exemption for K.S. would be alternated yearly, that any extra-curricular activities

such as “school activities, athletics, music, dance, baton, gymnastic or what we

call other enrichment activities” would be split “fifty/fifty,” and that child support

would be set at $335.36 per month, backdated to K.S.’s birthdate. (June 22, 2015,

Tr. at 6-7). Both attorneys and both parties agreed in open court to those

stipulations before the hearing proceeded.

{¶6} After the parties’ stipulations were read into the record and agreed to,

the magistrate inquired as to what issues remained for determination. The parties’

attorneys, including Tisci’s attorney, stated that the only remaining issues to be

determined by the magistrate were the visitation of the child and Smith’s show-

cause motion. (Tr. at 8). The hearing then proceeded and Tisci was called to the

stand.

{¶7} Tisci testified that at the time of the hearing she lived with her mother

in Findlay. Smith was living and working in Toledo, making exchanges more

difficult due to the driving involved. Tisci testified that at the time of the hearing

she was not employed and was finishing her master’s program at the University of

Toledo for Speech Language Pathology. Tisci testified that after she finished her

program in July and got licensed she was planning to get a job in her field.

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{¶8} Tisci reiterated during her testimony that she agreed with the

stipulations read into the record by her attorney. She was then asked by her

attorney what she would like Smith to receive as far as visitation with K.S. Tisci

stated that she would like Smith to receive K.S. every other week from Thursday

at approximately 1 p.m. to Saturday at 7 a.m., to coincide with the days Smith had

off work, Thursday and Friday.

{¶9} Tisci did testify that she had some concerns with Smith parenting K.S.

dating back to when Tisci was pregnant. Tisci testified that when she first

informed Smith she was pregnant Smith threatened to kill himself and he

threatened to clear out all of his money in his bank account and give his money to

his nieces “so that our daughter wouldn’t see a dime of his money.” (Tr. at 23).

Tisci also testified that K.S. occasionally required breathing treatments and she

was not confident in Smith’s ability to care for K.S. (Id. at 37). However, Tisci

testified that K.S. was developing well and that K.S. was actually ahead of most

children her age. (Id. at 30). Tisci testified that K.S. learned some of her skills at

daycare, which costs $177.00 per week, but she only paid $46.23 due to

government assistance.

{¶10} Tisci’s attorney then asked whether Smith had paid for any of K.S.’s

daycare expenses and Smith’s attorney objected, stating that the stipulations

covered daycare. Tisci’s attorney argued that the stipulations did not cover

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daycare expenses. The magistrate inquired as to whether Tisci’s attorney was

trying to categorize the daycare under the “extracurricular” portion of the

stipulations, instead of simply being part of the stipulated child support obligation

that had been backdated to K.S.’s birth. (Tr. at 33). The magistrate said she

wanted to know if the daycare was not part of the stipulation so she allowed Tisci

to answer her attorney’s question, and Tisci stated that Smith had not paid

anything for daycare in the past up to that point.

{¶11} On cross-examination Tisci admitted that she unilaterally changed

the temporary order that had been issued by the court, crossing out that she was

supposed to provide transportation for Smith’s Sunday visitation time with K.S.

(Tr. at 41). Tisci also testified that since Smith lived in Toledo she did not want to

drive up to Toledo for Smith’s Sunday visitation and “drive around for four

hours,” so she was not doing it. (Tr. at 48-49).

{¶12} Smith then testified on his own behalf that he currently resided in

Toledo and that he worked for the Lucas County Sheriff’s Office. He also

reiterated that he agreed with the stipulations that had been submitted. Smith

testified that he would like to have K.S. on Thursdays and Fridays, his days off,

and in addition he testified that he would like to have K.S. every other weekend,

so every other week he would have K.S. from Thursday to Sunday. Smith

testified that when he had to work on the weekends his parents, K.S.’s paternal

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grandparents, who were both retired educators, would watch K.S. Smith testified

that if his parents did not watch K.S., one of his three sisters would. Smith

testified that one of his sisters was a “long term sub” for the “TPS school system,”

one worked for the “Toledo Family Center” and one took “care of MRDD people

* * * [k]ind of a home health aid[.]” (Tr. at 56). In addition, Smith testified that

he was familiar with, and had administered, K.S.’s breathing treatments. He also

testified that his sisters and his mother were familiar with administering the

breathing treatments as well.

{¶13} Smith testified that he thought pursuant to the temporary orders Tisci

was required to provide transportation for his visitation with K.S. on Sundays, and

she was not providing that transportation, which was the basis of his show cause

motion. Smith testified that, with a few exceptions, he was doing all of the

transportation for K.S.

{¶14} Smith also testified that he did send messages to Tisci threatening to

kill himself and that he wished that the baby would die in her womb, but he

testified that they were during her pregnancy. Smith testified that he “wasn’t

going to hurt [him]self in any way. That was only a tactic to try and get an

abortion.” (Tr. at 62). However, Smith testified that “now that [K.S. is] here, I

love her. I’m glad she’s here and she’s my world now.” (Id.)

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{¶15} On cross-examination Smith testified that he had not paid any money

specifically for daycare expenses. The record reflected, however, that Smith had

paid $1,000 toward his child support obligation. On re-direct Smith testified that

he had asked Tisci why he could not take K.S. rather than put her in daycare since

he worked second shift. (Tr. at 75).

{¶16} At the conclusion of Smith’s testimony, the parties proceeded to

closing arguments. During closing arguments, Tisci’s attorney stated that he

thought the court needed to address the daycare expenses, stating that while Tisci

had received government assistance in the past, “that’s going to come to an end.”

(Id. at 82).

{¶17} On July 13, 2015, the magistrate filed its decision on the matter. The

magistrate made a number of findings of fact and conclusions of law. With regard

to the child support, the magistrate recommended that the child support be set at

the stipulated amount. With regard to Smith’s parenting time, the magistrate

recommended that Smith receive K.S. every other week from Thursday at 4:00

p.m. to Sunday at 7:00 a.m. In addition, Smith would receive parenting time every

Thursday at 4:00 p.m. until Friday at 8:00 p.m. Further, the magistrate

recommended that Smith’s show-cause motion be denied.

{¶18} Also on July 13, 2015, the same day that the magistrate filed her

decision, the parties filed a written copy of their “stipulations for the hearing June

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22, 2015.” (Doc. No. 32). These written stipulations reflect what was read into

the record at the hearing, with the notable exceptions that the child support amount

was set at $326.00 per month instead of $335.36, and Smith was given credit for

the $1,000 he had paid toward child support. The written stipulations were signed

by Smith’s counsel, Tisci’s counsel, and Tisci.1 (Id.) It is not clear why the

stipulated amount of child support was changed or if the amount presented at the

hearing was simply misstated, but the written stipulations were signed by both

attorneys and Tisci. The next day, July 14, 2015, the trial court filed an “Order

adopting stipulations for the hearing June 22, 2015,” adopting the stipulations of

the parties.2 (Doc. No. 33).

{¶19} On July 22, 2015, Tisci filed objections to the magistrate’s decision.

Tisci specifically objected to the fact that the magistrate did not decide to order

Smith to pay for daycare expenses separate from his backdated child support

obligation. Tisci also objected to the fact that Smith was awarded parenting time

on a day when he had to work.

{¶20} On September 9, 2015, Tisci filed a memorandum in support of her

objections to the magistrate’s decision. In the memorandum Tisci argued, inter

alia, that the magistrate should have determined that daycare costs fell under the

1
Only Smith’s attorney signed the written stipulations, he did not sign them himself.
2
Although it was unnecessary, the magistrate also signed this order along with the trial court.

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stipulation related to each parent paying for 50% of “the child’s extracurricular

activities.” (Doc. No. 36).

{¶21} On September 17, 2015, the trial court filed its “judgment

entry/orders on objections.” In the entry, the trial court found no merit to either of

Tisci’s objections. With respect to Tisci’s claim that the magistrate erred by not

recommending any costs for daycare, the trial court stated that

[d]aycare expenses are part of a calculation for child support.
Based upon a review of the stipulation by the parties, they
agreed that [Smith] should pay $326.00 monthly to [Tisci]
commencing with the child’s birth. [Tisci] submits that the
daycare expenses should be part of the stipulated expenses
described as extracurricular activities and enrichment fees.
However, this would be an unusual application of the term
“extracurricular.” In addition, the usual course is to include the
daycare expenses in the child support calculation. Plaintiff
states in her testimony that she anticipates a large change in
daycare expenses in the future. Once the change in daycare
expenses occurs, the Plaintiff can request an adjustment from
the child support enforcement agency.

(Doc. No. 37). The trial court thus overruled Tisci’s objection. However, the trial

court noted that the magistrate’s original determination of child support was no

longer proper due to the written stipulation filed and ordered subsequent to the

hearing. The trial court thus adjusted child support from $335.36 to $326.00 per

the written stipulation and ordered Smith credited for having paid $1,000 in child

support.

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{¶22} In reviewing Tisci’s other objection, the trial court found “no error in

the parenting time schedule outlined by the Magistrate.” (Id.) While finding no

error, the trial court did alter the schedule slightly, giving Smith summer parenting

time in one week increments rather than four consecutive weeks. (Id.) With the

minor exceptions, the trial court accepted the remaining recommendations of the

magistrate, followed the stipulations of the parties, and entered judgment

accordingly. An amended judgment entry was filed October 2, 2015, containing a

full appendix apprising the parties of, inter alia, their holiday parenting time. It is

from this judgment that Tisci appeals, asserting the following assignments of error

for our review.

ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN COMPUTING THE CHILD
SUPPORT OBLIGATION HEREIN OF THE APPELLEE, BY
NOT INCLUDING CHILDCARE EXPENSES AS PART OF
THE CALCULATION.

ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN ALLOCATING
PARENTING TIME TO THE APPELLEE DURING [A]
PERIOD OF TIME WHEN HIS EMPLOYMENT
PRECLUDED HIS AVAILABILITY TO EXERCISE
PARENTING TIME AND THE APPELLANT WAS
AVAILABLE AT SUCH TIMES TO EXERCISE PARENTING
TIME.

First Assignment of Error

{¶23} In her first assignment of error, Tisci argues that the trial court erred

in “computing the child support obligation.” Specifically, Tisci contends that the

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trial court should have awarded daycare expenses despite the parties’ stipulation

regarding child support, as the “stipulation does not appear in the record as to be

the end-all as to the computation of child support.” (Appt.’s Br. at 6).

{¶24} At the outset we would note that, “[a] stipulation is a voluntary

agreement entered into between opposing parties concerning the disposition of

some relevant point in order to eliminate the need for proof on an issue or to

narrow the range of issues to be litigated.” Kestner v. Kestner, 7th Dist.

Columbiana No. 06 CO 39, 2007-Ohio-6222, ¶ 29, citing Wilson v. Harvey, 8th

Dist. Cuyahoga No. 85829, 2005-Ohio-5722, ¶ 12. “ ‘[W]hen a stipulation of

facts is handed up by the adversaries in a case, the trier of facts must accept what

is set forth as a statement of settled fact that is undisputed and binding upon the

parties to the agreement.’ ” DiSanto v. Safeco Ins. of Am., 11th Dist. Portage No.

2005-P-0095, 2006-Ohio-4940, ¶ 53, quoting Newhouse v. Sumner, 1st Dist. No.

C–850665, at 3–4, 1986 WL 8516 (Aug. 6, 1986).

{¶25} Courts have allowed parties to stipulate to the amount of child

support one parent must pay to another. Kestner v. Kestner, 7th Dist. Columbiana

No. 06 CO 39, 2007-Ohio-6222, ¶ 30, citing Baddam–Reddy v. Baddam–Reddy,

8th Dist. Cuyahoga No. 85038, 2005-Ohio-3432, at ¶ 8; Earl v. Earl, 9th Dist.

Lorain No. 04CA008432, 2004-Ohio-5684, at ¶ 7; see also Spicer v. Spicer, 6th

Dist. Erie No. E-14-101, 2015-Ohio-799, ¶ 19; Havens v. Havens, 10th Dist.

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Franklin No. 11AP-708, 2012-Ohio-2867, ¶¶ 21-24. Moreover, courts have also

stated that it is “fundamentally unfair” for a party to enter into a stipulation, fail to

object to an alleged inaccuracy, and then argue that a stipulation is against the

weight of the evidence on appeal. Havens at ¶ 22, citing Nyamusevya v.

Nkurunziza, 10th Dist. No. 10AP857, 2011–Ohio–2614, ¶ 22.

{¶26} Finally, we note that “[a]n appellate court reviews decisions

involving child support under an abuse of discretion standard.” Soukup v.

Kirchner, 11th Dist. Geauga No.2012–G3095, 2013–Ohio–2818, ¶ 19, citing

Sullivan v. O'Connor, 11th Dist. Geauga Nos. 2005-G-2641, 2005-G-2642, 2006–

Ohio–3206; Booth v. Booth, 44 Ohio St.3d 142 (1989). An abuse of discretion

“connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

{¶27} In this case the parties began their final hearing by entering into a

number of stipulations. Those stipulations were subsequently filed in writing and

signed by the parties’ attorneys and by Tisci. Two of the seven stipulations are

pertinent to this appeal, and read as follows.

6. The parties agree to pay 50% each of the child’s
extracurricular activities and enrichment fees including but not
necessarily limited to athletics[,] music, dance, baton,
gymnastics, and other forms of enrichment as the parties may
determine.

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7. The parties agree that father’s child support obligation will
commence on the date of the birth of the child and that it will be
the $326.00 per month amount, and further that father shall
receive a credit for the $1,000 paid in May 2015.

{¶28} At the final hearing, the parties indicated that they stipulated to these

issues, among others, to reduce what was before the magistrate for a decision.

Tisci’s attorney actually informed the magistrate of the stipulations at the hearing

and read them into the record. After the stipulations were read into the record the

magistrate asked if the only issue that remained to be litigated was visitation. (Tr.

at 8). The attorneys stated that Smith’s show-cause motion still had to be litigated,

but that was all that remained other than visitation. Neither Tisci nor her attorney

gave any indication at that time that they were dissatisfied with the stipulation

regarding child support, or that they expected to litigate separate, additional issues.

{¶29} Tisci’s attorney furthered the idea that child support had been

determined as the hearing proceeded during his questioning of Tisci. Tisci’s

attorney stated as part of a question, “the rub or where we’re at today is visitation,

and I want you to tell the Court in your own words what you would like to see Mr.

Smith receive as far as visitation and why.” (Tr. at 14-15). Tisci’s attorney thus

emphasized that visitation, along with the show-cause motion, was the issue

before the court.

{¶30} Despite seemingly repeatedly acknowledging that the parties were

only litigating the visitation issue and the show-cause motion at the hearing that

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day, Tisci’s counsel eventually began to ask Tisci about taking K.S. to daycare and

whether Smith had ever paid for any of the daycare expenses. Smith’s counsel

objected, stating that he thought the stipulations covered child care. The

magistrate allowed Tisci to answer, though the magistrate questioned whether

Tisci’s counsel was attempting to assert that the daycare expenses should fall

under the separate “extracurricular” stipulation. Tisci answered her attorney’s

question, testifying that Smith had not paid any money toward daycare. Tisci also

testified that her daycare expenses were $177.00 per week but Tisci received

government subsidies lowering the actual cost to $46.23. However, Tisci

indicated that daycare expenses were likely to change in the near future when

Tisci got a job.

{¶31} Based on Tisci’s testimony, her attorney argued to the magistrate,

and later the trial court, that even though Smith’s child support obligation was

backdated to K.S.’s birth, Smith should separately pay for K.S.’s daycare and that

this should be in addition to the stipulated child support amount. The magistrate

and the trial court disagreed with Tisci and did not award an additional amount of

child support above the stipulated amount.

{¶32} When Tisci objected to the magistrate’s decision on this issue, the

trial court overruled the objection, finding that daycare expenses “are part of a

calculation for child support” and the parties explicitly stipulated to a child support

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obligation. (Doc. No. 38). In addition, the trial court determined that Tisci’s

argument that the daycare expenses should separately fall under the

“extracurricular” stipulation would result in “unusual application of the term

‘extracurricular,’ ” which according to the stipulation included things like “music,

dance, baton, [and] gymnastics.” (Doc. No. 38); (Doc. No. 32). The trial court

then noted that Tisci anticipated a “large change” in daycare expenses in the future

based on her job situation and at that time she could request an adjustment to child

support. (Id.)

{¶33} On our own review of the facts of this case, we cannot find that the

trial court abused its discretion in accepting the stipulated amount of child support

and determining that the daycare expenses would not fall under the

“extracurricular” stipulation. Smith was ordered to pay child support at the

stipulated amount dating back to K.S.’s birthday, reimbursing Tisci, in theory, for

Smith’s share of daycare expenses, which as the trial court states, should be part of

a calculation for child support. Notably, the written stipulation itself actually

states that the obligation “will be the $326.00 per month amount.” (Emphasis

added.) (Doc. Nos. 32, 33). There is no indication in the written stipulation that it

is a “minimum threshold amount” as Tisci suggests, or that it was subject to

further litigation.

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{¶34} If Tisci wanted more for her daycare expenses she could have

negotiated a higher amount of child support to stipulate to, or she could have

forgone stipulating to an amount altogether and litigated the issue of child support

fully, allowing both parties to put on evidence as to their incomes and adjustments.

She did neither. Instead, Tisci explicitly agreed to a stipulation multiple times at a

hearing, then agreed to the stipulations again in writing—at a different, slightly

lower amount no less.

{¶35} Moreover, we would note that both the magistrate and the trial court

were clearly conscious of the fact that the child support would be subject to

modification in the future due to several factors including: 1) Tisci would soon be

employed, raising her income from nothing or an imputed minimum to her actual

income; 2) Smith would be exercising more parenting time than he was previously

perhaps lowering the amount of daycare expenses; and 3) Tisci’s daycare expenses

may be changing (rising or falling) due to her employment status.

{¶36} Furthermore, although Tisci indicated that she had to take K.S. to

daycare while she was in school and interning in the past, it was not clear that she

needed to take K.S. to daycare at the time of the hearing, where she admitted she

was essentially finished with school and was not otherwise working. Thus the

daycare expenses could be subject to significant changes, and could be further

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support for the trial court not to award daycare expenses separately from the

stipulated child support figure.

{¶37} After reviewing the record and Tisci’s arguments, we cannot find

that the trial court abused its discretion in declining to separately award her

daycare expenses where she stipulated to a child support figure. Accordingly,

Tisci’s first assignment of error is overruled.

Second Assignment of Error

{¶38} In Tisci’s second assignment of error she argues that the trial court

erred in allotting parenting time between the parties. Specifically, she contends

that Smith was improperly allotted parenting time during days he would be

working when Tisci was available to parent K.S.

{¶39} We review a trial court's decision in a domestic relations case

concerning the allocation of parental rights under an abuse of discretion standard.

See August v. August, 3d Dist. Hancock No. 5-13-26, 2014-Ohio-3986, ¶ 20, citing

Booth v. Booth, 44 Ohio St.3d 142, 144 (1989).

{¶40} In this case, the magistrate recommended, and the trial court ordered,

that Smith, the non-residential parent by stipulation of the parties, be awarded

parenting time on alternate weeks from 4:00 p.m. Thursday until 7:00 a.m. on

Sunday. Smith was also awarded parenting time weekly from Thursday at 4:00

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p.m. to Friday at 8:00 p.m. Smith’s parenting time was allotted largely to coincide

with his work schedule, as his days off were Thursday and Friday.

{¶41} Tisci takes issue on appeal with the fact that Smith would have

parenting time every other Saturday when Smith would actually be working. We

note that Tisci repeatedly and incorrectly states in her brief to this Court that the

trial court ordered parenting time for Smith to extend to 7:00 p.m. Sunday, but that

was neither the recommendation of the magistrate, nor the order of the trial court.

The recommendation of the magistrate and the order of the trial court clearly

stated that Smith would have K.S. until 7:00 a.m. on Sunday, which means that

Smith would only have K.S. for one day while he was working, not two as Tisci

suggests to this Court. Nevertheless, Tisci argues that she would be available to

parent K.S. on the Saturdays when Smith was at work and thus it could not be in

the best interest of K.S. to award Smith parenting time when he was not available

to exercise that parenting time.

{¶42} Essentially, Tisci asks this Court to make a rule that a parent who has

to work should not be awarded parenting time on the days of his or her

employment because that parent is unable to exercise companionship time during

work hours. Notably, if we were to adopt Tisci’s argument, Smith could use the

same claims against her when she does get a job to establish that he would be able

to exercise parenting time on days when Tisci worked or was in school. Tisci

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already stated that she placed K.S. in daycare multiple days per week, and by her

own logic, if Smith was able to exercise companionship time during those days we

would have to allot Smith that parenting time.3 Tisci’s logic is thus, at best,

questionable. However, regardless of the problems with the application of Tisci’s

logic, we do not accept Tisci’s argument and we find no abuse of discretion in the

trial court for similarly rejecting her argument.

{¶43} Smith testified before the magistrate that his parents were retired

educators and would watch K.S. while he worked his Saturday hours. Smith

testified that if his parents were not available one of his three sisters would watch

K.S., and he testified as to their occupations. Smith also testified that his family

members could give K.S. her breathing treatments. In addition, Smith testified

that he would like to be able to exercise parenting time after he gets off work from

those Saturday hours.

{¶44} Smith provided testimony as to how K.S. would be cared for while

he worked that one weekend day, and he indicated he would see K.S. and spend

time with her when he got off of work. Under these circumstances we cannot find

that the trial court abused its discretion in allotting parenting time between the

parties. Therefore, Tisci’s second assignment of error is overruled.

3
Smith did indicate that he worked second shift during the week and first shift on the weekends.

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{¶45} Having found no error prejudicial to Tisci in the particulars assigned

her assignments of error are overruled and the judgment of the Hancock County

Common Pleas Court, Juvenile Division, is affirmed.

Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr

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