Miller v. Dendinger

[Cite as Miller v. Dendinger, 2021-Ohio-546.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

SENECA COUNTY

NATHAN J. MILLER,

PLAINTIFF-APPELLEE, CASE NO. 13-20-13

v.

KELCEY M. DENDINGER, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court

Trial Court No. 18-DR-0055

Judgment Affirmed

Date of Decision: March 1, 2021

APPEARANCES:

Rocky Ratliff for Appellant

James W. Fruth for Appellee

Case No. 13-20-13

SHAW, J.

{¶1} Defendant-appellant, Kelcey M. Dendinger (“Kelcey”), appeals the

July 22, 2020 judgment of the Seneca County Court of Common Pleas, Domestic

Relations Division, adopting and approving the magistrate’s decision granting her a

divorce from plaintiff-appellee, Nathan J. Miller (“Nathan”). On appeal, Kelcey

challenges the trial court’s allocation of the parties’ parental rights and

responsibilities, the trial court’s assignment of a parenting coordinator, the trial

court’s child support calculation, and the trial court’s allocation of tax dependency

exemptions.

Relevant Facts and Procedural History

{¶2} The parties were married on October 31, 2016. The oldest child was

born in 2011 prior to the parties’ marriage. During the marriage the parties had

another child who was born in 2017.

{¶3} On March 27, 2018, Nathan filed for divorce. At the time, Kelcey was

pregnant with parties’ third child, who was born later in 2018. Kelcey filed an

answer and a counterclaim for divorce. Each parent requested to be designated the

residential parent of the children. Nathan filed a motion for appointment of a

Guardian Ad Litem (“GAL”), which was granted by the trial court. The court

established temporary orders, designating Nathan as the temporary residential

parent for the two older children and Kelcey as the temporary residential parent for

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the newborn. Both parents were ordered to facilitate parenting time with the other

parent. However, during the course of the proceedings it became apparent that the

parties could not achieve this without intervention. The trial court ordered the

parties to conduct all custody exchanges through Patchworks House, a third-party

intermediary. Nathan was ordered to pay child support to Kelcey for their youngest

child.

{¶4} On October 23, 24, and 25, 2019, the magistrate conducted a final

hearing. Prior to the presentation of evidence, the parties stipulated to an agreement

on the distribution of marital property.1 Therefore, the only matters to be

determined by the court pertained to the custody of the parties’ three children.

{¶5} On May 28, 2020, the magistrate issued a decision on the custody

matters. Specifically, the magistrate recommended that Nathan be designated the

residential parent and legal custodian of parties’ two older children, and that Kelcey

be designated the residential parent and legal custodian of the parties’ youngest

child, with each party facilitating parenting time with the other parent. The

magistrate declined to accept Kelcey’s request for shared parenting, citing the

parties’ history of being unable to communicate effectively and cooperate with one

another without a third-party intermediary. Thus, the magistrate recommended that

1

The parties’ property division was journalized upon the record in the trial court’s December 4, 2019 Consent

Judgment Entry on Stipulations.

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the parties continue to use a third party as a parenting coordinator to resolve

parenting time disputes or issues between the parties.

{¶6} In calculating Nathan’s child support for the youngest child, the

magistrate determined Kelcey to be voluntarily unemployed and imputed a

minimum wage income to her for child support purposes. The magistrate

recommended using an aggregate income figure for Nathan due to the fact that his

income varied depending on overtime and other factors not within his control. The

magistrate also considered the fact that Nathan was providing health insurance for

all three children. The magistrate recommended that Nathan pay child support to

Kelcey for the youngest child in the amount of $725.87 per month. Finally, the

magistrate recommended that due to their divergent income situations Nathan

should claim the federal tax exemption for all three children.

{¶7} On June 11, 2020, Kelcey filed a motion for an extension of time of

thirty days to file objections to the magistrate’s decision, citing additional time

needed by her counsel to prepare the transcript from the three-day final hearing.

The next day, the trial court granted the motion giving Kelcey until July 11, 2020 to

file her objections.

{¶8} On July 8, 2020, Kelcey filed a second motion requesting an additional

14 days to file her objections, stating that her counsel had received the transcript on

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July 7, 2020, and needed more time “to review the transcript testimony to

incorporate into Defendant’s objections.” (Doc. No. 187).

{¶9} On July 14, 2020, the trial court denied Kelcey’s motion for additional

time, and ordered the objections to be filed before the close of the business day. No

objections to the magistrate’s decision were filed with the trial court.

{¶10} On July 22, 2020, the trial court issued a judgment entry approving the

magistrate’s decision, adopting and incorporating the magistrate’s

recommendations as its final orders.

{¶11} Kelcey filed an appeal from this judgment entry, asserting the

following assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT DENIED THE

DEFENDANT/APPELLANT THE OPPORTUNITY TO

OBJECT TO THE MAGISTRATE’S DECISION.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD

CUSTODY OF THE TWO OLDEST MINOR CHILDREN TO

THE DEFENDANT/APPELLANT.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED WHEN IT ORDERED A

PARENTING COORDINATOR FOR THE PARTIES.

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ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN ITS CHILD SUPPORT

CALCULATION BY USING THE WRONG INCOME

INFORMATION FOR BOTH THE APPELLANT AND THE

APPELLEE.

ASSIGNMENT OF ERROR 5

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

DEFENDANT/APPELLANT ALL TAX EXEMPTIONS FOR

THE MINOR CHILD THAT SHE WAS AWARDED

CUSTODY.

First Assignment of Error

{¶12} In her first assignment of error, Kelcey argues that the trial court erred

when it overruled her second motion for an extension of time to file objections to

the magistrate’s decision. Specifically, Kelcey claims that the trial court was aware

her counsel had not received the transcript of the final hearing from the court

reporter until three days before the first extension of time was set to expire, and that

this was not ample time to prepare the objections, given the length of the transcript

and her counsel’s schedule. Thus, Kelcey asserts she demonstrated that good cause

existed for the trial court to grant the second extension of time and by failing to do

so the trial court arbitrarily precluded her from filing objections to the magistrate’s

decision to preserve the asserted errors for appellate review under an abuse of

discretion standard rather than a plain error review.

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{¶13} For his part, Nathan argues that argues that both Civil Rule

53(D)(3)(b)(iii) and Seneca Co. Loc. R. 11.01 contemplate a procedure where the

party objecting to the magistrate’s decision must file written objections within the

prescribed timeframe, and if the transcript is not available at that time the objecting

party may request a reasonable period of time to supplement the written objections

with specific references to the transcript. Nathan asserts that even though Kelcey’s

counsel received the transcript three days before the deadline to file her written

objections, nothing prevented her from filing the objections within that timeframe

and requesting additional time to supplement the objections once the transcript

could be thoroughly reviewed.

Standard of Review

{¶14} “A trial court has broad discretion in determining whether to grant a

motion for an extension of time and the court’s decision will not be reversed on

appeal absent an abuse of discretion.” Hetlin v. Hetlin, 3d Dist. Seneca No. 13-14-

08, 2014-Ohio-4997, ¶ 49, citing Miller v. Lint, 62 Ohio St.2d 209, 213-14 (1980).

Under Civ.R. 53(D)(3)(b)(i), “[a] party may file written objections to a magistrate’s

decision within fourteen days of the filing of the decision * * *.” “For good cause

shown,” a trial court “shall allow a reasonable extension of time for a party to file *

* * objections to a magistrate’s decision.” Civ.R. 53(D)(5).

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{¶15} In this instance, the record reflects that the only reason Kelcey gave

for needing additional time to prepare her objections was the fact that her counsel

had received the transcripts three days before the expiration of the first time

extension to file her objections.2 It is apparent from its plain language that Civil

Rule 53 anticipates that a transcript may not be completed within the 14-day period

for filing objections. First, Civ.R. 53(D)(3)(b)(iii) provides that an objection to a

factual finding “shall be supported by * * * an affidavit of th[e] evidence if a

transcript is not available.” Second, the same subsection provides that, “[i]f a party

files timely objections prior to the date on which a transcript is prepared, the party

may seek leave of court to supplement the objections.” Id. We also note that the

trial court’s local rules also contemplate that the transcript may not be prepared

before the time a party’s objections are due. Local Rule 11.01(B) of the Court of

Common Pleas of Seneca County, General and Domestic Relations Division states

that “[i]f a finding of fact or weight of the evidence argument is part or all of the

basis for the objection, a transcript of testimony is necessary to support the objection

to the Magistrate’s Decision and must be filed with the Court by the moving party

within thirty (30) days after the filing of the objections, unless the Judge, in writing,

extends the time period.” Id.

2

Kelcey also alleges that there was a six-day delay in the court reporter receiving the recordings of the final

hearing, however, these allegations were not substantiated in the record by an affidavit from the court

reporter.

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{¶16} We are not persuaded by Kelcey’s argument that the trial court’s

denial of her second motion for additional time deprived her of the opportunity to

file objections, as she contends on appeal. The trial court first granted Kelcey a

thirty-day extension so that a transcript of the proceedings could be prepared. The

record demonstrates that the transcript was prepared within that thirty-day time

period. Moreover, the record established that the parties’ dispute at the final hearing

was limited to custody matters. The magistrate filed his decision on May 28, 2020

and the trial court granted an extension until July 11, 2020 for Kelcey to file her

objections. Thus, there was ample time for Kelcey to review the magistrate’s

decision, formulate objections to that decision within the prescribed timeframe, and

then request a reasonable period of time to supplement those objections with

specific references to the transcript, as provided for by the rules. Instead, Kelcey

chose to file no objections at all.

{¶17} Accordingly, we determine that the record supports the trial court’s

finding that Kelcey did not establish good cause for requesting additional time to

file objections to the magistrate’s decision. We therefore conclude that the trial

court did not err when it denied her motion for an additional extension of time to

file the objections.

{¶18} The first assignment of error is overruled.

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Second and Third Assignments of Error

{¶19} In these assignments of error, Kelcey claims that the trial court erred

when it designated Nathan the residential parent and legal custodian of the parties’

two oldest children. Kelcey also assigns error to the trial court ordering the parties

to use a parenting coordinator.

Standard of Review

{¶20} Generally, “[d]ecisions concerning child custody matters rest within

the sound discretion of the trial court.” Krill v. Krill, 3d Dist. Defiance No. 4-13-

15, 2014-Ohio-2577, ¶ 26, citing Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

When making the allocation of the parental rights and responsibilities for the care

of the children under this section in an original proceeding, the court shall take into

account that which would be in the best interest of the children. R.C. 3109.04(B)(1).

“Where an award of custody is supported by a substantial amount of credible and

competent evidence, such an award will not be reversed as being against the weight

of the evidence by a reviewing court.” Barto v. Barto, 3d Dist. Hancock No. 5-08-

14, 2008-Ohio-5538, ¶ 25 citing Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990),

syllabus. “Accordingly, an abuse of discretion must be found in order to reverse the

trial court’s award of child custody.” Id. at ¶ 25, citing Masters v. Masters, 69 Ohio

St.3d 83, 85 (1994). An abuse of discretion suggests the trial court’s decision is

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unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

{¶21} However, Kelcey failed to file objections to the magistrate’s decision

on this basis. Civil Rule 53(D)(3)(b)(iv) provides: “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).” Therefore, because

Kelcey did not object to the magistrate’s decision she waived all but plain error. In

appeals of civil cases, the plain error doctrine is not favored and may be applied

only in the extremely rare case involving exceptional circumstances where error

seriously affects the basic fairness, integrity, or public reputation of the judicial

process itself. Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.

Evidence Adduced at the Final Hearing

{¶22} Testimony at the final hearing established that throughout their

relationship, including a period of several years prior to their short marriage, Nathan

worked outside the home providing income for the family and Kelcey stayed at

home, tending to the children, N.M. (born 2011) and R.M. (born 2017). Nathan

testified that during the course of the parties’ relationship, he was away from the

home during most weekdays and worked a considerable amount of overtime at night

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and on the weekends, sometimes accumulating 100 hours in a week. As a result,

Kelcey spent more time with the children, primarily handling the childcare, doctor’s

visits, and getting the oldest, N.M., to and from school.

{¶23} In March of 2018, N.M.’s school sent a letter to the parties informing

them that N.M., a kindergartner at the time, had “reached a significant number of

absences” during the 2017-2018 school year. The school records presented at the

final hearing indicated that many of these absences were unexcused and without a

note or other form of contact from N.M’s parent, which eventually led the school to

contact Kelcey to determine N.M’s whereabouts on multiple occasions. In addition,

N.M.’s school records further indicated that he had been tardy to school numerous

times during the same school year. Notably, Kelcey acknowledged that N.M. had

accumulated these absences and tardy notations, but claimed that she had a difficult

time managing the children while being pregnant with J.M. and had constant car

trouble.

{¶24} The record also indicates that during this time frame, March of 2018,

the parties’ relationship became increasingly acrimonious and contentious. Nathan

learned that Kelcey had been indicted on a fourth degree felony offense for altering

the date on a drug prescription given to her by a doctor, a violation of R.C.

2925.23(B)(1), (F)(1), and that a warrant had been issued for her arrest. (Pl. Ex.

54). When Nathan confronted Kelcey about the matter, a heated argument ensued

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and Kelcey left the home in the middle of the night with the parties’ two older

children (the youngest was in utero). For her part, Kelcey claimed that Nathan had

threatened to take the children from her so she left for fear of losing custody of them.

{¶25} For several days, Nathan did not know the whereabouts of Kelcey or

his children until he learned that Kelcey had turned herself into law enforcement.

Nathan attended Kelcey’s bond hearing and attempted to locate his children. Nathan

eventually located the children at Kelcey’s father’s residence, and brought them

back to the marital home. Kelcey served approximately 11 days in jail as a result

of the pending indictment.3 Shortly thereafter, Nathan filed for divorce, initiating

the instant action. The temporary orders issued by a consent judgment entry named

Nathan as the temporary residential parent of then-six-year-old N.M. and nearly

one-year-old R.M. The children’s paternal grandmother, Nathan’s mother, was

tasked with providing childcare while Nathan was at work and ensuring that N.M.

arrived at school on time. Nathan and Kelcey continued to live together in the

marital home. Kelcey testified that she was ordered on bedrest during the last

months of her pregnancy with J.M. The tension between the parties continued to

escalate.

3

Kelcey subsequently pled guilty to the charge and the trial court granted her motion for intervention in lieu

of conviction. (Pl. Ex. 54). The trial court ordered Kelcey to enter a three-year period of rehabilitation,

supervised by drug intensive probation officer. Testimony from Kelcey’s probation officer at the final

hearing indicated that Kelcey was doing well with complying with the terms and conditions of her

rehabilitation.

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{¶26} In June of 2018, Kelcey gave birth to J.M. and in mid-August 2018

Kelcey moved out of the marital home and into her father’s home. In an ex parte

order issued on August 31, 2018, the magistrate designated Kelcey as J.M.’s

residential parent and granted parenting time to Nathan every Monday and

Wednesday from 5:00 p.m. to 8:00 p.m. and one overnight per week with J.M. The

record indicates that the parties were unable to engage in custody exchanges without

confrontation or added tension from extended family members, resulting in the

parties calling law enforcement to mediate their custody disputes.

{¶27} On December 10, 2018, the magistrate issued temporary orders

regarding custody of all three children. Nathan remained temporary residential

parent of N.M. and R.M. Kelcey was granted parenting time with R.M. (who was

not school aged) on Mondays and Wednesdays from 8:30 a.m. to 5:00 p.m. Kelcey

was granted parenting time with N.M. on the same days from the time she picked

him up from school until 5:00 p.m. Kelcey was also granted alternate weekend

parenting time with N.M. and R.M. Kelcey remained the temporary residential

parent of J.M. The trial court continued Nathan’s parenting time with J.M. on

Mondays and Wednesdays from 5:00 p.m. to 8 p.m., and granted him alternate

weekend parenting time. The record indicates that the purpose behind this custody

arrangement was to keep the three children together as much as possible. The trial

court also ordered the parties to use Patchworks House as a third-party intermediary

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to alleviate the tension and confrontation garnered between the parties at custody

exchanges. The record indicated that this custody arrangement continued for

several months leading to the final hearing.

{¶28} At the final hearing, the GAL recommended that the court incorporate

the parties’ existing residential parent statuses into the final order and expand the

amount of visitation each parent received with the child/children not under their

primary care. The record indicated that the GAL had extensive experience with

both parties during the course of the proceedings. He observed that dividing the

allocation of primary residential parent status neutralized the parties’ need to control

the custody situation and alleviated some of the tension. However, he noted that

under his recommendation the goal was to maximize the amount of time all three

children spent together.

{¶29} The GAL testified that since Nathan had become residential parent of

N.M., N.M. had accumulated no unexcused absences or tardy days during the school

year. Accordingly, the GAL felt that it was important to keep N.M. at Nathan’s

home overnight during the week while school was in session. The GAL

recommended that, while Nathan was at work, Kelcey have parenting time with

R.M. every weekday during the school day from 8:30 a.m. to 5:00 p.m. and

parenting time with N.M. every weekday during the school year from immediately

after school to 5:00 p.m. The GAL recommended that Kelcey would also have N.M.

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for the day if a school cancellation occurred. Under the GAL’s plan, Kelcey would

also have parenting time with all three children on alternating weekends during the

school year. The GAL recommended that during the school year Nathan have

overnight visitations with J.M. on Mondays and Wednesdays so that all three

children could be together. During the summer, the GAL recommended that the

parties exercise a one-week-on and one-week-off schedule, with each parent being

entitled to up to two full weeks of vacation. Notably, the GAL recommended that

a parenting coordinator continue to be involved to the case handle custody

exchanges and any custody disputes that arise between the parties.

{¶30} With regard to the parties’ use of a third-party intermediary, the record

indicated that the since the order had been put into place requiring the custody

exchanges to occur at Patchworks House the tension and potential for confrontation

between the parties in front of the children had significantly decreased. Barb Flood,

Executive Director of Patchworks House, testified to the mechanics of the custodial

exchanges. The parent doing the “drop off” is required to arrive fifteen minutes

prior to the parent doing the “pick up” to avoid the parents being there for any

overlapping amount of time. She explained that there are two parking lots on either

side of the building and that the parties are each required to use a different lot. Once

the children arrive, a staff member escorts the children to the other side of the

building to wait for the parent picking them up. Flood noted that this is designed to

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avoid the parents seeing one another. She also stated that the staff kept records of

when the parents arrived to Patchworks house,—i.e., if a party had arrived late or

did not show at all. The staff also handled the communications between the parents

relaying any cancellation of visitation and arranging for make-up parenting time.

{¶31} At the final hearing, Flood testified that Patchworks House had been

facilitating the parties’ custodial exchanges for ten months, and that it had been

going well. She noted, however, that her records indicated that Kelcey had been

late to the exchanges 82 times, totaling 332 minutes. Flood clarified that because

of their policy requiring the parents to arrive at separate times, Kelcey’s lateness

only affected 22 minutes of Nathan’s parenting time. Nathan also testified regarding

the use of Patchworks House and expressed his desire to continue using an

intermediary like Patchworks House because it prevented the children from seeing

any animosity between the parties and it held Kelcey more accountable for her

chronic lateness. He stated his concern that if the parties stopped using Patchworks

House the situation between the parties would deteriorate and become hostile again.

Although Kelcey stated that she “love[s]” Patchworks House staff and found them

“sweet” and “easy to work with,” she nevertheless objected to continuing to use

them as an intermediary because of the amount of driving she had to do to facilitate

the custody exchanges. (Doc. No. 186 at 146).

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{¶32} In its judgment entry issuing the custody orders, the trial court

incorporated the GAL’s previously discussed custody recommendations, finding

them to be in the best interest of the children, and implemented the orders for the

remaining 2019-2020 school year and summers. The trial court also ordered the

parties to use Flood, a qualified parenting coordinator, to continue to facilitate the

custody exchanges between them. However, seemingly sympathetic to Kelcey’s

objections to the amount of driving she incurred during to effectuate the exchanges,

the trial court ordered that the custody exchanges “shall occur at Patchworks House,

unless otherwise agreed to by the parties with the consent of the parenting

coordinator.” (Doc. No. 192 at 4).

{¶33} The trial court ordered the same parenting and companionship

schedule previously outlined to continue into the 2020-2021 school year and for

each year thereafter, but gave the parenting coordinator discretion to implement a

rotating schedule, also outlined in the judgment entry of divorce, giving each parent

equal days and nights during the school year. However, the trial court instructed

“should a child be late for school or any pick-up or drop off issues arise then the

parenting coordinator has the discretion to revert back to the original schedule * *

*.” (Doc. No. 192 at 5).

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Discussion

1. Allocation of Parental Rights and Responsibilities

{¶34} On appeal, Kelcey contends that the trial court erred in ordering “split

custody” of the parties’ children. Specifically, Kelcey contends that during the

parties’ marriage she was a stay-at-home parent and the primary caregiver of the

children. She contends that the trial court’s custody order is contrary to the roles

the parties maintained during the marriage and, therefore, not in the best interest of

the children. Accordingly, Kelcey maintains in her brief that the trial court should

have designated her as the residential parent of all three children, however, we note

that the transcript of final hearing indicated that Kelcey expressed that she wanted

a shared parenting plan of “2-2-3” alternating schedule to be put in place, even

though no shared parenting plan was filed with the court.

{¶35} At the outset, we note that the parties’ marriage was short-lived.

Therefore, we are not persuaded by Kelcey’s argument to assign paramount

importance to the roles of the parties with regard to childrearing during the marriage.

This notwithstanding, the record demonstrates that some significant events occurred

during the parties’ marriage warranting a reevaluation of the parties’ childrearing

roles. While Nathan was admittedly less involved with the children prior to the

initiation of the divorce proceedings because of the amount of hours he worked, the

GAL observed, and the record supports, that Nathan had adequately met the needs

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of N.M. and R.M. as temporary residential parent, including ensuring N.M. arrived

at school on time. Nathan also explained that his work schedule had changed as a

result of the parties’ separation so that he could be home with the children more. In

addition, the parties had essentially been exercising a custody arrangement similar

to the one set forth in trial court’s finals orders for the prior ten months without

much incident. The trial court’s final orders increased Kelcey’s parenting time with

all three children and left open the opportunity of implementing a rotating schedule

if the parties could continue to maintain the peace and amicably carry out the

custody exchanges.

{¶36} In short, we do not find that the trial court erred when it incorporated

many of the GAL’s custody recommendations into its final orders. As noted by the

GAL, the parenting and companionship plan was designed to neutralize the hostility

between the parents, while maximizing the opportunities for all three children to be

together and remedy the prior issues with unexcused school absences and excessive

tardiness, all of which are clearly in the children’s best interest. Accordingly, we

conclude that the trial court did not err when it maintained the parties’ same

residential parent statuses as designated under the temporary orders.

{¶37} The second assignment of error is overruled.

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2. Parenting Coordinator

{¶38} Kelcey also argues that the trial court erred when it ordered the parties

to use a parenting coordinator. As previously discussed, the parties used

Patchworks House as a third-party intermediary in custody exchanges for ten

months during the court proceedings. On balance, the evidence at the final hearing

indicated that this arrangement greatly benefited the parties by alleviating tension

and hostility at custody exchanges.

{¶39} On direct examination at the final hearing, Kelcey’s counsel asked her

about the GAL’s recommendation of using Flood as a parenting coordinator, and

Kelcey stated the following:

Q: And, in fact there was some talk, I think the Court has

questioned him about Ms. Flood being in this case as potentially a

parenting coordinator to be able to work out to negotiate between

you and Nate if you have problems. Are you ok with that?

A: Yes.

Q: And she’s done that in the past (inaudible)?

A: Correct.

Q: On throughout this case, correct?

A: Yes.

(Doc. No. 186 at 535-36).

{¶40} For the first time on appeal, Kelcey raises arguments about the

propriety of the trial court’s use of Flood as a parent coordinator. It is well-settled

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that arguments raised for the first time on appeal will not be considered by an

appellate court. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81

(1997). Because Kelcey raises this issue for the first time on appeal, this Court is

not obligated to consider it.

{¶41} Moreover, under the invited error doctrine, a party will not be

permitted to take advantage of an error which he himself invited or induced the trial

court to make. Poneris v. A & L Painting, L.L.C., 12th Dist. Butler Nos. CA2008-

05-133 and Butler Nos. CA2008-06-139, 2009-Ohio-4128, ¶ 41. The record reflects

that Kelcey had ample opportunity to make these same arguments to the trial court

at the final hearing. Instead, Kelcey agreed on the record to use Flood as a parenting

coordinator. Thus, any error Kelcey now proclaims was invited by her.

Accordingly, we do not find that the record supports Kelcey’s contention that the

trial court committed plain error when it ordered the parties to use Flood as a

parenting coordinator.

{¶42} The third assignment of error is overruled.

Fourth Assignment of Error

{¶43} In her fourth assignment of error, Kelcey argues that the trial court

erred in incorporating and adopting the magistrate’s recommendation for child

support. Specifically, Kelcey claims that the income figures the magistrate used in

the child support worksheet are not supported by the record.

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Legal Standard

{¶44} When calculating child support, a court is to use the worksheet set

forth in R.C. 3119.022 combined with the basic schedule set forth in R.C. 3119.021.

The amount of child support established by this calculation produces a rebuttable

presumption of the proper amount of child support. R.C. 3119.03; Marker v.

Grimm, 65 Ohio St.3d 139, 141 (1992). Revised Code 3119.22 allows the court to

order a deviation from the rebuttably-presumed amount after considering the factors

in R.C. 3119.23. However, “[t]he party seeking to rebut the basic child support

schedule has the burden of presenting evidence which demonstrates that the

calculated award is unjust or inappropriate and would not be in the best interest of

the child.” Murray v. Murray, 128 Ohio App.3d 662, 671 (12th Dist.1999).

Generally, a trial court has broad discretion in determining child support obligations,

which will not be disturbed absent an abuse of discretion. Saddler v. Saddler, 12th

Dist. Warren No. CA2017-09-134, 2018-Ohio-1689, ¶ 14. However, because

Kelcey failed to object to the magistrate’s decision, we limit our review to whether

the error alleged rises to the level of plain error.

Discussion

{¶45} The magistrate determined the following regarding to parties’ income

and earning capacity in his child support calculation recommendation:

The undersigned further finds that Plaintiff/Nathan J. Miller is

currently a line worker with American Electric Power. He earns

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approximately $109,254.00 per year. His salary varies to some

extent due to any overtime that he may work or if he would work

out of the area for the week if there is a bad storm, disaster, or a

need in another state. Currently Mr. Miller provides the health

insurance for the minor children and will continue to do so

through his employer. The Plaintiff’s income for child support

purposes is $109,254.00 per year. The amount of yearly insurance

costs is $3,873.48. The cost of the health insurance is reasonable

in cost.

The undersigned considered all of the factors

3119.0l(C)(17)(a)(i)(xi) in determining whether and what amount

of income is appropriate to impute to the Defendant/Kelcey M.

Dendinger. There was inquiry regarding the amount of income

the [defendant] could earn if employed to full capacity, but she

kept saying she does not know because she has not been able to

work due to her disability. The undersigned is required to use

some income information for the calculation of child support. The

undersigned further finds that Defendant/Kelcey M. Dendinger is

currently unemployed. The Defendant/Kelcey M. Dendinger has

been approved for Social Security Disability. Those benefits were

suspended due to the parties’ joint income. Upon the finalizing of

the divorce the Defendant should be able to get the Social Security

Benefits reinstated. The defendant’s income for child support

purposes is $17,264.00, which is the imputed minimum wage

amount.

The undersigned further finds that child support was calculated

using the income information above. Effective April 1, 2020,

plaintiff father shall pay child support for the minor children

named above in the amount of $692.93 per month plus $18. 71 for

cash medical support plus 2% processing fees for a total of

$725.87 per month.

(Doc. No. 181 at 10-11).

{¶46} On appeal, Kelcey claims that the number used by the trial court for

Nathan’s gross income in the worksheet is not supported by the record. At the final

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hearing, Nathan had testified that he worked considerably more optional overtime

hours while the parties were in married in 2016 and 2017. As a result, he earned a

gross income in those years of $110,493 and $123,679 respectively. However, when

the parties separated, Nathan declined the overtime hours so that he could be home

with the children. Nathan also took parent leave through FMLA when J.M. was

born reducing his gross income in 2018 to $97,886. At the time of the final hearing,

Nathan had only 29 weeks of income verified for 2019. On appeal, Kelcey

speculates that Nathan’s 2019 income would amount to $115,565.32, despite there

being no evidence in the record to confirm that number. Aside from this speculation,

Kelcey fails to specifically demonstrate how she was prejudiced by the figure used

by the magistrate to calculate Nathan’s child support. Based on the evidence at the

final hearing, we do not find that the trial court’s use of $109,254 for Nathan’s 2019

gross income rises to the level of plain error. Accordingly, we find no merit to

Kelcey’s argument on this basis.

{¶47} Kelcey also contends that the trial court erred in determining that she

was voluntarily unemployed and by imputing her income. We note that “R.C.

3119.01(C)(11)(a) authorizes a court to impute income to a parent whom the court

finds is voluntarily underemployed, for purposes of calculating child support.” Yant

v. Roebuck, 3d Dist. Putnam No. 12-16-14, 2017-Ohio-2591, ¶ 24. If a trial court

determines that a parent is voluntarily unemployed or voluntarily underemployed,

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the trial court computes that parent’s income by adding that parent’s potential

income to any gross income he or she may have. R.C. 3119.01(C)(5); R.C.

3119.01(C)(17). “[T]he question whether a parent is voluntarily * * * unemployed

or voluntarily underemployed is a question of fact for the trial court.” Rock v.

Cabral, 67 Ohio St.3d 108, 112 (1993). Generally, a trial court’s determination on

this issue will not be disturbed unless the trial court is found to have abused its

discretion. Id. As previously noted, because Kelcey failed to object to the

magistrate’s decision, we limit our review to whether the error alleged rises to the

level of plain error.

{¶48} Kelcey testified at the final hearing that she had been a stay-at-home

parent since 2012. She stated that her last job was in 2012 or 2013 working as a

sales associate at a shoe store, where she worked for less than a year. She recalled

that she made minimum wage at that sales job. Kelcey also stated that she sang with

a band from time to time, approximately once every other month. The evidence at

the final hearing further indicated that Kelcey had been receiving disability benefits

of $733 a month prior to the parties’ marriage in 2016, but that those benefits ceased

due to their joint household income. Kelcey testified that the conditions which

qualified her for disability were injuries she suffered from an ATV accident and her

depression. However, Kelcey did not present any paperwork regarding the reasons

for her disability benefits at the final hearing and did not know the details of her

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qualifying benefits. She did indicate at the final hearing that she had reapplied for

disability benefits as a consequence of the divorce.

{¶49} When asked on cross-examination about her ability to earn a minimum

wage income, the following exchange transpired:

Q: So you play in a band and you can jump from an airplane

but you can’t work?4

A: I guess it would depend on what the job was.

Q: Can you do anything? Can you get a minimum wage job at a

McDonald’s?

A: I mean I guess, but I wouldn’t. I would lose my insurance

and my back, with my back and everything else I can’t afford it.

My $500 a month that I’m getting really doesn’t cut it either.

(Doc. No, 186 at 127).

{¶50} Our review of the record supports the trial court’s adoption of the

magistrate’s recommendation to find Kelcey voluntarily unemployed and to impute

minimum wage income to her for child support purposes. The record indicated that

Kelcey chose to be a stay-at-home parent beginning in 2012, prior to the accident

that injured her back and prior to the death of her brother which triggered her

depression. Moreover, Kelcey failed to present any evidence providing the details

of the disability benefits that she received for a short time before marrying Nathan.

4

Prior testimony had indicated that Kelcey recently went skydiving, approximately six weeks before the final

hearing.

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{¶51} Accordingly, we find the magistrate reviewed and considered the

appropriate statutory factors in determining whether Kelcey was voluntarily

unemployed. Thus, the trial court did not commit plain error in adopting the

magistrate’s determination that Kelcey was voluntarily unemployed, as competent

and credible evidence exists in the record in support of the same.

{¶52} The fourth assignment of error is overruled.

Fifth Assignment of Error

{¶53} In her fifth assignment of error, Kelcey claims that the trial court erred

when it designated Nathan to claim the federal tax dependency exemptions for all

three children, despite the fact that he is only named the residential parent of the two

older children.

Legal Standard

{¶54} Ordinarily, an appellate court reviews a trial court’s decision

allocating tax exemptions for dependents under an abuse of discretion standard.

Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, ¶ 9. This discretion is both

guided and limited by R.C. 3119.82. However, because Kelcey failed to file

objections to the magistrate’s decision on this basis, we limit our review to whether

the error alleged rises to the level of plain error.

{¶55} Pursuant to R.C. 3119.82, if the parties agree on which parent should

claim the child as a dependent, the trial court must designate that parent as the one

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who may claim the child. However, if the parties do not agree which parent should

claim the child as a dependent, the court may grant the nonresidential parent the tax

dependency exemption, “only if the court determines that this furthers the best

interest of the [child] and * * * the payments for child support are substantially

current as ordered by the court for the year in which the [child] will be claimed as

[a] dependent.” R.C. 3119.82. In determining the best interest of the child, the court

shall consider a number of factors, including: any net tax savings, the relative

financial circumstances and needs of the parents and child, the amount of time the

child spends with each parent, the eligibility of either or both parents for the federal

earned income tax credit or other state or federal tax credit, and any other relevant

factor concerning the best interest of the child. Id.

{¶56} This section, therefore, establishes a presumption in favor of awarding

the tax exemption to the residential parent. However, the court may award the tax

exemptions to the non-residential parent where it furthers the best interest of the

children. Zimmerman v. Zimmerman, 12th Dist. Butler No. CA2014-06-127, 2015-

Ohio-1700, ¶ 69. Here, the magistrate stated the following regarding his

recommendation that it is in the children’s best interest for Nathan to claim the tax

dependency exemption for all three children:

Pursuant to R.C. 3119.82, the court may permit the parent who is

not the residential parent and legal custodian to claim the

children as dependents for federal income tax purposes if this

furthers the best interest of the children. Father is designated the

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residential parent and legal custodian of the minor children. He

earns significantly more income than mother. There was no

evidence or testimony presented regarding any net tax savings,

the relative financial circumstances and needs of the parents and

children, or the eligibility of either or both parents for the federal

earned income tax credit and mother is voluntarily unemployed.

Father should claim the minor children in all years. The evidence

presented shows that mother is currently unemployed and will be

having her social security disability payments reinstated

following the conclusion of this case. There was no evidence or

testimony presented regarding any net tax savings, the relative

financial circumstances and needs of the parents and children, or

the eligibility of either or both parents for the federal earned

income tax credit. Certainly, decreasing each parent’s tax

liability and increasing the amount of money available in each

parent’s home furthers the children’s best interest. The new tax

law passed by Congress in December 2017 (the Tax Cuts & Jobs

Act of 2017), with effective date of January 1, 2018, which reduced

the federal dependency exemption for each child to $0 for the tax

years 2018 through 2025. Father should claim the minor children

in all years.

(Doc. No. 181 at 11-12).

{¶57} The record indicates that the magistrate considered the factors in R.C.

3119.82 when it recommended designating Nathan to claim the tax dependency

exemption for all three children. Moreover, the magistrate explicitly found that this

allocation of the tax exemptions was in the children’s best interest. See Singer v.

Dickinson, 63 Ohio St.3d 408 (1992) (holding that a non-residential parent may

receive the tax exemption when it produces a net tax savings for the parents in the

best interests of the child); Love v. Rable, 3d Dist. No. 15-2000-17, 147 Ohio

App.3d 63, 2001-Ohio-2174 (finding that a trial court has authority to award the tax

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exemption to the noncustodial parent if it is demonstrated that there will be a net tax

savings for the parents, which advances the best interest of the child). We are

unpersuaded by Kelcey’s unsupported assertions that the magistrate’s

recommendation is not in the children’s best interest. Accordingly, Kelcey failed

to demonstrate that the trial court’s adoption of the magistrate’s recommendation

regarding the allocation of the tax dependency exemptions rises to the level of plain

error.

{¶58} Kelcey’s fifth assignment of error is therefore overruled.

{¶59} Based on the foregoing, the assignments of error are overruled and the

judgment is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr

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