Blacker v. Blacker, Unpublished Decision (4-30-2004)
Blacker v. Blacker, Unpublished Decision (4-30-2004)
Opinion of the Court
{¶ 13} Bradley Blacker relies on Pitts v. Dept. of Transp.
(1981),
{¶ 14} In overruling Bradley Blacker's motion to dismiss forlack of jurisdiction, the trial court found:
{¶ 15} "Pursuant to timely objections filed by [Scelese Blacker] to a Notice and Order of Emancipation, a mistake of fact hearing should have been conducted prior to the issuance of an entry and order emancipating the minor child. The evidentiary hearing is required to establish whether the child is a disabled child pursuant to Castle v. Castle (1984),
{¶ 16} The first assignment of error is overruled.
{¶ 18} An appellate court may reverse a child support order on a finding of abuse of discretion. Shanyfelt v. Shanyfelt
(1997),
{¶ 19} The common law duty imposed on parents to support their minor child terminates when the child is emancipated upon reaching the age of majority. However, the duty may continue beyond the age of majority if the child is unable to support himself due to mental or physical disabilities which existed before he or she attained the age of majority. Castle v.Castle. The domestic relations court retains jurisdiction over parties in a divorce, dissolution or separation proceeding to continue or to modify support payments for a mentally or physically disabled child who was so disabled before he or she attained the statutory age of majority, as if the child were still an infant. Id. at paragraph two of the syllabus.
{¶ 20} We have previously found that a child who was developmentally impaired since birth and had graduated from high school was a Castle child even though she was making progress towards self sufficiency. Johnson v. Johnson (June 8, 1990), Mont. App. No. 11779.
{¶ 21} The trial court reviewed the transcript of thetestimony before the magistrate and concluded that, while Heathis making progress towards self sufficiency, "he is not able tosupport himself at this time." (Decision and Judgment at 4.)Accordingly, the trial court ordered Bradley Blacker to continuepaying child support until the court determines that Heath isable to support himself. {¶ 22} The trial court's decision states in part: {¶ 23} "Based on the testimony and evidence admitted at trial,the Court finds that Heath is developmentally impaired sincebirth due to a brain abnormality. At the September 19, 2002hearing, [Scelese Blacker] introduced correspondence from theMiami County Board of Mental Retardation and DevelopmentDisabilities ("MMRD") dated July 30, 2002. Plaintiff Exhibit 2.In that Exhibit, MMRD refers to an evaluation conducted in 1999by Dr. Robert Hardman which states that the child suffers frombrain damage. The letter further states that MMRD administeredthe Ohio Eligibility Determination Instrument to measuresubstantial functional limitations of the child. PlaintiffExhibit 1. Heath was determined to have limitations in six ofseven specific areas. Those area include mobility, receptive andexpressive language, self care, self direction, capacity forindependent living, and economic self sufficiency. The exhibitswere admitted into evidence without objection. {¶ 24} "The parties testified that Heath graduated from highschool in June 2002. He passed the state proficiency tests.However, the tests were not timed and were administered in anindividualized setting. He was allowed to have questions orallyread to him. Heath passed the test for a `special education'student. {¶ 25} "Heath presently lives with [Scelese Blacker]. Ondirect examination by the Court, [she] testified that it would bevery difficult for Heath to live by himself. He must be remindedevery morning to care for his personal hygiene. He has limitedability to prepare breakfast but could not prepare his owndinner. He is not able to provide his own transportation. Hecannot set the alarm clock in order to get to work timely.[Scelese Blacker's] testimony was unrefuted. {¶ 26} "The court finds that Heath is currently employed, fulltime, as a bagger at Krogers. The Miami County Board ofVocational Rehabilitation assisted in finding and training Heathfor the job. The Board first sought potential employmentopportunities for Heath, met with the employer and discussedHeath's limitations. They then asked Heath if he would beinterested in the position. [Scelese Blacker] testified thatdoctors have restricted Heath from stocking duties because he istoo uncoordinated as a result of his brain damage. This testimonywas unrefuted by Bradley Blacker. {¶ 27} "* * * {¶ 28} "In the instant case, the Court finds that Heathsuffers from neurological brain damage. He has significant mentaland physical disabilities. Even though he has graduated from highschool and is employed, albeit as a grocery store bagger, he isnot able to support himself at this time, The court finds thatHeath is making progress toward self-sufficiency. . . . Untilthat time, child support shall continue subject to further orderof this Court." (Decision and Judgement, 3-4.)
{¶ 29} The issue the court was required to determine was whether Bradley Blacker's duty of support should continue after his child had reached his majority and graduated from high school. Per Castle, the court was required to find that the child disabilities are sufficiently profound to impair his capacity to support himself, that they existed before he reached the age of majority, and that the obligor is able to provide such support.
{¶ 30} Bradley Blacker doesn't argue that he is unable to pay.Neither is it disputed that Heath's disabilities existed longbefore he reached the age of majority. Bradley Blacker arguesthat Health's disabilities are not sufficient to prevent him fromsupporting himself.
{¶ 31} We agree that Heath's disabilities are not as profound as the disabilities suffered by the child in Castle. Heath earns a modest income, and may be able to earn more as he grows in age and experience. However, and at this time, the record shows significant defects in relation to the needs that a self-sufficient life imposes, even for young persons of Heath's age. We cannot find that the trial court abused its discretion when it ordered Bradley Blacker's duty of support to continue; that is, that the court's attitude in the matter was unreasonable, arbitrary or unconscionable. Blakemore. {¶ 32} The second assignment of error is overruled. {¶ 33} Having overruled both of Bradley Blacker's assignmentsof error, we will affirm the decision of the trial court. Judgment affirmed. Brogan and Wolff, JJ., concur.
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