[Cite as In re R.H.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: R.H. : : : C.A. CASE NO. 26899 : : T.C. NO. 2010-4894 : : (Civil appeal from Common : Pleas Court, Juvenile Division) : : : ...........

OPINION

Rendered on the ___23rd___ day of _____September_____, 2016.

...........

BRIAN A. SOMMERS, Atty. Reg. No. 0072821, 130 W. Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 100 E. Third Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellee

.............

DONOVAN, P.J.

{¶ 1} This matter is before the Court on the Notice of Appeal of H.E. (“Mother”).

Mother appeals from the October 15, 2015 “Decision and Judgment Concerning

Objections to the Decision of the Magistrate” issued by the juvenile court. The juvenile

court sustained in part and overruled in part the decision of the Magistrate on Mother’s -2-

“Motion for Increase in Child Support” and the motion of J.H. (“Father”) for an increase in

parenting time. Specifically, the juvenile court issued a transitional order of parenting

time in favor of Father, and the court also found that Mother failed to demonstrate a

substantial change in circumstances sufficient to warrant a modification of child support.

Finally, the juvenile court overruled Mother’s request that daycare expenses for the

parties’ minor child, R.H., be included in the child support calculation. We hereby affirm

the judgment of the juvenile court.

{¶ 2} Mother filed her child support motion on July 31, 2014, asserting therein that

she “believes the current child support order does not accurately compute child support

due to an increase in child care expenses and the child’s expenses as well as changes

in the parties’ income.” Father filed his “Motion for Unsupervised Parenting Time” on

August 27, 2014, asserting therein that “increased parenting time is in the child’s best

interest.”

{¶ 3} The juvenile court held a hearing on the motions on January 29, 2015. At

the start of the hearing, the court indicated that it afforded the parties time to resolve the

issues on their own prior to testimony. The following exchange occurred:

THE COURT: * * *

* * * As far as the child support is concerned, the Court calculated

imputed minimum wage at 48 hours a week to [Father]. That got his child

support to $405.10 per month, which appears to me to be double what it

was. And [Father] was asking that his Saturday visitation be increased to

an overnight, supervised by the * * * grandmother.

Ma’am, you understand that’s what the offers were? -3-

[MOTHER]: Yes.

THE COURT: * * * And you’re rejecting that; is that correct?

[MOTHER]: Yes.

{¶ 4} Mother testified that R.H. is five years old. She testified that R.H. attends

“pre-K” at Mini University (“M.U.”). She identified a statement from M.U. and testified

that she spends $398.00 a month to send R.H. there in semimonthly payments of $199.00

on the first and fifteenth of each month. Mother testified that she has been employed as

a nursing assistant/ health unit coordinator at Soin Medical Center, working 36 hours a

week, since September 2014. Mother identified her pay statement, and she testified that

she makes $13.03 an hour. Mother identified her W-2 for 2014 and testified that she

made $7,190.29 for the portion of 2014 that she was employed. She stated that she has

no other income. Mother testified that she provides health care insurance for R.H.

through CareSource.

{¶ 5} Mother testified that she resides in a home that she leases from R.H.’s

grandparents. She stated that pursuant to their arrangement, she is to pay $300.00 a

month “if I can afford it,” and that if she cannot afford it, “then I do not have to pay rent.”

Mother stated that she has not yet made any rental payments. Mother stated that she

pays for utilities, lawn care, and “minor maintenance things.” Mother detailed her

monthly expenses.

{¶ 6} Mother testified that Father receives substantially less parenting time than

that provided by the Standard Order of Parenting Time (“standard order”). Specifically,

she stated that Father exercises his parenting time for three hours every Wednesday and

four hours every other Saturday. Mother stated that she sought an increase in child -4-

support because she has additional expenses since Father is exercising limited parenting

time. She stated that either Father’s mother, S.B., or Father’s grandmother, V.H.,

supervise Father’s parenting time. Mother stated that there have been no problems

during Father’s exercise of parenting time, and that she believed supervised parenting

time was in R.H.’s best interest.

{¶ 7} The following exchange occurred on cross-examination:

Q. Regarding your [M.U.], this is for preschool, pre-K?

A. Pre-K.

Q. * * * It’s pre-K tuition?

A. It’s day care and Pre-K.

Q. Well, it says, pre-K tuition. That’s what the exhibit says.

A. Okay.

Q. So it’s all for school; is that right?

A. Yes.

{¶ 8} The following exchange occurred on re-direct examination:

Q. Ma’am, you talked about an Individual Education Program for

your son * * *. Can you explain why or how he was on this IEP plan?

A. It’s based on social-emotional issues.

***

Q. And the IEP is - - is that through a public school system at the

moment?

A. Yes.

Q. And which school system? -5-

A. City of Kettering.

{¶ 9} The following exchange occurred regarding the costs of M.U. at the

conclusion of Mother’s testimony:

THE COURT: * * * Specifically, I want to talk about [M.U.].

THE WITNESS: Yes.

THE COURT: You’re indicating that it’s a pre-K program, correct?

THE WITNESS: [R.H. has] been there since he was six months. It

goes up to - - yeah, I think like age ten.

THE COURT: * * * So I’m concerned that, is this a school or is this

a day care facility, or is there a way to bifurcate and divide the difference

between I’m paying “X” number of dollars for preschool, and then there’s

also day care, and I’m paying “X” number for day care? * * * Do you feel - -

do you understand what I’m saying?

THE WITNESS: Yes, but they don’t split it from - - it’s being

considered a day care.

THE COURT: * * * So it’s not a preschool; it’s a day care that

provides him with some learning?

THE WITNESS: It’s a day care that has - - what they - - what it is is

a day care that has different levels of education - -

***

THE WITNESS: - - for each year that the child - - they move into

different rooms.

THE COURT: The reason I’m asking you is, you’re entitled to a -6-

credit on your child support computation for day care, not for preschool.

And if you’re paying tuition for preschool, you’re not entitled to that.

***

MR. EPLEY: Your Honor, if I may, though, you cannot get an IEP in

day care.

THE COURT: That’s true.

MR. EPLEY: IEP is for public education. I believe you qualify

when you’re three? * * *

THE COURT: Three years old, that’s absolutely correct.

MR. EPLEY: When you’re three, and that is education.

***

MR. EPLEY: That is through the federal government. That’s not

day care.

THE COURT: * * * Yeah, that’s preschool.

***

{¶ 10} D. H. testified that she is a trust officer at Key Bank, and that she manages

three irrevocable trusts of which Father is the beneficiary, and his mother and stepfather

are grantors. The following exchange occurred:

Q. * * * Please tell me the role that you play as the trustee when it

comes to disbursing either principal and/or income from the trust to [Father].

A. There - - my role in it is to submit what [Father] requests of the

trustee to our fiduciary control group for review and either approval or

denial. There’s also a second trustee that we have to get approval from. -7-

There’s a co-trustee.

***

Q. Now, you pay legal obligations owed by [Father]; is that correct?

A. We are paying right now the child support.

***

Q. * * * Is that a monthly expense that [Father] submits to you to be

paid?

A. He - - yes.

***

Q. So you would agree with me that you would pay for some, quote,

unquote, living expenses?

A. The terms of the trust allow us to make distributions for health,

maintenance, support, and education, so it would have to - - any distribution

would have to fall within those parameters.

***

Q. In support of [Father’s] support, education, maintenance, and

health, how much has the trust paid out total in 2014?

***

A. Was little over $73,000.

***

Q. Now, does that - - part of that $73,000, does that also include

the child support obligation that you paid for 2014?

A. It does. -8-

***

THE COURT: * * * Of the $73,000 that was paid out by the trust in

calendar year 2014, how much of that has been issued on either a W-2 or

a 1099 to [Father]? That will show me what the income is.

THE WITNESS: * * * it would come out in a K-1 from the trust.

***

THE WITNESS: And those, of course, haven’t been issued yet for

2014.

***

THE WITNESS: But the trust income is right around probably

$3,500 a month - -

THE COURT: That’s income of the trust; that’s not income to this

gentleman.

THE WITNESS: Right.

THE COURT: How much is income to this gentleman, do you

know?

THE WITNESS: I would say around $3,500 a year.

THE COURT: 3,500 a year is income to him?

THE WITNESS: Uhm-hmn, yes.

***

BY MR. SOMMERS:

Q. And you mentioned something, how much the trust generates

per month in income? -9-

A. Annually the trust generates, depending on what the market

value is, between 3,500 and 4,000.

Q. Per month?

A. Per year.

THE COURT: Thank you. That cleared it up for me.

Q. Let me ask - - and you said this is a discretionary trust, correct?

A. Yes.

Q. Is there a provision in the trust that releases the obligation of the

discretionary where [Father] would gain control over the principal amount?

A. There is a termination date on the trust.

***

A. And that is when [Father] turns 50.

Q. And what happens when [Father] turns 50?

A. Then the trust terminates, and if there is any balance in it, it will

be paid out to him.

{¶ 11} On February 20, 2015, “Mother’s Closing Argument” was filed. She

asserted therein that the magistrate “should include $73,000 as Father’s gross income

into the calculation for the child support obligation” and “classify the income from Father’s

trust as potential cash flow under the definition of gross income.” Mother relied upon

Howell v. Howell,

,

,

(2d Dist.).

Mother asserted that if “the court does not find that the father’s trust funds should be

calculated as gross income, then it would be proper to find him voluntarily unemployed

and impute the minimum wage of $15,080 on him.” Mother asserted that R.H. is with -10-

her “the majority amount of time, and the burden of the cost to care for the child is on

Mother. Thus, deviation upward of the child support calculation is proper because of the

lack of time Father spends with the child.”

{¶ 12} On March 11, 2015, Father filed a “Brief in Support.” Father asserted that

he has no control over the trust or the distributions therefrom. He asserted that “Mother

stated that she had nothing to show the Court reflecting daycare costs. * * * Tuition

reimbursement is not part of the Child Support Calculation Worksheet and is therefore

not a change in circumstances that would require a modification of child support.”

According to Father, while Mother asserted that income should be imputed to him

pursuant to the factors listed in R.C. 3119.01, “Father, however, did not testify and there

was no evidence introduced regarding his unemployment/underemployment or the

statutory factors.” Father asserted that “Mother has minimal living expenses because

Father’s family owns the house she lives in and she does not pay rent.” Father asserted

that “Mother’s attempt to have [F]ather pay for IEP tuition is misguided (Mother’s Motion

alleged that the child had an increase in child care expenses).” Father asserted that

“Mother did not elicit any evidence that Father had control over the Trust or that Father’s

Trust is earning more than $4,000 per year in income (Mother alleged that there was a

change in the parties[’] income).”

{¶ 13} Regarding a deviation in parenting time, Father noted that although Mother

testified that there were no problems with Father’s visits with R.H., she “refused” to

increase Father’s parenting time. Father asserted that “because there was no evidence

presented indicating an increase in parenting time is detrimental to the child,” he

requested additional time with his son without a deviation in child support. Father -11-

asserted that he requested additional parenting time “based on the best interest of the

child.”

{¶ 14} In his March 25, 2015 decision, the Magistrate determined as follows:

Based on the evidence presented and taking into consideration the

credibility and demeanor of the witnesses as well as the factors in Revised

Code 3109.051(D) the Court finds that it is in the best interest of the child

to grant parenting time to the father * * * pursuant to this Court’s Standard

Order of Parenting Time supervised by [S.B.] or if [S.B.] is unavailable, then

supervised by [Ro.H.] The father shall not consume alcohol or drugs of

abuse during or immediately prior to his parenting time. The father or a

fully licensed driver known to the child shall provide all transportation for

said parenting time. The first weekend under the Standard Order of

Parenting Time shall be April 3, 2015. * * *

Based on the evidence presented and taking into consideration the

credibility and demeanor of the witnesses the Court further finds that there

is not a substantial change in circumstances to require a modification of the

child support amount. The Obligor is the beneficiary of a managed trust

where sole discretion for expenditures is left to the trustee. [D.H.], one of

the co-trustees, testified that the Obligor’s income from the trust for 2014

was approximately $4,000.00. No testimony was introduced to prove that

the Obligor was incapable of working a full time minimum wage job. The

Court therefore imputes a minimum wage income to the Obligor.

The Obligee’s contention that the child support should be increased -12-

because the Obligor has less parenting time with the child than this Court’s

Standard Order of Parenting Time is without merit. The Obligor’s parenting

time is reduced at the Obligee’s request. Revised Code 3119.23 does not

afford the Court the ability to increase a child support obligation due to the

noncustodial parent having less than the Standard Order of Parenting Time.

The Obligee is not entitled to child care expenses. Plaintiff’s Exhibit

#1, a statement from [M.U.,] details monthly tuition payments for pre-K.

The child is on an IEP which is mandated for special needs children in

preschool. If [M.U.] is also providing daycare services, the Obligee has

failed to prove the specific costs for daycare. She therefore is not entitled

to have any daycare expenses considered in calculating child support.

Accordingly, the motion to increase child support is overruled.

{¶ 15} Mother filed her objections on March 31, 2015. Mother requested findings

of fact and conclusions of law, and she objected to “the Magistrate’s Finding granting

Defendant Standard Order of Parenting Time supervised and the child support.” On April

7, 2015, the Magistrate ordered Mother to submit proposed findings of fact and

conclusions of law within 10 days. On April 8, 2015, Father responded to Mother’s

objections, asserting that the Magistrate’s decision “was well-reasoned and supported by

the evidence presented at trial.”

{¶ 16} In “Mother’s/Defendant’s Proposed Findings of Fact and Conclusions of

Law,” Mother asserted as follows:

Mother contends that the Magistrate’s finding of fact that Father

received supervised standard order of parenting and calculation of child -13-

support goes against the manifest weight of the evidence and misconstrues

the law. Further, the Magistrate failed to cite to any applicable law despite

the parties submitting closing argument briefs. Thus, the reviewing court

cannot assess the lower Court’s application of the law. No testimony or

evidence whatsoever was presented at the final hearing * * * to support

Father being granted supervised standard order parenting time. Further,

the Magistrate failed to credit of (sic) Mother paying daycare/pre-school

during her employment.

{¶ 17} Citing R.C. 3109.04(F)(1), Mother asserted that the Magistrate should have

found that she “clearly testified that she believed that Father was a danger to the child’s

safety” based upon his “continued substance abuse.” She stated that she “testified that

Father was inconsistent with his parenting time and his inconsistency had [a] negative

impact on the child.” Mother asserted that she testified that R.H. is well adjusted to her

home but that he exhibits behavioral issues when he returns from Father’s care. Unlike

Father, Mother asserted that she “has no history of mental or physical problems.”

According to Mother, she “has facilitated all of Father’s parenting time and Father did not

file a motion to show cause.” Mother asserted that “father’s trust makes all payments as

he is unemployed. Further, the trust provided approximately $75,000 per year in

support for Father.” Mother asserted that the “Magistrate should have found that

Father’s parenting time under the previous [order] was in the child’s best interest.”

{¶ 18} Regarding Father’s trust, Mother asserted that “the intent of the statutory

definition of income is to be both broad and flexible, again, to insure the calculation of

child support will be in the children’s best interest.” Mother asserted that the “definition -14-

of income specifically includes the revenue from an obligor’s trust.” Mother asserted that

the “beneficiary of a discretionary trust is entitled to the funds for care, comfort, support,

or well-being. * * * Reasonable support would include any normal expected and legal

responsibilities. This would include sufficient funds to support both beneficiary parent

and their children. The application of that rule does not change if the beneficiary parent”

and the child live apart from one another. Mother asserted that Father should not be

allowed to avoid his child support obligation “with funds that could be enjoyed at a later

date.” Mother asserted that since Father’s trust has been paying his child support

obligation, it “would only seem equitable that the income from this trust be considered as

gross income, and calculated into Father’s child support obligation to be used for the

benefit of the child.”

{¶ 19} Regarding daycare costs, Mother asserted that the Magistrate failed to

consider applicable law, and that a “trial court does not have to include all of the claimed

daycare expenses under R.C. 3119.022; rather, the trial court has discretion to determine

what amount of daycare expenses is appropriately included in the worksheet.” Mother

asserted that she cannot care for the child while she works and “the child is not even

school age and cannot be left alone when Mother is at [w]ork.” Mother asserted that she

“sufficiently met her burden of proving that the daycare expenses were both reasonable

and necessary. Thus, the Court will include $398 per month in daycare expenses.”

Finally, Mother asserted that “Father should have been ordered to pay child support

pursuant to attached child support worksheet.”

{¶ 20} On April 23, 2015, the “Magistrate’s Findings of Fact and Conclusions of

Law” were filed. Regarding parenting time, the Magistrate found in part that there have -15-

been no problems with parenting time, that Father is “an admitted alcoholic,” that Mother

is healthy, and that the parties have difficulty working together regarding parenting time.

The Magistrate concluded as follows: “It is in the best interest of the child to have

parenting time with [Father], pursuant to this Court’s Standard Order of Parenting Time

supervised by either [S.B.] or [Ro.H.]. It is further in the child’s best interest for Father

not to consume alcohol or drugs of abuse during or immediately prior to his parenting

time. ORC 3109.051(D)(1-16).”

{¶ 21} Regarding child support, the Magistrate found in part that Father “is the

beneficiary of a managed trust where the sole discretion for expenditures is left to the

Trustee,” and that the trustee “issued a form K-1 to [Father] which evidences income for

2014 in the amount of $4000.” The Magistrate found that Father “is capable of working

a full time, state minimum wage job,” and that his “income from the trust is less than state

minimum wage so $16484 is imputed to him as income.” The Magistrate found that

Mother “pays tuition for the child to attend preschool at [M.U.],” and that the child “has an

IEP which is federally mandated for special needs children in preschool.” According to

the Magistrate, Mother “presented evidence of the cost of tuition for [M.U.] but presented

no evidence as to the cost of daycare.” Finally, the Magistrate found that Mother “earns

$23714 from employment,” and that Father’s “child support obligation is $206.70 per

month.” Finally, the Magistrate concluded that pursuant to R.C. 3119.79, “there is not a

10% change in the Obligor’s child support obligation, therefore, there is no change in

circumstances substantial enough to require a modification or increase of the child

support amount.”

{¶ 22} On June 18, 2015, Mother supplemented her objections, again asserting -16-

that Father “should not be awarded standard order parenting time.” Mother asserted that

the Magistrate “failed to consider the income Father receives from his trust as gross

income,” and that “Father is living the lifestyle of a person with an income of $73,000 per

year. The Magistrate’s decision forces the minor child to live the lifestyle of [a] minimum

wage earning parent.” Finally, Mother asserted that since “Father is unable to care for

the child during the day, daycare is both a necessary and reasonable cost to be included

in the child support calculation.” Father responded to Mother’s supplemental objections

on July 2, 2015, again asserting that it is in R.H.’s best interest to have parenting time

with Father pursuant to the standard order, that the Magistrate correctly found that there

was no change in circumstance warranting a modification in child support, and that the

Magistrate correctly found that Mother failed to produce evidence of daycare costs.

{¶ 23} In rendering its October 15, 2015 decision, the juvenile court initially noted

that paternity “has been established for the child by an Acknowledgment of Paternity

Affidavit, filed with the Central Paternity Registry on January 20, 2010.” Regarding

parenting time, the court reviewed the factors set forth in R.C. 3109.051(D) and

determined it to be in R.H.’s best interest to grant Father “Phase-In Parenting Time before

transitioning into the Standard Order of Parenting Time.” The court delineated guidelines

and three four-week periods of supervised parenting time to commence on October 21,

2015, with additional hours awarded at the successful conclusion of each period,

concluding with overnight visitation from Saturday night to Sunday. At the successful

conclusion of the three periods, the court ordered that Father’s parenting time be

consistent with the standard order. The court’s award of parenting time is not a subject

of Mother’s appeal. -17-

{¶ 24} Regarding child support and daycare expenses, the court determined as

follows:

Pursuant to O.R.C. § 3119.79, when a party to a current child support

order requests a modification of the amount of support required to be paid,

the Court shall recalculate the child support obligation, through the line

establishing the actual annual obligation, pursuant to O.R.C. § 3119.02. If

the recalculated amount is “more than ten per cent greater or more than ten

percent less than” the current amount, then the “deviation . . . shall be

considered by the court as a change of circumstances substantial enough

to require a modification of the child support amount.” O.R.C. § 3119.79.

The Court notes the parent requesting the modification has the burden of

showing a change of circumstances has occurred. * * *.

[Mother] maintains that the distributions [Father] receives from trusts

should be included in calculating his gross income. [D.H.] is a trust officer

at Key Bank in Dayton, Ohio. * * * [D.H.] manages three trusts in which

[Father] is the beneficiary. * * *The trusts are irrevocable trusts. * * * In her

role as trust manager, [D.H.] submits requests from [Father] to a fiduciary

control group that either approves or denies the request. In addition to

[D.H.] and the fiduciary control board, a co-trustee, [B.L.], must also approve

the request. * * * In 2014, the trusts paid out approximately $73,000 for

[Father’s] health, maintenance, and education, including the current child

support obligation. * * * [D.H.] testified that the trust generates about $3500-

$4,000 in income annually. * * * -18-

In support of her position that the $73,000 in trust disbursements

should be included in the child support calculations, [Mother] directs the

court to Howell v. Howell,

, in which Ohio’s Second

District Court of Appeals found that gross income included potential cash

flow so that a parent could not avoid support obligations by “shifting present

income to a cash flow expected to be enjoyed at some future time.” * * *

However, the present case differs quite significantly from Howell. In Howell

the trust beneficiary had unrestricted access to the trust proceeds. In the

present case, [Father] does not have free access to the trust proceeds.

[D.H.] testified that [Father] makes requests of the trustees that may or may

not be approved. To warrant modification of a child support order a

substantial change of circumstances must be shown. The Court finds that

[Mother] failed to show a substantial change of circumstances sufficient to

warrant a modification of child support. [Mother’s] objection in regard to trust

distributions is OVERRULED.

Finally, [Mother] argues that daycare expenses should have been

included in the child support calculations. O.R.C. 3119.022 does not

require the trial court to include all of the claimed daycare expenses; rather

the court has the discretion to determine what amount of daycare expenses

is appropriately included on the worksheet in determining child support. *

**

[Mother] testified that the child is enrolled at [M.U.] and she pays both

tuition and daycare expenses. * * * The child is on an IEP through Kettering -19-

City Schools. Exhibit #1 is a statement from [M.U.] in regards to pre-K

tuition. [Mother] testified that the statement was for school tuition. * * *

IEP’s are for public education, and not available in daycare establishments.

[Mother] was unable to provide the Court with the costs of daycare alone.

[Mother’s] objection in regard to daycare expenses is OVERRULED.

{¶ 25} Mother asserts two assignments of error herein. Her first assigned error

is as follows:

THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION

IN FAILING TO CONSIDER APPELLEE’S TRUST DISTRIBUTIONS AS

GROSS INCOME IN CHILD SUPPORT.

{¶ 26} Mother asserts that the definition of income in R.C. 3119.01(C)(7) includes

trust income, and that the “very fact that the trustee with whom the discretion to distribute

funds from the trust lies has already established a pattern of paying child support directly

from the trust is sufficient evidence for the Trial Court to consider funds from the trust as

income for child support purposes; failure to do so is an abuse of discretion.” Mother

relies upon Matthews v. Matthews,

,

(10th Dist. 1982),

and she asserts that “[l]ike the reasoning in Matthews, [Father] should not be allowed to

benefit from his trust income while his child gets minimum support. Thus, it should be

only proper to impute an income of $73,000, plus [Father’s] earnings capacity over and

above his trust income, for child support calculation purposes.” According to Mother,

“any underemployment or unemployment of [Father] is solely due to his own lack of

ambition, which should not result in deprivation of the parties’ child[’s] support and

maintenance.” Mother asserts that the “only attribute that is impacting [Father’s] earning -20-

capacity is his personal refusal to be employed and [properly] support his child in the

same manner that he is accustom[ed] through the benevolence of his parents.” Mother

argues that income should be imputed to Father “at no less than an annual wage of

$73,000.00, plus the minimum wage of $16,000.00, for a total annual income of

$89,000.00 for child support purposes.” Mother asserts that where “the trial court erred

was not considering that the $73,000 per year of expenses distributed by the trust for the

sole benefit of [Father], constitutes gross income for child support purposes, but rather

holding that his only income is $4000, derived solely from the K-1 issued by the trustee.”

{¶ 27} Father responds that the “issue in [Matthews] was whether income from a

trust may be attached for purposes of paying a judgment against a beneficiary for child

support. * * * The Matthews decision did not address whether the trust distributions could

be consider[ed] ‘gross income’ for purposes of a child support calculation.” Father

asserts that the beneficiary in Matthews “had a child support judgment against him in a

defined amount and the Court determined that plaintiffs could attach that judgment to

defendant’s interest in a trust.”

{¶ 28} Father argues that “[i]napposite to Howell, Father has no control over the

trust or its distributions. Father cannot shift ‘present income to a cash flow expected to

be enjoyed at some future time’ because the Trust does not give him that authority.

Further, Father does not have a judgment against him to which Matthews would apply.”

Father asserts that trust “distributions are not trust income. Additionally, because

[Father] does not have access to the trust corpus the trial court appropriately found there

was no substantial change in circumstances. There is no error in that finding.” Finally,

Father asserts that even “though the Magistrate correctly concluded that father’s income -21-

is $4,000, the Decision is likewise correct in imputing income of $16,484 for purposes of

[the] child support calculation. * * * Those amounts, however, do not show the requisite

change in circumstances delineated in R.C. 3119.79.”

{¶ 29} “ ‘A trial court’s decision regarding a child support obligation will not be

reversed on appeal absent an abuse of discretion.’ Snyder v. Snyder, Cuyahoga App. No.

95421,

, ¶ 42, citing Pauly v. Pauly,

,

,

* * *.” L.B. v. T.B., 2d Dist. Montgomery No. 24441, 2011-Ohio-

3418, ¶ 5. As this Court has previously noted:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons,

Inc.,

,

(1985). A decision is

unreasonable if there is no sound reasoning process that would support that

decision. AAAA Enterprises, Inc. V. River Place Community Urban

Redevelopment Corp.,

,

(1990).

Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989,

.

{¶ 30} As this Court further noted in L.B.:

When a trial court makes or modifies an order for child support, the

court is required to comply with Chapters 3119, 3121, 3123, and 3125 of

the Ohio Revised Code. R.C. 3109.05(A)(3). Any modification of a child

support order requires a two-step process. Coffman v. Coffman (June 28,

1995), Greene App. No. 94–CA–104, citing Brockmeier v. Brockmeier

(1993),

,

; Cheek v. Cheek (1982),

,

. The court must first determine -22-

whether there has been a change in circumstances.

citing

Cole v. Cole (1990),

,

. Pursuant to R.C. 3119.79, when either party requests a modification

of a child support order based upon a change in income, the court must

recalculate the amount of support using the statutory guidelines, schedules,

and worksheets.

See, also, Snyder v. Snyder, Cuyahoga App. No.

95421,

, ¶ 43. “A recalculated amount that varies more

than ten percent from the existing amount ‘shall be considered by the court

as a change of circumstance substantial enough to require a modification

of the child support amount.’ ”

quoting R.C. 3119.79(A). If there has

been a change in circumstances, the court may modify the support order in

accordance with the statutory factors and guidelines.

citing

Id., ¶ 11.

{¶ 31} R.C. 3119.01(C)(7) defines gross income in part as “* * * the total of all

earned and unearned income from all sources during a calendar year, whether or not the

income is taxable, and includes * * * trust income; * * * and potential cash flow from any

source.” As this Court has previously noted, “[t]he statutory definition of income is very

broad and includes income from trusts, as well as potential cash flow from any source.

This is consistent with R.C. 3103.03(A), which requires a biological or adoptive parent of

minor children to support the children ‘out of the parent's property or by the parent's

labor. ’ ” Howell,

,

,

(2d Dist.), at

¶ 50.

{¶ 32} In Howell, Kathy Howell asserted on appeal that the trial court “ ‘erred as a -23-

matter of law by failing to include as income for child support [James] Howell’s substantial

inheritance.’ ” Id., ¶ 3. This Court noted as follows:

In deciding the income to be considered for child support, the court

refused to impute income to James in connection with a trust that his

grandfather had established. The corpus in the trust was about 1.4 million

dollars, and James and his brother had a contingent interest in the trust

dependent on the death of their father at some point in the future. During

the marriage, James had received significant distributions from the trust,

and Kathy had asked the court to impute an additional $12,000 in income

per year, based on approximately $204,000 in distributions that had been

made between 1981 and 1998.

The trial court refused to impute additional income based on past

receipts, because there was no evidence that James had legal control over

any money he might receive. * * *.

Id., ¶ 12-13.

{¶ 33} By way of background, James initially appealed from the parties’ divorce

decree, raising five assignments of error which this Court rejected. Howell v. Howell, 2d

Dist. Clark No. 2002 CA 60,

, ¶ 7-32. Kathy later filed a post decree

motion for attorney fees associated with James’ appeal.

* * * In the motion, Kathy stated that she did not have funds to

complete the appeal. She also noted that James had now become a

vested beneficiary in his grandfather’s $1,000,000 trust, because James’

father had died. On the same day, Kathy filed a motion to increase spousal -24-

support due to changed circumstances. Specifically, Kathy claimed that

James was no longer the recipient of discretionary funds. Instead, under

the terms of the trust, the trust now had to be terminated, with 50 percent of

the corpus being paid to James.

Howell,

, supra, at ¶ 17.

{¶ 34} Kathy subsequently sought an increase in child support, and James sought

to have his child support decreased. Id., ¶ 18, 20.

The magistrate * * * noted that * * * James had become a vested

beneficiary of his grandfather’s trust, due to the death of both his parents.

James was able to access trust proceeds by calling the attorney managing

the trust. In May or June 2004, James withdrew $500,000 from the trust

and used the proceeds to purchase land in Maine ($160,000 to $170,000),

and a Four Winns boat ($270,000). * * *

***

Id., ¶ 25.

{¶ 35} The Howell decision reflects the following additional facts:

* * * According to documents that had previously been admitted,

James was entitled to half of $335,000 in a trust that his father had

established, and he could take a distribution of that money at any time.

James was also entitled to half of his mother’s estate, or about $328,000.

James indicated that if he had chosen to invest these amounts in addition

to the $500,000 minimum from his grandfather’s trust, he could have earned

$50,000 per year in investment income on a conservative rate of return for -25-

the combination of all three inheritances. * * *

Id., ¶ 30.

{¶ 36} In its decision, in relevant part, the Magistrate increased child support to

$687.95 a month. Id., ¶ 32. The parties filed objections, which were overruled. Id., ¶ 33.

On appeal, Kathy’s above assigned error was “based on the trial court’s failure to include

James’ substantial inheritances as income for child-support purposes.” Id., ¶ 46. This

Court noted that “Kathy clearly stressed that potential interest income should be included

as gross income under R.C. 3119.01(C)(7),” and that the “trial court did not address this

issue when it overruled Kathy’s objections.” Id. (Emphasis added). This Court noted as

follows:

R.C. 3119.01(C)(5) defines income in two ways. For individuals

employed to full capacity, income means “the gross income of the parent.”

R.C. 3119.01(C)(5)(a). If an individual is fully employed, the definition of

“gross income” in R.C. 3119.01(C)(7) applies. For persons who are

unemployed or underemployed, income means the parent’s gross income

plus any potential income. R.C. 3119.01(C)(5)(b). In the latter situation,

R.C. 3119.01(C)(11) provides the methods of imputing potential income to

the individual who is underemployed.

Id., ¶ 48.

{¶ 37} This Court noted that since the Magistrate “did not find James to be

underemployed, his income would be governed by the definition of ‘gross income’ in R.C.

3119.01(C)(7).” Id., ¶ 49. This Court noted as follows:

In Bishop v. Bishop, Scioto App. No. 03CA2908,

, -26-

the trial court included potential rental income from a property in gross

income, even though the property was not currently being rented, nor was

it in a condition to be rented. Id. at ¶ 17. See, also, Murray v. Murray

(1999),

,

(unexercised stock

options are potential cash flow and should be included in gross income);

and Sizemore v. Sizemore (Oct. 14, 1994), Montgomery App. No. 13673,

, *3 (non-income producing asset may be considered

potential cash flow and is properly included in gross income of fully

employed obligor). As we pointed out in Sizemore, “[n]o finding of

voluntary unemployment or underemployment is required to find the

existence of potential cash flow.”

We also stressed:

“[O]ne of the purposes of the ‘potential cash flow’ provision in R.C.

3113.215(A)(2) * * * [is] to prevent a parent from avoiding child support

obligations by shifting present income to a cash flow expected to be enjoyed

at some future time, when the children have become emancipated.”

Howell, ¶ 51-52.

{¶ 38} It was significant to this Court in Howell that “James chose to transfer

money to items that could produce cash flow at a future point. For example, James

testified that he spent $160,000 to $170,000 of the trust proceeds on land in Maine as an

investment.” Id., ¶ 53. This Court determined that James’ “choice to shift present

income to a later point, perhaps in an attempt to avoid child-support obligations, should

not be rewarded. James testified that he could have earned $50,000 per year on the

funds that he inherited but chose not to do so.” Id. The court remanded the matter “so -27-

that the trial court may take the amount of potential investment income from the three

inheritances into account in calculating James’ ‘gross income’ for child-support purposes.”

Id., ¶ 55.

{¶ 39} Matthews involved an action brought by an ex-wife against her ex-husband,

who was the beneficiary of a trust, to recover alimony and child support. The facts

therein are as follows:

In 1975, defendant Matthews' former wife, plaintiff Janice Matthews,

filed an action against defendant for alimony and support. The trial court

awarded her only child support in the sum of $42.50 per week. Defendant

Ohio National Bank of Columbus, trustee of the trust, has paid that weekly

amount to plaintiff from the income of the trust.

Plaintiff Matthews, her daughter, Glenna Sue Matthews, and Glen

Davis, who apparently contributed to the support of Glenna Sue Matthews,

then filed suit against defendant Matthews for damages for his desertion

and his failure to support his child. Defendant Matthews failed to appear,

and a default judgment in the total amount of $94,698.70 was entered in

favor of plaintiffs. The court awarded Janice Matthews and Glen Davis

$54,698.70 for defendant's failure to support his daughter. The balance was

awarded to Janice Matthews and Glenna Sue Matthews as compensatory

and punitive damages for defendant's desertion.

Defendant Matthews has not paid the judgment. Plaintiffs filed the

action in this case to collect the judgment from defendant Matthews' interest

in the trust. The trial court rendered judgment in favor of defendants, relying -28-

on the case of Martin v. Martin (1978),

,

[

], for its holding that neither the income nor the corpus of the

trust was available to pay the obligation of a beneficiary for child support

where the beneficiary has only an interest in the income of the trust. The

trial court further held there was nothing in the trust instrument indicating an

intent by the settlor to provide for defendant's children. The trial court also

held that plaintiffs could attach only defendant Matthews' vested interest in

the trust, but that no such vested interest existed because the trust was fully

discretionary.

Matthews, 140-41.

{¶ 40} On appeal, Janice asserted in part that the trial court erred in determining

that her judgment could not be satisfied from William’s interest in the trust.

. The

Tenth District determined that the “initial question in this case is whether the child of the

beneficiary of a discretionary or spendthrift trust may attach the interest of the beneficiary

for the child’s support.”

The court noted that “Defendants rely on Martin * * * for their

argument that defendant Matthews’ child may not attach defendant Matthews’ interest in

a trust.”

The Tenth District determined as follows:

The trial court found that the beneficiary had only an income interest

in the trust and that the principal therefore could not be reached.

The trial court erred in concluding that the trust was fully

discretionary. The first branch of the syllabus in Martin reads as follows:

“A trust conferring upon the trustees power to distribute income and

principal in their ‘absolute discretion,’ but which provides standards by -29-

which that discretion is to be exercised with reference to needs of the trust

beneficiary for education, care, comfort or support, is neither a purely

discretionary trust nor a strict support trust, and the trustees of such trust

may be required to exercise their discretion to distribute income and

principal for those needs.” (Citing Bureau of Support v. Kreitzer [1968],

,

[

].)

In this regard, the Ohio rule follows the general rule. 76 American

Jurisprudence 2d 402, Trusts, Section 164. The trust before us, as the trust

in Martin, is neither a purely discretionary trust, nor a strict support trust. It

follows that, at least to the extent of his needs, defendant Matthews has an

interest in all of the income of the trust.

The next question is whether plaintiffs may claim an interest in the

beneficiary's income interest in the trust. We find no decision of the

Supreme Court that disposes of the issue. A review of the cases from other

jurisdictions that have considered the question of whether the interest of the

beneficiary of a discretionary or support trust may be attached for child

support causes us to conclude that there is no unanimous view of the law.

At least one Ohio court has held that the interest is not attachable.

McWilliams v. McWilliams (Franklin C.P. 1956), [

] Ohio Misc.,

; see, contra, Payer v. Orgill (Cuyahoga C.P. 1963), Ohio

Misc.,

. However, the majority rule is that the child may, in

the absence of an express exclusion in the trust instrument, recover from

the trust. 1 Restatement of Trusts 2d 328, Section 157; 76 American -30-

Jurisprudence 2d 413-415, Trusts, Section 178;

, 266. The

reasoning upon which this position is based is that the beneficiary should

not be allowed to enjoy his interest while neglecting to support his children.

We believe this to be the better rule.

The trial court held that there was no indication that the settlor

intended to provide for defendant Matthews' children. However, the trust

document states that the trustee shall pay what he deems necessary for the

beneficiary's “reasonable support, maintenance and health.” Support of

one's children is mandated by R.C. 3103.03. “Reasonable support” includes

payment of all of the beneficiary's normal, expected and legal

responsibilities. It would have been unreasonable, had defendant Matthews

lived with his child, for the trustee to have refused to pay defendant

Matthews sufficient funds from the trust to support both himself and his

child. We have been given no reason why “reasonable support” should have

any different application simply because defendant lived apart from his

daughter.

As plaintiffs argue, the settlor knew that his son had not held a job

and, therefore, apparently intended to provide for payment of all his son's

normal expenses, which would include care of his children. Furthermore,

the trustee has determined that it is within its discretion to pay present and

future child support, refusing only to pay the arrearage. It is inconsistent for

the trustee to maintain that it would not be in its discretion to pay child

support for the earlier period where such payment does not place in -31-

jeopardy the beneficiaries' interest in the trust. We thus hold that plaintiffs

do have a valid claim against the interest of defendant Matthews in the trust

for the support of the child of defendant Matthews.

***

The final question is, from what fund the judgment should be

satisfied. Plaintiffs claim that Item III(c) of the final codicil to the will of Corwin

Matthews authorizes payment from the corpus of the trust. That section

states that, when the income from the trust is insufficient to provide for the

beneficiary's needs, the trustee may pay such additional monies as are

necessary from the principal of the trust.

The total value of the trust is approximately $500,000. The total

amount of the judgment against defendant Matthews for child support is

$54,698.70. The trustee testified that the trust fund has annual income of

approximately $35,000. From this income are paid the maintenance of

defendant, the present child support payments, and certain other specified

payments. The annual payments from income have been approximately

$22,000. The remainder of the income each year is apparently added to the

corpus of the trust. The income for the present year will not produce

sufficient surplus to satisfy the total judgment for child support. However,

plaintiffs may recover that amount of the surplus income for the year which

is not required for the other obligations of the trust. Plaintiffs may recover

such amount as is available in each succeeding year until the judgment is

satisfied. Assuming no significant change in the trust income, the judgment -32-

for child support could reasonably be expected to be paid from the trust

income within three to five years. It would, therefore, be imprudent to order

the trustee to invade the principal to satisfy said judgment. This amount

constitutes over one-tenth of the entire principal, and the payment of such

an amount could jeopardize the trust itself. Therefore, we hold that the

trustee did not abuse its discretion by refusing to invade the corpus of the

trust to pay the judgment.

We hold that income from a trust which is neither a purely

discretionary nor a strict support trust and which contains no express

exclusion therefrom of the beneficiary's children may be attached for the

purpose of paying a judgment against the beneficiary for child support.

Id., 141-43. The Tenth District remanded the matter.

{¶ 41} We agree with the juvenile court that Mother failed to demonstrate a

change in circumstances necessary to warrant an increase in child support. We

conclude that Howell, as the juvenile court noted, is distinct from the matter herein. D.H.

testified that (unlike the beneficiary in Howell), Father submits requests for disbursements

that are reviewed by a fiduciary control group and either approved or denied. While the

trust disbursed $73,000.00 in 2014, which included Father’s child support obligation, the

trust itself earned annual income of around $3,500.00 - $4,000.00, as would be reflected

in a Schedule K-1. There is no indication that Father transferred money to items that

could produce cash flow at a future point, as in Howell. Further, Kathy Howell specifically

sought potential interest income from James. Father’s trust disbursements are

discretionary funds and not potential cash flow under the definition of gross income. Here, -33-

since the trust income of $3,500.00 to $4,000.00 is less than the state minimum wage

income, the trial court properly imputed minimum wage income to Father.

{¶ 42} We further agree with Father that Mother’s reliance upon Matthews is

misplaced. While we agree with the Tenth District’s assertion that a trust beneficiary

should not be allowed to enjoy his interest while neglecting to support his children, we

further agree with Father’s argument that the holding in Matthews is limited to an

attachment for the purpose of paying a judgment against the beneficiary for child support,

and that the Tenth District did not determine whether trust distributions could be

considered “gross income” for purposes of a child support calculation. We note that

while the trust in Matthews was fully vested, D.H. testified that Father’s trust will not vest

until he turns 50. We further note that in Matthews, the trust had income of $35,000.00

and made annual disbursements of $22,000.00, and that the judgment against Matthews

was to be paid from the surplus income after the obligations of the trust were satisfied.

In other words, the Tenth District did not remand the matter based upon the

disbursements Matthews received from the trust, but rather on the trust’s surplus income.

{¶ 43} Finally, we note that the initial child support calculation worksheet, dated

June 7, 2010, reflects an actual child support obligation of $2,480.43, with a monthly

payment of $206.70; the current worksheet completed by the Magistrate reflects an actual

child support obligation of $2,714.47, with a monthly payment of $226.12. Since Mother

failed to demonstrate a change of circumstances necessary to warrant a modification of

child support pursuant to R.C. 3119.79, an abuse of discretion is not demonstrated, and

her first assigned error is overruled.

{¶ 44} Mother’s second assignment of error is as follows: -34-

THE TRIAL COURT ERRED WHEN IT FAILED TO ADD DAYCARE

COSTS INTO THE CHILD SUPPORT COMPUTATION.

{¶ 45} As this Court has previously noted:

Line 19 of the Child Support Worksheet set forth in R.C. 3119.022

addresses the “[a]nnual child care expenses for children who are the subject

of this order that are work-, employment training-, or education-related, as

approved by the court or agency (deduct tax credit from annual cost,

whether or not claimed).” A percentage of the approved annual child care

expenses are added into the obligor's annual child support obligation on line

21 (when health insurance is provided) or line 24 (when health insurance is

not provided). R.C. 3119.022. “R.C. 3199.022 (line 19) requires an

adjustment only when child care expenses a party claims are ‘approved by

the court.’ ” Daufel v. Daufel, Montgomery App. No. 22584, 2008-Ohio-

3868, ¶ 38.

Johnson v. McConnell, 2d Dist. Montgomery No. 24115,

, ¶ 16. The

phrase “ ‘as approved by the court * * *’ contemplates four determinations the court or

agency must make: (1) that one of the parents incurs child care expenses, and, if so; (2)

the annual amount of expenses incurred; (3) that the expense is work, employment

training-, or education-related; and, (4) that the expense is reasonable in relation to the

need for child care.” Johnson, ¶ 37 (Grady, J., concurring).

{¶ 46} “R.C. 3119.022 does not require the trial court to include all of the claimed

daycare expenses; rather, the court has the discretion to determine what amount of

daycare expenses is appropriately included on the worksheet in determining child -35-

support.” Johnson, ¶ 23. At the hearing, Mother submitted evidence indicating that she

is paying “tuition” for R.H. to attend M.U. She further testified that R.H. has an Individual

Education Plan at M.U. through the Kettering Public School System. We agree with

Father that Mother presented no evidence that she incurs day care expenses.

Accordingly, the trial court did not abuse its discretion in failing to adjust Father’s child

support obligation based upon Mother’s tuition payments to M.U. Mother’s second

assigned error is overruled, and the judgment of the trial court is affirmed.

..........

HALL, J., concurs.

FROELICH, J., concurring in part and dissenting in part:

{¶ 47} I concur with the majority opinion insofar as it concludes that the trial court

did not err in failing to include daycare expenses in the child support calculation.

However, I would find that the trial court did err in concluding that there was no change in

circumstances and in not revisiting the issue of child support on that basis.

{¶ 48} Pursuant to R.C. 3119.79(A), a change of circumstances shall be found if

the “amount as recalculated is more than ten per cent greater than or more than ten per

cent less than the amount of child support required to be paid pursuant to the existing

child support order.”

{¶ 49} Under the previous child support order, dating back to 2010, Father was

paying $206.70 per month, or $2,480.40 per year. Father’s imputed income at that time

was $14,976, and Mother’s income was $24,336. In 2015, in concluding that there was

no change in circumstances, the trial court used in its calculations Father’s imputed

income of $16,484 and Mother’s income of $23,714.60. Using these numbers, Father’s -36-

child support obligation would have been $226.12 per month ($2,713.44 per year), a

difference of only $19.42 per month from the earlier calculation. Therefore, the trial court

concluded that the change in circumstance was less than 10%, and thus insufficient to

warrant a modification. ($19.42 / $206.70 = .0939, or 9.39%).

{¶ 50} However, both the trust income and the imputed income should have been

included in Father’s income for purposes of the child support calculations. They

represent Father’s earned and unearned income, and R.C. 3119.01(C)(7)’s definition of

gross income requires that both types of income be included; R.C. 3119.01(C)(7) also

specifically includes trust income in the definition of “gross income.” Further, R.C.

3119.01(C)(5) defines income, “[f]or a parent who is unemployed or underemployed,” as

“the sum of the gross income and any potential income of the parent.” Under this

definition, Father’s current gross income (the trust income) should be added to his

potential (or imputed) income. In other words, under the circumstances presented here,

the trust income and the imputed income for purposes of employment should have been

totaled in determining the Father’s (an unemployed parent’s) income.

{¶ 51} Using the low end of the Trustee’s estimate, Father’s gross income

via the trust was $3,500; his imputed or potential income as determined by the trial

court was $16,484. Thus, Father’s income under R.C. 3119.01(C)(5) and (7) was

the sum of these numbers, or $19,984. If this number, rather than $16,484, had

been used as Father’s total gross income on the child support calculation

worksheet, and all other factors remained the same, Father’s child support

obligation would have been $260.88 per month. The difference between Father’s

previous child support obligation of $206.70 per month and $260.88 per month is -37-

more than 10%, and thus constituted a change of circumstances. ($260.88 -

$206.70 = $54.18; $54.18 / $206.70 = .262, or a 26.2 % deviation from the prior

obligation).

{¶ 52} Having found a change of circumstances, the trial court might then

have held a hearing or otherwise gathered more evidence about Father’s trusts,

their assets, their history of distributions to Father, and the likelihood that there

would be income or distributions from the trusts in future years. Based on that

information, the court would have been permitted not only to recalculate child

support (based on the parties’ current incomes), but also to review the

appropriateness of that calculation. In so doing, it could determine whether any

deviation from the standard order was warranted by Father’s past and reasonably

anticipated future income and distributions and, if appropriate, enter a child support

award which comprehensively reflects the parties’ true financial positions and which

provides an equitable assessment of both parties’ means of supporting the child.

..........

Copies mailed to:

Brian A. Sommers Christopher B. Epley Hon. Anthony Capizzi