[Cite as In re M.J.M. , 2019-Ohio-4799.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: M.J.M. : : : : : : : : : : Appellate Case No. 28396

Trial Court Case No. 2016-3599 (Appeal from Common Pleas Court – Juvenile Division)

. . . . . . . . . . . O P I N I O N Rendered on the 22nd day of November, 2019.

. . . . . . . . . . . MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Appellee, Montgomery County Children Services ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, B eavercreek, Ohio 45434 Attorney for Appellant, Father

. . . . . . . . . . . . .

WELBAUM, P.J.-2-

{¶ 1} Petitioner-appellant, the father of M.J.M. (“Father”), appeals from the judgment of the Montgomery County Court of Common Pleas, Juveni le Division, denying his motion to terminate or modify his child support obligation. In support of his appeal, Father asserts that pursuant to R.C. 3119.22 and R.C. 3119.23, his child support obligation should have been reduced to $0 due to monthly Social Security benefits received by M.J.M. and funds that M.J.M. will receive from her guardianship when she turns 18 years old. For the reasons outlined below, the judgme nt of the trial court denying Father’s motion to terminate or modify child support wi ll be affirmed.

Facts and Course of Proceedings {¶ 2} M.J.M., the minor child at issue in this appeal, was born in Ma rch 2002. Father and M.J.M.’s mother (“Mother”) were married at the time of M.J.M.’s birth, but divorced in December 2009. After the divorce, Mother became M. J.M.’s primary

custodian and Father was awarded standard visitation time. {¶ 3} As M.J.M. grew older, she would often refuse to go to Father’s house when it became his time to exercise visitation. In February 2015, M .J.M. alleged that Father had sexually abused her. Law enforcement in Clermont County, O hio, investigated the allegations made by M.J.M., but ultimately did not file any cha rges against Father. In July 2015, Mother sent M.J.M. to live with her maternal grandfa ther (“Maternal Grandfather”). This move was the result of an unresolved confl ict between Mother’s boyfriend and M.J.M. Father had not seen M.J.M. since May 2014 and had not spoken to her since April 2015.-3- {¶ 4} On October 6, 2015, Mother died as a result of suicide. Follow ing Mother’s passing, M.J.M. continued to reside with Maternal Grandfather. On August 12, 2016, a juvenile court magistrate issued a decision finding that M.J.M. was a dependent child and awarded temporary custody of M.J.M. to her maternal aunt (“Mate rnal Aunt”), as Maternal Grandfather had difficulty caring for M.J.M. due to her special mental and physical needs. In the decision, the magistrate also ordered Father not to have visitation with M.J.M. until recommended by the child’s therapist. Father filed objections to the magistrate’s decision, which were overruled by the juvenile court. After th e juvenile court adopted the magistrate’s decision, Father appealed. On May 25, 2018, this court affirmed the judgment of the juvenile court in In re M.M. , 2d Dist. Montgomery Nos. 27722 and 27724,

2018-Ohio-2034. {¶ 5} On September 8, 2017, while the appeal in In re M.M. was pending, Father filed a motion to terminate or modify his child support obligat ion. Shortly thereafter, on October 31, 2017, Montgomery County Children Services (“MCCS”) filed a motion for legal custody of M.J.M. to be granted to Maternal Aunt. A hear ing on both motions was held before a juvenile court magistrate on July 9, 2018. Durin g this hearing, Father testified that he did not oppose MCCS’s legal custody motion an d had no objection to Maternal Aunt being granted legal custody of M.J.M. Therefore, the main issue to be determined at the hearing concerned whether Father’s child supp ort obligation should be

terminated or modified. {¶ 6} In his motion to terminate or modify child support, Father argu ed that his current monthly child support obligation of $434.50 should be t erminated as a result of M.J.M. receiving Social Security benefits and guardianship fund s. At the hearing on the-4- motion, Maternal Aunt testified that M.J.M. receives a Social S ecurity benefit in the amount of $834 per month due to Mother’s death. Of that amount , Maternal Aunt testified that $265 is used to pay for storage lockers containi ng Mother’s belongings that were awarded to M.J.M. through the probate court. According to Maternal Aunt, M.J.M. would like to keep those belongings to help furnish her own hom e in the future. Maternal Aunt also testified that $325 of the Social Security benefits i s paid to Maternal Grandfather for M.J.M.’s cell phone bill and fees, and for M.J.M.’s allowan ce, which is a little over $100

a month. {¶ 7} In addition to the Social Security benefits, Maternal Aunt test ified that Mother’s home had been sold and the proceeds of the sale were p ut into a guardianship for M.J.M. Maternal Grandfather testified that he receives $1, 634 in Worker’s Compensation benefits for Mother’s death twice a month, which h e deposits into M.J.M.’s guardianship. Maternal Aunt and Maternal Grandfather both test ified that the guardianship money is not available to M.J.M. until she turns 1 8 years old, unless the probate court approves the release of funds for a specific use. Maternal Grandfather testified that he has petitioned the probate court for funds to purchase a car for M.J.M. {¶ 8} Father testified that, as of the date of the hearing, he had be en employed at USF Holland in West Chester, Ohio, for three weeks. Prior to t hat, Father testified that he had worked for Ryder Integrated until December 8, 2017. Fat her testified that his hourly wage was $18.48 with a guaranteed 40 hours of work per w eek. Based on that information, the magistrate calculated Father’s annual salary a s $38,438.40. Father

testified that he was married with no other minor children. Fa ther also testified that his wife was employed.-5- {¶ 9} On August 7, 2018, the juvenile court magistrate issued a decis ion granting legal custody of M.J.M. to Maternal Aunt and denying Father’s m otion to terminate or modify child support. Ten days later, on August 17, 2018, Fath er filed objections to the magistrate’s decision denying his motion to terminate or modify child support. Father also filed supplemental objections on February 15, 2019. Howev er, on April 19, 2019, the juvenile court issued a judgment overruling Father’s object ions and adopting the magistrate’s decision denying Father’s motion to terminate or m odify child support. Father now appeals from that judgment, raising a single assignm ent of error for review.

Assignment of Error {¶ 10} Under his sole assignment of error, Father claims that the tria l court erred in denying his motion to terminate or modify his child support obligation. In support of this claim, Father asserts that pursuant to R.C. 3119.22 and R. C. 3119.23, his monthly child support obligation of $434.50 should have been reduced to $0 due to the Social Security benefits received by M.J.M. and the funds that M.J.M. will receive from her guardianship when she turns 18 years old. Father also asserts that his child support arrearage should have been reduced based on Social Security bac k pay allegedly

awarded to M.J.M. We find no merit to either of Father’s claim s. {¶ 11} A trial court’s ruling on a motion to modify child support is r eviewed on appeal for an abuse of discretion. Burks v. Burks , 2d Dist. Montgomery No. 28349, 2019-Ohio-4292, ¶ 8, citing Matlock v. Matlock , 2d Dist. Montgomery No. 28278, 2019- Ohio-2131, ¶ 12. An abuse of discretion occurs when a trial co urt’s decision is “unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place-6- Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “[M]ost instances of a buse of discretion will result i n decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” Id . “A decision is unreasonable if there is no sound reasoning process that would support that

decision.” Id. {¶ 12} Pursuant to R.C. 3119.22, the trial court “may order an amount of child support that deviates from the amount of child support that wou ld otherwise result from the use of the basic child support schedule and the applicable worksheet if, after considering the factors and criteria set forth in section 3119. 23 of the Revised Code, the court determines that the amount calculated pursuant to the bas ic child support schedule and the applicable worksheet would be unjust or inappropriate a nd therefore not be in the best interest of the child.” Again, we apply an abuse-of-discr etion review to a trial court’s decision whether to deviate from child support owed under the a pplicable worksheet.

Burks at ¶ 9, citing Hamby v. Hamby , 2d Dist. Montgomery No. 26506, 2015-Ohio-1042, ¶ 16. {¶ 13} In this case, Father argues that four of the factors listed und er R.C. 3119.23 justify a deviation from the $434.50 support obligation calcula ted under the child support computation worksheet. Specifically, Father argues that the fa ctors listed in R.C. 3119.23 (F), (P), (K), and (Q) support finding that his child s upport obligation should have been reduced to $0. Those factors are as follows: (F) The obligee’s income, if the obligee’s annual income is equ al to or less than one hundred per cent of the federal poverty level;

* * *-7- (K) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriag e continued or had the parents been married;

* * * (P) Extraordinary child care costs required for the child or ch ildren that exceed the maximum state-wide average cost estimate as describe d in division (P)(1)(d) of section 3119.05 of the Revised Code, incl uding extraordinary costs associated with caring for a child or child ren with specialized physical, psychological, or educational needs; [and ]

* * * (Q) Any other relevant factor. R.C. 3119.23(F),(K),(P) and (Q). {¶ 14} In discussing the aforementioned factors, Father fails to expla in how they apply to the instant case and we likewise fail to see how they are applicable. For example, factor (F) pertains to the obligee’s income—the oblige e in this case being Maternal Aunt, a non-parent, whose income is not factored into the child support

calculation. See Child Support Computation Worksheet attached to Magistrate’s Decision (Aug. 7, 2018), p. 7. See also R.C. 3119.07(C) (“If neither parent of a child who is the subject of a child support order is the residential pare nt and legal custodian of the child and the child resides with a third party who is the legal custodian of the child, the court shall issue a child support order requiring each parent to pay that parent’s child support obligation pursuant to the child support order.”) (Emp hasis added.) Therefore, because Maternal Aunt’s income is not part of the child support calculation, factor (F)-8- simply did not apply here. {¶ 15} Factor (K), concerning Father and Mother’s standard of living, is also inapplicable, as Mother is deceased and there was no evidence o f any standard of living concerns raised in the trial court. With regard to factor (P), concerning “extraordinary child care costs,” the record indicates that M.J.M. has been re ceiving trauma counseling since 2016 and also receives treatment from other medical provi ders for multiple mental and physical conditions. Assuming that the costs for those ser vices are extraordinary costs for purposes of factor (P), we fail to see how that facto r supports Father’s claim that his child support obligation should be reduced to $0, as those costs would require Father to pay additional child support to Maternal Aunt so that M.J.M. could continue to receive

those services. {¶ 16} As for factor (Q), which instructs the trial court to consider “any other relevant factor,” Father provides no relevant factor other than that M.J.M. receives monthly Social Security benefits. Father argues that pursuant to Williams v. Williams , 88 Ohio St.3d 441, 727 N.E.2d 895 (2000), his child support obl igation should be offset by M.J.M.’s Social Security benefits. Father also argues that pursuant to Rice v. Rice , 177 Ohio App.3d 476, 2008-Ohio-3518, 895 N.E.2d 198 (5th Dist.) , he is entitled to have his child support arrearage offset by Social Security back pay. However, both Williams

and Rice are distinguishable from the present case. {¶ 17} Unlike the present case, the obligor fathers in Williams and Rice became physically disabled and received Social Security benefits as a result of their disabilities.

Because the fathers’ children in those cases also received deri vative Social Security income for the fathers’ disabilities, the fathers moved to have their child support-9- obligations and/or arrearages reduced by the amount of Social S ecurity disability benefits received by their children. The courts in Williams and Rice found it appropriate to credit the fathers’ child support obligations/arrearages with the Soci al Security disability benefits received by their children. Williams at syllabus; Rice at ¶ 7-10. Williams specifically noted that “where the disabled parent has no other source of in come due to his or her disability, the receipt of Social Security payments actually en sures that their child support obligation will be satisfied,” and that “Social Security paymen ts are tantamount to earnings by the disabled parent.” Williams at 444. {¶ 18} The present case is distinguishable from Williams and Rice because Father is not the source of the social security benefits being receive d by M.J.M. Rather, M.J.M. is receiving the social security benefits as a result of Mother ’s death. Therefore, the benefits are in no way attributable to Father and not tantamoun t to Father’s earnings. {¶ 19} In In re Mudrak , 7th Dist. Belmont No. 94-B-32, 1997 WL 28557 (Jan. 22, 1997), the Seventh District Court of Appeals held that, because the father in that case was not the parent whose disability occasioned the Social Secur ity benefits awarded to his child, the Social Security benefits could not be credited a gainst the father’s child support obligation. Id . at *5 (holding that “social security derivative payments rece ived on behalf of a minor child as a result of a parent’s disability should be credited toward that parent’s support obligation”). (Emphasis sic.) Like the instant case, the child in Mudrak received Social Security benefits as a result of her mother’s d eath and the father attempted to have those benefits credited against his child sup port obligation. The

Mudrak court likened such credit as a windfall to the father and stat ed that: If, as [father] argues, he is given a dollar for dollar credit, he would pay no-10- child support and would thus receive a windfall. To illustrate this, consider what the situation would be if this were an ordinary case where [mother] survived and had no income. [Father’s] $17,680.00 annual salar y would yield an annual child support obligation of $3,425.00 or, takin g it one step further, if [mother] had survived and she had annual income equ al to the social security benefits currently being received[,] * * * $4,0 44.00, [father’s] annual child support obligation would be $3,321.00 per year. I t is inconceivable then that [father] should receive a windfall from the death of the child’s mother and pay no support whatsoever. Further, [fa ther] has failed to establish through the record how a dollar for dollar credit for child support benefits received by [the child], against his child sup port obligation, would serve the best interest of the child. [Father’s] argumen t for a dollar for dollar credit is rejected.

Id . at *3. {¶ 20} Similarly, in Paton v. Paton , 91 Ohio St.3d 94, 742 N.E.2d 619 (2001), the Supreme Court of Ohio held that Social Security disability bene fits awarded to a child due

to the child’s disability did not constitute a financial resource that justif ied deviating from the basic child support schedule. Id . at syllabus. In so holding, the Supreme Court stressed that “[p]arents, to the extent that they are able, hav e an obligation to support

their minor children . In situations where a child is eligible to receive [Social Security Income], these benefits are intended to supplement the parents’ support obligation, not

to reduce it. ” (Emphasis added.) Id . at 97. {¶ 21} Based on the foregoing, we find that M.J.M.’s receipt of monthl y Social-11- Security benefits resulting from Mother's death did not warrant reducing Father’s child support obligation or arrearage. Except for referencing M.J.M. ’s guardianship funds, which M.J.M. cannot access until she turns 18 years old, Father provided no other basis on which to terminate or reduce his child support obligation. Therefore, because Father otherwise failed to establish that his monthly child support ob ligation of $434.50 was unjust or inappropriate and not in M.J.M.’s best interest, it w as not an abuse of discretion for the trial court to deny Father’s motion to terminate or mod ify his child support obligation. {¶ 22} Father’s sole assignment of error is overruled.

Conclusion {¶ 23} Having overruled Father’s assignment of error, the judgment of the trial

court is affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and HALL, J., concur.

Copies sent to: Mathias H. Heck, Jr. Lisa M. Light Robert Alan Brenner Michael Booher Christopher Deal Theodore Valley Lori Byrd Hon. Helen Wallace