Graham v. Graham, Unpublished Decision (3-7-2003)
Graham v. Graham, Unpublished Decision (3-7-2003)
Opinion of the Court
{¶ 2} Appellant and appellee were granted a divorce by the trial court in a judgment entry journalized on February 27, 2001. As part of the proceedings, the parties entered into a shared parenting agreement with regards to the care and custody of their three children. It is important to note, that, pursuant to R.C.
{¶ 3} Appellant subsequently filed a motion to modify child support on July 25, 2001. Appellant cited an increase in appellee's income as the reason for filing the motion. A hearing on the motion was held before the magistrate on December 3, 2001. At the hearing, the record indicates that appellee presented uncontroverted testimony that the deviation originally agreed upon was the result of extended parenting time granted appellee in the shared parenting agreement. In her decision on December 5, 2001, the magistrate increased appellee's child support payments from $166.66 to $197 per month, per child, noting that while appellee's income had increased, the downward deviation originally agreed upon in the shared parenting plan was still applicable. The trial court adopted the magistrate's decision on January 28, 2002. This timely appeal followed, and appellant asserts two assignments of error for our review:
{¶ 4} "[1.] The trial court erred by failing to Strictly [sic] comply with Section
{¶ 5} "[2.] The trial court erred and abused its discretion by applying a prior verbal agreement to a downward deviation in child support where the appellant rejected the prior agreement by filing a motion to modify child support and the marginally extended parenting time does not justify the amount of the deviation."
{¶ 6} In her first assignment of error, appellant argues that the trial failed to comply with the mandatory requirements of R.C.
{¶ 7} The requirements of R.C.
{¶ 8} Under the mandate of R.C.
{¶ 9} While use of the judiciary's time and resources is of great concern, the requirements of R.C.
{¶ 10} Although we hold that appellant's first assignment of error possesses merit, we proceed to address the second assignment of error for purposes of remand.
{¶ 11} In her second assignment of error, appellant claims that the trial court abused its discretion in applying a previously agreed upon deviation. In reviewing matters concerning child support deviation, the decision of the trial court should not be overturned absent an abuse of discretion. Booth v. Booth (1989),
{¶ 12} As previously mentioned, appellee testified at the magistrate's hearing that the $5,946.53 downward deviation was agreed upon by the parties due to the extended parenting time appellee had with the children. This testimony was uncontested and uncontroverted by appellant. The $5,946.53 downward deviation was entered on the appropriate line of the child support worksheet, signed and dated by both parties on February 23, 2001, and incorporated in to the shared parenting plan via article 7 of the agreement. As a result, the deviation amount became incorporated into the shared parenting plan. We also note that the original shared parenting plan was never appealed.
{¶ 13} A shared parenting plan is a contract if adopted by the court. See Harbottle v. Harbottle, 9th Dist. No. 20897, 2002-Ohio-4859, 2002 Ohio App. LEXIS 4906; Boldt v. Boldt (Dec. 9, 1998), 9th Dist. No. 18736, 1998 Ohio App. LEXIS 5854. Thus, in interpreting and enforcing provisions of a shared parenting plan, a court must follow the rules of contract construction and interpret the shared parenting plan "so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." Skivolocki v. East Ohio Gas Co. (1974),
{¶ 14} As noted in the magistrate's findings of fact, the original shared parenting plan was silent as to the reasons behind the deviation. However, appellee presented uncontroverted testimony at the December 3rd hearing that the reason for the deviation was due to his extended parenting time with the children. R.C.
{¶ 15} The evidence is uncontroverted that the parties assigned a value of $5,946.53 to appellee's extended parenting time with the children. This amount was agreed upon and unambiguously incorporated into the parties' original shared parenting agreement as adopted by the court. We also find it important to note that neither party filed a motion to modify the original shared parenting agreement until the present. At the time of appellant's motion to modify child support, the original terms and conditions with respect to the agreed upon deviation had not changed. Thus, the trial court was bound to enforce the contractual agreement between the parties in this case. As noted in the trial court's judgment entry, the "deviation from the guideline child support amount is as valid now as it was at the time the parties entered into their shared parenting agreement."
{¶ 16} The record establishes that the deviation was agreed upon by both parties and incorporated into the terms of a shared parenting plan. Indeed, appellant admits in her objections to the magistrate's decision that the deviation was an agreed part of the shared parenting plan. As a result, we hold that the trial court did not abuse its discretion in enforcing the terms of the shared parenting agreement for the purposes of calculating appellee's child support. Appellant's second assignment of error is without merit.
{¶ 17} Based on the foregoing analysis, we remand the case to the trial court based on our conclusion that it did not include the mandatory elements outlined in R.C.
DONALD R. FORD and JUDITH A. CHRISTLEY, JJ., concur.
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