Pauly v. Pauly - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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PAULY, APPELLANT, v. PAULY, N.K.A. CLINGER, APPELLEE.
[Cite as Pauly v. Pauly (1997), ___ Ohio St.3d ___.]
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.

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 income tax purposes. Furthermore, appellant was ordered to pay
$183.38 per month in child support.

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.

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.

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. The issue before this court is whether a
parent paying child support under a shared parenting plan is entitled to an

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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.

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.

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. * * *"

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.

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, through

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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.

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

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parents at all times. Thus, this part of division (C) is likewise inapplicable to this
case.

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).

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 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

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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.

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.

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 them
beyond the time limits of the court order, we cannot say that the trial court abused

6

its discretion in refusing to deviate from the amount of child support calculated
under the standard worksheet.

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.
FOOTNOTES:
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.
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.)

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