IN THE SUPRE[VIE COURT OF THE STATE OF OHIO

TIMOTHY D. DAWSON,

Plaintiff Appellant,

V.

STEPHANIE DAWSON,

DEFENDANT/APPELLANT,

AND

JOHN STOIIT

DEFENDANT/APPELLEE

AND

IN THE MATTER OF: KS

ISTEPHANIE DAWSON-APPELLANTTIMOTHY DAWSON-APPELLANT]

AND

IN THE MATTER OF: NS

[STEPHANIE DAWSON-APPELLANTTIMOTHY DAWSON-APPELLANTj

AND

IN THE MATTER OF: TS

[STEPHANIE DAWSON-APPELLANT'I'IMOTHY DAWSON-APPELLANT]

Case No. 09-2363

ON APPEAL FROM THE UNION

COUNTY COURT OF APPEALS

THIRD APPELLATE DISTKICT

CASE NO. ] 4-09-08

(CONSOLIDATING CASE NO.S

14-09-10,14-09-11 AND 14-09-12)

(APPEAL CASE NO. 14-09-10)

(APPEAL CASE NO. 14-09-11)

(APPEAL CASE NO. 14-09-12)

(11 1.k!`1 K, 0 i' [;t7[Jt^1-sr- m E Ci1[IR T 0 f ^^.tci

DEFENDANT JON STOUT'S MEMORANDUM CONTRA TOPLAINTIFFS/APPELLANTS' MEMORANDUM IN SUPPORT OF

JURISDICTION

ELIZABETH N. GABA (#0063162)1231 East Broad StreetColumbus, Ohio 43205614.586.1566 (w)614.586.0064 (f)Attorney for Appell.ants Timothy & Stephvzie Dawson

GREGG LEWIS (#0041229)625 City Park AvenueColumbus, Ohio 43206-1003614.221.3938 (w)614.221.3713 (f)Attoiney for Appellee Jon Stout

ALISON BOGGS (#0055841)1189 Colutnbus AvenueMarysville, Ohio 43040937.578.0214Attorney for Nathan Stout

PERRY PARSONS (#00664867)1 l 1 West Sixth StreetMai-ysville, Ohio 43040937.644.3184 (w)937.644.3517 (f)Guardian Ad Litem

KERRY DAWSON (#0042578)169 Grove StreetP.O. Box 389Marysville, Ohio 43040937.645.4190 (w)937.645.4191Attorney for Union County CSEA

2

Table of Contents Page 3

Table of Authorities Page 4

Statement of the Case and the Facts Page 5

Statement of Lack of Public and/or Great General Interest Page 10

Argument Against Plaintff:s/Appellants' Propositions of Law Page 10

The Plaintiffs/Appellants have argued the mei-its of their case buthave not made any showing regarding how this case involves aconstitutional question or a issue of great general or public interest.

Defendaiit/Appellee's Proposition of Law No. 1 Page 10

The issues in this ease are not constitutional as the DomesticCourt's detennination of paternity was never appealed.

Defendant/Appellee's Proposition of Law No. 2 Page 11

The issues in this case are not of great general interest because thefacts of this case are not likely to repeat or recur.

Defendant/Appellee's Proposition of Law No. 3 Page 12

The issues in this case are not of great public interest as theyinvolve only who should pay child support cases in this atypical situation.

Conclusion Page 12

Certificate of Service Page 13

Appendix with Lower Court Decision and Entry Page ] 4

3

TABLE OF AUTHORITIT+',S

Williamson v. Rubich (1960), 171 Ohio St. 253 at 253-254.

2. Section 3(B)(3), Article IV of the Ohio Constitution

(3) A majority oi'the judges hearing the cause shall be necessaiy to rendera judgment. Judgments of the courts of appeals are final except asprovided in section 2(B)(2) of this article. No judgment resulting from atrial by jury shall be reversed on the weight of the evidence except by theconcurrence of all three judges hearing the cause.

3. Section 2(13)(2)(c), Article TV, Ohio Constitution

(2) The supreme court shall liave appellate jurisdiction as follows: ...

(e) In cases of public or great general interest, the sup-emeeourt niay direct any court of appeals to certify its record tothe supreme court, and znay review and affirm, modif'y, orreverse the judgment of the court of appeals;

4

STATEMENT OF THE FACTS AND OF THE CASE

While the Plaintiffs/Appellants take great care to go into the facts of this case, the

otily important facts of note involve the procedural posture of the case as it comes to this

Court.

This case started out in the Union County Court of Common Pleas Division of

Domestic Relations (hereiilafter "the Domestic Court"), case No. 98 DR 0141. Three

children were born of thc marriage, Nathan, Trevor and Kylie. Nathan was born duritig

the matriage on October 15, 1991 bul was conceived via an adultorous relationship

bctween Plaintifi7Appellant Tim Dawson and Plaintiff/Appellant Stephanie Dawson.

During the tirst seven years of Nathan's life, Plaintiff/Appellant Tim Dawson had almost

nothing to do with Nathan, seeing him only in passing on one or two occasions. Por all

intents and purposes, Nathan was raised to thinlc that Jon Stout was his father. Further,

Jon Stout assumed that he was Nathan's father for many years until the divorce

proceedings neared.

Plaintiff/Appellant Stephanie Dawson and Defendant/Appellee Jon Stout ended

their marriage on September 1, 1998 by a Decree of Dissolution in the Domestic Court.

Pursuant to the Divorce Decree, Jon Stout and Stephanie Dawson entered into a shared

pai-elting agreement. Timothy and Stephanie Dawson then married in May of 1999.

Timothy Dawson sought to and intervened in the divorce proceedings between

Jon Stout and Stephanie Dawson, attempting to establish paternity over Nathan in a post-

decree motion. The Trial Court found however that it was not in the best interests of

Nathan that he be told that Timothy Dawson was his biological parent. Ilowever, the

Trial Court did award Timothy Dawson the same visitation thal Stephanie Dawson had

5

with Nathan. Under this shared parenting plan, the parties agreed not to inform Nathan

that Timothy Dawsoti was his biological father until Nathan reached the age of 18.

Tinlothy Dawson also agreed not to file a proceeding with the Union County Court of

Common Pleas Juvenile Division (hereinafter "the Juvenile Court") to establish paternity.

Timothy Dawson then filed a Civ. R. 60(B) motion with the Domestic Court to

escape the effects of his agreement to the Shared Parenting Plan on Septernber 1, 1999.

The Domestic Court denied this motion for relief and on June 14, 2000, the Domestic

Court struck paragraph 19 of the Shared Parenting Plan and dismissed Timothy Dawson

fi-om the ease before it,

Timothy Dawson then filed a Complaint to Establish Parentage with the Juvenile

Court (Case No. 20040051) on June 22, 2000. On August 30, 2000, Jon Stout filed a

motion to reallocate parental rights and responsibilities in the Domestic Court seeking to

terminate the Shared Parenting Plan and to obtain sole custody of all three children. The

Domestic Court granted this motion and Jon Stout became the residential parent and

custodian of all tliree children. Stephanie Dawson was granted visitation and ordered to

pay child support to Jon Stout for all three children.

The Domestic CoLn't held a hearing on the matter on January 8, 2001 and evidence

was presented that Plaintiffs/Appellants Steplianie Dawson and Timothy Dawson

revealed to Nathan that Timothy Dawson was his biological father. Domestic Court

granted sole custody to all three children to Jon Stout and this ruling was appealed to the

T'hii-d District Court of Appeals.

On March 2, 2001, the Juvenile Court, after a hearing, detei-mined that Timothy

Dawson was indeed the biological father of Nathan Stout, but also determined that

6

Timothy Dawson had abandoned Nathan Stout. Also on March 2, 2001, Jon Stout filed a

motion to join Nathan Stout as a party to the case before the Domestic Court and this

motion was gi-antcd the same day.

On April 27, 2001, the Juvenile Court Magistrate awarded custody of Nathan

Stout to Jon Stont aud ordered Timothy Dawson to pay child support to Jon Stout,

retroactive to June 22, 2000. Despite Titnothy Dawson's objections, Judge McKinley of

the Juvenile Com:t overitiiled the objections on August 16, 2002.

Plaintiff/Appellant Stephanie Dawson then filed for a Writ of Prohibition in the

Third District Court of Appeals on March 5, 2002 (amended March 26, 2002) argiing

that the Domestic Court lost jurisdiction over Nathan Stout when the paternity action was

tiled in the Juvenile Court. The Third District Court of Appeals dismissed this Writ,

finding that the Juvenile and Domestic Courts had concutrent jurisdiction over the matter

siricc the Domestic CornC had specifically retained jurisdietion.

On December 6, 2005, Stephanie Dawson moved for emergency custody of the

three Stout children after false criminal charges were brought against Jon Stout.

Stephanie Dawson also sought a permanent change of custody for all three children so

that they would live with her. The motions were filed in both the Dontestic and Juvenile

Courts. On Januaiy 6, 2006, the Domestic Court transferred the case to the Juvenile

Couit.

The Juvenile Court then divided the case into three cases (one for each child).

Those cases were 20630014 (In Re: Nathan), 20630015 (In Re: Tt-evor) and 20630013

(In Re: Kylie). On January 26, 2006, custody of the three Stout children was temporarily

transferi-ed to Steplianie Dawson.

7

On February 15, 2006, the Juvenile Court transferred custody back to Jon Stout.

On May 3, 2006, Nathan Stout went back to live with his motller, Stephanie Dawson.

The clnn-ges against Jon Stout were dismissed, he was re-indicted, and then the charges

were dismissed again with the exception of some misdemeanor charges. Jon Stout linally

entered info a plea agreement whci-ein he plead guilty to attempted child endangennent

agreeing that at one point he attempted to drive too fast in a vehicle with a minor.

Stephanie Dawson's motion foi- a pernianent change of custody (originally filed

before both Courts) was still pending before the Juvenile Court.

On May 12, 2006, Jon Stout filed a Motion ior Child Support which had not been

paid by Timothy Dawson based oti the fact that the Juvenile Court had determined that

Timothy Dawson was Nathan's biological father. Jon Stout and Stephanie Dawson

agreed that Nathan Stout could live with Stephanie Dawson, but continued to contest the

motion for sole custody of the other children. The Juvenile Court held that the changes in

oircumstance alleged were not sufftcient to warrant a change in custody as to the two

other children.

The parties filed various motions for contempt and attorneys fees and a hearing on

those motions was held before the Juvenile Court on October 23, 24, and 25, 2006. The

Juvenile Court Magistrate issued a decision on November 7, 2007 in favor of Jon Stout.

Plaintiff7Appellants objected to this decision but it was adopted on Novernber 13, 2007.

Plaintiffs/Appellants also filed motions with regard to modifying child support

payments because of a large award of' back pay received by Jon Stout with regard to his

improper termination after the bogus criminal charges were brought against him. A

8

hearing was held on these matters on December 17, 2008 and the Juvenile C'ourt

overruled the motions of the Plaintiffs/Appellants to modify child support.

The Magistrate also decided that since Jon Stout had taken care of Nathan Stout

from June 22, 2000 until May 3, 2006, that Timothy Dawsoti, as the biological father,

owed back child suppor•t to Jon Stout for that period of' time. The Magistrate also

increased Stephanie Dawson's child support paymctits as well. This Magistrate's

Decision was affirmed by the Trial Court.

Timothy and Stephanie Dawson then appealed this iuling, but the Trial Court's

Decision was upheld by the Third District Court of Appeals. It is ffom this appellate

decisioti that the Dawsons now seek discretionary appeal to the Ohio Supreme Court.

9

STATEMENT OF LACK OF PUBLIC AND/OR GREAT GENERALINTEREST OR CONSTITUTIONAL QUESTION

L Appellant Failed to Establish A Great General Interest or Lack ofConstitutional Question.

Appellants have spent their entire brief arguing the merits of the case. But it is

important to remember that we are not yet at that stage of tlie case where the merits are in

question. The issue right now is whether the Ohio Supreme Court should consider this

case or not.

There are two factors that the Court must consider under the Rules of Practice of

the Ohio Suprenle Court. The Appellant must show that either: the case raises a

substantial consti.tutional question; or the ease is one ofpublic or great general interest.

A. No Substantial Constitutional Qnestion Involved

As a preliminary matter, while it may be tempting to argue that this ease involves

tennination of parental rights (a substantial constitutional question), that is not the case.

While the Domestic Relations Division of the Union County Court of Common Pleas did

rule that Jon Stout was Nathan's father (thus rnding that Tim Dawson was not the f'ather),

as Appellant stated in his brief on Page 13:

the legal quest.ions involved for all subsequent proeeedings inh7ie case. No one ever

appealed the kua.ding by the Domestic Court, that Jon Stout is the father of Nathan.

Tl1us the faihu-e of the Appellant to appeal the Domestic Court's ruling to the

Third District Court of Appeals makes it legally impossible for the Appcllant to now

argae it here. This means that this case is not about termination of parental rights, and as

such, no substantial question of constitutional rights arises.

B. Lack of Great General or Public Interest

10

The Ohio Supreme Court has hcld that:

Section 6 [now Section 3], Article IV of the Ohio Constitution, providesthat judgments of the Courts of Appeals of this state shall serve as theultimate and fmal adjudication of all cases except those involvingconstitutional questions, contlict cases, felony cases, cases in whiclr theCourt of Appeals has original jurisdiction, and cases of public or greatgeneral interest. Except in these special circumstances, it is abundantlyclear that in this jurisdiction a party to litigation has a right to butone appellate review of his cause. (See, also, Section 2505.29, RevisedCode.) Williainson v. Rubich (1960), 171 Ohio St. 253 at 253-254.

Section 2(13)(2)(e), Article IV, of the Ohio Cotistitution states that the Ohio

Sapreme Court "may" review "cases of' public or great general interest." Thus the

question bef'ore the Court at this point is whether this case itivolves mattets of general

interest or public interest.

As the Ohio Supreme Court went on to hold:

It follows, of course, that the sole issue fi>r tleteftnrrration at the hearingupon such motion is whcther the cause presents a question or questions ofpublic or great general interest as distinguished from questions of interestprimariiy to the parties. Whether the qucstion or questions argued are infact ones of public or great general interest rests within the discretion ofthe court. Williamson v. Rubich (1960), 171 Ohio St. 253 at 254[Emphasis original].

1. No General Interest

The situation that the parties to this case lind themselves in is not one of great

general interest. Indeed, one would require a large number ot' legal researchers to

uncover Ohio cases wherein a mother conceived a ehild through tnarital intidelity with

another ntan, who then allowed the husband to raise that eliild as his own for 7 years

before tinally elaitning a right to the child via litigation in two different courts.

Thankfully for the fabric of our society, such situations do not commonly arise. As such,

the matter is not one of general interest.

11

2. No Publie Interest

As for public interest in this matter, once again, there is none. Appellants attetnpt

to argue that society and its concepts of marriage are evolving. Yresumably, the

argument then goes that since courts in California (wliere the issuc involved in the cited

cases is gay mari-iage) have ruled that a child can have two fathers, that this inakes this

case one of great public interest.

But it is fundamental law that such policy qucstions are liandled by elected

representatives in the legislative branch of our govermnent, not by judges. Gay marriage

referendums have been put before the votcrs in Ohio and have been soundty rejected as

recently as 2004. Further, this case does not involve gay marriage and thus the California

cases submitted by the Appellants are inapplicable.

This case involves infidelity and who should pay foi- the natural costs flowing

fi-om it. Should it be the husband who fought to raise a child who was not his own for

years, or Should it be those who try (fecklessly) to escape the natural consequences of

their actions, all the while claiming victim status in the tired patois of nioral relativism?

Ohio's Third District Court of Appeals has corne to a soundly reasoned conclusion on

this matter which should be left undisturbed by this Court.

III. Conelusion

The Ohio Supreme Court shotild not accept this case upon discretionary appeal.

The case has no constitutional issues since the Domcstic Coiut's paternity finding was

never appealed. The case involves no issues of great general or public interest. As such,

this Court should decline to accept this case on appeal.

12

Gregg`fULewis (#0041229)Eric E. Willison (#0066795)625 City Park AvenueColumbus, Ohio 43206-1003614.221-3938Attoiney for Defendant/Appellee Jon Stout

Certificate of Service

The undersigned hereby certities that a true and accurate copy of the foregoin^was served upon the following persons by ordinary U.S. Mail, postage pre-paid this 29"day of January, 2010.

ELIZABI:TH N. GABA (#0063162)1231 East Broad StreetCohunbus, Ohio 43205614.586.1566 (w)614.586.0064 (f)Attorney for Appellants Timothy & Stephanie Dawson

ALISON BOGGS (#0055841)1189 Colutnbus AvenucMarysville, Ohio 43040937.578.0214Attorney for Nathan Stout

PERRY PARSONS (#00664867)111 West Sixth StreetMatysville, Ohio 43040937.644.3184 (w)937.644.3517 (f)Guarclian Ad Litem

KERRY DAWSON (#0042578)169 Grove StreetP.O. Box 389Marysville, Oliio 43040937.645.4190 (w)937.645.4191Attorney for Union County CSEA

Gregg R. Lewis (#0041229)Eric E. Willison (#0066795)Attorney for Defendant/Appellee Jon Stout

13

IN I'I:LE CO URI' Or APPEALS OF OHIOTHIItD APPELLATE DISTRiCT

UNION COUNTY

'I'IMOTHY D. DAWSON,

PLAIN'TII+I+'-APPI+.LLANT,

V.

STEPHANIE DAWSON,

DEFENDANT-APPELLANT,

and

JON STOUT,

DEFENDANT-APPELLEE.

CAS7: NO. 14-09-08

OPINION

7N 'ITIE MA'.CTEI2. OF: CASE NO. 14-09-10

K.S.

[STEPHANIE DAWSON - APPELLANT, O P I N I O NTIMOTHY DAWSON - APPELLAN T I.

IN'CIIE MA'i'":CEIi OF: CASE NO.14-09-11

N.S.,

[STEPHANII: DAWSON - APPELLANT, O P I N I O NTIMOTHY D. DAWSON - APPLLLANT].

^^

Case No. 14-09-08

IN THE MATTE R OF: CASE NO. 14-09-12

T.S.,

[STEPHANIF, DAWSON - APPELLANT, O P T N I O NTIMOTHY 1).1?A"PVSON - APPPLLANT].

Appeal from Union Cotmty Commou Pleas CourtJavenile Division

Trial Court Nos. 200440051, 20630014, 20630015, 20630013

Judgments .Affirmed

Date of Decision: November 16, 2009

APPEARANCES:

Elizabet/c N. Cr"aba for Appellants

Gregg It. Lewis for Appellee

PRESTON, P.J.

{¶] } Appellants, Timothy D. Dawson (hereinafter "Timothy") and

Stephanie Dawson (f_k.a. Stephanie Stout)(hereinafter "Stephanie"), appeal the

judgmcnt of the Union County Court of Common Pleas, Juvenile Division, which

-2-

Case No. 14-09-08

aff'lrined aird adopted the magistrate's decision, For the reasons that follow, we

affi,-ni

{112) 'T'he procedural history of this case is long, convolnted, and involves

two differeut divisioiis of the Union County Court of Common Pleas. Appellee,

Jon Stout (hereiarafter "Jon") and Stephanie were manied on December 2, 1989,

and during t.he nrai7-ia.ge three children were born; Nathan (d.o.b. 10/15/1991),

Trevor (d.o:b. 12J02/1993), and Kylie (d.o,b. 4/26I1998). It is undisputed that

during the course of the Stouts' tnarriage, Stephanie had an extra-marital affair

with Timothy, becatne pregnant, and gave birth to Nathan in October of 1991.

While a blood test t'alcen driring the Stouts' rnarriage revealed inconelusive results

as to the patemity of Nathan, a subsequent DNA test (discusse(i below in further

detail) indicated that Timothy was the biological father of Nathan,

{113} On September 1, 1998, Jon and Steplianie terminated their nrarriage

by dissolution decree, and a shared parmzting plan was xdopted pertaining to the

three children in the 1)nion County Court of Common Pleas, Dotnestic Aelations

Division. On May 7, 1999, 3on nioved to modify the shared parenting phur; in

addition, sometinie in May of 1999, Tiinothy and Stephanie were married. On

Jurie 28, 1999, Stephanie rnoved to terminate the shared parenting pla:n and

reallocate their parental rights, in partioular requesting to be named the sole

residential parent for the three children. Subsequently, on 7uly 29, 1999, Jon also

Case No. 14-09-08

filed a rnotion to tenninate the shared parenting plan and for reallocation of

parentat rights, specifically requesCing to be named the sole residential parent for

the three children.

{14} On August 31, 1999, '1'iznothy Bled a inotion to be joinecl as a third

party to the dissolution for reallocation of parental rights and responsibilities. In

addition, on Septeinber 1, 1999, Timothy moved for a relief of the judgment from

the divorce decree pursuant to Civ.R. 60(B). Timotliy's inotions wcre based on

his desire to be acknowledged as Natlian's biological father. On September 17,

1999, the itiagistrate denied Timothy's inotions, tenninated the shared parenting

plan, and adopted a new shared parenting plan. In particular,•under paragraph 19

of the new plan,limothy was joined as a party under R.C. 3109.051's "significant

person" designation with respect to Nathan, and in exehange, Tnnothy agreed not

to file a paternity act.ion, and all parties agreed not to reveal Nathan's true

parentage to liim until he reached the age of majority.

{15) On April 28, 2000, Stephanie filecl a Civ.R. 60(B) motion from the

judgment of tlre shared parenting plan ctttered into on September 17, 1999,

specifically requesting the trial court to set aside paragraph 19. On May 24, 2000,

Timothy also filed a Civ.Tt. 60(B) motiou for relief from the September 17, 1999

judginent entry. On June 14, 2000, the magistrate overruled both Timothy and

Stephanie's Civ.R. 60(B) motions for relief, but ordered that paragraph 19 be

Case No. 14-09-08

serickera from the plan, stating that Timot.hy Dawson was free to pursue a patenrity

action in juvenile court. On ,lime 30, 2000, the trial court adopted the magistrat.e's

iiecision to excise paragraph 19 from the shared parenting plan, and as a result of

its excision, found Timothy's Civ.R 60(B) motion moot.

{16} Subsequently, on June 22, 2000, Timotliy Dawsoti filed a eoinplaint

to establish pateritity and allocation of parental riglits and responsibil.ities in the

Juvenile Division of the Union County Court of Common Pleas. The juvenile

court bifitTcated 'fimothy's case: first, detennining Timothy Dawson's potential

paternity to Nathan; then second; determining any allocation of parental rights and

responsibilities '1°imothy may lzave with respect to Nathan.

{¶7} Simultaneously, in thc domestic relations court, Jon moved to

reallocate and tenninate the shared parenting plan on AtiGgiist 30, 2000, and on

October 16, 2000, the magistrate tenninated the shared parenting plan and made

Jon the sole residential pu-ent and the legal castodian of all tlnee chiidren.

5tephanie filed objections to the magistrate's decision on October 30, 2000, and

on Jannary 8, 2001, a hearing was conducted by the doznestic relations court on

Stephanie's objections.

{¶8} Back in the juvenile court, on March 1, 2001, based on the results

from a DNA test, the juvenile court magistrate found that Timothy was Nathan's

biological father and that a father-child relationship did not exist between Jon and

Case No. 14-09-08

Nathan. This decision was adopted and appxoved by the juvenile court on March

2,2001.

{119} However, soon after the juvenile court's decision, on March 8, 2001,

the domestic relations court issued a judgment entry on Stephanie's objcetions,

essentially affirming the magistrate's decision by terminating the shared parenting

plan and n2ming .lon the residential parent and legal custodian of the three

cliildren: Stephanie appealed the dornestic relations court's decision to this Court

on ApYil 6, 2001. On October 17, 2001, we reveised and remanded the case

concluding that, although the domestic relations court had listed nurnerous

changes in circumstances, it had failed to make the required specific finding that a

change in circurnstances had occurred, and that it was in the best interest of the

children to texminate tdze shared parenting plan. No further appeal of the March 8,

2001 judgment entry was taken by either party.

{$10} Following the juvenile court's decision regarding Timothy's

paternity, hearings were condueted on the remainder of T'imothy's eosnptaint (tile

reallocation of parental rigbts), On April 27, 2001, after exaanining the evidence

and testimony, the juvenile court' found, pursuant to the Ohio Supreme Court's

decision in In re Percdes {1977), 52 Ohio St.2d 89, 369 N.E.2d 1047, that Timothy

liad abandoned ltiiathan u1d, tlrus, was an unsuitable parent. The juvenile eomt

then awarded Jon legal custody of Nathan, and visitation rights were afforded to

Case No. 14-09-08

Timothy and Stephanie. In addition, Timothy was ordered to pay chld support for

the support of Nathan. Timotlty then appealed to this Court, but only raised the

issue of whether the j.tvenile coriirt had erred in tinding that he had "aban(loned"

Nathan. This Court affinned the juvenile court's decision on 1Vlarch 31, 2003.

{¶11} We also note that prior to our decision on hlarch 31, 2003, with

respect to Tiinothy's appeal, this Court recei ved a writ of prohibition froni

Stephanie asking this Court to stop the dornestic relations court from fLu'ther

rendering orders with respect to Nathan claiming that the juvenile court liad sole

jurisdiction over Nathan. This Court dismissed the writ on June 4, 2002, stating

that the two courts had concurrent juiisdiction since the domestic relations court

had specifically retained jtu'isdiction in its judgment entry.

}¶12} Filings in both courts ceased imtil December 6, 2005, when Timothy

and Stephanie moved for a3t ex parte emergency order for custody of the three

children in the juvcnile court. On January 6, 2006, the domestic relatioiis court

certified the case to the juveriile court. On January 26, 2006, Stephanie and

Tirnothy were granted temporary custody of the three children, but on February

15, 2006, the children were returned to Jon_ On May 3, 2006, Nathan was

returned to the custody of the Stephanie and Timothy. Then, on May 12, 2006,

Jon filed a motion to reopen the issue of child support. The parties reached an

agreentent on October 23, 2006, which was journalized as a magisttate's decision

Case No. 14-09-08

on October 24, 2006, that named "1'imotliy and Stephanie as the sole eustodial aud

residential parents of Nathan. The magistrate's decision regarding the custody of

Nathan was adopted by the juvertile court on October 24, 2006. Heat7ngs on the

issue of the reallocation of parental rights with respect to Kylie att.d Trevor, child

support, contempt of court, and attorney's fees were conducted on October 23-25,

2006. On November 2, 2006, with respect to the custo(ty of Kylie and Trevor, the

magistrate found that a change of circumstances did not exist which would warrant

a change in custody; and thus, the rnagistrate reinstated the domestic relations

court's order issued on iti4arch 8, 2001 (which had declared .lon the residential

parent and legal custodian of Kylie and Trevor). This decision was adopted and

approved ort Novecnber 13, 2006, by the juvenile court.

{1113} On Noveniber 7, 2007, the magistrate entered a decision with respect

to the issue of child support, cotafempt of court, and attorney's fees. With respect

to the issues presented in this appeal, the niagistrate found the following:

1. As the natLUal parents of Nathan, Timothy and Stephanie eachhad aseparate drty to provide support for Nathan; whereas Jon, whowas a non-parentlnon-relative, did not bear such an obligation.2. For pttrposes of any potential ehild support orders, Jott shouldnotbe considered voluntarily underemployed.3. In its April 2001 order, ttre juvenile court had orderedTimothy to pay for child support for the care and benefit of Nat.hanand that the Child Support Enforcement Agency should conductadininistrative proceedings to calculate child support. However, dueto 'fimothy's appeal on the Apiil 2001 order, the adnrinistrati.veproceedings to calealate cl-iild support were stayed, and were never

Case No. 14-09-08

re-initiated even after the order had been afl`n•med by this appellatecourt.4. Despite the fact that neither party fully litigateci the issite 01'Timothy's clvlcl support prior to 2006, thc stayed child supportproceedings did not preclude the children from enjoyurg the supportof their nataral parents.5. Timothy owed Jon child, support for the benefit of NathanFrom the date he filed lris original paternity complaint (June 22,2000) until the date when Nathan was consistently and eontinuouslyrenioved frorn Jon's eustody (lv'€ay 3, 2006).6. Stephanie was obligated to pay child support for the care andbenefit of Nathan pru•suant to thc March 8, 2001 domestic relationscourt order, bctt since Nathan was consistently and continuouslyremoved froni Jon's eustody, Stephanie's obligation to pay for thechild support of Nathan tenninated effective May 3, 2006.7. Becanse Jon was the sole residential and legal custodian ofNathan from 2000 until May 2006, he was to receive the taxdependency exemption for Nathan for 2000, 2001, 2002, 2003,2004, and 2005. Likewise, because Steplianie and Timothy were thenamed. the residential and legal custodians of Nathan in 2006, theywere to receive and share the tax dependency exernption for Nathanfrom 2006 and ort: Stephanie receivuig the exemption on the even-numbered years, and Tiniothy receiving the exeinption on the odd-munbered years.8. Stephanie was ordered to pay support for the care and benei5tof Kylie and Trevor.

(Nov. 7, 2007 Mag. Dec.). Objections were tunely filed by both Stephanie and

Timothy. In additiion, on December 10, 2008, Stephanie and 'I'imothy tiled a

motion to retroactively and prospectively re-examine child support based on ncw

evidence they had discovered conceining an additional source of Jon's inccn,ne.

Ultitnately, on March 31, 2009, the juvenile corn-t issued a judgment entry

affirming the niagistrate's decision, and oven.-uling Stephanie and Timothy's

inotion to re-examine ehild support.

-9-

Case Na 14-09-08

{1(14} Timothy and Stephanie now appeal and pi-esent identical briefs to

this Court and the foltowing six assignments of erl•or.

ASSIGNMENT OF ERROR NO. I

'TII'E TRIAL COURT AI3USi',D ITS DISCRETION BYFAII.ING TO DE'I'ERMINE THAT THE LAW OI+ TIIE CASEFOR 98DR-0141, WHICH BECAME 20630014 UPONCERTIFICATION, WAS 'THAT JON STOUT WAS 7'FIT+,LEGAL FATHER OF NA'I"fIAN STOUT, WHILE THE LAWOF TI3E CASE FOR 2004005:1, WAS TI°IAT TIM DAWSONWAS THE LEGAL NATIIER OF NATHAN STOU'I'. ASSUCH, TFIE TRIAL COURT FAILEI) TO DETERMINETHA'[' NATHAN STOUT MAY RAVE TWO LEGALFAT[IERS, OR MUTUALLY EXCLUSIVE LEGALFATI3ERS, AND FAILED TO USE TIIAT DETERMINA'I'IONIN THEIR CONSIDERA'I'ION OF ISSUES IN TI3IS C;ASE,INCLUDING WHETHER THEY COIJLD RETROACTIVELYMOI)IFY A CIIILD SUPPOR'f ORDER FOR 98DR-01411206300I4 OR PI7'I' ON A CONFL9:CTING ORDER.

{¶15} Even though it appears from the language in the assignments of error

that Stephanie and Timothy dispute the portion of the trial court's judgment entry

that ordered Timothy pay child support to 7on, Stephanie and Timothy failed to

raise the issue of Tinzothy's child support order in their briefs. Because Stephanie

atLd Timothy have failed to argue the issue of the child support order in tlrese

assignments of error, and since their second assignments of error predominately

concerns the issue of the child support order, we will only address their arguntents

as they were presented within their briefs.

Case No. 14-09-08

{1j][6} With that stated, essentially, in their first assignments of effor,

Timothy and Stephanie argue that there are two inconsistent and contradictory

judgment entries in this case: two different courts have declar-ed two different

individuals ta be the "father" of Natlian. Tn addition, they argue that because tl-ie

juvenile court's jluisdiction was limited to only prospective actions, not

retroactive actions, the juvenile trial cour-t erred when it changed the domestic

relations court's findiaig of parentage that Jon was the father of Nathan to fmding

that `I'imothy was now Nathan's father.

{1(17} After the divorce decree was linalized in the domestic relations

court, on September 1, 1998, a shared parenting plan was adopted that named Jon

aaid Stephanie both the residential and legal custodiaiis of fhe three cliildren.

Later, in June and July 1999, Stephanie and Jon both filed motions in the donzestic

relations cow-t for reallocation of parental rights, and both souglrt to be declared

the three children's sole residential anci legal custodian. On August 31, 1999,

Timothy fiiled a motion to be yoined as a. third party to the dissolution for

reallocation of parental riglits and responsibilities based on the preruise that lie was

Nathan's biological father. While Timothy's motion was not granted, he was

added in the modified parenting plan as a "significant person" under R.C.

3109.051; however, wtiile this ordcr granted `1'imothy visitation rights, it in no way

granted Timothy parental ilglits. (June 14, 2000 Mag. Dee. at 6). Soon

(;ase No. 14-09-08

aftetvvards, the domestic relations court excised thc provision of the parenting plan

that pertained to Timotliy, and declared tbat gince Timothy did not have any

privity to the parties as it related to the divorce action in domestic relations court,

'1'imothy's claim for paternity lay in juvenile court. (Id., citing State ex rel. Smith

v. Smith (1996), 110 Ohio App.3d 336, 674 N.B.2d 398; In re Mancini (1981), 2

Ohio App.3d 124, 440 N.E.2d 1232).

{1118} As a result, on June 22, 2000, Tiniotby filed a complaint in juvenile

cour-t for the purpose of establishing paternity with respect to Nathan. Meanwhile,

the issue of the shared parenting plan between Jon and Stephanie was still

contiuuing in the domestic rrwlations court. fln October 16, 2000, the doxnestic

relations court magistrate terminatad the shared parenting plan and made Jon the

sole i-esidential parent and the legal custodiaii of all three children. Stephanie filed

objections to the magistrate's decision on October 30, 2000, and on January 8,

2001, a hearing was conducted by the domestic relations trial court on Stephanie's

objections.

{1119} Back in the juvenile court, on March 1, 2001,-the juvenile court

magistrate found, as a result of DNA testitrg, that Timothy was Nathan's

biological father, and that a father-child relationship did not exist between Jon and

Nathan. This decision was adopted and approved by the juvenile court on March

2, 2001, but on March 8, 2001, the domestic relations trial court issued a judgnrent

Case No. 14-09-08

eutry on Stephanie's objections esseiitially aftirming the inagistrate's decision by

terminating the shared parenting plan and naming Jon the residential parent and

legal custodian. hi its March 8, 2001 judgment entry, the dornestic relations court

stated that, despite Timothy's assertions that lie was Nathan's biological father, at

the titne of the original dissolution hearing, the domestic relations coiu-t had fotimd

all three children were born dtiring the marriage of Stephanie and Jon, and

therefore, the ehildren were presumed to be Stephanie and Jon's children. (Mar. 8,

2003 .iE).

{T20} Stephanie aird Timothy claim in their briefs that once the domestic

relatioras court used the presumption of patemity to find Jon was Nathan's fa.ther,

and no appeal was taken on that finding, the issue of Nathan's father was finally

resolved under the doctrine of res judicata, and that the law of the case dictated

that Jon was .Nathan's fatller, They argue that because the juvenile court's

jurisdiction is limited to only prospective actions, not retroactive actions, the

juveirile trial court en-ed when it changed the domestic relations conrt's finding of

parentage that Jon was the father of NaChan to finding that Tirnothy was now

Nathan's father. We disagree.

{¶21} The issue of Timothy's parentage action witli respect to Nathan was

not barred by res judicata, and was legitimately pursued iri the juvenile court back

in 2000. The Ohio Supreme Court has held that the doctrine of res judicata can be

Case No. 14-09-08

invoked to give conclusive effect to a determination of parentage contained in a

dissolution clecr•ee or legitimation order. Gilbraith v. Hzxson (1987), 32 Ohio

St3d 127, 512 N.E.2d 956, sylIabuus. Ftowever, res jirdicata applies only where

there is an identity of i,ssues and an identity of parties or persons in privity with

partics. Johnson v. Tlorman (1981), 66 Ohio St.2d 186, 190, 421 N.E.2d 124;

Payne v. Cartee (1996), 111 flhio App.3d 580, 676 N.E.2d 946. 1-lere, while the

domestic relations court in its March 8, 2001 judgnlent entry, found Jon was the

parent of Nathan undcr the statutory preswnption in R.C. 3111.03(A)(1), Tiznotlry

was never a party to the divorce proceedings, thus he was not bound by that

decision, and he was free to pursue his paternity compiaint in juvenile court. Gcztt

v. Gideon (1984), 20 Ohio App.3d 285, 485 N.E.2d 1059, paragraph one of

syllabus (holding that because the domestic relations court determined that ihc

clail(l was an issue of the marriage, res judicata did not bar any action that the

natura7 father could file in juvenile aourt pursuxnt to R.C. 3111.04 and R.C.

3111.06(A) becar.rse he had not been a party to the divorce action.) See, also,

Leguillon v. Le^gudllon (1998), 124 Ohio App.3d 757, 767, 707 N.E.2d 571

(finding that a child was not precluded frombringing a paternity action under R.C.

Chapter 3111 to detennine the existence or nonexistence of a father-child

relationship, because the child was arguably not a paity to the original divorce

Case No. 14-09-08

action); Fitzpatrick v. Fitzpatrick (1998), 126 Ohio App.3d 476, 483-84, 710

N.E.2d 778.

{¶22} Fru-Chermore, it is cleai- that the juvenil.e court had jurisdiction to

decide the issue of paterniry pursuant to R.C. 2151.23(B)(2), which gives the

jtivenile court original jurisdiction to "determine the paternity of any child alleged

to have been boni out of wedlock." Here, Timothy snfficiently alleged in his

cotnplaint that Nathan was "bonl out of' wedloek" by statiuig that his conception

and birth resulted from his and Stephanie's affair. (June 22, 2000 Compl. at 2).

Tliis allegation was suf6cient to have given the juvenile coiut proper jutisdiction

to hear the matter filed by Titnotliy. Nivabara v. Willacy (1999), 135 Ohio App.3tl

120, 127, 733 N.E.2d 267, citing 3tate e.,.: rel. '6pillacy v. Smith (1997), 78 Ohio

St.3d 47, 51-52, 676 N.F,.2d 109, Thus, on March 1, 2001, when the juvenile

court declared tliat "T'imothy was Nathan's biological father, and that a parent-child

relationship did not existbetween Jon and Nathan, and no appeal was taken on this

issue, this finding becanie, and has remained, legally biriding.

{l(23} We would also note lhat sitrce August 31, 1999, when Tiinothy filed

a motion to be joined as a third party in the domestic relations court's divorce and

shared parenting action, Timothy (and Stephanie) has continuously wanted to be

recognized as Nathan's biological father and has actively sought to have parental

rights to Nathan. Titnothy went so far as to establish his biological status by filing

Case No. 14-09-08

a con.rplaint to establish paternity in the juvenile court, where he was eventt.tally

proclainled to be Natlran's biological father. )~.ven in the motions fi'led on

December 6, 2005, (in which'1'imothy and Stephan.ie moved for an emergency ex

parte order for C'tstody of the tliree children and to be nanle(i Nathaai's sole

residential and legal custodian i'n the jt.ivenile cotu-t), Timothy was still asserting

that he was Nathan's father. Moreover, Timothy everltually received his

biological parental rights to Nathan when the juvenile court upheld the parties'

agreement that nanaed Titnothy and Stephanie the sole residential and legal

custodians of Nathan. Noti, on this appeal, prescunably because of the current

judgnietit entry that ordered Timothy to pay ehild support to Jon (addressed in the

second assignment of' error), 'Timothy and Stephanie are trying to elairn that

Titnotlly is not really Nathan's father, but rather Jon is Nathan's rather in the eyes

of the law because of contradictory judgment erttries. Even if there were

inconsistencies between the domestic relations court and the juvenile court, we

find that after about ten years of litigating the issue of paternity, which was

predominatcly the result of Tin-iothy and Stephanie's efforts, the principal of

finality' also weighs heavily in favor of upltolding an otherwise vali(i juvenile

' "[flinality requires that ther'e be some end to every lawsuit, thus producirag cert'ainty in the law and publicconfidence in the system's ability to resolve disputes. Perfection requires that every case be litigated until aperFect result is achieved. For obvious reasons, coruts havc typically p]aeed finality above perfection in thehiaruchy of values." Finality is parlicularly compelling in a case involving detenninations of parentage,visitation and support of a minor cluld." Strctclc v. Petton (1994), 70 Ohio St.3d 172, 175, 637 N.E2d 914,

quotingKnnpp v. Krinpp (1986), 24 Ohio St.3d 341, 144-45, 493 N.E.2d 1353.

-16-

Case No. 14-09-08

court determination that 1'iinothy is Nathan's biological father.

{124} 1'herefore, we find that the doctrine of res judicata did not bar any

action on the issue oPTimothy's paternity with respect to Nathan, and thus, despite

the dontestic relations corut's finding that Jon was Nathan's father in its March 8,

2001 order pursuant to the presumptio.ns under R.C. 3111.03(A)(1), Jon was not

conclusively narned Nathan's father. In addition, when Timothy filed his paternity

actiou in the juvenile court and it declared that a pazent-child relationship existed

between Timothy aud Nathan, it was doing so pursuant to its statutory authority.

{1[25} Tiniothy'v and StephaiTie's tit:st assignmearts of eiror are, therefore,

overruled.

ASSIGNMENT OF ERROR NO. H

THE TRIAL COURT ABUSED ITS DISCRET"ION BYFA7LING TO F1ND THAT JON STOUT IS L"STOPPT;I) FROMASKING FOR CHILD SUPPORT FROM T[MOTIIYDAWSON DUE TO CLAIM PRECLUSION, ESTOPPEL,WAIVER, LACHES, Ii1'ES JIJDICATA AND INCONSISTENTPOSI'I'IONS, ANl) FURTHER FAILING TO FIND TFIATONLY A MOT1iER IS ENTTTZ.EA TO RETROACTIVECHILD SUPPORT IN A PAT'I:RNITY ACTION.

{126} In thcir second assignnrents of error, Stephanie attd T imothy argue

that the trial court abused its diseretion when it found that Jon was not barred by

certain equitable doctrines from receiving child support from Timothy. In

particular, Stephanie and Timothy claim that Jon's right to receive child support

from "1'imothy was baned by the doctrines of estoppel, waiver, laehes, claim

-17-

Case No. 14-09-08

preclusion, and inconsistent positions. In addition, they claim that Jon was also

not allowed to seek retroactive support from Timothy pursuant to R.C. 3111.15.

{¶27} First of all, before we address the inerits of the parties' arguments,

we find that Stephanie does not have a legal interest in this assigimrent of error.

"It is well established in C3hio that an appeal lies only on behalf of a party

aggrieved. Such party must be able to show that lie has been prejudicect by the

judgment of the lower court." Love v. '1'arBmcin (1969), 19 Ohio St.2d 111, 113,

249 N.I3.2d 794. See, also, Olzio Sav. Bank v. Ambrose (1990), 56 Ohio St.3d 53,

56, 563 N.E.2d 1388, fffi 3. The appellant "has the burden ofshowing that Itis

rights have been adversely affected by t7he trial wtut's judgment." Ball v. Ball

(Dec. 30, 1994), 11th Dist. No. 93-P-0054, at *3. Here, even though Tiniothy and

Stephanie are currently man-ied to each other, Stephanie and Timothy are two

separate legal parties in this action, and thus have different. rights and have been

affected differently with respect to each assignznent of enor. While, in most of the

other assignments of error, Stephanie and 'fimothy have similar (if not the sanre)

interests, this particular assignment of error only concerns Timothy's obligation to

pay chilcl support to Jon. Stephanie has always had a separate aaid distinet

obligation to pay child support to Jon, an.d in I'act, she has paid her separate

obligation throughout the proceedings. Stephaiiie cannot show how Che juvenile

court's order to Tiinothy to pay child support to Jon has in any way affected or

Case No. 14-09-08

prejudiced her. Thus, Stephanie cannot be considered an aggrieved party

regardiuig this assigmnent of error and her second assignment of error is without

merit. ln t-e Jacobberger, I J tl-a Dist. No. 2003-G-2538, 2004-Ohio-6937, 1156

(firrciing appellant had failed to demonstrate how the juvenile court's failure to

address appellee's request for a recalculation adversely affected or prejudiced him,

(hus appellant had no standing).

{1128) Therefore, Stephanie's second assignment of error is overruled.

{¶29} h4'ith respect to Timothy's second assignmetrt of era-or, we generally

review a trial court's decision relating to chi)d support, spousal support and

property division, rnrder an abuse of discretion standard. Nlarsh v. Weston, 5th

Dist. No. 2007-CA00102, 2008-Ohio-1069, ¶19. The S'upreme Conrt has

i-epeatedly held the tezan abuse of discretion implies the courC's attititde is

uarreasonable, arbitrary, or unconscionable. Blakemore v. Rlah:ernore (1983), 5

Ohio St.3d 217, 450 N.E.2d 1140. When applying the abtrse of discretion

standard, a reviewing couri may not substitute its judgrnent for that of the trial

court. Holcomb v. I3olcornb (1989), 44 Ohio St.3d 128, 541 N.E,2d 597.

{¶30} Essentially, this assignment of error stems from Tintothy's

complaint in juvenile court in June 2000, in which lie sought to establish his

paternity to Nathan and additionally sought parental rights to Nattian. T'he

juvenile court bititrcated lus complaint and first established that a parcnt-chi]d

Case No. 14-09-08

relationslrip (iid exist between Tin3othyand Nathan, before then proceeding on to

the issue of parental 7°ights and cliild support.z The juvenile court found that

Tirnothy had abandoned Nathan, and thus, was an uufit parent and not entitled to

parental righEs; in addition, the juvenile court also ordered that T"imothy pay

support for the care and benef it of Nathan. The juvenile court ordered that. the

matter of cllild support be sent to the C.tiild Support Enforcement Agency l'or

purposes of calctrla.tions. 1-T.owever, 1'irriothy appealed the jt,'tvenite court's

judgnrent entry to this Court only alleging that the court had erred in deterrnirring

that lie was an unftt parent. The proceedings concerning the issue of child support

were stayed below pending our decision.3 Subsequent to this Court affirrniirg the

juvenile court's judgment, tlte child support proceedings were never re-initiated,

and Tirnothy never paid Jon support for the care and benefit of Nathan during the

period of tilne when Jon was Nathan's sole residerLtial and legal custodian. The

niatter eventually re-surfaced on May 3, 2006, wlten Nathan was returued to the

citstody of Stephanie and Timothy, and on May 12, 2006, Jon filed a motion to

^ The juveyite court noted that pursuant to B.C. 31 t 1.13(C), the magistrate should have addressed the issueof c)tild support in the patertuty portion of the case; nevertheless, ttie juvenile com-t found that themagistrate was corteet in stating ihat an adjudicated father in a paternity action rnay be fomad to owe a dutyof child support toward rhe child, and thus it was not error for the magistrate to have orderud'3'inmthy to

ay sappoR for the eare and benefit of Nathan_^ We acknowledge that when we accepted and tuled on "Pinaotlty's appeal, the issue of e}uld support, whichltad been part of the appealed judginent entry, was technically unresolved, and thus we niled nt) whatappems to have been a nomi-finai appealable order. Nevertheless, we did rute on the issues that werepresented before us at that time, which did not include the validity of the child support order, and theparties fniled to raise any objections to out decision. 'rhus, we find that tlte issue of the validity of [lie childsupport order has now become law of the case. The issus with respect to the calculations of the ehild

support order is still a niatter that this Court may review.

-20-

Case No. 14-09-08

reopen the issue of child support. The_ magistrate had the Child Support

Enforcement Agency caleulate Timothy's potential child support arrearages using

the parties' (stipulated) ineome from 2000, 2003, and 2006, respectively. (Nov. 7,

2007 lvlag. Dec.). Because Son had been aware of this Court's decision in

Timothy's patemity case and could have just as easily have brought the child

support issue to the agency's attertion prior to 2006, the magistrate decided to use

the parties' income in 2000 as the basis for its child support calculations. (ld.).

The juvenile coart corisequently affitnled the tnagisti-ate's decision and

calculations. (Nov. 7, 2007 Mag. Dec.); (Mar. 31, 2009 T.B).

{9131} Timothy argues that the trial court abused its discretion in failing to

find t7iat Jon's claim for child support has been barred by the equitable doctrines

of estoppel, waiver, l.aches, or claim preclusion. (Timothy's Brief at 18). He

claims that Jon has lmown as early as 1994 that he was not Nathan's biological

father, thus he has lmown since then that he has had a right to child support trom

Timothy. Timothy states that because Son failed to raise his right to child support

duririg the divorce proceedings, lie was precluded, estopped, waived the issae, or'

was forbidden by laclres to pursue such cla.itns for support in juvenile court. We

disagree.

{¶32} We find that the juvenile court's finding was not an abuse of

discretion because Timothy failed to prove the essential elements of the equitable

CaseNo. t4-09-08

de'lenses. The defenses of estoppel, waiver, and laches are closely related to each

other and the tliree ,ue often asserted together. `I'he eleznent;s of estoppel are: "(])

a representation by the party to be estopped; (2) which communicates some fact or

state of affairs in a znisleading way; (3) whicli induces reasonable, actual reliance

by the second party; (4) who would suffer prejaufice or pecuniary disadvantage

urnless the first party is estopped from an otherwise valid riglit in contradiction to

[hisJ earlier representation." tityers v. Mycrs (2002), 147 Ohio App3d 85, 92, 768

N.E.2d 1201, citing Johrzson v. Franklin (1989), 64 Ohio App.3fl 205, 210, 580

N.E.2d 1142 (emphasis added).

{¶33} "Waiver is a voluntary relinquishment of a known right *"*

[which] applies generally to all personal rights and priv.ileges." Ch-ubb v. Ohio

f3zer. o(' Workers' Comp. (1998), 81 Ohio St.3d 275, 278, 690 N.$.2d 1267

(citations omitted). A person can voPuntarily relip.qnish a known right by words or

by conduct. State ex rel, Ford Y. Cleveland 13d. ofEdn. (1943); 141 Ohio St. 124,

47 N.E.2d 223. The person that owes the duty to perf(yi-m may assert the defense

of waiver if he has charlged his position as a result of another party's voluntary

relinquishment of a known t-ight. Andrews v. 2'eachery Retiremerat Sys. Bd.

(1980), 62 Ohio St.2d 202, 205, 404 N.E.2d 747 (emphasis added).

{J[34} "Laches is an omission to assert a righl.for an Ltnreasonable and

unexplained length of time, tinder circumstances prejudicial to the adverse party.

Case No. 14-09-08

It signifies delay independent of limitations in statutes_ It is lodged principally in

equity jut7sprudence." Connif•a v. Bailey (1984), 15 Ohio St.3d 34, 35, 472 N.E.2d

328, quoting Smith v. Snzith (1957), 107 Ohio App.3d 440, 443-44, 146 N.E.2d

454. Iviere delay in asserting a right does not in anc9 of itself constitute laches.

Rather, in order to sixcceed under the doctrine of laches, "it nrust be shown that the

person for whose benefit the doctrine will operate has been rnuteriatly prejudiced

by the delay of the person asserting his claim." Connin, 15 Ohio St.3d at 36,

quoting Srnith v. Smith, (1959) 168 Ohio St. 447, 156 N.E.2d 113, paragraph three

of the syllabus (eniphasis added).

{1j35} After a review of the zecord, therc is absolutely no evidence in the

record how Timothy would suffer prejudice, or how he ehanged his position, or

even how Timothy has been materially prejudiced by Jon's action to seek child

support payments frorn Timolhy. The fact that thera was a delay from 2001 until

2006 alone is insufficient to constitute material prejudice. 11-tyers, 147 Ohio

App.3d at 92, citing Smrth, 168 Ohio St. at 447. Timothy argues that he did not

have to show that he was materially prejudiced Uecause he was precluded by the

decision of Merkel v. Doe (1993), 63 Ohio Misc.2d 490, 635 N.S.2d 70, fi-om

attenrpting to establish paternity in the domestic relations court. Timothy claims

that Merkel stands for tiie proposition that "a putative father may not attempt to

infringe upon a family unit in an effort to bring a paternity action under R.C.

Case No. 14-09-08

3111.04." (Timothy's Brief at 19). While that may be true with respect to the

domestic relations cotiut proceedings, Timothy's cliild support order to Jon was

issued by a valid jtrventle court order in 2001 in response to lafs paternity actioii.

Until Timotliy initiated the proceedings in the juvenile court and he was declared

to be Nathan's biotogical i'ather, he never had any court ordered di.tty to provide

support. Thus, in 2006, Jon was merely asking the juvenile court to enforce its

prior order. [1nd when Jon filed his motion asking the juvcnile court to enforce its

child support order, Timothy failed to offer any evidence as to how he would be

prejudiced, has beeen prejudiced, or has changed his position by Jon's act,ion.

Therefore, we find that the juvenil.e cotu-t did not abuse its discret.ion when it

found that Jon was not barred by estoppel, waiver, or laches from asking the

juveuile court to enforce its April 27, 2001 child support order.

{j(36} In addition, Timothy clainis that Jon was barred from seeking child

support from him under the doctrine of claim preclusion. "The doctrine of res

judicata encon-ipasses the two related concepts of claim pt-eclusion, also lcnown as

*^' * estoppel by judgment, and issue preclusion, also l.iiown as collateral

estoppcl." Grctva v. Parkmar: Twp. (1995), 73 Ohio St.3d 379, 381, 653 N.E.2d

226. Claim preclusion prevents subsequent actions, by the sanre parties or their

privies, based upon any claim arising out of a transaction that was the subject

matter of a previous action. Fort Frye Teachers Assn., OT_sA/NEA v. State Emp.

Case Na. 14-09-08

Relations BcL (1998), 81 Ohio St.3d 392, 395, 692 N.1^;.2d 140. Where a elaim

could have been liiigated in the previous suit, claim preclusion also bars

subsequent actions on that niatter. Grava, 73 Ohio St.3d at. 382. However, as we

stated above, Timothy was never a party nor in privity w:ith anyone in Jon and

Stephanie's divorce action in the domestic relations eourt.; therefore, claim

preclusion is inapplicable and Tiniothy caiwot claim .lon was barred from raising

the issue of child sapport later in juvenile court based on tliis theory. Srnith, 110

Ohio App.3d at 341-42. See, also, Gatt, 20 Ohio App,3d 285, paragraph one of

syllabus; Leguillon, 124 Ohio App.3d at 767; Fitzpatricli, 126 Ohio App.3d at

483-84.

{qJ37) Next, Timothy claims that Jon's claiin is barred by another aspect of

the doctrine of res judicata, known as inconsistent position, which states that "a

party catmot be permitted to occupy inconsisteut positions or to take a position in

regard to a matter which is directly contrary to or inconsistent with one previously

assumed by him." Van Dyne v. Fidelity-Phenix Ins. Co. (1969), 17 Ohio App.2d

116, 127, 244 N.E.2d 752. However, Jon's failure to assert his riglrt to support

from Timothy in dornestic relations court is not inconsistent with Jon's request in

juvenile court. to enforce its order on T'imothy to pay support for Nathan, when

'I'imothy was never a pai-ty to the_ action in the domestie relations court and

pateniity was established in juvenilc court. ,

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Case No. 14-09-08

{1138 h'inally, Timothy claims that according to R.C.^3111.15, oniy a

motlrer in a paternity action may acquire retroactive support. R.C. 3111.15 deals

with the enforcement of support orders, and in pertinent pai-t provides:

(A) If the existence of the father and child relationship isdeclared or if paternity or aduty of sup.port ltas beenadjadicated under sections 3111.01 to 3111.18 of the RevisedCode or under prior law, the obligafion of the fatlicr may beenforced in the same or other proceedings by ehe mother, thechild, or t.kte public autliority that has furnished or may titrnishthe reasonable expenses of pregnancy, confineinent, education,

support, or funcrfil, or by any other rlersoai, including a privateagency, to the extent that any of thene may fiiruish, lrasfurnished, or is furnishing these expenses.

(emphasis added). It is clear from the language of` the statute that "any otlrer

person" that furnishes expenses for the support of a ehild, inay seek enforcement

of a support order against the adjudicated fatlter. Even though Jon was not

Naflian's biological father, from 2001 nntil 2006 Jon was Natlian's residential and

legal custodian, atid as such, provided expenses f'or the care an(l benefit of Nathan

during those years. Thus, undar the plain language of the statute, Jon was allowed

to enforce the juvenile court child support order against Timothy.

{139} Therefore, Timothy's second assignment of error is overruled.

{¶Atl} We elect to address Stephanie's and Timoth_y's reinaining

assignments of error out of the order they were presented.

Case No. 14-09-08

ASSIGNMENT OF ERROR NO. IV

THE 'CRIAL COURT ABIJSEll ITS DISCRETION BYOVERRLTLING THE I)AWSON'S MOTION TO RL, EYA141TNLCHILD SUPPORT WI'THOUT NOTICE OF }ILiARING ANI)WITHOTJ'I' HOLDING AN EVIDL'NTIARY HEARING ON'I'IIE MAT'I'ER, AN'I) BY FAILING TO CALCULATESTOIIT''S $135,000 SETTLEMENT AS INCOME FOR CHILDSUPPORT PURPOSES.

11[41} In thcir fourth assignments of error, Stephaiue and Tixnotliy argue

that the trial court effed wlien it failed to liold a hearing on their "Motion to

Retroactively and Prospectively Reexaniina, Recalculate, Reconsider and Moclify

Child Support Based im Jon Stout's Retroactive Settleinent With the Logan

County Sheri'fY"; in addition, they argue that the trial court should have assessed

Jon's settlement award as income in its calculation of child support.

{1142} Essentially, Stephanie and 1'imothy claim that they discovereci new

evidence conceniing an additional source to Jon's income after the magistrate's

decision was rendered. In particular, they discovered that Jon had been given a

settlement offer of $135,000.00 from the Logan County Sheri.fY's Office. . Once

they discovered this information, Stepltanie and Timothy filed a"Motion to

Retroactively and Prospectively Reexamine, Recalculate, Reconsider and Modify

Child Snpport Based on Jon Stout's Retroactive Settlement With the Logan

County Sheriff," which raised the issue that Jon's settlement should have been

calculated as part of his "income" in the child support worlcsheet and schedule. In

Case No. 1 d-09-08

addition to their rnotion, they attached a copy of the settlement offer between Jon

and the Sheriff's Office, along with various newspaper articles detailing the

progress and result of the parties' settlement, While Stephanie and Tirxtothy never

filcd a rnotion requesting a hearing, nonetheless, they still argue that the trial court

erred by not holding a hearing on their motion, and its failure to hold sueh a

hearing violated their due process rights.

{¶43} In its firtal judgrnent entry, the trial court treated Stephanie and

2'imotliy's ntotion as a motion to recalculate aasd naodify the child suppost order

based on an alleged one time monetary aNvard given to 3on in a settlement with the

Logan County Sheriff s Office. While the trial court indicated that Stephanie and

Tiulothy lrad failed to present any evidence on this issue, it did go on to find that,

"in any event such an atnonnt would not be factored into a child support

ealculation because it is not a recturing sonrce of compensation. *"` * A one time

lump sunt payment would fall within tire nonrocturing description of paytnent,"

which is specifically excluded from ihe detinition of "gross incorne," which is tl:ie

category that is submitted for the ealculation of child support. (Mar. 31, 2009 JE

at 25-26).

(¶44} We agree with the trial cotut that Jon's $135,000.00 settlement does

ttot fall within the definition of "gross income," bttt ratliei is excluded fi-om the

calculation of child support because it is "nonrecnrring or unsustainable income."

Case No. 14-09-08

{¶45} '.IIiis particular assignment of eiror involves the question of

interpreting a statutory provision, thus, our review of a trial court's interpretation

of a statate is conducted under a de novo standard of review since statutory

interpretation is a matter of law. State v. YYemer (1996), 112 flltio App.3d 100,

103, 677 N.132d 1258. Therefore, we review the decision without deference to the

trial court's interpretation. Id.

{IJ46} Under theprescribed child support worl<sheet and sehedule ptinsuant

to R.C. 3119.02 to R.C. 3119,24, gross income is the basis for calculating thc

standard child support amount, and includes the following:

"Gross incoine" means, execpt as excluded in division (C)(7) ot'this section, the total of all earned and unearned income from allsources during a calcndar year, whether or not the inconte istaxable, and includes income froni salaries, wages, overtime pay,and bonuses to the extent described in division (D) of section3119.05 of the Revised Code; contmissions; royalties; tips; rents;dividends; severance pay; pensions; interest; trust income;annuities; social security benetits, incltiding retirement,disability, and survivor henefits that are not means-tested;workers' conrpensation benefits; unempioyment insurancebenefits; disability insurance beneits; benefits that are notmeans-tested antl that are received by and in the possession ofthe veteran who is the beneficiar•y for any scrvice-connecteddisability under a prograrn or law administered by the UnitedStates department of veterans' affairs or veterans'administration; spousal support actnally received; and all othersources of income. "Gross income" ine[udes income of inembersof any branch of the United States armed services or nationalguard, inclttding, aznounts representing base pay, basicallowance for quarters, basic allowance for subsistence,supplemental subsistence allowance, cost of living adjnstrnent,specialty pay, variable housing allowance, and pay for training

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Case No. 14-09-08

oc- other types of required drills; self-generated income; andpotential cash Itow from any source.

R.C. 3119.01(C)(7). However, "gross income" does aiot inciude "nonrecurring or

unsustainable income or casli tlow items," which is more specifically defined as:

an income or cash flow item the parent receives in any year orfor any mimber of years not to excced three years that theparent does not expect to continue to receive on a regular basis."Nonrecurring ot- unsitstainable income or cash flow item" doesnot include a lottery prize award that is not paid in a lump sumor any other item of incmne or cash flow that the parent receivesor expects to receive for each year for a period of more thanthree years ot that the parent receives and invests or otherwiseuses to produce incoine or cash flow for a period ot' more thanthree years.

R.C. 31 "19.01(C)(7)(e), (8). Here, Jon's settlement with the Logan County

Sherift's Office, while presuniably given to Jon in compensation for the income he

wcruild have received had lie not been fired, was still a oue-time nocrecui-ring

payment that Jon had no expectation of receiving on a continued basis. T'htis, the

$135,000.00 would not Irave been considered as "gross income" in catculating

child suppm-t; therefore, the trial court did not CIT in failing to adct it into the child

support calculatious.

{1[47} Stephanie's aizd Timothy's fourth assignments of error are,

therefore, overruled.

ASSIGNMENT OF ERROR NO. III

THE "I'RIAI; COURT ABUSEI) I'i'S bISCRETfON BYFAILINfz TO CORRELATE I'TS ORDER REGARDING

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Case No. 14-09-08

RE'1'ROAC.TIVE AWARDS ON CHILD SUT'POR'I' FORNATHAN WITI3 A I+INDIN(. OF NATHAN'S PRESENT13EST TNTERES'1, AND BY FAILING TO ORDER CHILDSUPPORT FROM JON STOUT FOR NATHAN, AND BYBAILINO TO CONSIDER TIIE O'I'IIER CHILDREN'S BES'I'INTERESTS. NATHAN AND I'HE OTHER CHILDREN'SPRESENT BEST INTERES'I' WAS IGNORED BY THE'1'RIAL COURT.

{148} In their third assignnrents of eixor, Timothy and Stephanic argue that

the trial court erred by not considering the best interest of the children when it

calculated the clril(i support owed by each individuaI party wit'h respect to all three

ohildren. They claim that under R.C. 3119.02 it requires that child support be

calculated so that it is in the best interest oJ'tbe chilcPrcn, not what is in tfle best

iriterest of the parents.

{149} While we agree that R.C. 3119.02 states that child sappor-t orders

shall be calculated to be "in the best iriterest of the children," there is a

presumption under R.C. 311.9.03 that if the trial court uses the figures generated

from the prescribed child support worksheet and schedule, then the chilii support

will be presur-ned to be coirect. Furthermore, only when the trial court deviates

tiom the figures generated from the child support worksheet is the trial court then

w tsstatutorily required to mal^e a specific finding that the ^rrorkshect calculation

unjust, inappropriate or would not have been in the best interest of ihe children.

R.C. 3119.22. 1-Towever, there is no statutory requiren-ient that the trial court malce

reverse findings: that the arnount of' child support calculated through the

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Case No. 14-09-08

worksheet and sehednle is just asxd appropziate, and is in the best i,nt'erest of ttte

children: Lee v. Loos, 5th Dist. No. 200411P 02 0015, 2005-Ohio-254, ¶I6. Sce,

also, R.C. 3119.22. T'hus, there is a presumption that the arnotnlt calculated by the

worksheet and schedule is in the best interest of the children. Lee, 2005-Ohio-254,

at 1116.

(1(50} I4ere, the only dispute Stephanie and Titnothy raised regarding the

trial eourt's calculat?ons of child suppol-t was with respect to Ton's $135,000.00

settlenrent frotn the Logan County Sheriffs Offrce.^ However, as we discussed

above, the $135,000.00 settlement does not fall under the categoly o.C gross

incoiiie, and thns, it was not to be include(i in the calertlation of child support.

Therefore, becausc the trial court's order of eltild support did not deviate froln the

anlortnt calculated througl the requisite woz-ksheet and schedule, and there is a

presumption that tlle amount calculated through ihe worksheet is correct, and

Stephanie anct Timothy do not raise any viable isstles wittt raspect to the trial

cotn-t's child support caletalations, we fmd that the ti•ial court did rrot err by failing

to find that the ordered arnount oi' child support was in the children's best

interests.

4 lu #act, tltis Court notes that dtrring the Octobcr 2006 hetuings, all of the parties stipulatei) io the figuressubmitted and ttsed by the jnvenite magistrate for purposes of calenlating cb,ild support, inclvding the facttbat ]on was curratttly makiug less than lus previons inoome at theLogan County SherifP's Office. (Oct.24, 2006 "1'r. at 128-30); (Oct. 25, 2006 Tr, at 184).

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Case No. 14-09-08

{¶51} 't'imothy's arid Stephanie's third assigmnenCs of eiror arc, therefore,

ovemiled.

ASSIG.NMENT OF ERROR NO. V

THE TItIAL COURT AB'USEA ITS DISCRE'I'ION BYFAILING TO FIND JON STOUT VOLUNTARILYUNDEREMPLOYED.

11(52} LTnder their fifth assigmnents of error, Stephanie and '1°imothy argue

that the trial court abused its discretion when it found that Jon was not vollmtarily

undereniployed. I:ssentially, they claim that the events which sun-ouncted Jon's

termination ti-om the Logan County Sheriff's Department stemmed from Jon's

voluntary actions, and that the trial court sliould have fonrid that his misconduct

eaused his xmderemploynlent.

(¶53} ih calculating cllikt support, a trial court is permitted to inipute

income to a parent when the parent is voluntarily unemployed or voluntarily

underemployed. Synder v. Svnder, 5tli Dist. No. 2008CA00219, 2009-Ohio-5292„

1129, citing R.C. 3119.01(C:)(11). See, also, Inscoe v. Inscoe (1997), 121 Ohio

App.3d 396, 424, 700 N.E.2d 70, citing Roclc v. Cabral (1993), 67 Ohio St.3d 108,

616 N.E.2d 218, syllabus. In determining whet.her an individual is voluntarily

underemployed or unemployed, the trial court must detsrmine not only whether

the change was voluntary, but also whether it was made with due regard to their

income-producing abilities and their duty to provide for the continuing sieeds of

I Case No. 14-09-08

the child. Synder, 2009-Ohio-5292, at ¶29, duoting Farrell v. Farrell, 5th Dist.

No. 2008-CA-0080, 2009-Ohio-1341, ¶20. W7aether a parent is vohmtarily

unemployed or underemployed is a determination within the tzial court's

discretion aiid will be upheld absent an abuse of discretion. Rock, 67 Ohio St.3d at

112, applying forrner R,C. 3113.215, An abuse of discretion is inore than an error

of law or judgment; rather, it implies that the trial court's decision was

uiiycasonablc, arbitrary, or unconscionable. Blalccrnore, 5 Ohio St.3d at 219,

{¶54} Hearings on the issue of child support were held on October 24 and

25, 2006. '1'here was little testimony regarding the issue of Jon's termination at the

Logan County Sheriff's Office and his subscquent employment at Crazy Scott's.

There was testiinony abont allegations that Jon had engaged in an inappropriate

relationship with a tninor, and that criminal charges had been filed as a result of

these allegations; however, there was no proof that any of these allegations were

h-ne or that they resulted in any convictions. (Oct. 23, 2006 "1'r. at 95-98); (Oct.

24, 2006 Tr, at 90-105). Jn fact, there was evidence that some of the charges were

dismissed. against Jon. (Oct. 24, 2006 Tr, at 52). Moreover, while Jon admitted

that he had been fired from the Logan County Sheriff's Office for insubordination

and dishonesty, wh,ioh stenmred from his refusal to take a polygraph exainination,

he continually denied that his tennination by the Logan County Sheriffs Office

was the result of his own actions or conduct. (Oct. 23, 2006 Tr. at 40-46); (Oct. 24,

Case No. 14-09-08

2006 Tr, at 49); (Oct. 25, 2006 Tr. at 179-81). lit addition, because he believed

that his tennination was not the result of his conduct or actions, lie was fighting his

fom-ier employer about the issue in civil conrt. (Oct. 25, 2006 Tr. at 179-81'). And

as the partics all agree in their briefs, this fight with the Logan Couuty Sheriff"s

Office on the issue of his wrongftil termination, eventually zesulted in a settletncnt

ofPer by the sheriff's office to Jon for $135,000.00.

{I(551 In its deeision, the juvenile magistrate found that Jon currently

worked at Crazy Scott's, earning $14.00 per hour, working forty hours per week,

52 weeks per ycar, for a total of $29,120.00. tn its calculation of child support, the

juvenile magistrate took 7on's annual gross iucoine and added $3,780.00 in

overtime and bonuses, rvhich he had earned through his entployment at Crazy

Scott's. In addition, the juvenile magistrate found tha.t "Jon Stout should not be

co isidered voluntarily underentp.loyed as a result of his teimination from the

Logan Cotmty Slieriff's Office and sli6secauent eniploy[sic] at Crazy Scott's."

(Nov. 7, 2007 Mag. Dec.)

{¶56} Stephanie and Tiinothy objected to the,juvenile magistrate's finding

arguing that Jon's income shotild have been based on his prior inconie, which was

higher at the Logan County Sherift"s Office, rather than his income at Crazy

Scott's. 'They argued that it was irrelevant whether Jon was ult.imately convicted

becatise it was through his own voluntary actions (his choice to have improper

Case No. 14-09-08

conduct with a minor) that lead to his subsequent termination. The trial court

f'ound that Stephanie aiid Timothy had failed to present any evidence that Jon was

ever found guilty and incarcerat:ed for any criminal condtzct; rather, the trial court

stated that the evidence in the record indicated that that Jon's incotne was

involuntarily reduced_ (Mar. 31, 2009 JL at 5-6). Thus, it concluded that the

juvenile magistrate did not err in fnding that Jon was itot tinderetnployed, and that

his then current salaiy at Crazy Scott's was the appropriate figure to use in tlte

child support calculations. (Id.).

(157} Aftcr a review oi'thc record, we find that the trial court's finding that

the evidence failed to demonstrate that 7on was voluntarily underernployed was

reasonable and not an abuse of discretion. While Stephanie and '1'imothy argue

that Jon's termination from the Logan County Sherif#'s Office was tlre result from

his voluntary decision to engage in an inappropriate relatiotiship with a minor,

Efiere is absolutely no evidence in the record that these allegations were true?

Conversely, there is evidence that Jon's termination from the Logan County

Sheriff's Office was anything but voluntary: he continually denicd the validity of

the allegations, and lie filed a civil law suit against his fomier ernployer for

wrongful termination, whieh resulted in a settlement award of $135,000A0.

5 wtule the parties briefly mention ttiat Ton pled guil[y to a misdemeanor offense of attempted ohildendangennent, we note that there is no formal evidence in tlte record that corroborates tlds statement_

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Case No. 14-09-08

Therefvre, we find that the trial court did not abuse its discretion when it found

that 7onwas not voluntarilyunderemployed.

{1158} Stephanie's tnid Timothy's fifth assigaiments of error are, therefore,

overruled.

THE TRIAL COUR'f ABUSED ITS DISCRETION BYFAILING TO AWARD THE TAX DEPENDENCYEXEMPTIONS FOR THE CHILDREN AT ISSUE TO THEDAWSONS, AS THE DAWSONS WOULD DERIVE TIIEGREATER TAX BENEFIT BY CLAINIING THEM, A1NI)I'HIS WOULD BE IN THE C;H'Il1DREN'S BEST INTEREST.

{1(59} In their last assigntnents of ert'or, Stephanic and Tirrrothy a.rgae that

the trial court abused its discretion when it failed to award them the tax

dependency exemptions for the three children, because they would derive the

greater tax benefit by claiming them, and it would also be iv the best interest of tlle

children. Specifically, they argue that the trial court was required to consider "all

perEinent factors, includ'nig the parents' gross incomes, the exemptions and

dedtrctions to which the parents are otherwise entitled, and the relevant federal,

state, aird local incorne tax rates." See Singer v. Dickinson (1992), 63 t3hio St.3d

408, 411, 588 N.E.2d 806. Because the trial eourt did not consider any of these

factors when awarding the exemptions, Stephanie and 1'itnothy clairra that the lrial

court abused its cliscretion.

-37-

Case No. 14-09-08

{¶60} A trial court's decision in awarding the federal incon e tax

dependency exemption is govertted by R.C. 3119.82, which states in pertinent

part:

iw}henever a court issues, or whenever it modifies, reviews, orotherwise reconsiders a court chitd stipport order, it shalldesignate which parent may claim the children wlro are tliesubjeet of the court child snpport order as dependents forfederal income tax purposes * * * If the parties agree on whichparent sltould claim tlte children as dePendents, the cotn•t shalldesignate that parent as the parent who rnay claim the children.If the parties do not agree, the coart, in its order, may permit the

paretit wlro is rzot the residential parent and legal custodian to

claim the children as dependents for federal income tax

pnr-poses only if the court deter ►nines that this furthers the bestinterest of the children and, with respect to orders the courtmodifies, reviews, or r-econsfders, the payments for child supportare substarttially current as ot-dered by the cottrt for tlte year inwlrich the cluldren will be claimed as dependents. In cases inwltlch the parties do not agree which parent nray ciaint thechildren as dependents, the court shall consider, in making itsdetermination, any net tax savings, the relative financialeircumstarices and needs of the parents and children, thearnouut of' time the chiidren spend with each parent, theeligibility of either or both parents for the federal carned incometax creclit or otlter state or federal tax credit, and any otherrcfevant factor concerning the best interest of the children.

{emphasis a(lded). With respect to this provision, this Court has previousty stated

that "the ti•ial coui-t is not reqnired to engage in any analysis under the statute [R.C.

3119.82] unless it chooses to award the tax exemption to the non-residential

parent." Siefker v. Siefker, 3d Dist. No. 12-06-04, 2006-Ohio-5154, 1110, qaoting

Fisher v. Fisher, 3d Dist. No. 7-05-03, 2005-Ohio-5615, 125, cituig R.C. 3119.82.

Case No. 14-09-08

TTere, with respect to Nathan., the juvenile magistrate stated that Jon was to receive

the federal tax dependency exemption for Nathan in thc year 2000, 2001, 2002,

2003, 2004, and 2005. I-Iowev'er, because Timathy and Stephanie were named the

residential and legal custodians of Nathan on May 3, 2006 (when legal custody of

Nathan was consistently and continuously remaved from 7on), and because

'I'imothy and Stephanie were inaiTied and resided with one another, the jnvenile

magistratc stated that the tax dependency exemption should be divided equally

between the Dawsons starting in 2006: St-ephanie receiving the tax dependency

exe7nplion on every even-nurnbercd year, and Timotliy receiving the tax

dependency exeniption on every odd-nunibereei year. Because Jon was named

Natliav's sole residential and legal custodian #iour 2000-2005, and on May 3,

2006, Stephanie and Timothy were named the residential an(i legal custodians of

Nathan, the juvenile magistrate gave the tax dehendency exemption for Nathan to

whichever person(s) was nansed the residential parent at that rnonlent in time;

therefore, it was not reqnired to undertake any analysis in its tax dependency

exernption deterinination.

{¶61} Similarly, with respect to Kylie and Trevor, pursuant to the juvenile

magistrate's order finding that there was not a sufiicient change of circumstances

to warrant a modification of the March 8, 2001 domestic relations court order

(which desiguated Jon the sole residential and legal custodian of all three

Case No. 14-09-08

children), the jnvenile magistrate awarded 7on. tlie tax dependency excinptions for

I'revor and Kylie for the year 2006 and every year thereafter until further order of

the court. Because Jon was still the sole residential and legal custodiau of Trevor

and lCylie, the juvenile rnagistrate was not required to undertake aary analysis

when it awarded hirn the tax dependency exemptions for Trevor and ICylie for the

year 2006 and thereafter.

{1[621 Timothy's and Stephanie's sixth assignments of et-ror are, therefore,

overztiiled.

{1i631 Having found no erior prejudicial to the appellants herein in the

particulars assigned and argued, we affinn the judgment of the trial colu-t.

.ludgrnents Affirmed

ROGERS and SHAW, J.J., concur.

/.jnc

IN THE COURT OF APPEALS OF 0F1I0THIRD APPELLATE DIS`CRICT

UNION COUN7'Y

TINfOTIIY D. DAWSON,

PLAINTIFF-APPELLAN' C,

V.

STEPHANIE DAWSON,

DEF'ENDANT-AI'PELLANT,

and

JON S'TOUT,

Mi h LNDANT-APPEI,I.P,E.

CASE NO.14-09-()8

JUDGMENTEN2'RY

For the reasons stated in the opinion of this Court, the assignrnents of error

are overruled and it is the judgment and order of this Court that tb.e judgment of

the trial court is affiimed with costs assessed to Appellants for which judgment is

hercby rendered. The cause is hereby retnanded to the trial court for exectttion of

the jndgment for oosts.

It is fwther ordered thal: the Clerlc of this Court certify a copy of this

Court's judgment entry and opittion to the trial coitx't as the mandate prescribed by

r^

Case No. 14-09-08

App.R. 27; and serve a copy of tliis Court's judgment entry and opinion on each

party to the proceednigs and note the date of service in the doclcet. See App.R. 30.

DATED: November 16, 2009/jric

IN'I'Hl: COUIiT OF APPEALS OF 01110TFIII21) APPI;LLATE DIS'TItiC"I'

UNION COUNTY

IN THE MATTER OF:

K.S.

i

CASE NO. 14-09^--,!A-:r=

(S'I'EPIIANIE DAWSON - APPELLANT, J U D G M E N'r'I'IM:OTHY DAWSON - APPELLANT]. E N'r ll7 X

For the reasons stated in the opinion of this Court, tho assignments of eiror

are overruled and it is the judgrnent and order of this Court that the judginent of

the trial court is affirmed with costs assessed P,o Appellants for which judgment is

hereby rcndered. The cause is h.ereby remarided to tlie trial coui-t for execution of

the judgment for costs.

It is further ordered that the Clerk of this Court cei-tify a copy of this

Court's judgment. entry and opinion to the trial court as the mandate prescribed by

App.R. 27; and seive a copy of this Court's judgment entry and opinion on each

party to the proceedings and note the date of service in the doclcet. See App.R. 30.

DATED: November 16, 2009/jnc

cia

/I

IN THE COUliT Ol+' APPEALS OF 01110THIRD APPELLATE llISTRICT

UNION COLINT'Y

IN TIIP MA'T'IPR OF: CASE Nt). 14-09-1l

N.S.,

[STEPHANI'E DAWSON - APPh;LLANT, J U D G M E N TTIMOTHY D. DAWSON - APPPLLAN'1']. li; N T R Y

For the reasons stated in the opinion of ttiis CourC, the assignments of error

are oven2iled and it is the judgment and order of this Court that the judgment of

the trial court is afCirrned with cosls assessed to Appellants for which judgment is

here6y rendered. T'he cause is hereby remanded to the trial cou.rt for execution of

the jucigtnent For costs.

It is fiu-ther ordered that the Clerk of this Cotut certiiy a copy of this

Coint's judgment entxy and opinioti to the trial court as the niian.date prescribed by

App.R. 27; azd serve a copy of this Corn-t's judgment entiy and opinion on each

party to the proceedings and note the date of service in the docket, See App.R. 30.

0a

DATED: Noveniber 16, 2009Jjnc

IN TIIE (7OURT OP APPEALS OF OHIOTH112D APPELLATE DIS1'RICT

UNlON COLAVTY

IN THE MATTER OF: CASE NO. 14-01G1^

T.S.,

(STL,PHANIE DAWSON - APPELLANT,TIMOTHY D. DAWSON - APPELLANTj. 1: N T R Y

For the reasons stated in the opinion of this Court, the assignments of ei-ror

are ovetY->Zeil and it is thejudgrneiit and order of this Court that the judgnrent of

the trial comt is affirnied with costs assessed to Appellants for which judgment is

hereby rendered. 'T'he cause is hereby remanded to the trial court for execution of

the judgment for costs.

It is further ordered that the Clerk of this Court- certify a copy of this

Court's judgcnent entry and opinion to the trial court as the mandate prescribed by

App.R. 27; and serve a copy of this Court's judgnient entry and opinion on eacli

party to the proceedings and note the date of service in the docket. See A.pp.R. 30.

17A'TT;T7: Noveitiber 16, 2009/jno