OPINION On August 4, 1990, appellant, Frederick James, and appellee, Lynette James, were married. One child was born as issue of said marriage, Frederick James, Jr. born April 11, 1991. By decree filed March 11, 1994, the parties were granted a divorce and appellant was ordered to pay child support in the amount of $46.61 per week. On November 6, 1996, appellee filed a motion in contempt and a motion to increase child support. A hearing was held on January 6, 1997 wherein the parties entered into an agreed entry whereby appellant was to provide his income figures for 1996 within ninety days. Appellant did not provide figures to appellee's satisfaction. On February 12, 1998, appellee filed a motion requesting further hearing on child support and visitation modification. Again, appellant was to provide income figures. On March 4, 1998, appellant filed a motion for contempt for denial of visitation and attorney fees. A hearing before a magistrate was held on July 17, 1998. By decision filed October 2, 1998, the magistrate ordered appellant to pay child support in the amount of $174.76 per week for the period November 6, 1996 to December 31, 1997, and then $199.11 per week commencing on January 1, 1998 until further order of the court. The magistrate also awarded appellee $1,200.00 in attorney fees. Appellant filed objections on October 15, 1998. By opinion filed November 10, 1998, the trial court denied the objections. The trial court filed a judgment entry on December 11, 1998 reflecting the magistrate's decision, including judgment to appellee for arrearages in the amount of $11,881.06. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSE OF DISCRETION IN CONCLUDING THAT APPELLANT FAILED TO PRESENT APPROPRIATE DOCUMENTATION FOR THE CHILD SUPPORT CALCULATION.
II THE TRIAL COURT DENIED APPELLANT DUE PROCESS BY NOT AFFORDING THE APPELLANT A FULL ORAL HEARING.
III THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT INCREASED CHILD SUPPORT FOR 1997.
IV THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY FEES THAT WERE NOT SUPPORTED BY THE EVIDENCE.
Because appellant was self-employed in his own Subchapter S corporation, he was also required to provide those items defined in "self-generated" income under subsection (A)(3) and (4)(a): (A) As used in this section:
(3) `Self-generated income' means gross receipts received by a parent from self-employment, proprietorship of a business, joint ownership of a partnership or closely held corporation, and rents minus ordinary and necessary expenses incurred by the parent in generating the gross receipts. `Self-generated income' includes expense reimbursements or in-kind payments received by a parent from self-employment, the operation of a business, or rents, including, but not limited to, company cars, free housing, reimbursed meals, and other benefits, if the reimbursements are significant and reduce personal living expenses.
(4)(a) `Ordinary and necessary expenses incurred in generating gross receipts' means actual cash items expended by the parent or the parent's business and includes depreciation expenses of replacement business equipment as shown on the books of a business entity.
Appellant provided financial information but never made it a part of the record except to attach it to his memorandum contra filed July 27, 1998. Appellant produced a self-generated "balance sheet" dated June 1, 1996 listing a net worth of $5,750.00. Appellant's 1996 tax return for an S corporation showed gross receipts as $98,848.65 with a total gross profit of $38,993.66 after subtracting the cost of goods. After subtracting additional business deductions, ordinary income was listed as $10,659.55. Appellant also attached a child support calculation worksheet wherein his adjusted annual gross income was listed as $6,126.00. Appellant's 1997 tax return for an S corporation showed gross receipts of $78,156.50 with a total gross profit of $38,616.85. After subtracting additional business deductions, ordinary income was listed as $2,011.99. In both years, "other deductions" were noted as $22,470.14 and $22,758.66, respectively. No substantiation of the "other deductions" was given. In its decision filed October 2, 1998, the magistrate found the following: The Plaintiff has some expenses documented for 1996. He has none documented for 1997, other than the `bare bones' tax return and schedules. Even though we are dealing here with a corporate entity for the Plaintiff's business, the Magistrate asserts that more in support must still be supplied. For that reason the Magistrate adopts the figures shown on Defendant's memorandum. This is not just because the Magistrate feels it necessary to choose one over the other, but because the Magistrate submits that it correctly reflects the state of the law regarding his situation.
In its opinion filed November 10, 1998, the trial court concluded the following: The plaintiff overlooks the Magistrate's Order of July 21, 1998, which required the defendant to present calculations concerning the child support obligation by July 24, 1998, and the plaintiff was to have the opportunity to respond to those calculations by July 27, 1998 (emphasis added).
Therefore, if the Magistrate did not have the necessary documentation, it was the plaintiff's neglect which acted as a waiver of dispute to defendant's calculations. However, in reviewing the case file, it appears plaintiff's counsel provided the Court the same documentation provided to defendant's counsel which was incorporated in plaintiff's memorandum contra of July 27, 1998. In reviewing those documents, the Court concludes there was sufficient information available to confirm the Magistrate's decision.
Given the disparity in appellant's income and the "other deductions" which were not accounted for, we conclude the trial court did not err in adopting the figures in appellee's memorandum. Assignment of Error I is denied.
No other procedure was requested by appellant. Upon review, we find appellant was not denied due process. Assignment of Error II is denied.
Assignment of Error III is denied.
The judgment of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division is hereby affirmed in part and reversed in part.
By Farmer, J. Hoffman, P.J. and Edwards, J. concur.