Conder-Slifko v. Slifko, Unpublished Decision (6-8-2005)
Conder-Slifko v. Slifko, Unpublished Decision (6-8-2005)
Opinion of the Court
{¶ 2} Appellant and appellee were married in 1996. They have one child of the marriage, Molly, born in 1997. On February 24, 2003, appellee filed a complaint for divorce. Appellant filed an answer and counterclaim on April 17, 2003.
{¶ 3} The parties worked out a shared parenting plan and resolved many of the marital property and debt issues prior to trial. The case came on for final hearing before a magistrate on March 18, 2004. Appellant thereafter filed an objection to the decision of the magistrate on the issues of child support deviation, the award of appellee's credit union account, and the award of a horse trailer to appellee. The court overruled the objections and adopted the magistrate's decision.
{¶ 4} Appellant timely filed a notice of appeal, and herein raises the following three Assignments of Error:
{¶ 5} "I. When the parties enter into a shared parenting plan that provides for an equal amount of parenting time the best interests of the child are served by applying a Weinberger-Type offset to establish what child support, if any, should be paid.
{¶ 6} "II. The trial court's division of the credit union and vacation accounts was against the manifest weight of the evidence and was inequitable because it did not divide those assets equally.
{¶ 7} "III. Failure to conduct a supplemental hearing, pursuant to appellant's timely objection, was error when it resulted in the court changing the terms of a mediated property settlement agreement."
{¶ 9} Child support in shared parenting situations is addressed in R.C.
{¶ 10} "(A)(1) A court that issues a shared parenting order in accordance with section
{¶ 11} "(2) The court shall consider extraordinary circumstances and other factors or criteria if it deviates from the amount described in division (A)(1) of this section and shall enter in the journal the amount described in division (A)(1) of this section its determination that the amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting its determination."
{¶ 12} We have previously held that under Ohio's statutory scheme, a trial court maintains the discretion whether to accommodate the best interests of children under shared parenting plans by applying either aWeinberger-type offset formula1 or rendering a support order using the "calculation with deviations" method. Walker v. Walker, Delaware App. No. 02CAF04019, 2002-Ohio-5293, ¶ 29-30, citing French v. Burkhart
(May 22, 2000), Delaware App. No. 99CAF07038. Weinberger has not been expressly rejected in Ohio, but as we discussed in Musselman v.Musselman (Nov. 20, 2001), Muskingum App. No. CT2001-0006, its ongoing reliability in regard to "offsetting" child support obligations for shared parenting orders is questionable following the Ohio Supreme Court's decision in Hubin v. Hubin (2001),
{¶ 13} In the case sub judice, the court applied a downward deviation from the guidelines of approximately twenty percent to arrive at a child support figure of $436.19 per month. Appellant challenges the court's figure as arbitrary, and proposes an amount of $166.87 per month under aWeinberger formula. We nonetheless note the magistrate considered the factors under R.C.
{¶ 14} Based upon our review of the record and the pertinent statutory factors, we are unpersuaded the trial court abused its discretion in setting child support under the shared parenting order and in implicitly declining to utilize a Weinberger offset.
{¶ 15} Accordingly, appellant's First Assignment of Error is overruled.
{¶ 17} The thrust of appellant's argument relates to the court's decision to award appellee a credit union account, versus the award to appellant of a "vacation account" of a much lesser value. The magistrate concluded, and appellant does not presently dispute, that as of the date of the complaint for divorce, $18, 719.12 of the credit union account was marital property. The entire credit union account was nonetheless awarded to appellee.2 In contrast, appellant asserts the "vacation account" at National City Bank, which he was awarded, was only worth approximately $500, at least as of the date of the magistrate's hearing.
{¶ 18} An appellate court generally reviews the overall appropriateness of the trial court's property division in divorce proceedings under an abuse of discretion standard. Cherry v. Cherry
(1981),
{¶ 19} R.C.
{¶ 20} As an appellate court, we generally review a trial court's property division in its entirety, rather than examining individual awards in a piece-meal fashion. Espenschied v. Espenschied, Tuscarawas App. No. 2002AP030021, 2002-Ohio-5119, ¶ 19, citing Briganti v. Briganti (1984),
{¶ 21} "The Magistrate finds that husband had an existing Vacation Account in which money was direct deposited each week from his payroll check during the course of the marriage. The Magistrate further finds that husband failed to disclose the Vacation Account in response to interrogatories requested by Wife's Counsel. Neither was Husband forthcoming with bank records when requested. Bank records were only obtained after the Magistrate delayed the hearing this a.m. so that Husband could go to the bank for a copy. The hearing was further delayed when Husband returned without sufficient documentation. Defendant's Exhibit 2 3 were then obtained after Counsel for Husband returned to the bank with Husband to obtain the records. However, a review of those records shows that they only go back to June, 2000. Testimony established that Husband had a "vacation account" throughout the marriage.
{¶ 22} "The Magistrate finds that Husband has committed financial misconduct by attempting to conceal this asset and by failing to fully disclose the asset when it was brought to the attention of both counsel and this court. Defendant's Ex 5, the only payroll stub that Husband provided, shows $108 was deposited to the vacation account. He was paid weekly. Therefore, the Magistrate finds that the balance of Husband's vacation account is equal to the Wife's Credit Union Account as they deposited nearly the same amount per month from their payroll checks into these separate accounts during the duration for the marriage. (Husband at $108 weekly; Wife at $200 biweekly.)" Magistrate's Decision at para. 18 and 19.
{¶ 23} R.C.
{¶ 24} Accordingly, appellant's Second Assignment of Error is overruled.
{¶ 26} Civ.R. 53(E)(4)(b) specifies that upon objection to the magistrate's decision, "[t]he court may adopt, reject, or modify the magistrate's decision, hear additional evidence, recommit the matter to the magistrate with instructions, or hear the matter." Thus, the court has discretion to decide whether to hear additional evidence after the parties submit objections to the magistrate's decision. Wallace v. Taylor
(April 16, 2001) Licking App. No. 00CA71, citing Normandy Place Assoc.v. Beyer (1982),
{¶ 27} In the case sub judice, appellant made no significant attempt to proffer or demonstrate that he could not have produced the necessary promissory notes regarding the horse trailer at issue. Furthermore, appellant admitted, and the magistrate found, that appellant had responded to appellee's interrogatories by claiming that the National City bank debt was for his truck and boat, not the horse trailer. At trial, he attempted to change his answers, which the magistrate found not credible. Magistrate's Decision at para. 20. The magistrate's hearing further provided testimony that the trailer was a gift to appellee for her fortieth birthday. Tr. at 112-113.
{¶ 28} We therefore find no error or abuse of discretion in the trial court's handling of the objection to the magistrate's decision. Appellant's Third Assignment of Error is overruled.
{¶ 29} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Guernsey County, Ohio, is hereby affirmed.
Wise, J., Farmer, P.J., and Edwards, J., concur.
Costs to appellant.
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