[Cite as Duff v. Duff,
2014-Ohio-3750.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
MEEKA D. DUFF :
: Appellate Case No. 26043
Plaintiff-Appellee/Cross-Appellant :
: Trial Court Case No. 07-DR-278
v. :
:
JOHN T. DUFF, II : (Civil Appeal from Common Pleas
: (Court, Domestic Relations)
Defendant-Appellant/Cross Appellee :
:
...........
OPINION
Rendered on the 29th day of August, 2014.
...........
MELYNDA COOK, Atty. Reg. #0066596, Repper, Pagan & Cook, Ltd., 1501 First Avenue,
Middletown, Ohio 45044
Plaintiff-Appellee/Cross-Appellant
PAULETTE J. LILLY, Atty. Reg. #0021404, 4853 Brixston Drive, Hilliard, Ohio 43012
Defendant-Appellant/Cross Appellee
.............
HALL, J.
{¶ 1} Defendant-appellant John Duff appeals from a decision and judgment denying
his motion for child support. Plaintiff-appellee Meeka Duff (now known as “DeBevoise”) has
2
filed a cross-appeal from that judgment with regard to the calculation of her actual child support
obligation and the trial court’s decision to require her to carry primary insurance coverage for the
parties’ children and to pay all uninsured medical expenses after Mr. Duff pays the first $100 in
such expenses per child per year. For the reasons set forth below, we Affirm.
I. Course of Proceedings
{¶ 2} The parties were married in 1994 and have two minor children as a result of the
marriage. They were divorced in October 2007. Of relevance hereto, the parties entered into a
shared parenting agreement pursuant to which both were designated as legal custodians of the
children. Further, the agreement specified that both parents would have equal parenting time,
and thus neither would pay child support to the other.1 The agreement provided that Mr. Duff
would provide primary health insurance coverage and that Ms. DeBevoise would provide
secondary coverage. Mr. Duff was required to pay all remaining medical, dental, optical and
psychological expenses incurred on behalf of the children. The parties also agreed to equally
divide all costs of the children’s private school, including tuition, books, uniforms, lab fees,
lunches and extracurricular activities.
{¶ 3} In March 2012, Ms. DeBevoise filed a motion seeking to terminate the shared
parenting plan and to designate her as the residential parent. She further sought child support
from Mr. Duff. Subsequently, in October 2012, Mr. Duff filed a motion for sole custody and for
child support.
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A child support worksheet was generated which allocated the sum of $11,271.79 as the annual support obligation for Mr. Duff,
and $8,253.23 as the obligation for Ms. DeBevoise.
[Cite as Duff v. Duff, 2014-Ohio-3750.]
{¶ 4} A hearing on the motions was held on February 25, 2013. At the beginning of
the hearing, both parties agreed to withdraw their motions to terminate the shared parenting plan
and further agreed that they would have a hearing only on the issue of Mr. Duff’s motion to
modify child support. At the hearing, it was demonstrated that Mr. Duff’s gross income at the
time of the divorce was $75,121.99 and that in 2013 his gross income would be $90,084.80.2
Ms. DeBevoise had a gross income of $55,000 at the time of the divorce. Her base salary
beginning in 2013 was $100,000 and she is eligible to earn performance bonuses of up to
$39,000. Mr. Duff testified that he estimates he spends approximately four to five thousand
dollars per year for health insurance as well as uninsured medical expenses. His premium
expense is $186.68 per month with a deductible of $2,400. His health insurance plan covers
him, his current spouse, his stepson and both of the parties’ two children. The family plan for
which Mr. Duff pays does not experience a premium increase for adding his stepson. Ms.
DeBevoise has available health insurance coverage with a annual premium of $453.70.
{¶ 5} Following the hearing, the magistrate issued a decision finding that the best
interests of the children would be served by requiring Ms. DeBevoise to assume more of the
shared expenses rather than to impose a requirement that she pay child support. Thus, the
magistrate concluded that there should be no change in the child support order except that Mr.
Duff would not be required to reimburse Ms. DeBevoise for his one-half portion of the shared
expenses until such expenses exceeded the amount of $4,969.22. The magistrate arrived at this
figure by subtracting Ms. DeBevoise’s prior child support obligation of $8,253.23 from the
2
This amount includes a government disability payment of $130 per month. Both the magistrate and the trial court found this
payment was $127 per month despite Mr. Duff’s testimony that it had increased to the higher amount. Tr. p. 95. We find the difference de
minimis.
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updated obligation of $13,222.45. In the updated child support worksheet, the magistrate used
Ms. DeBevoise’s base salary of $100,000 and a three-year average bonus of $20,000.
{¶ 6} Mr. Duff objected to the magistrate’s decision. The trial court issued a decision
and judgment finding that the magistrate erred in using the sum of $20,000 as Ms. DeBevoise’s
bonus amount, and found that the correct amount is $30,000. The trial court further found Ms.
DeBevoise’s total support obligation is $19,405.28. 3 The trial court then found that, after
subtracting the 2007 child support obligation from the current obligation [$19,405.28 -
$8,253.23], Ms. DeBevoise’s annual child support obligation is $11,152.05 [$929.36 per month].
However, the court concluded that both parties still have equal parenting time, both parties have
increased income, and the children still enjoy the same standard of living that they had during the
marriage. The trial court further found that despite the disparity in income, Mr. Duff is still able
to meet the needs of the children and his current wife and stepson. Thus, the trial court found it
equitable to maintain the one-hundred percent deviation from the child support calculation and to
follow the magistrate’s decision that Ms. DeBevoise pay all shared expenses up to the sum of
$4,969 with any excess being equally split by the parties. The trial court imposed an additional
requirement that Ms. DeBevoise provide the primary health care coverage for the children and
that she be responsible for payment of one hundred percent of any uninsured costs.
{¶ 7} Mr. Duff appeals the trial court decision and Ms. DeBevoise cross-appeals.
II. Was the trial court’s decision continuing a deviation from the
3
We note that the record does not contain a child support worksheet using the $30,000 bonus amount. Thus, we do not have
the trial court’s actual calculations before us.
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child support calculation an abuse of discretion?
{¶ 8} Mr. Duff’s First and Second Assignments of Error state:
THE TRIAL COURT ERRED IN DEVIATING TO ZERO THE CHILD
SUPPORT OBLIGATION OF THE APPELLEE, MEEKA DEBEVOISE.
THE TRIAL COURT ERRED IN MODIFYING THE TERM OF THE
SHARED PARENTING PLAN REGARDING THE ALLOCATION OF
EXPENSES FOR EXTRA-CURRICULAR ACTIVITIES AND EDUCATION
AS AN ALTERNATIVE TO AN AWARD OF CHILD SUPPORT.
{¶ 9} Mr. Duff contends that the trial court erred by deviating from the child support
calculation and by instead allocating more of the shared expenses to Ms. DeBevoise.
{¶ 10} 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.”
Johnson v. McConnell, 2d Dist. Montgomery No. 24115, 2010–Ohio–5900, ¶ 13. When
modifying a child support order, a trial court must follow the procedures set forth in R.C.
3119.022. The Ohio Supreme Court “has required strict compliance with the statutory
procedures for an initial award or modification of a child support order. The trial court must
include the worksheet in the record so that an appellate court can meaningfully review the trial
court's order.” Johnson at ¶ 14, internal citations omitted. “Generally, the amount of child
support that would be payable under a child support order, as calculated pursuant to the basic
child support schedule and applicable worksheet through the line establishing the actual annual
obligation, is rebuttably presumed to be the correct amount of child support due. R.C. 3119.03.”
Id., at ¶ 15.
[Cite as Duff v. Duff, 2014-Ohio-3750.]
{¶ 11} However, R.C. 3119.22 permits a deviation from the amount set forth in the
worksheet if, after considering the factors set forth in R.C. 3119.23, the trial court finds that the
amount calculated in the worksheet is unjust or inappropriate. R.C. 3119.23 provides that “in
determining whether to grant a deviation pursuant to section 3119.22 of the Revised Code” the
court may consider the following:
(D) Extended parenting time or extraordinary costs associated with
parenting time, …;
…
(H) Benefits that either parent receives from remarriage or sharing living
expenses with another person;
(I) The amount of federal, state, and local taxes actually paid or estimated
to be paid by a parent or both of the parents;
(J) Significant in-kind contributions from a parent, including, but not
limited to, direct payment for lessons, sports equipment, schooling, or clothing;
(K) The relative financial resources, other assets and resources, and needs
of each parent;
(L) The standard of living and circumstances of each parent and the
standard of living the child would have enjoyed had the marriage continued or had
the parents been married;
(M) The physical and emotional condition and needs of the child;
(N) The need and capacity of the child for an education and the educational
opportunities that would have been available to the child had the circumstances
requiring a court order for support not arisen;
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(O) The responsibility of each parent for the support of others;
(P) Any other relevant factor.
{¶ 12} Further, R.C. 3119.24 provides that a trial court must consider any “extraordinary
circumstances of the parents” which include the following:
(1) The amount of time the children spend with each parent;
(2) The ability of each parent to maintain adequate housing for the
children;
(3) Each parent's expenses, including child care expenses, school tuition,
medical expenses, dental expenses, and any other expenses the court considers
relevant;
(4) Any other circumstances the court considers relevant.
{¶ 13} In this case, we conclude that the trial court did not abuse its discretion in finding
that a deviation is still warranted. Although there is now a larger discrepancy in income than
there was at the time of the divorce, and the higher earner has switched from father to mother,
there is no change in the other factors that originally led the parties to conclude that child support
is inappropriate. Both parties share equally in parenting time. The children are still enjoying
the same standard of living they enjoyed during the marriage. Mr. Duff has not experienced a
decrease in his income or standard of living. He now lives in a five bedroom home in a
residential golf community. His wife receives child support for her son. Mr. Duff’s own
testimony indicates that he is able to meet the needs of himself, his spouse, his stepson and both
of his children without any change in child support.
{¶ 14} Additionally, the parties agreed that they share the approximately $12,000 in
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annual expenses of the children’s private schooling and extracurricular activities. The trial court
ordered Ms. DeBevoise to pay the first $4,969 (or approximately forty-one percent) of those costs
at which point she and Mr. Duff would then share equally in the remaining $7,031 in expenses.
The trial court also ordered that Ms. DeBevoise, rather than Mr. Duff, would be responsible for
all of the uninsured medical expenses of the child. Thus, the trial court’s decision eases Mr.
Duff’s financial expenses regarding the children by at least $5,755 per year.
{¶ 15} We cannot say that the trial court’s decision to deviate from the standard child
support order or to allocate more of the shared expenses to Ms. DeBevoise constitutes an abuse
of discretion. It merely mirrors, in reverse, the parties’ relative obligations as agreed to in their
original shared parenting plan.
{¶ 16} Mr. Duff’s First and Second Assignments of Error are overruled.
III. The trial court did not err with respect to 2012 expenses
{¶ 17} Mr. Duff’s Third Assignment of Error states:
THE TRIAL COURT ERRED IN ITS DETERMINATION OF THE
RESPONSIBILITY OF THE APPELLEE FOR THE MONTHS OF OCTOBER,
NOVEMBER AND DECEMBER 2012.
{¶ 18} Mr. Duff contends that the trial court erred in its calculation of Ms. DeBevoise’s
financial obligation for the months of October, November and December 2012. He filed his
motion for child support in October 2012. The trial court’s decision regarding Ms. DeBevoise’s
additional obligations was made effective January 2013. The trial court ordered that for the
months following the filing of Mr. Duff’s motion and the effective date of its order that Ms.
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DeBevoise would only receive fifty-percent reimbursement of any shared expenses over the
amount of $828. Mr. Duff contends that since the trial court assigned Ms. DeBevoise “the
responsibility of an additional $414.00 per month toward the education and extracurricular
activity expenses ($4969.00/12 = $414.00)” it should have made her pay the sum of $1,242
before receiving any reimbursement for those months.
{¶ 19} We cannot say that the trial court abused its discretion in this regard as Ms.
DeBevoise’s total income in 2012 was approximately $30,000 less than her projected total
income for 2013.
{¶ 20} Accordingly, Mr. Duff’s Third Assignment of Error is overruled.
IV. Bonus income is income
{¶ 21} Ms. DeBevoise states the following for her First Assignment of Error on
Cross-Appeal:
THE TRIAL COURT ERRED IN INCLUSION OF MOTHER’S BONUS
INCOME FROM PAST EMPLOYERS TO CALCULATE MOTHER’S TOTAL
ANNUAL INCOME.
{¶ 22} Ms. DeBevoise contends that the trial court erred by determining for purposes of
the child support worksheet that her approximate annual income from bonuses is $30,000.
{¶ 23} We find no merit in this argument. Ms. DeBevoise testified that beginning
January 1, 2013 she will have a base salary of $100,000 with eligibility to earn performance
bonuses of up to $39,000. More importantly, there is evidence in the record to support a finding
that for the three years prior to the hearing Ms. DeBevoise received bonuses totaling
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approximately $30,000 per year. There is nothing in this record to suggest that Ms. DeBevoise
will not be eligible to receive bonus income. Thus, we find no error in using this amount for
purposes of the child support worksheet.
{¶ 24} Ms. DeBevoise’s First Assignment of Error on cross-appeal is overruled.
V. The trial court’s reference to an incorrect support
calculation is not reversible error
{¶ 25} Ms. DeBevoise’s Second Assignment of Error on cross-appeal states:
THE COURT ERRED IN DETERMINING THE 2013 ANNUAL
OBLIGATION PRIOR TO DEVIATION TOTALLED [SIC] $19,405.28.
{¶ 26} Ms. DeBevoise contends that the trial court erred in its child support calculation.
As indicated, the magistrate arrived at a new child support obligation for Ms. DeBevoise of
$13,222.45, which utilized $20,000 as a figure for her bonus income. Ultimately, to adjust for the
income difference, the magistrate recommended that Ms. DeBevoise be responsible for the first
$4,969.00 of the shared additional expenses for the children. DeBevoise did not object to this
specific recommendation.
{¶ 27} The trial court determined that Ms. DeBevoise’s bonus income figure should
have been $30,000, meaning her income was found to be $10,000.00 higher. Nonetheless, the
trial court also held that DeBevoise would be responsible for the identical amount of the shared
additional expenses, the first $4,969.00, despite $10,000.00 more income.
{¶ 28} We agree with the appellee that the trial court’s statement “John is correct that
the 2013 support obligation totals $19,405.28 annually” (decision pg. 5) is incorrect. That figure
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is apparently based on a one-page child support computation worksheet that was attached to Mr.
Duff’s Supplemental Objections filed September 24, 2013. That worksheet does not truncate the
support obligation for combined incomes, as here, in excess of $150,000.00. We also note that
the trial court did not include a child support worksheet with its decision. However, this error is
harmless. The trial court’s adjustment of $4,969 for shared expenses is the same figure
recommended by the magistrate whose full-form calculation worksheet did limit support for the
income over $150,000.00, even though the trial court determined Ms. DeBevoise’s income was
$10,000 more. The adoption of this recommendation was reasonable. We fail to see how Ms.
DeBevoise was prejudiced by the trial court’s quoted statement. We further recognize that in light
of the additional $10,000.00 income, the trial court ordered that Ms. DeBevoise be required to
provide medical insurance, at a cost to her of $453.70 annually, and she was required to pay all of
the children’s uninsured medical expenses, which she stated she was willing to do. Finally, as
noted above, the trial court determined that the evidence merited a one-hundred percent deviation
in child support. Thus, in our analysis any error in determining the actual annual obligation
calculation had no impact on the result herein.
{¶ 29} Ms. DeBevoise’s Second Assignment of Error is overruled.
VI. The trial court’s re-allocation of health insurance
and expenses was not an abuse of discretion
{¶ 30} For her final Assignment of Error on cross-appeal, Ms. DeBevoise asserts the
following:
THE TRIAL COURT ERRED IN RE-ALLOCATION OF ALL
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UNINSURED MEDICAL, DENTAL, OPTICAL AND PSYCHOLOGICAL
EXPENSES AND RE-ALLOCATION THAT MOTHER WAS TO MAINTAIN
PRIMARY INSURANCE.
{¶ 31} Ms. DeBevoise contends that the trial court should not have made her responsible
to provide the primary health insurance for the children. She further contends that it was error to
make her responsible for all uninsured medical costs.
{¶ 32} Again, the trial court maintained the essence of the parties’ shared parenting
agreement and merely switched the responsibility for primary insurance coverage and payment of
uninsured expenses to Ms. DeBevoise, who testified that she would be willing to pay the
uncovered medical bills. As we indicated in our discussion of the previous assignment of error,
the magistrate recommended, and the court ordered, that Ms. DeBevoise be responsible for the
first $4,969.00 of shared expenses. In light of the fact that the trial court determined Ms.
DeBevoise’s income was $10,000.00 more than calculated by the magistrate, it was reasonable
for the trial court to modify the magistrate’s recommendations to allocate primary insurance and
uninsured medical expenses to Ms. DeBevoise.
{¶ 33} Further, there is no evidence that the premium she pays, which already covers both
children, would increase merely by making it the primary insurance.
{¶ 34} We cannot say that the trial court abused its discretion with regard to the
allocation of insurance coverage or payment of uninsured expenses. Accordingly, Ms.
DeBevoise’s Third Assignment of Error is overruled.
VI. Conclusion
[Cite as Duff v. Duff, 2014-Ohio-3750.]
{¶ 35} All of the parties’ Assignments of Error being overruled, the judgment of the trial
court is Affirmed.
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DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Melynda W. Cook
Paulette J. Lilly
Hon. Timothy D. Wood
