Musselman v. Musselman, Unpublished Decision (11-20-2001)
Musselman v. Musselman, Unpublished Decision (11-20-2001)
Opinion of the Court
Appellant and appellee were married in Florida in 1989. Three children were born as issue of the marriage. On March 2, 2000, appellee filed a complaint for divorce, to which appellant responded with an answer and counterclaim. The matter proceeded to trial before a magistrate on September 20, 2000. The parties presented to the magistrate a separation agreement in which they agreed to the division of their marital assets and debts, and settled the issue of spousal support. The parties further provided to the court a shared parenting plan, but submitted the issue of child support for the court's review. The plan's stipulations were summarized by the magistrate as follows:
Dennis Musselman shall parent with the minor children of the parties in accordance with this court's Standard Order of Visitation except that instead of mid-week parenting time, Dennis Musselman shall parent with the minor children every Tuesday, Wednesday and Thursday evening from 4:00 p.m. until 8:00 p.m. and that Dennis Musselman shall parent with the minor children of the parties for two weeks out of the summer instead of five weeks. Janelle Musselman shall parent with the minor children of the parties at all times that Dennis Musselman is not parenting with the minor children.
Amended Magistrate's Decision at 1.
Based on the parties' respective incomes and appellee's annual child care expenses, the annual support obligation of appellant, per line 24 of the worksheet, is $8169, or $226.92 per month per child, while appellee's is $5353, or $148.69 per month per child. On October 25, 2000, the magistrate issued an amended decision recommending child support to be paid by appellant in the amount of $219.45 per month per child, effectively designating appellee as the obligee parent and slightly deviating from appellant's guideline obligation. Appellant objected to the decision of the magistrate; however, the trial court overruled the objections in a judgment entry filed December 28, 2000.
On January 23, 2001, appellant filed a notice of appeal, and herein raises the following two Assignments of Error:
I. BOTH PARENTS, IN A SHARED PARENTING CASE, ARE REQUIRED TO PAY CHILD SUPPORT AS CALCULATED IN THE CHILD SUPPORT WORKSHEET, RESULTING IN AN OFFSET OF ONE OBLIGATION FROM THE OTHER.
II. DEVIATION FROM THE SHARED PARENTING SUPPORT GUIDELINES MUST BE SUPPORTED BY FINDINGS OF FACT. ABSENT SUCH FINDINGS, THE CASE SHOULD BE REMANDED TO THE TRIAL COURT.
In Booth v. Booth (1989),
In French v. Burkhart (May 22, 2000), Delaware App. No. 99CAF07038, unreported, we acknowledged the meager nature of legislative directive in specifically addressing shared parenting support orders under the former statutory scheme of R.C.
Appellant's First Assignment of Error is overruled.
To deviate from the child support guidelines in the statute, the trial court must make findings of fact to support the deviation and must find that the statutorily prescribed amount is unjust or inappropriate and not in the best interest of the child. R.C.
R.C.
3113.215 (B)(6) does not provide for an automatic credit in child support obligations under a shared parenting order. However, a trial court may deviate from the amount of child support calculated under R.C.3113.215 if the court finds that the amount of child support would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child. Thus, only after consideration of the extraordinary circumstances of the parents and other factors set forth in R.C.3113.215 (B)(3) may a trial court deviate from the amount of child support listed in line 24 of the worksheet and reduce the obligor's child support obligations accordingly. Rather than requiring an automatic credit in all instances, this method permits a court to make an evaluation on a case-by-case basis and to deviate when it finds it is in the best interest of the child. In this manner, a court is able to take into account the specific facts of each case.
Id. at 2-3.
In reaching the child support figure of $219.45 per month per child, the magistrate in the case sub judice made the following findings:
Janelle Musselman has rebutted the presumption under Section
3113.215 (B)(1) by a preponderance of the evidence. Because the children will be residing primarily with her, the obligation computed by the applicable worksheet, which is $5,353, would be unjust or inappropriate and not in the best interest of the children. Further, it is appropriate that she not pay Dennis Musselman any child support.Dennis Musselman has also rebutted the presumption under Section
3113.215 (B)(1) by a preponderance of the evidence. In addition to the Court's Standard Order of Visitation, Dennis Musselman will be spending an extra two evenings per week with the children wherein he will be providing the children with evening meals. However, Dennis Musselman will only be parenting with the children for two weeks out of the summer instead of five. The Court has computed that Dennis Musselman will be parenting with the minor children 12 days in addition to the court's Standard Order of visitation. The court considered each evening that Dennis Musselman parents with the minor children of the parties as 1/3 of an entire day and discounted for the three weeks during the summer that he is not parenting with the minor children. These facts demonstrate that the amount of the support obligation computed by the applicable worksheet, which is $8,169, would be unjust or inappropriate to (sic) and not in the best interest of the children. Based upon these circumstances, the appropriate amount of Dennis Musselman's child support obligation is $219.45 per month per child.
Amended Magistrate's Decision at 3.
Although appellant's assigned error herein does not raise it as such, appellant first contends that the above findings are not supported by the evidence.2 However, as we have often emphasized, the trier of fact, as opposed to this Court, is in a far better position to weigh the credibility of witnesses. State v. DeHass (1967),
Appellant further challenges, citing French, the trial court's decision as lacking the requisite factual findings to warrant a deviation, resulting in an effective circumvention of the statute. However, our reason for remanding for further findings in French was our concern that the trial court had merely broadly invoked the "other factors" portion of R.C.
Costs to appellant.
Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. John F. Boggins, J. concur.
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