[Cite as Hahn v. Hahn,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96984

LISA M. HAHN PLAINTIFF-APPELLEE

vs.

WILLIAM K. HAHN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. CP-D-304819

BEFORE: E. Gallagher, J., Blackmon, A.J., and Stewart, J.

RELEASED AND JOURNALIZED: February 16, 2012

ATTORNEYS FOR APPELLANT 2

Joseph G. Stafford Gregory J. Moore Stafford & Stafford Co., L.P.A. 55 Erieview Plaza, 5th Floor Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE

Gary S. Okin Dworken & Bernstein Co., L.P.A. 60 South Park Place Painesville, Ohio 44077

EILEEN A. GALLAGHER, J.:

{¶1} William K. Hahn (“William”) appeals from the trial court’s decision,

wherein objections filed by Lisa K. Hahn (“Lisa”), were sustained, in part, and which

also modified the order of the magistrate issued July 19, 2010. William argues the trial

court abused its discretion in computing the child support amount, in failing to terminate

that child support order, in failing to order Lisa to pay child support, in calculating the

parties’ income, and that the trial court’s decision is against the manifest weight of the

evidence. Finding no merit to this appeal, we affirm the decision of the trial court.

{¶2} The parties were married August 15, 1987 and two children were born as

issue of the marriage, E.W.H., (d.o.b. 12/28/93) and J.T.H., (d.o.b. 1/4/97). On May 17,

2005, Lisa filed for divorce from William, citing incompatibility. On May 21, 2007, the 3

trial court granted the parties a judgment entry of divorce, which provided for shared

parenting and incorporated a shared parenting plan. The judgment entry of divorce

required William to pay to Lisa $1,000 per month, plus a two percent processing fee for

the support of their two children; $3,000 per month, plus a two percent processing fee, in

spousal support for a period of five years; and health insurance for the minor children.

{¶3} On February 26, 2009, William filed a series of motions with the trial court

seeking the following: (1) the enforcement of the parties’ judgment entry of divorce;

(2) the modification of the parental rights and responsibilities of the parties’ two minor

children; (3) the modification of child support obligations; and (4) reimbursement of

expenses relating to the children. Each of the above-filed motions contained a request

for attorney fees, which was later withdrawn.

{¶4} The parties were unable to come to a resolution and the matter went to trial

before a magistrate on March 2, 2010. On March 3, 2010, the parties reached an

agreement resolving all issues relating to William’s motion to modify parental rights and

responsibilities. The parties agreed to modify the shared parenting plan to increase

William’s parenting time to equal that of Lisa’s. In addition, the parties set forth

specific details concerning which parent would receive the children on their birthdays

and holidays. Further, the parties modified the shared parenting agreement to account

for the minor children’s extensive involvement with competitive and recreational skiing

for which William agreed to be responsible. 4

{¶5} The remainder of the trial continued on March 9, 2010 and the parties filed

closing arguments with the court. On July 19, 2010, the magistrate issued his decision.

{¶6} The magistrate granted William’s motion to modify parental rights and

responsibilities and incorporated the parties’ modified shared parenting agreement as

outlined above, into the decision.

{¶7} With respect to William’s motion to modify child support, it was alleged

during trial by William that there did exist numerous changes in circumstances

warranting a modification of the court’s previous child support order. He did

demonstrate that Lisa’s income rose from $40,000 at the time of divorce to $74,067 in

2009; that she could provide health insurance for the children for $2,727 annually, while

his annual expense to provide health insurance was $6,060 annually; that his parenting

time now equals that of Lisa’s and that he provides for all the expenses of the children’s

competitive and recreational skiing, which exceeded $5,600 per year.

{¶8} The magistrate agreed with William’s arguments and determined that

based on the foregoing, a substantial change in circumstances existed to warrant the

modification of the child support obligation and granted the motion to modify. The

court determined Lisa’s 2009 income to be $74,067 in addition to $36,000 in spousal

support for a total income of $108,586 (after the deduction of local taxes) and

determined William’s income to be $191,393, from which he paid to Lisa $36,000 in

spousal support, for a total income in 2009 of $151,565 (after the deduction of local 5

taxes). The court noted that while the child support obligation of $1,020 per month for

both children represents a significant downward derivation from that outlined in R.C.

3119.04(B), the amount was agreed to by the parties, whose motivations at arriving at

that amount were unknown to the court. The decision also reflected the changed

parenting schedule, the changed health insurance abilities of the parties, and that William

paid all costs for the children’s recreational and competitive skiing on his own.

{¶9} With respect to the children’s skiing, it was found that the minor children’s

standard of living certainly would have included both competitive and recreational skiing

had the parties remained married. Lisa testified that she wanted the children to ski but

did not want to contribute to the cost of said skiing. Consequently, the magistrate found

that, pursuant to R.C. 3119.04(B), the annual cost of the children’s participation in skiing

should be considered child support and that William should be given a credit for that

expense that was $5,600 annually. That figure was compared with the child support

guidelines, which provide for a basic combined support obligation of $21,971. The

decision reflected no need to upwardly depart from that amount because the parties had

agreed that all of the needs of the children were being met. According to the

magistrate, in conjunction with the child support guidelines, William’s annual child

support obligation equaled $5,230. When credited with the payment of the ski expenses

in the amount of $5,600, it was determined that no further child support should be

exchanged between the parties. 6

{¶10} Lastly, the magistrate determined that because Lisa could provide health

insurance for the children at a significantly discounted rate than William was able to

provide, Lisa would be required to provide the hospitalization from that point onward.

{¶11} William’s motion for reimbursement for the money that he spent on his

minor children, the majority of which allowed the children to continue skiing was

denied. The magistrate found that his willingness to exceed his legal child support

responsibility to be laudable, but also voluntary. The parties’ shared parenting

agreement, up until that time, did not provide for any responsibility to pay for ski

expenses. As such, William was not entitled to further reimbursement of those funds

already expended.

{¶12} After listening to the testimony of the parties, the magistrate determined

that Lisa had failed to provide certain items of personal property to which William was

entitled pursuant to the judgment entry of divorce, found her in contempt of the court’s

previous order, and sentenced her to 30 days in jail but provided her with the opportunity

to purge the order of contempt.

{¶13} On October 18, 2010, Lisa filed a series of objections to the magistrate’s

decision, all of which related to the decision on William’s motion to modify child

support. On December 17, 2010, William filed his response to the objections but did

not submit any of his own objections to the magistrate’s decision.

{¶14} On June 6, 2011, the court issued its decision, adopting the magistrate’s 7

decision, in part, and sustaining Lisa’s objections, in part. The court noted that the

objections related solely to William’s motion to modify child support and adopted the

magistrate’s findings on all other portions of the decision. The court overruled the first

objection and determined that the change in availability of health care at such a reduced

rate alone, constituted a substantial change in circumstances that warranted a

modification of child support.

{¶15} The remaining four objections to the magistrate’s decision that related to

the manner in which the magistrate calculated the parties’ support obligations, were dealt

with contemporaneously. The court found the magistrate’s findings regarding the income

of the parties to be supported by the testimony and overruled those portions of the

objections.

{¶16} The court analyzed the magistrate’s decision regarding the child support

obligation and determined that the magistrate’s calculations were erroneous. The

present child support obligation was set at $1,020 per month by agreement of the parties,

but with no explanation for the downward deviation. In his decision, the magistrate

calculated the parties’ combined child support obligation at $21,971 annually without

making any adjustment despite the fact that the parties’ combined income exceeded

$150,000. The magistrate then adjusted William’s obligation downward because the

parties had equal parenting time. This resulted in the magistrate’s calculation of

William’s child support obligation at $5,230 per year, or $435.93 per month, per child. 8

The magistrate next found that the children’s standard of living included skiing, the cost

of which was approximately $5,600 per year, which was paid solely by William. The

magistrate found that there was no agreement in the parties’ shared parenting plan or

otherwise for payment of the annual ski-related expenses and William’s willingness to

pay these expenses was voluntary as Lisa was not willing to contribute to that cost and

nothing in the prior order allocated any portion of that cost to her. Despite these

findings, the magistrate offset the entire $5,600 cost against William’s child support

obligation, which he had already adjusted downward for equal parenting time. As stated

above, the court found error with these calculations.

{¶17} The trial court recalculated the parties’ child support obligations and noted

that because the parties’ combined incomes exceeded $150,000, the court must consider

the standard of living of the children to determine an appropriate amount of child

support. See R.C. 3119.04. The court determined that if the marginal rate of 10.5%

were applied to the excess income, the total combined support obligation is increased to

$33,537, with William’s child support obligation being $21,128 annually or $1,760.67

monthly. The court found that child support should be calculated at this amount, then

found it appropriate to deviate downward from this amount to account for his increased

parenting time and contributions towards the children’s skiing activities. The court

found it to be in the children’s best interest for William’s child support obligation to be

adjusted downward by $9,128 annually, resulting in a child support obligation of $1,000 9

per month for both children. Thus, the court sustained Lisa’s objections, in part, and

modified the magistrate’s order by denying William’s motion to modify child support, in

part, and granting it, in part, only to the extent that Lisa be required to provide health

insurance for the minor children. It is from this order that William appeals,

raising the three assignments of error contained in the appendix to this opinion.

{¶18} In his first assignment of error, appellant argues that the trial court “erred

and abused its discretion in calculating the child support order; and by failing to

terminate the appellant’s spousal [child] 1 obligation and/or by failing to order the

Appellee to pay child support to the Appellant.” In his second assignment of error,

William claims the trial court “erred and abused its discretion in determining the parties’

incomes.”

{¶19} Appellant combines the analysis of his first and second assignments of

error and this Court will do likewise.

{¶20} Primarily, we note that appellant has impermissibly raised the following

arguments: the trial court erred in its calculation of the parties’ income, and that the court

erred in failing to order Lisa to pay child support to William. Civ.R. 53(D)(3)(b)(iv)

provides as follows:

1 Although William’s first assignment of error refers to the termination of his spousal support obligation, the body of his appeal refers to the termination of his child support obligation. As such, we can assume the inclusion of the word “spousal” was an error. 10

Except for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).

{¶21} From the record, it is clear that not only did appellant fail to object to the

portions of the magistrate’s decision concerning the parties’ respective incomes and the

order of child support, William failed to object to any portion of the magistrate’s

decision. Accordingly, absent this court’s determination that plain error exists, he is

now precluded from raising these arguments now on appeal. Upon careful review of

this case, we do not find that appellant has demonstrated that this is an extremely rare

case where exceptional circumstances exist that require application of the plain error

doctrine. Woodworking Shop, LLC v. Shay, 12th Dist. No. CA2009-298,

. Accordingly, this portion of William’s first assignment of error, and

his second assignment of error are overruled.

{¶22} We limit our analysis to William’s arguments that the trial court abused its

discretion in calculating the child support obligation and in failing to terminate his child

support obligation.

{¶23} When reviewing matters related to child support, we apply an abuse of

discretion standard. Walk v. Bryant, 4th Dist. No. 03CA7,

,

; Kapadia v. Kapadia, 8th Dist. No. 94456,

,

. 11

{¶24} On a plain reading of the child support statute, R.C. Chapter 3119, we

begin by noting that the applicable provisions set forth the procedure for determining the

appropriate child support obligations based on three distinct tiers of the parties’ annual

aggregate gross income: (1) less than $6,600; (2) between $6,600 and $150,000; and (3)

greater than $150,000. For the third tier, which is applicable to the instant case, the

court determines the appropriate child support on a case-by-case basis, and is not

required to apply the calculation worksheet. R.C. 3119.04(B). Use of the worksheet in

this tier is directed to calculating a hypothetical child support amount that is equivalent

to the amount an obligor would pay if the couple had an aggregate gross income of

$150,000 or more. In this third tier, the court is bound by three requirements: (1) set the

child support amount based on the qualitative needs and standard of living of the

children and parents; (2) ensure that the amount set is not less than the

$150,000-equivalent, unless awarding the $150,000- equivalent would be inappropriate

(i.e., would be too much); and (3) if it decides the $150,000-equivalent is inappropriate

or unjust (i.e., awards less), then journalize the justification for that decision. R.C.

3119.04(B). See also Zeitler v. Zeitler, 9th Dist. No. 04CA008444,

,

; Kapadia.

{¶25} Because we review the application of this statute for abuse of discretion,

we need only find a reasonable theory for the trial court’s conduct, and conclude that the

decision was not unreasonable, arbitrary, or unconscionable. Kapadia. Thus, we 12

review each of R.C. 3119.04(B)’s three requirements. In the present case, the trial court

compiled the evidence and testimony and, considering the needs and standard of living,

set an amount of child support. From the record, we can glean that the court determined

the amount of child support at $33,537, with appellant’s child support obligation set at

$21,128 annually, or $1,760.67 monthly. The trial court also determined the

$150,000-equivalent to be the same as the above. However, the court found the

$150,000-equivalent as calculated pursuant to the schedule, not just or appropriate, and

not in the best interest of the children. The court found a reason for a downward

deviation from application of the schedule and awarded child support in the amount of

$1,000 per month. In downwardly deviating from the schedule amount, the court issued

findings, crediting William with his increased parenting time as well as his contributions

towards the children’s skiing activities. Accordingly, the court also complied with the

third factor of R.C. 3119.04(B).

{¶26} Notwithstanding the foregoing, appellant argues that the trial court erred

when it recalculated the child support amount and when it failed to terminate his child

support obligation. Appellant argues that the trial court erred when it did not take into

account the full amount he paid towards the children’s skiing activities and that the court

failed to sufficiently explain its calculations and departure from the magistrate’s

decision. He offers no authority, however, to this court as to why these arguments

constitute a valid attack on the court’s calculations but for the fact that he did not agree 13

with the amount of child support ordered by the court. We find the court’s rationale

easy to follow and well-supported by the applicable statutory and case law.

{¶27} Based on the foregoing, we find that the trial court’s child support

determination complies with the bounds of the law and is supported by competent

credible evidence.

{¶28} The appellant’s first and second assignments of error are overruled. {¶29} In his third and final assignment of error, William argues that the trial

court’s decision is against the manifest weight of the evidence. However, in putting

forth this assigned error, he fails to identify how the trial court’s decision is against the

manifest weight of the evidence. Appellant merely incorporates the remainder of his

appellate brief as support for this assigned error, a failure that allows this court to

disregard his argument. See App.R. 12(A)(2); App.R. 16(A)(7). “If an argument exists

that can support this assigned error, it is not this court’s duty to root it out.” Cardone v.

Cardone (May 6, 1998), 9th Dist. Nos. 18349 and 18673,

.

{¶30} We have already determined that appellant’s arguments, as set forth in the

remainder of his brief, are without merit. Thus, we overrule his final assignment of

error.

{¶31} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. 14

It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, A.J., and MELODY J. STEWART, J., CONCUR