Pauly v. Pauly

[This opinion has been published in Ohio Official Reports at 

80 Ohio St.3d 386

.]




            PAULY, APPELLANT, v. PAULY, N.K.A. CLINGER, APPELLEE.
                      [Cite as Pauly v. Pauly, 

1997-Ohio-105

.]
Domestic relations—R.C. 3113.215(B)(6) does not provide for an automatic
        credit in child support obligations under a shared parenting order—Trial
        court may deviate from the amount of child support calculated under R.C.
        3113.215(B)(6), when.
R.C. 3113.215(B)(6) does not provide for an automatic credit in child support
        obligations under a shared parenting order. However, a trial court may
        deviate from the amount of child support calculated under R.C.
        3113.215(B)(6) if the court finds that the amount of child support would be
        unjust or inappropriate to the children or either parent and would not be in
        the best interest of the child.
   (No. 96-1329—Submitted October 7, 1997—Decided December 10, 1997.)
       APPEAL from the Court of Appeals for Lucas County, No. L-95-293.
                                  __________________
        {¶ 1} Appellant, Timothy B. Pauly, and appellee, Patricia Clinger (formerly
known as Patricia Pauly), were divorced on February 21, 1995. Pursuant to the
divorce decree, the parties entered into a shared parenting plan to take care of their
two minor children, Bennett M. Pauly, then age four, and Nicole K. Pauly, then age
three. Under the plan, the children were to reside primarily with their mother.
However, they would stay with their father on alternating Thursdays from 4:30 p.m.
until 9:00 p.m., on each succeeding alternating Wednesday from 4:30 p.m. to 9:00
p.m., and on alternate weekends from 4:30 p.m. Friday until 9:00 p.m. Sunday. A
court schedule was set up for holidays and vacations. The shared parenting plan
also provided that appellant was entitled to claim both children as dependents for
                                 SUPREME COURT OF OHIO




income tax purposes. Furthermore, appellant was ordered to pay $183.38 per
month in child support.
        {¶ 2} On May 8, 1995, appellee filed a motion to increase the amount of
child support.1 A hearing was held before a magistrate, who issued findings of fact
and conclusions of law. The magistrate used the basic child support guidelines and
the standard child support worksheet to calculate the amount of child support
appellant owed, which he determined was $376.42 per month. The trial court
adopted the magistrate’s decision. Appellant objected on the basis that he was
entitled to a credit against the amount of child support he owed for the time his
children resided with him, which went beyond the shared parenting plan schedule.
The trial court, finding no reason to deviate from the standard child support
computation, rejected this objection and ordered that appellee’s motion for
increased child support be granted.
        {¶ 3} The Court of Appeals for Lucas County affirmed. It held that, with
respect to a shared parenting order, R.C. 3113.215 does not provide for an
automatic setoff to a parent’s child support obligation for the time the child resides
with such parent.
        {¶ 4} The cause is now before this court upon the allowance of a
discretionary appeal.
                                   __________________
        Timothy M. Coughtrie and Mark A. Robinson, for appellant.
        Kevin P. McManus, for appellee.
        David J. Fallang, urging reversal for amicus curiae, David J. Fallang.
                                   __________________
        FRANCIS E. SWEENEY, SR., J.


1. Appellee also filed a motion to divide the tax exemption, which the magistrate denied. However,
the parties subsequently agreed to divide the tax exemption.




                                                2
                                   January Term, 1997




       {¶ 5} The issue before this court is whether a parent paying child support
under a shared parenting plan is entitled to an automatic credit for the time his
children reside with him. For the reasons that follow, we hold that a parent is not
entitled to an automatic credit.
       {¶ 6} R.C. 3113.215 sets forth the scheme a court must follow in calculating
and ordering child support. Appellant argues that pursuant to R.C. 3113.215(C),
he is entitled to an automatic credit in his child support payments for the time his
children reside with him.
       {¶ 7} R.C. 3113.215(C) provides: “Except when the parents have split
parental rights and responsibilities, a parent’s child support obligation for a child
for whom the parent is the residential parent and legal custodian shall be presumed
to be spent on that child and shall not become part of a child support order, and a
parent’s child support obligation for a child for whom the parent is not the
residential parent and legal custodian shall become part of a child support order.
If the parents have split parental rights and responsibilities, the child support
obligations of the parents shall be offset, and the court shall issue a child support
order requiring the parent with the larger child support obligation to pay the net
amount pursuant to the child support order. * * *”
       {¶ 8} Although some appellate courts have applied R.C. 3113.215(C) to
cover shared parenting orders and have held that an automatic credit is warranted
under the statute (see, e.g., Weddell v. Weddell [June 29, 1994], Montgomery App.
No. 14274, unreported, 

1994 WL 312933

; Gillum v. Malishenko [July 19, 1996],
Greene App. No. 95 CA 114, unreported, 

1996 WL 402338

), we believe that R.C.
3113.215(B)(6)(a), rather than R.C. 3113.215(C), should be used to compute child
support payments under a shared parenting order.
       {¶ 9} R.C. 3113.215(B)(6)(a) expressly states that if the court issues a
shared parenting order, the court shall calculate child support in accordance with
the child support schedule and worksheet set forth in division (E) of the statute,




                                           3
                                   SUPREME COURT OF OHIO




through line 24 (the annual obligation), and that it may deviate from that amount
under certain circumstances.2 In contrast, R.C. 3113.215(C), which appellant urges
this court to apply, does not even mention the term “shared parenting order.”
Instead, it provides for the right to an offset in child support obligations where the
parties have “split parental rights and responsibilities,” which by definition differs
from a shared parenting arrangement. “Split parental rights and responsibilities”
applies where “there is more than one child who is the subject of an allocation of
parental rights and responsibilities and each parent is the residential parent and legal
custodian of at least one of those children.” R.C. 3113.215(A)(8). See, e.g.,
Beckley v. Beckley (1993), 

90 Ohio App.3d 202

, 

628 N.E.2d 135

, a split custody
case where each parent had custody of at least one child. This is in contrast to a
shared parenting order where there may only be one child involved. Also, in a case
of split parental rights and responsibility, child support is calculated using a
different worksheet than is used in a shared parenting case. R.C. 3113.215(F). The
worksheet in division (F), used for split parental rights and responsibilities, contains
a setoff provision at line 24 so that the obligor’s support obligation is automatically
reduced. This differs dramatically from the worksheet prescribed in division (E),
which contains no setoff provision and is specifically to be used in a shared
parenting order. Given these differences, the right to a setoff under division (C)
applies only to a parent with split parental rights and responsibilities, and not to a
shared parenting situation.


2. R.C. 3113.215(B)(6)(a) provides: “If the court issues a shared parenting order in accordance
with section 3109.04 of the Revised Code, the court shall order an amount of child support to be
paid under the child support order that is calculated in accordance with the schedule and with the
worksheet set forth in division (E) of this section, through line 24, except that, if the application of
the schedule and the worksheet, through line 24, would be unjust or inappropriate to the children or
either parent and would not be in the best interest of the child because of the extraordinary
circumstances of the parents or because of any other factors or criteria set forth in division (B)(3) of
this section, the court may deviate from the amount of child support that would be ordered in
accordance with the schedule and worksheet * * *.” (Emphasis added.)




                                                   4
                                 January Term, 1997




         {¶ 10} Appellant also argues that the first sentence of R.C. 3313.215(C)
provides for a credit to the residential parent. This part of R.C. 3313.215(C)
distinguishes between the child support obligations of a residential and a
nonresidential parent. However, in a shared parenting arrangement, neither party
is a nonresidential parent. Instead, under R.C. 3109.04(K)(6), both parents are
considered residential parents at all times. Thus, this part of division (C) is likewise
inapplicable to this case.
         {¶ 11} Instead, we find that R.C. 3113.215(B)(6)(a), rather than R.C.
3113.215(C), applies to child support under a shared parenting order. Calculation
of child support under R.C. 3113.215(B)(6)(a) is quite clear. Child support is
calculated in accordance with the basic child support schedule and the worksheet
set forth in division (E), through line 24 (the annual obligation). The statute allows
for a deviation from that amount only where “the application of the schedule and
the worksheet, through line 24, would be unjust or inappropriate to the children or
either parent and would not be in the best interest of the child because of the
extraordinary circumstances of the parents or because of any other factors or criteria
set forth in division (B)(3) of this section * * *.” “Extraordinary circumstances of
the parents” is defined to include the amount of time the children spend with each
parent, the ability of each parent to provide adequate housing for the children, and
the amount of expenses each parent sustains. R.C. 3113.215(B)(6)(b)(i), (ii), and
(iii).
         {¶ 12} Appellant seeks an automatic credit for the time he has cared for his
children. R.C. 3113.215(B)(6) does not provide for an automatic credit in child
support obligations under a shared parenting order. However, a trial court may
deviate from the amount of child support calculated under R.C. 3113.215 if the
court finds that the amount of child support would be unjust or inappropriate to the
children or either parent and would not be in the best interest of the child. Thus,
only after consideration of the extraordinary circumstances of the parents and other




                                           5
                             SUPREME COURT OF OHIO




factors set forth in R.C. 3113.215(B)(3) may a trial court deviate from the amount
of child support listed in line 24 of the worksheet and reduce the obligor’s child
support obligations accordingly. Rather than requiring an automatic credit in all
instances, this method permits a court to make an evaluation on a case-by-case basis
and to deviate when it finds it is in the best interest of the child. In this manner, a
court is able to take into account the specific facts of each case.
       {¶ 13} We have held previously that “[t]he terms of R.C. 3113.215 are
mandatory in nature and must be followed literally and technically in all material
respects.” Marker v. Grimm (1992), 

65 Ohio St.3d 139

, 

601 N.E.2d 496

, paragraph
two of the syllabus. In this case, the magistrate complied with the requirements of
R.C. 3313.215(B)(6)(a). The magistrate calculated the amount of child support by
using the applicable schedule and worksheet.           In his findings of fact and
conclusions of law, the magistrate considered whether the extra time appellant
spent with his children warranted a deviation from the amount of child support he
was obligated to pay through line 24 of the child support worksheet. The magistrate
found that the extra time appellant spent with them was not extensive. One long
period of additional time was attributable to appellee’s move with the children to a
new residence. Since the time spent with the children did not constitute “extended
times of visitation” or “extraordinary circumstances of the parents” under R.C.
3113.215(B)(3)(d) or (B)(6)(a), the magistrate concluded that there was no basis
for a deviation from the child support computation. The trial court adopted this
recommendation and the court of appeals affirmed.
       {¶ 14} It is well established that a trial court’s decision regarding child
support obligations falls within the discretion of the trial court and will not be
disturbed absent a showing of an abuse of discretion. Booth v. Booth (1989), 

44 Ohio St.3d 142, 144

, 

541 N.E.2d 1028, 1030

. In this case, the trial court followed
the mandates of R.C. 3313.215(B)(6).            Therefore, although appellant has
undoubtedly taken an active role in caring for his children and has agreed to be with



                                           6
                               January Term, 1997




them beyond the time limits of the court order, we cannot say that the trial court
abused its discretion in refusing to deviate from the amount of child support
calculated under the standard worksheet.
       {¶ 15} Accordingly, the judgment of the court of appeals is affirmed.
                                                              Judgment affirmed.
       MOYER, C.J., LAZARUS, PFEIFER, COOK and LUNDBERG Stratton, JJ., concur.
       DOUGLAS, J., not participating.
       CYNTHIA C. LAZARUS, J., of the Tenth Appellate District, sitting for
RESNICK, J.
                             __________________




                                           7