LAKESHA CARR And
MIRAKLE CARR, Plaintiffs-Appellants, vs. JEFF BLAKE, Defendant-Appellee.
APPEAL
NO. C-990174
COURT OF APPEALS OF
OHIO, FIRST APPELLATE DISTRICT, HAMILTON COUNTY
2000
Ohio App. LEXIS 557
February
18, 2000, Date of Judgment Entry on Appeal
JUDGES: GORMAN, Judge. HILDEBRANDT, P.J., and
SUNDERMANN, J., concur.
OPINIONBY: GORMAN
OPINION: GORMAN, Judge.
Plaintiffs-appellants Lakesha Carr and her minor daughter Mirakle Carr
appeal from the Hamilton County Juvenile Court's order that
defendant-appellee Jeff Blake pay child support in the amount of $ 5,000
per month. They contend that the juvenile court's failure to complete a
child-support computation worksheet was a per se violation of
its duties, mandated by R.C. 3113.215, and requires reversal of the
support order and a remand to the juvenile court. Because the extensive
record, including the juvenile court's eight-page written decision, the
parties' sample worksheets, and the transcript of the support hearings,
affords the opportunity for meaningful review and ensures that the court
considered the correct factors in reaching its determinations, we hold
the error to be harmless.
FACTS
Blake, a professional football player for the Cincinnati Bengals, and
Lakesha Carr were involved in a three-year affair from which
Mirakle was born in July 1997. During the affair, Blake gave numerous
gifts to Carr, including nearly $ 50,000 to purchase a BMW automobile.
In July 1998, Carr filed this action to establish paternity and to
compel support from Blake. Blake admitted paternity and the court
adjudicated him the father of Mirakle.
In December 1998 and January 1999, the juvenile court held a hearing to
determine the amount of child
support due for Mirakle. Over three days of hearings,
testimony was taken from Lakesha Carr, Blake, his accountant, his
retained expert, a University
of Dayton economics
professor who testified "how to determine an appropriate level of child
support on incomes above the guideline amounts," an
accountant retained by the Carrs, and Blake's wife. During the hearings,
the court frequently asked questions of the witnesses. Numerous
documents were admitted into evidence, including a U.S. Department of
Agriculture report on family expenditures on children, Blake's NFL
contracts, his endorsement contracts, business records, financial
statements, his income tax returns filed jointly with his wife, Lakesha
and Mirakle's medical bills, Lakesha Carr's cancelled checks and bank
statements, her financial statement, and the Carrs' estimated monthly
expenses. The record also contains sample child-support
worksheets submitted by the parties' counsel to the juvenile court in
support of their arguments.
Lakesha Carr testified that she had not worked since 1995, and that her
sole source of income in 1998 was Blake's child
support paid for the benefit of Mirakle. She received no
child support
from her imprisoned ex-husband for the care of their then eight-year-old
child. From July 1997 to September 1998, Blake made payments equivalent
to $ 3,000 per month to the Carrs. In September 1998, the court
increased the amount to $ 4,000 per month and ordered Blake to provide
medical insurance coverage for Mirakle during the pendency of this
matter.
Blake stated that while he desired no contact with Mirakle, he would
provide support for her. From his testimony and from the evidentiary
materials offered during the hearings, it is unrebutted that Blake
earned approximately $ 2.8 million in gross income during 1998. The child-support
worksheet submitted by the Carrs with their written closing argument
identifies Blake's 1998 income as $ 2,818,403.
Blake’s economist expressed an opinion that a parent with income
similar to Blake's would spend approximately $ 27,800 per year to
support one child, absent unusual medical needs. He testified that
information from the Department of Agriculture indicated that per-child
spending to support one child of Mirakle's age would not exceed $ 12,000
per year.
The Carrs presented evidence in the form of a monthly budget of
expenses, claiming that $ 15,945 per month was needed to support Mirakle.
These monthly expenses included $ 6,400 per month in nonrecurring
expenses for interior design and furnishings, and $ 3,300 per month for
the purchase of a $ 300,000 home. Lakesha Carr testified that, at the
time of the hearing, she lived in a two-bedroom apartment. Despite
preparing a monthly budget indicating expenses of nearly $ 16,000, to
protect Mirakle from income reductions at the end of Blake's NFL career,
the Carrs urged the juvenile court to order child
support of $ 280,000 per year--the 10% rate of child
support indicated by the statutory guidelines for
parental income over $ 150,000 per year.
THE JUVENILE COURT'S ORDER SETTING SUPPORT
On February 19, 1999, the juvenile court journalized an eight-page
order setting support. The court first noted, "This case * * * is
simply about how can this child be best served by an absentee father and
a mother who clearly views the child as her source of income."
Then, the juvenile court ordered Blake to do the following:
pay $ 4500 per month in support plus 2% poundage through the Child
Support Enforcement Agency;
provide medical insurance coverage for Mirakle;
pay all remaining costs of birth and neonatal care;
pay 100% of all out-of-pocket medical and dental expenses;
retire a child-support arrearage of $ 25,000;
purchase a $ 300,000 term life and disability insurance policy for the
benefit of Mirakle during her minority; and deposit $ 500 per month in
additional support directly into a savings account to ensure Mirakle's
financial security.
Concluding that Blake's "earning capacity may well be drastically
reduced in the future and [that Lakesha Carr] has shown no indication
that she intends to provide for the child independent of [Blake's]
contribution," the juvenile court ordered that funds may not be
withdrawn from the savings account during Mirakle's minority without the
written agreement of the parties or the permission of the court.
The juvenile court denied the Carrs' request that Mirakle take Blake's
last name, denied their request for Blake to pay their attorney fees,
and retained further jurisdiction over the matter.
HARMLESS-ERROR ANALYSIS
In four assignments of error, the Carrs contest both the form of the
juvenile court's order and the evidence supporting its deviation from
the statutory guidelines. The Carrs first claim that the juvenile court
impermissibly set Blake's child-support obligation
without first preparing the worksheet required by R.C. 3113.215. By not
preparing a worksheet, the Carrs argue, the juvenile court failed to
determine Blake's 1998 income, and it then failed to compute what the
statutorily mandated "10% rule" support amount was before
deviating from that amount.
...
Here, the juvenile court chose not to complete a worksheet prior to
rendering its decision. It justified this omission because (1) "the
statutory chart is of no assistance in many high-income cases," (2)
Blake was providing all the support and there would be no relative
percentage to calculate, and (3) Blake conceded that his income was
"beyond the worksheet guidelines." These justifications are
inadequate. The statutory scheme requires that a calculation of the child-support
obligation be made in accordance with the applicable worksheet in R.C.
3113.215(E) or (F). Use of the worksheet is mandatory. R.C. 3113.215(B);
Marker v. Grimm at paragraph two of the syllabus. The trial
court, therefore, erred in failing to complete a worksheet.
...
Here, unlike in Marker v. Grimm, the extensive record available
for review, including the parties' worksheets, the juvenile court's
written decision and the transcript of the hearings, is replete with
"information concerning many of the items necessary to complete a
worksheet." Unlike in Miller v. Miller, the
court considered the correct factors in reaching its findings.
Specifically, the juvenile court did not fail to determine Blake's gross
income as a predicate to its later calculations. As the testimony and
the exhibits disclosed, and as the Carrs well knew when they filed their
proposed worksheet, Blake's 1998 gross income was $ 2.8 million. The
value for his adjusted gross income, taken from the testimony, and used
by the juvenile court in its hypothetical example on the third page of
its order, was $ 2.4 million. Moreover, the juvenile court stated, on
the second page of its order, that the Carrs had requested $ 280,000
annual child support "relying on the terminal percentage of 10+%
annual income." It is self-evident from the order that the juvenile
court found, as it would have if it had complied with the statutorily
mandated worksheet, that Blake's 1998 gross income was $ 2.8 million,
and that application of the "10% rule," identified in the
schedule, would have resulted in an entry of $ 280,000 in annual child
support. See R.C. 3113.215.
...
For purposes of the first two assignments of error, the rationale for
using and including the worksheet in the record--affording meaningful
appellate review and guiding the trial court to consider the correct
factors in setting child-support obligations--has been fulfilled. The
juvenile court's failure to follow the statute has not affected the
Carrs' substantial rights. .... The error, therefore, is harmless, and
the first and second assignments of error are overruled.
THE JUVENILE COURT'S DEVIATION FROM THE GUIDELINE AMOUNT
In two interrelated assignments of error, the Carrs contend that the
juvenile court erred by ordering a "downward deviation of $
220,000" from Blake's child-support obligation and by failing to
make the findings that would justify the deviation. The Carrs
contend that the juvenile court's failure to apply the "10%
rule" and order support in the amount of $ 280,000, as opposed to $
60,000, per year was done without justification and has cost Mirakle $
220,000 per year.
While decisions regarding child support ordinarily lie within the
discretion of the trial court, see Pauly v. Pauly (1997), 80
Ohio St. 3d 386, 390, 686 N.E.2d 1108, 1111, any court-ordered deviation
from the guideline amount must be supported by findings of fact and must
be journalized. ...
Deviation from the basic child-support schedule is permitted under those
circumstances in which adherence to the schedule amount "would be
unjust or inappropriate and would not be in the best interest of the
child." R.C. 3113.215(B)(3). In making that determination, the
court may consider the factors listed in the subsection and "any
other relevant factor. " R.C. 3113.215(B)(3)(p).
R.C. 3113.215(B)(2)(b) is the statutory subsection that applies if the
combined income of the parents is greater than $ 150,000. In Frazier
v. Daniels (1997), 118 Ohio App. 3d 425, 429, 693 N.E.2d 289,
291-292, this court held that, in setting support under this subsection,
The court shall (1) determine the amount of the obligor's child-support
obligation on a case-by-case basis, (2) consider the needs and standard
of living of the child and the parents, (3) compute a basic combined child-support obligation that is no less than the same
percentage of the parents' combined annual income as is shown for $
150,000, and (4) order that amount as child
support unless the court determines that it would be
unjust or inappropriate and would not be in the best interest of the
child, obligor, or obligee.
The Carrs' argument that the juvenile court erroneously deviated by some
$ 220,000 from the statutorily mandated amount of $ 23,000 per month ($
280,000 annually) appears somewhat disingenuous. The Carrs presented, to
the juvenile court, a monthly budget of expenses representing that only
$ 15,945 per month was needed to support Mirakle. In their written
closing argument, the Carrs reduced this amount to a $ 9,000-per-month
request--a $ 172,000 "downward deviation."
In finding that annual child
support in the amount of $ 280,000 would be unjust and
inappropriate, the juvenile court concluded, on pages four and five of
its order, that an order for the statutorily mandated amount of support
was not in Mirakle's best interest. The
court reviewed the Carrs' "wish-list" budget and found that
the lesser amount would provide Mirakle with "a comfortable and
nurturing environment." The court observed that expert testimony
had indicated that a parent with income similar to Blake's would spend
approximately $ 27,800 per year to support one child, further noting
that the Department of Agriculture had indicated that per-child spending
to support one child of Mirakle's age would not exceed $ 12,000 per
year. The court ordered an amount for child support that was more than
twice what Blake's expert recommended.
Finding that Blake
and Lakesha Carr had never established a "lifestyle together,"
the juvenile court specifically rejected any need to maintain Mirakle in
a manner equivalent to that for the children from Blake's marriage.
See R.C. 3113.215(B)(3)(l). The juvenile court expressed its concern for
Mirakle's future financial security in light of Blake's uncertain future
income, and to the extent permitted by law, the court provided that $
500 per month of the support was to be deposited into a savings account
for the benefit of Mirakle alone. The court also forcefully stated the
following:
This Court has carefully weighed the lifestyle currently being enjoyed
by both Mother and Father and has concluded that the child can well be
provided for at [the ordered] support level. In the event Father's
income as a professional athlete is reduced as can be expected in the
future, the Court will be looking to the investment income currently
being established from testimony regarding his business interests and
not to the mere fact that he is no longer an active player in the NFL.
The Court will also be concerned with Mother's initiative to provide her
share of the child's support through gainful employment.
This Court shall retain jurisdiction of any concerning issues.
Abuse of discretion implies not merely error of judgment, but a result
that is so palpably and grossly violative of fact and logic that it
evinces a perversity of will, passion, prejudice, partiality, or moral
delinquency... To abuse its discretion, a court must act unreasonably,
arbitrarily, or unconscionably... If, however, a court's exercise of its
discretion exhibits a sound reasoning process that would support its
decision, this court will not disturb that determination. ...
Here, the juvenile court, in full compliance with the statute and with
this court's analysis in Frazier v. Daniels, has determined the
amount of Blake's child-support
obligation on the facts presented in this record, has considered the
needs and standard of living of child and parents, has computed the
basic combined child-support
obligation, which is no less than the same percentage of the parents’
combined annual income that applies to combined income of $ 150,000, and
has determined that such obligation would be unjust or inappropriate and
would not be in best interest of child. Given the high standard to
demonstrate an abuse of discretion, we conclude that the court did not
err in ordering a downward deviation in Blake's child-support
obligation. The third and fourth assignments of error are overruled.
LAST NAME AND FEES ASSIGNMENTS
In light of the juvenile court's determination that Blake and Lakesha
Carr had never established a "lifestyle together," and in the
absence of argument by the Carrs as to how it would be in Mirakle's best
interest, we further conclude that the juvenile court did not abuse its
discretion by refusing to change Mirakle's last name to Blake. ... The
fifth assignment of error is overruled.
In their sixth assignment of error, the Carrs claim the juvenile court
erred in concluding that it was without authority to award attorney fees
and costs.
R.C. 3113.219(B) provides that the court "may include in the [child-]support
order a statement ordering either party to pay the costs of the
action, including, but not limited to, attorney's fees." An award
of attorney fees is a matter within the sound discretion of the trial
court, and a decision not to award fees will not be reversed on appeal
absent an abuse of discretion. ... Thus, as long as the juvenile court's
decision is supported by a sound reasoning process, this court will not
disturb that determination. ...
The juvenile court found,
on page seven of its order, that the Carrs "had the legal guarantee
of counsel through the Child Support Enforcement Agency or could have
petitioned the Court to appoint counsel pursuant to Juvenile Rule
4," but that they chose to retain counsel nonetheless. Noting that
the Carrs had ample funds available to pay their counsel, the court
denied fees. We cannot say that the juvenile court abused its discretion
in making this ruling. The sixth assignment of error is overruled.
Therefore, the judgment appealed from is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., and SUNDERMANN, J.,
concur.
