Guthmann v. Spence, Unpublished Decision (2-22-2001)
Guthmann v. Spence, Unpublished Decision (2-22-2001)
Opinion of the Court
OPINION
On January 9, 1998, appellee, John E. Guthmann, filed a complaint to determine parentage and establish a parent/child relationship with Phelicia Guthmann born May 24, 1994. Mother of the child is appellant, Julie Spence. Subsequent testing determined that appellee had a 99.94% probability of being the biological father of the child. On July 14, 1998, appellee filed a request for trial to establish orders such as child support and parental rights. A hearing before a magistrate was held on August 10, 1998. By decision filed December 3, 1998, the magistrate established a parent/child relationship between the child and appellee, set child support and established a visitation schedule. Both parties filed objections to the decision. Upon review, the trial court remanded the matter to the magistrate for further information regarding appellee's driving privileges. By memorandum to the court filed February 16, 1999, the magistrate informed the trial court that appellee had full driving privileges. During the pendency of the objections before the trial court, appellant relocated with the child to North Carolina. As a result, on March 4, 1999, appellee filed a motion to supplement the record. By judgment entry filed April 7, 1999, the trial court granted the request and remanded the matter back to the magistrate to hear additional evidence in light of appellant's move to North Carolina. Hearings were held on June 25, 1999 and August 14, 1999. By decision filed September 28, 1999, the magistrate set forth a revised child support order and visitation schedule. Both parties filed objections to the decision. On August 8, 2000, the trial court issued an opinion regarding the parties' respective objections. A final judgment entry was filed on September 12, 2000. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:I. THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT APPELLANT'S REQUEST TO CHANGE THE CHILD'S NAME.
II. THE TRIAL COURT ERRED WHEN IT ORDERED APPELLANT TO PROVIDE OR REIMBURSE APPELLEE FOR TRAVEL EXPENSES AND/OR GRANTED APPELLEE A DEVIATION FROM THE CHILD SUPPORT GUIDELINES AMOUNT.
III. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE UNRESTRICTED VISITATION.
IV. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT THE RIGHT TO PRESENT ADDITIONAL EVIDENCE AFTER THE MAGISTRATE OBTAINED EX PARTE COMMUNICATIONS REGARDING APPELLEE'S DRIVING PRIVILEGES.
V. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE THE RIGHT TO CLAIM THE CHILD FOR INCOME TAX EXEMPTION PURPOSES AND REQUIRING APPELLANT TO AMEND HER TAX RETURN.
Because this issue must be decided on a case by case basis, the trial court's decision will not be reversed absent an abuse of discretion. In re Jane Doe 1 (1990),
The effective date of the child support order of $155.25 per month plus processing costs shall be one week after the filing date of the entry.
The Court determines that in view of the plaintiff's inability to have parenting times without the cost of traveling to North Carolina, the child support order must have a deviation. The $250.00 per month for travel and phone expenses are reasonable.
For those periods where defendant is required to travel to Ohio, the plaintiff shall be required to pay the one-third. Any monies paid less than $250.00 shall be sent to the defendant directly unless the defendant does not make the child available and, in that case, no monies will be sent to defendant by plaintiff.
For example, if plaintiff's travel expenses to North Carolina total $250.00 or more, no monies will be sent. If they are $210.00, he would send forty dollars. If defendant's travel expenses total $420.00 and plaintiff is responsible for one-third or $140.00, he will forward $110.00 to defendant in addition to the child support order. Again unless defendant fails to make the child available.
Upon review, we cannot find such a detailed explanation as given by the trial court in conjunction with a six month review was an abuse of discretion nor a violation of Marker v. Grimm (1992),
In its opinion filed August 8, 2000, the trial court further addressed the issue by providing for supervised visitations and counseling: Therefore the Court directs that this Court's Investigator shall contact the North Carolina authorities and see if there is a private agency that can stand in as a supervisory authority so that the plaintiff may travel to North Carolina to see the child. The costs of travel and supervision shall be paid by the plaintiff. If no agency is available, the plaintiff's mother should be the supervisor.
Upon review, we concur with the trial court's moderation in setting a year of supervised visitations. If any issues arise, the trial court has retained sufficient control over the matter to address further visitations. Assignment of Error III is denied.
Appellant argues the magistrate did not give her an opportunity to cross-examine any witnesses nor to delve into any inconsistencies in appellee's statements and the truth of the matter concerning appellee's driving privileges. Although all of appellant's assertions are correct, we fail to find any undue prejudice to appellant nor any abuse of discretion. As noted supra, the trial court permitted supervised visitations for one year. If any issues arise as to driving privileges, they can be addressed by the supervisor of the visitations or by further recourse to the trial court. Assignment of Error IV is denied.
Because the trial court did not engage in the analysis required by Singer, we find the trial court erred in granting the tax exemption to appellee. Assignment of Error V is granted. The judgment of the Court of Common Pleas of Licking County, Ohio, Domestic Relations Division is hereby affirmed in part, reversed in part and remanded.
Farmer, J. Edwards, P.J. and Gwin, J. concur.
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