Clifford v. Skaggs

[Cite as Clifford v. Skaggs, 2017-Ohio-8597.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY

HEATHER CLIFFORD, : Case No. 17CA6

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
JOSHUA SKAGGS, :
RELEASED: 11/03/2017
Defendant-Appellant. :
APPEARANCES:

Lorene G. Johnston, Jackson, Ohio for appellant.

Adam R. Salisbury, Pomeroy, Ohio for appellee.

Harsha, J.
{¶1} Joshua W. Skaggs appeals from a judgment entry granting a divorce.

Skaggs contends that the trial court erred in ordering him to reimburse his former

spouse Heather Clifford for certain childcare expenses and to pay her spousal support.

Skaggs also contends that the trial court failed to follow statutory requirements

governing child support and the shared parenting plan.

{¶2} The trial court did not abuse its discretion in ordering Skaggs to reimburse

Clifford for childcare expense. There is competent, credible evidence in the record that

Skaggs stopped paying the childcare provider when his summer parenting time

commenced. The trial court was not unreasonable, arbitrary, or unconscionable when it

determined that Skaggs owed eight weeks of childcare expenses at $200 per week.

Nor did the trial court did abuse its discretion in awarding spousal and child support.

The record shows that the court considered the relevant statutory factors and found that

the parties’ relative disparity in incomes and overall high standard of living warranted
Gallia App. No. 17CA6 2

the amount and duration of spousal and child support. However, the trial court failed to

enter the statutorily required findings of fact and conclusions of law when approving

Clifford’s revised shared parenting plan. Therefore, we reverse the trial court’s judgment

and remand so that the court can enter proper factual findings and conclusions of law

addressing the reasons for approving the shared parenting plan.

I. FACTS

{¶3} Skaggs and Clifford were married in 2008 and have one child born in

2010. They filed for divorce in 2014. Skaggs filed a shared parenting plan; Clifford

opposed it and filed her own shared parenting plan. Clifford also filed a motion seeking

contempt findings against Skaggs for failing to pay childcare expenses in July 2016 in

violation of the court’s temporary order. Clifford subsequently withdrew the motion.1

Prior to trial the parties agreed to the division of certain marital assets and debts and the

trial court entered a judgment entry reflecting that agreement.

{¶4} At trial the parties presented evidence on the remaining disputed issues:

(1) the unpaid childcare expenses; (2) allocation of certain medical expenses for the

child; (3) federal tax exemption; (4) allocation of psychological evaluation costs; (5)

spousal support; and (6) parental rights, child custody and support. The trial court

issued a decision that: (1) ordered Skaggs to reimburse Clifford $1,600.00 for childcare

expenses that Skaggs owed under the temporary order; (2) split equally the child’s

medical expenses at issue and ordered Skaggs to reimburse Clifford for his half in the

sum of $2,546.45; (3) allocated the federal tax exemption; (4) allocated all of the

1The record contains no written or oral withdrawal of this motion. However, the trial court’s decision
states that it was withdrawn and the parties do not dispute it. Clifford’s affidavit in support of the motion is
part of the record.
Gallia App. No. 17CA6 3

psychological evaluation costs to Skaggs; (5) awarded Clifford spousal support of $600

per month for one year; and (6) decided that the child would reside with Clifford and that

Skaggs would have parenting time according to a modified version of the Gallia County

standard order of visitation/parenting time, determined that it would be in the child’s best

interest to attend Green Elementary School, required Skaggs to maintain medical

insurance for the child, ordered all non-insured medical expenses be split equally

between them, and ordered the parties to submit child support calculations without

deviations.

{¶5} As to the parties’ shared parenting plans, the trial court instructed Clifford

to submit a revised version of her shared parenting plan that addressed the objections

or criticisms in the decision. Skaggs was given an opportunity to respond.

{¶6} Skaggs requested separate findings of fact and conclusions of law

pursuant to Civ.R. 52. The trial court declined to do so because it concluded the

decision it issued included facts and reasoning. The trial court issued a judgment entry

decree of divorce that included the determinations made in its prior decision, adopted

Clifford’s revised shared parenting plan, and ordered Skaggs to pay child support of

$1,326.14 per month.

{¶7} Skaggs appealed, challenging the awards of $1,600.00 in childcare

expenses, spousal and child support, and the shared parenting plan.

II. ASSIGNMENTS OF ERROR

{¶8} Skaggs assigns the following errors for our review:

1. THE TRIAL COURT ERRED IN ORDERING DEFENDANT-
APPELLANT TO REIMBURSE PLAINTIFF-APPELLEE ONE
THOUSAND SIX HUNDRED DOLLARS ($1,600) FOR CHILD CARE
Gallia App. No. 17CA6 4

EXPENSES SHE INCURRED IN THE SUMMER OF 2016 AS IT IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

2. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SET AN
INAPPROPRIATE AND UNREASONABLE AMOUNT AND
DURATION FOR SPOUSAL SUPPORT AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.

3. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED
TO FOLLOW THE MANDATES OF OHIO REVISED CODE
§3119.04(B) AS THE PARTIES’ COMBINED INCOME EXCEEDED
ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000).

4. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADOPTED
A SHARED PARENTING PLAN THAT WAS NOT PROPOSED BY
EITHER PARTY IN ACCORDANCE WITH OHIO REVISED CODE
SECTION 3109.04 AND WAS NOT SUPPORTED BY THE MANIFEST
WEIGHT OF THE EVIDENCE.

III. STANDARD OF REVIEW

{¶9} Appellate courts generally review “the propriety of a trial court’s

determination in a domestic relations case” under the “abuse of discretion” standard.

Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989) (abuse of discretion

standard applies to child support, custody, visitation, spousal support, and division of

marital property). Under the abuse of discretion standard of review, a reviewing court

must affirm the decision of the trial court unless it is unreasonable, arbitrary, or

unconscionable. Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 2008-

Ohio-4887, ¶ 9 citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 140

(1983). “ ‘[A]buse of discretion’ [is] * * * a view or action that no conscientious judge

could honestly have taken.’ ” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15

N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894

N.E.2d 671, ¶ 23. “Indeed, to show an abuse of discretion, the result must be so
Gallia App. No. 17CA6 5

palpably and grossly violative of fact or logic that it evidences not the exercise of will but

the perversity of will, not the exercise of judgment but the defiance of judgment, not the

exercise of reason but instead passion or bias.” White v. White, 4th Dist. Gallia No.

03CA11, 2003-Ohio-6316, ¶ 25, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d

254, 256, 662 N.E.2d 1 (1996). Under this highly deferential standard of review,

appellate courts may not freely substitute their judgment for that of the trial court. In re

Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). The application of

this standard in custody and support cases is warranted because trial courts have wide

latitude in considering the evidence, and assessing the parties’ demeanor, attitude, and

credibility. See Massie v. Simmons, 4th Dist. Scioto No. 14CA3630, 2014-Ohio-5835, ¶

18, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674 N.E.2d 1159 (1997).

IV. LAW AND ANALYSIS

A. Childcare Expenses

{¶10} In his first assignment of error Skaggs asserts that the trial court erred

when it ordered him to reimburse Clifford $1,600 in childcare expenses. As a

preliminary argument Skaggs contends that he made a timely request for findings of fact

and conclusions of law under Civ.R. 52 and the trial court’s alleged refusal to make

them is a reversible error. Clifford contends that Skaggs waived this argument by failing

to raise it as a separate assignment of error.

{¶11} “Ordinarily, upon a proper request for findings of fact and conclusions of

law, no final appealable order exists until the court complies with Civ.R. 52, i.e., it issues

its findings of fact and conclusions of law.” First Natl. Bank v. Netherton, 4th Dist. Pike

No. 04CA731, 2004-Ohio-7284, ¶ 8, citing Walker v. Doup, 36 Ohio St.3d 229, 522
Gallia App. No. 17CA6 6

N.E.2d 1072 (1988) syllabus; Caudill v. Caudill, 71 Ohio App.3d 564, 565, 594 N.E.2d

1096 (4th Dist. 1991). Because the failure to issue findings of fact and conclusions of

law pursuant to Civ.R. 52 raises a threshold jurisdictional issue, we address it even

though Skaggs did not raise it as a separate assignment of error. “We must sua sponte

dismiss an appeal that is not from a final appealable order.” First Natl. Bank at ¶ 7.

{¶12} Civ.R. 52 provides:

When questions of fact are tried by the court without a jury, judgment may
be general for the prevailing party unless one of the parties in writing
requests otherwise before the entry of judgment pursuant to Civ. R. 58, or
not later than seven days after the party filing the request has been given
notice of the court's announcement of its decision, whichever is later, in
which case, the court shall state in writing the findings of fact found
separately from the conclusions of law.
* * *
An opinion or memorandum of decision filed in the action prior to judgment
entry and containing findings of fact and conclusions of law stated
separately shall be sufficient to satisfy the requirements of this rule and
Civ.R. 41(B)(2).

{¶13} “A trial court substantially complies with Civ.R. 52 if ‘the contents of the

opinion, when considered together with other parts of the record, form an adequate

basis upon which to decide the narrow legal issues presented.' ” Graves v. Graves, 4th

Dist. Vinton No. 14CA694, 2014-Ohio-5812, ¶ 36 quoting State ex rel. Gilbert v.

Cincinnati, 125 Ohio St.3d 385, 2010–Ohio–1473, 928 N.E.2d 706, ¶ 38; accord Nolan

v. Nolan, 4th Dist. Scioto No. 11CA3444, 2012–Ohio–3736, ¶ 40. Findings and

conclusions “ ‘must articulate an adequate basis upon which a party can mount a

challenge to, and the appellate court can make a determination as to the propriety of,

resolved disputed issues of fact and the trial court's application of the law.’ ” Truex v.

Truex, 179 Ohio App.3d 188, 195, 2008–Ohio–5690, 901 N.E.2d 259, ¶ 27 (5th Dist.)
Gallia App. No. 17CA6 7

quoting Kroeger v. Ryder, 86 Ohio App.3d 438, 442, 621 N.E.2d 534 (6th Dist. 1993). “A

trial court's decision reciting various facts and a legal conclusion satisfies the

requirements of Civ.R. 52 when, together with other parts of the trial court's record, the

decision forms an adequate basis upon which to decide the legal issue presented upon

appeal.” Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005–Ohio–1835, ¶ 22 (4th

Dist.).

{¶14} Here the trial court denied Skaggs’s request for findings of fact and

conclusions of law because it had issued a decision prior to the judgment entry that

contained factual findings and legal conclusions. The trial court’s prior decision was

sufficient to satisfy the Civ.R. 52 requirement. That decision, together with its divorce

decree and other parts of the record, form an adequate basis for us to decide the legal

issues presented in the appeal.

{¶15} Although the trial court’s decision together with the judgment entry

satisfies Civ.R. 52 and we have jurisdiction over the appeal, whether the trial court

complied with the statutory requirement for findings of fact and conclusions of law

addressing the reasons for approving the shared parenting plan presents a separate,

nonjurisdictional issue. See R.C. 3109.04(D)(1)(a)(ii) (“If the court approves a plan * * *

the court shall enter in the record of the case findings of fact and conclusions of law as

to the reasons for the approval * * *.”) We discuss this issue more fully when we

address Skaggs’s fourth assignment of error, but raise it here to clarify that such a

failure would not raise jurisdictional concerns.

{¶16} Next Skaggs argues that the trial court lacked jurisdiction to determine

whether Skaggs owed childcare expenses because Clifford withdrew her contempt
Gallia App. No. 17CA6 8

motion. Skaggs’s obligation to pay childcare expenses was part of the trial court’s

temporary orders that the court had jurisdiction to enforce or modify. In the Matter of

J.L.R. and M.M.R., 4th Dist. Washington No. 08CA17, 2009-Ohio-5812, ¶ 29 (temporary

orders concerning custody and support are interlocutory orders). At trial Clifford’s

counsel stated that the unpaid childcare expense was a disputed issue that would be

tried, witnesses gave testimony about childcare expenses, Skaggs’s counsel did not

object, and the trial court clarified during trial that although the contempt motion had

been withdrawn, Clifford was still seeking reimbursement of the underlying unpaid

childcare expense. 2 We find that the allocation and amount of childcare expenses were

soundly within the trial court’s jurisdiction, even if Clifford was no longer seeking to hold

Skaggs in contempt for his failure to pay it.

{¶17} Skaggs also contends that there was no competent, credible evidence

supporting a $1,600 childcare expense award. He argues that the testimony supported

a $1,000 award.

{¶18} The childcare provider, Patty Beach, testified that she received $200 a

week salary from Skaggs and that sometime in July 2016 Skaggs stopped paying her

and Clifford took over the payments. Beach testified that the second half of the summer

Skaggs had the child full time but that she worked one day each week during that time

and was still entitled to receive her weekly salary. Beach testified that it had been

approximately five to six weeks since Skaggs had paid her, but that she was uncertain

2 In cases of civil contempt, a court imposes a sanction with the purpose to coerce a party in violation of a
court order to comply with the order for the benefit of the complaining party. Liming v. Damos, 133 Ohio
St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 12. Clifford decided not to pursue sanctions, but
maintained her claim for reimbursement of the childcare expenses she paid out that were Skaggs’s
responsibility.
Gallia App. No. 17CA6 9

the precise date Skaggs stopped paying. Beach’s testimony about the amount Skaggs

owed was unclear. Beach first said “yes” when asked if the amount owed was $1,600

and then “I don’t know.” In response to questions from the trial court, Beach testified

that during the second half of the summer when the child was with Skaggs full time,

Skaggs stopped paying her and Clifford started paying her salary. Skaggs testified that

as of the time of trial August 25, 2016, he had not paid Beach for approximately five

weeks. Clifford’s affidavit stated that Skaggs stopped paying Beach when he started

exercising his summer parenting time and that as of the date of her affidavit, July 22,

2016, she had paid three weeks ($600) of childcare that Skaggs owed.3 After the trial

the court modified the temporary order and terminated Skaggs’s obligation to pay for

childcare as of August 25, 2016.

{¶19} The trial court did not abuse its discretion in awarding Clifford $1,600 in

childcare expenses. The record contained competent, credible evidence that Skaggs

stopped paying Beach when his summer parenting time commenced. Beach testified

that Skaggs did not pay her during his summer parenting time. Clifford testified that she

paid the first three weeks of July 2016 (as of July 22, 2016) and Skaggs admitted he

had not paid Beach for the last five weeks (as of August 25, 2016). Based upon these

dates Skaggs had not paid childcare for a total of eight weeks. The trial court was not

unreasonable, arbitrary, or unconscionable when it determined that Skaggs owed eight

weeks of childcare expenses at $200 per week. The trial court did not abuse its

discretion in awarding Clifford $1,600 in childcare expenses.

{¶20} We overrule Skaggs’s first assignment of error.

3 There was no motion to strike Clifford’s affidavit from the record.
Gallia App. No. 17CA6 10

B. Spousal Support

{¶21} In his second assignment of error Skaggs contends that the trial court’s

spousal support award in the sum of $600 per month for one year was an abuse of

discretion and against the manifest weight of the evidence. Again, we review spousal

support matters under an abuse of discretion standard. Boggs v. Boggs, 4th Dist.

Lawrence No. 14CA20, 2015-Ohio-2634, ¶ 21 citing Breedlove v. Breedlove, 4th Dist.

Washington No. 08CA10, 2008-Ohio-4887, ¶9.

{¶22} When a party requests it, the court may make an appropriate and

reasonable spousal support award. R.C. 3105.18(B). In determining whether spousal

support is “appropriate and reasonable,” the court must consider the following factors:

(a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed
under section 3105.171 of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the
parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because that
party will be custodian of a minor child of the marriage, to seek
employment outside the home;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited
to any court-ordered payments by the parties;
Gallia App. No. 17CA6 11

(j) The contribution of each party to the education, training, or earning
ability of the other party, including, but not limited to, any party's
contribution to the acquisition of a professional degree of the other party;

(k) The time and expense necessary for the spouse who is seeking
spousal support to acquire education, training, or job experience so that
the spouse will be qualified to obtain appropriate employment, provided
the education, training, or job experience, and employment is, in fact,
sought;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from
that party's marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and
equitable.

R.C. 3105.18(C)(1).

{¶23} When making a spousal support award, a trial court must consider all

statutory factors, rather than basing its determination upon any one of those factors

taken in isolation. Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988),

paragraph one of the syllabus. Although the trial court has broad discretion to determine

the appropriateness and reasonableness of an award of spousal support, it must

consider the statutory factors enumerated above and must indicate the basis for a

spousal support award in sufficient detail to enable a reviewing court to determine that

the award complies with the law. Id. at paragraph two of the syllabus. Kaechele does

not require the trial court to articulate the rationale or basis of its spousal support

decision in the decree as long as the record contains adequate support and detail to

permit an appellate court to establish whether the award is fair and in accordance with

the law. Carman v. Carman, 109 Ohio App.3d 698, 704, 672 N.E.2d 1093 (12th Dist.

1996). Kaechele and R.C. 3105.18(C), only require the trial court to reveal the basis for
Gallia App. No. 17CA6 12

its award in either its judgment entry or the record. Brown v. Brown, 4th Dist. Pike No.

02AP689, 2003-Ohio-304, ¶ 10, citing Carman, supra. Likewise, the trial court is not

required to comment on each statutory factor; rather, the record need only show the

court considered them in making its award. McClung v. McClung, 10th Dist. Franklin No.

03AP-156, 2004-Ohio-240, ¶ 21, citing Carman at 703.

{¶24} Here the trial court expressly considered the statutory factors listed in R.C.

3105.18(C)(1) in its decision:

Both parties are employed outside the home. Defendant earns at least 3-4
times as much as plaintiff.

Because of the nature of his employment, defendant has a greater earning
ability than does plaintiff.

The parties are about the same age and are in good physical, mental and
emotional condition.

Plaintiff has a B.A. and defendant has an M.B.A.

The parties have agreed upon the division of the retirement benefits.

R.C. 3105.18(C)(1)(m) is not applicable [lost income production capacity].

The parties were married on June 7, 2008, and separated on September
1, 2014. They lived together 6 years and have not lived together since
their separation.

The parties have a high standard of living. The marital home is large and
has a swimming pool. They bought expensive personal property and took
nice vacations.

The parties agreed upon the division of property and the payment of
debts.

The parties were responsible for the payment of their own college
degrees.

If defendant paid spousal support, his tax liability would decrease and
plaintiff’s [tax liability] would increase.
Gallia App. No. 17CA6 13

Plaintiff did not have to pay rent, auto insurance and day care expenses
during most of the separation.

The Court finds that spousal support is warranted because of the following
factors:

(1) With the addition of his yearly bonus, defendant will continue to earn 3-
4 times more than plaintiff.
(2) Because of the nature of his employment, defendant will continue to
earn 3-4 times as much as plaintiff each year.
(3) During the time the parties lived together, they enjoyed a high standard
of living.

However, the Court finds that the marriage was of a short duration and the
defendant paid plaintiff’s expenses enumerated in the previous paragraph
for two years, more or less.

Accordingly, the Court shall order defendant to pay spousal support in the
sum of $600 per month for 12 months and shall retain jurisdiction of this
issue.

{¶25} Skaggs contends that the trial court’s findings are insufficient to support

the spousal support award of $600 for one year. He argues that the trial court confused

their respective education and that it is Clifford who has the M.B.A and he the B.A. He

also argues that he had to borrow against his 401(K) to live and that he paid more than

$40,000 towards Clifford’s living expenses during the two years they were separated.

{¶26} However, our review of the record shows that the trial court specifically

listed and commented on the relevant statutory factors and its decision and entry

sufficiently revealed the basis for its award. See Kaechele, 35 Ohio St.3d at paragraph

two of the syllabus. A review of the trial court's decision and judgment entry shows that

the trial court considered the income of the parties, the ages and the physical, mental,

and emotional conditions of the parties; the retirement benefits of the parties; the

duration of the marriage; the tax consequences; the parties’ high standard of living; the

contribution or lack thereof of each party to the other’s education; the relative assets
Gallia App. No. 17CA6 14

and liabilities of the parties, and the fact that Skaggs paid Clifford’s rent, auto insurance

and day care expenses during most of the two-year separation. See R.C.

3105.18(a)(b)(c)(d)(e)(g)(h)(i)(j)(l) and (n). Although the record shows that the trial court

mistakenly attributed the M.B.A. to Skaggs, we find this error had minimal significance

to the trial court’s ultimate determination. It was Skaggs’s three to four times higher

earnings, the parties’ high living standard, the relatively short duration of the marriage,

and Skaggs’s payment for Clifford’s living expenses during the separation that the court

identified as the most important factors in awarding the amount and duration of spousal

support.4 Thus, we reject Skaggs’s contention that the trial court abused its discretion in

failing to detail the facts relied upon in determining spousal support.

{¶27} Moreover, we reject Skaggs's contention that the trial court should have

considered that Clifford was “under-employed.” R.C. 3119.01(C)(11)(a) authorizes a

court to impute income to a parent whom the court finds is voluntarily underemployed,

for purposes of calculating child support. R.C. 3105.18, however, contains no like

provision applicable to spousal support. Nonetheless, some courts have held that, upon

the same finding, income may be imputed to either spouse in determining whether

spousal support is reasonable and appropriate. See Williams-Booker v. Booker, 2nd

Dist. Montgomery Nos. 21752, 21767, 2007-Ohio-4717. “ * * *[W]hether a parent is

voluntarily (i.e. intentionally) unemployed or voluntarily underemployed is a question of

fact for the trial court. Absent an abuse of discretion that factual determination will not

be disturbed on appeal.” Rock v. Cabral, 67 Ohio St.3d 108, 112, 616 N.E.2d 218

(1993).

4
Clifford’s 2014 W-2 had wages of $45,637.60 while Skaggs’s wages for the same year were
$173,681.97.
Gallia App. No. 17CA6 15

{¶28} The only evidence of Clifford’s alleged underemployment was Clifford’s

response on cross-examination that it was “arguable” that she was underemployed and

that she “probably” had an earning ability higher than her current salary. Based on the

record before us, we cannot conclude that the trial court abused its discretion

concerning any lack of factual findings on Clifford’s purported underemployment.

{¶29} Other than the error attributing the M.B.A. to him, Skaggs cites to no other

error by the trial court in its factual findings supporting spousal support.5 Skaggs does

not contest the trial court’s other factual findings. The evidence presented at trial in the

form of tax and wage records along with the parties’ testimony supports the trial court’s

determination of the high standard of living and that Skaggs earned 3 to 4 times

Clifford’s salary and will likely continue to do so.

{¶30} The findings made by the trial court are supported by competent, credible

evidence in the trial exhibits and transcripts. The trial court did not abuse its discretion in

making the spousal support award in the sum of $600 per month for 12 months.

{¶31} We overrule Skaggs’s second assignment of error.

C. Child Support Award Where Joint Income Exceeds $150,000

{¶32} Skaggs contends that the trial court failed to follow the mandatory

provisions of R.C. 3119.04 where the parties’ combined annual income exceeds

$150,000. He concedes that the trial court used the correct figures for the parties’

income in its worksheet, but contends that the court failed to calculate the correct

monthly support figure because it should have limited income to $150,000. He contends

5
Clifford repeatedly contends that Skaggs’s appellate brief does not conform with App.R. 16(A)(3)
because in the assignments of error, he does not reference the place in the record where each error is
reflected. However, Skaggs includes references to the record in the body of his brief sufficient to allow us
to review the assignments of error accordingly.
Gallia App. No. 17CA6 16

that the amount of monthly child support where the income is equal to $150,000 totals

$921.38. Skaggs is essentially arguing that the calculation must be capped at $150,000

unless the court determines a higher amount is warranted on a “case by case basis”

and “consider the needs and standard of living of the child.” He contends the trial court

did neither. We review child support matters under an abuse of discretion standard.

Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).

{¶33} R.C. 3119.04(B) governs the determination of an obligor’s child support

obligation where the combined gross income of both parents exceeds $150,000:

(B) If the combined gross income of both parents is greater than one
hundred fifty thousand dollars per year, the court, with respect to a court
child support order, or the child support enforcement agency, with respect
to an administrative child support order, shall determine the amount of the
obligor's child support obligation on a case-by-case basis and shall
consider the needs and the standard of living of the children who are the
subject of the child support order and of the parents. The court or agency
shall compute a basic combined child support obligation that is no less
than the obligation that would have been computed under the basic child
support schedule and applicable worksheet for a combined gross income
of one hundred fifty thousand dollars, unless the court or agency
determines 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. If the
court or agency makes such a determination, it shall enter in the journal
the figure, determination, and findings.

{¶34} For parties with combined incomes exceeding $150,000.00, as is the case

here, the trial court must determine the amount of child support to be paid on a case-by-

case basis, taking into consideration the needs and standard of living of the children. “A

plain reading of the statute reveals that the only time a trial court is required to make

special findings is when it sets support in an amount less than the obligation that would

have been computed under the basic child support schedule and applicable worksheet

for a combined gross income of $150,000.00.” (Emphasis added.) Cummin v. Cummin,
Gallia App. No. 17CA6 17

2015-Ohio-5482, 55 N.E.3d 467, ¶ 13 (4th Dist.). In that situation a trial court must find

that an award based upon a higher income amount would be unjust, inappropriate or

not in the best interests of the child.

{¶35} Here the trial court used the actual income of the parties, which was

$224,006.70, to compute Skaggs’s monthly child support obligation. The trial court

awarded $1,300.14 plus a 2% processing fee, for a total monthly award of $1326.14.

Because the amount was not less than the obligation that would have been computed

using a combined income of $150,000, the trial court was not required to make special

findings. Id.; Brown v. Brown, 2014-Ohio-2402, 14 N.E.3d 404, ¶ 55 (8th Dist.) (“when

the parents' income exceeds $150,000, R.C. 3119.04(B) leaves the determination

entirely to the court's discretion”). “[B]oth statutory and case law indicate that it is within

the trial court’s discretion to either cap the income at $150,000 or use parties’ actual

income when crafting a support order.” Cummin at ¶ 9.

{¶36} Skaggs argues that there is no competent, credible evidence in the record

to support the trial court’s award based on the parties’ standard of living or the child’s

needs. However, as we found in reviewing the spousal support award, the record

contained evidence of the parties’ high standard of living. Additionally, both parents, the

childcare provider, and the guardian ad litem testified concerning the child’s activities

and school needs, physical condition, and medical conditions. Skaggs cites nothing in

the record that supports his claim that the trial court should have capped income at

$150,000 or that the trial court otherwise acted unreasonable, arbitrary, or

unconscionable in calculating its child support award.

{¶37} We overrule Skaggs’s third assignment of error.
Gallia App. No. 17CA6 18

D. Shared Parenting Plan

{¶38} In his fourth assignment of error Skaggs contends that the trial court erred

when it adopted a shared parenting plan that was not proposed by either party, was not

in accordance with R.C. 3109.04, and therefore was not supported by the manifest

weight of the evidence. Skaggs contends that the trial court created its own shared

parenting plan, which he argues is not permissible under the shared parenting

provisions of R.C. 3109.04. He also contends that the court failed to set forth findings of

fact and conclusions of law as required in R.C. 3109.04(D)(1)(a)(ii). Clifford contends

that the trial court properly followed the shared parenting provisions, specifically R.C.

3109.04(D)(1)(a)(ii), which allows parties to submit changes to a plan to meet the trial

court’s objections and allows the trial court to adopt the plan with the changes.

{¶39} Although we review the amount of custody awarded using the abuse of

discretion standard, we give Skaggs’s assertion that the trial court failed to follow

statutory requirements de novo review. “The resolution of this assertion requires the

interpretation of the statute, which presents a question of law, and accordingly, we

review the matter de novo.” Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 12

(4th Dist.) citing State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d

1267, ¶ 6; State v. Seal, 2014-Ohio-4167, 20 N.E.3d 292, ¶ 19 (4th Dist.), quoting State

v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139, ¶ 46 (4th Dist.) (“ ‘The interpretation of a

statute is a question of law that we review de novo’ ”).

{¶40} R.C. 3109.04(G) allows either or both parents to file a motion for shared

parental rights and responsibilities. Skaggs and Clifford each submitted different shared

parenting plans and agreed that shared parenting was in the child’s best interest. The
Gallia App. No. 17CA6 19

primary differences in the two plans were (1) Clifford wanted the child to continue in

Green Elementary and Skaggs wanted the child transferred to Rio Grande Elementary

(both in the Gallipolis City School district) and (2) Skaggs wanted the child with him two

days midweek and Clifford did not want any midweek visit. Both parties wanted a right

of first refusal but differed on when it would be triggered. Because each parent filed

separate plans, R.C. 3109.04(D)(1)(a)(ii) applies.

{¶41} R.C. 3109.04(D)(1)(a) provides:

(D)(1)(a) Upon the filing of a pleading or motion by either parent or both
parents, in accordance with division (G) of this section, requesting shared
parenting and the filing of a shared parenting plan in accordance with that
division, the court shall comply with division (D)(1)(a)(i), (ii), or (iii) of this
section, whichever is applicable: * * *
(ii) If each parent makes a request in the parent's pleadings or files a
motion and each also files a separate plan, the court shall review each
plan filed to determine if either is in the best interest of the children. If the
court determines that one of the filed plans is in the best interest of the
children, the court may approve the plan. If the court determines that
neither filed plan is in the best interest of the children, the court may order
each parent to submit appropriate changes to the parent's plan or both of
the filed plans to meet the court's objections, or may select one of the filed
plans and order each parent to submit appropriate changes to the
selected plan to meet the court's objections. If changes to the plan or
plans are submitted to meet the court's objections, and if any of the filed
plans with the changes is in the best interest of the children, the court may
approve the plan with the changes. If changes to the plan or plans are not
submitted to meet the court's objections, or if the parents submit changes
to the plan or plans to meet the court's objections but the court determines
that none of the filed plans with the submitted changes is in the best
interest of the children, the court may reject the portion of the parents'
pleadings or deny their motions requesting shared parenting of the
children and proceed as if the requests in the pleadings or the motions
had not been made. If the court approves a plan under this division, either
as originally filed or with submitted changes, or if the court rejects the
portion of the parents' pleadings or denies their motions requesting shared
parenting under this division and proceeds as if the requests in the
pleadings or the motions had not been made, the court shall enter in the
record of the case findings of fact and conclusions of law as to the
reasons for the approval or the rejection or denial. Division (D)(1)(b) of this
Gallia App. No. 17CA6 20

section applies in relation to the approval or disapproval of a plan under
this division. (Emphasis added.)
{¶42} After reviewing the shared parenting plans and the evidence at trial, the

trial court stated objections to the shared parenting plans in its decision. Specifically,

the trial court objected to the midweek visitation schedules proposed by the parties and

determined that Skaggs would have one day of midweek visitation. The trial court also

found that it would be in the child’s best interest to attend Green Elementary because

he would be with his mother most of the time and it would minimize the time the child

spends in transportation. The trial court objected to both parties’ right of first refusal on

the grounds that it is a cumbersome procedure and because the evidence showed that

grandparents and other responsible adults were available to provide childcare if a

parent could not. The trial court ordered Clifford to submit her previously prepared

shared parenting plan to the court with modifications that addressed these objections

and gave Skaggs seven days to respond.

{¶43} Clifford contends that she followed the court’s instruction and submitted a

revised shared parenting plan, and that the final divorce decree adopts the revised

shared parenting plan she submitted. Although the record does not contain Clifford’s

revised shared parenting plan, Clifford appears to have served it on Skaggs because

the record contains his objections to the proposed shared parenting plan.

{¶44} A comparison of Clifford’s original shared parenting plan and the one

adopted by the trial court shows that Clifford complied with the trial court’s orders. The

final shared parenting plan is identical to Clifford’s original plan, except where it

addresses the trial court’s objections concerning midweek visitation (modifying Section

3.1.1), it addresses the trial court’s objection to the right of first refusal (deleting the
Gallia App. No. 17CA6 21

original Section 3.2 from the plan), it modifies the child support section to reflect the

amount awarded in the final decree and deletes references to the child support amount

originally requested by Clifford (deleting references to $1,880.86 per month in Section

4), it removes references to the plan being prepared jointly and as a current agreement

(Section 8, presumably because the revised plan addressed the trial court’s objections),

modifies the income tax dependency exemption in accordance with the court’s ultimate

determination of this issue (Section 11); removes reference to the earlier effective date

of August 11, 2016 set out in Clifford’s original plan (deletes Section 15). The trial court

adopted Clifford’s revised shared parenting plan into the final divorce decree.

{¶45} But the trial court only partially complied with R.C. 3109.04(D)(1)(a)(ii).

The trial court stated its plan objections in its decision, ordered Clifford to submit

changes to her shared parenting plan to meet the court’s objections and gave Skaggs

an opportunity to respond. Skaggs argues that this process violated the statutory

procedure because the court “must” order both parents to submit appropriate changed

plans. He contends that the process resulted in the trial court sua sponte creating its

own shared parenting plan. We disagree. The procedures that govern changes to the

parties’ shared parenting plans are discretionary – the court “may” but is not required to

have both parties submit changes. Grein v. Grein, 11th Dist. Lake No 2009-L-145,

2010-Ohio-2681, ¶ 28 (court’s order directing one party to submit changes to their plan,

rather than both parties to each plan, did not violate R.C. 3109.04(D)(10(a)(ii) because

that portion of the statute uses “may” and is permissive).

{¶46} Although we find that the trial court correctly followed the statutory

procedures governing shared parenting plan review, objections and changes, the trial
Gallia App. No. 17CA6 22

court approved Clifford’s revised shared parenting plan without entering findings of fact

and conclusions of law addressing the reasons for the approval. R.C.

3109.04(D)(1)(a)(ii) does not require a detailed analysis, but to substantially comply with

the statute the court’s reasons for approval or denial must be apparent from the record.

Swain v. Swain, 4th Dist. Pike No. 04CA726, 2005-Ohio-65, ¶17-18.

{¶47} We are unable to discern the reason underlying the court’s decision to

adopt Clifford’s revised shared parenting plan from the divorce decree:

In consideration of the testimony and evidence produced and admitted,
the Court found in its January 13, 2017 Decision on Remaining Issues at
Final Hearing, attached hereto and incorporated herein, that the Plaintiff
[Clifford] should be designated as the residential parent of the parties’
minor child and the Defendant [Skaggs] should receive parenting time
pursuant to this Court’s standard order, with modifications as detailed in
the attached Shared Parenting Plan. The same is hereby incorporated
fully herein as the Order of the Court. * * * 2. The Shared Parenting Plan
attached hereto is hereby approved and incorporated herein in its entirety
with regards to the allocation of parental rights and responsibilities for the
parties’ minor child, that all of its terms and provisions are made the order
of the Court, and that each party is hereby ordered and directed to comply
with all the terms and provisions thereof; * * *.

And, although the court’s earlier decision was incorporated into the final divorce decree,

it contains only the court’s criticisms and objections to the parties’ plans. The decision

has no findings or conclusions as to: (1) whether a shared parenting plan is in the

child’s best interest; (2) whether the court considered the best interest factors in R.C.

3109.04(F)(1)/(2); and (3) the court’s reasons for approving Clifford’s revised shared

parenting plan:

SHARED PARENTING

The child shall reside with plaintiff. Defendant shall have parenting time
according to the Gallia County Common Pleas Standard Order of
Visitation/Parenting Time which shall be modified as follows:
Gallia App. No. 17CA6 23

I. Weekends: Alternate weekends from Friday after school until
Monday when school begins.
II. Weekdays: One weekday from end of school to 8[:]00 pm.
The Court finds that it is in the child’s best interest that he attend Green
Elementary school. He will be living most of the time with his mother.
Attending Green will minimize the time that he spends in transportation.
The Court shall not order a right of first refusal because the Court finds the
procedure cumbersome. If a party cannot be with the child for parenting
time because of work or other valid reason, that party shall have a
reasonable party be with the child.
For example, plaintiff has testified that she and plaintiff’s parents have a
strained relationship. However, she has not presented evidence that the
paternal grandparents do not provide good child care. The Court also
assumes that plaintiff has responsible persons who can provide child care
if she cannot.
Defendant shall provide medical insurance for the child through his
employer. The parties shall each pay one half of the child’s medical,
dental, optical, prescription drug, and hospital expenses not covered by
insurance.
* * *
Plaintiff shall submit his [sic] previously proposed decree and shared
parenting plan to be consistent with this decision on or before January 30,
2017 * * * Plaintiff does not have to repeat the language of the decision
but merely refer to it. * * * Defendant may respond within seven days.
We are unable to determine the court’s reasons for approving Clifford’s revised shared

parenting plan from these findings. In Swain, supra, we held that language stating,

“Upon review of the evidence and the record, the Court finds that it would be in the best

interest of the minor children to adopt [appellee]’s Shared Parenting Plan previously

filed herein” was a mere conclusory statement and was insufficient to comply with R.C.

3109.04(D)(1)(a)(iii) (containing the same statutory requirement concerning findings and

conclusions as subpart (ii) of that section). Id. at ¶ 19. Here, the court did not make

even a conclusory statement that the shared parenting plan was in the best interest of
Gallia App. No. 17CA6 24

the child and there is nothing in either the decision or the decree that indicates that the

court considered the best interest factors in R.C. 3109.04(F)(1)/(2).6

{¶48} We sustain Skaggs’s fourth assignment of error. Because our resolution

of this argument renders Skaggs’s argument regarding the manifest weight of the

evidence moot, we will not address it. See App.R. 12(A)(1)(c).

V. CONCLUSION

{¶49} The trial court did not abuse its discretion in ordering Skaggs to

reimburse Clifford for childcare expenses or in awarding spousal and child support in

the amounts it determined appropriate. However, the trial court did not enter R.C.

3109.04(D)(1)(a)(ii) factual findings or conclusions of law, and its reasoning is not

apparent from the record. Therefore, we reverse the trial court’s judgment and remand

so that the court can enter proper factual findings and conclusions of law as to the

reasons it approved Clifford’s revised shared parenting plan.

JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND
CAUSE REMANDED.

6 The decision and divorce decree contain the only portions of the record addressing the shared parenting
plan. The trial court did not make oral findings from the bench at the conclusion of trial, nor were there
magistrate findings. The revised shared parenting plan adopted by the court states only that the parties
find shared parenting to be in the child’s best interest; it is silent as to a best interest finding by the court.
Gallia App. No. 17CA6 25

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART
and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs herein
taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Gallia
County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________
William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.