CHILD SUPPORT
1. Overtime and Bonus Income
Thomas v. Thomas, 6th District, Case# L-03-1267 (March 2004)
FACTS: At the time of the divorce, the husband was working an average of 15 hours per week in over time and child support was established. Husband changes jobs voluntarily and now is averaging only 1 hour of overtime per week. Husband claimed that the change was due to health reasons. At a hearing before the CSEA the magistrate included the 15 hours of over time in calculating the husband's child support obligation. Trial court adopts the CSEA recommendation and the husband appeals. Reversed
DECISION: The Trial Court improperly included the husband's overtime pay in its calculations because the over time pay did not accurately reflect his current income. The trial court must base the husband's child support on his income that he now expects to receive and not what he received in the past. The court of appeals recognized that 3119.05 provides for the averaging of bonus and over time income in the calculation of child support. However, the court said that the averaging of overtime income under 3119.05 only applies to regular or expected overtime and not as in this case where the husband did not expect to receive such income.
2. Income from Bonus Points / Points which can be Redeemed for Goods / Services
Bailey v Bailey, 11th District, Case # 2003-P-0003, (February,2004)
FACTS: 1985 Parentage established and support ordered. 2002 mother files to increase child support.
Mother argued that a part of the fathers' income should include "bonus points". Bonus points were earned by father at his job and could be redeemed for merchandise, travel, gift certificates. Magistrate finds bonus points were income using definition of gross income found in 3119.01 (C) (7) and included the points in the calculation of father's income. Trial court adopts the recommendation of the magistrate. Father appeals, affirmed.
DECISION: The court of appeals concluded that these bonus points were within the definition of gross income (3119.01 (c )(7) for several reasons. First, the IRS treated the bonus points as income for tax purposes and the father did not present any evidence that the bonus points were not income. Also the court found that the father was able to use the bonus points to purchase merchandise from various retailers and thus there just another form of cash. Finally the bonus points were included as income on the father's W-2
3. Unemployment Compensation and Unemployment Impact on Child Support
Johnson v. Huddle, 4th District, Case # 03CA19 (January 2004)
FACTS: Father in a parentage action files a motion to modify and reduce his child support obligation due to the fact that the father had lost his job and was now only receiving unemployment compensation. The magistrate modified and reduced the father's child support but in so doing took into consideration the father's income over the past 3 years including his income when employed and the year he was receiving unemployment to arrive at an annual average income. Father objects, and the trial court finds that the father's income should have been averaged over 4 years rather than 3 years and sets a new support order. Father appeals.
DECISION: The court of appeals recognized that in appropriate circumstances trial courts may average income over a reasonable period of years (citing 3119.05 (H). However, the court of appeals citing the McGuire case unreported from Scioto County #01CA2789 (2002) that income averaging is typically used in those situations in which an obligor's income is unpredictable, or fluctuates within his or her profession. In this case the obligor's income did not fluctuate within his job. Rather, the obligor lost his job and his income has dropped and will not rise again until he finds a new job . The court also noted that its decision is supported by other cases such as the Kouris case out of the 8th District, # 81237 which indicate that income should not be averaged in unemployment situations without at least finding that the obligor is voluntarily unemployed or underemployed.
4. Children's Private School / Parochial School Tuition
Mencini v Mencini, 8th Dist., Case No 83820 (June 2004)
FACTS: Pursuant to the parties 1982 separation agreement, the Husband agreed to pay the children's private school tuition including any increases. At the time of the agreement the tuition was $1,000.00 and at the time of the motion it had increased to $ 6,000.00 per year. The trial court found that the tuition was not modifiable. Husband appeals. Reversed.
DECISION: The court of appeals found that the trial court had incorrectly labeled the children's tuition as a debt. The court of appeals held that private school tuition was not a marital debt because a "marital debt is a debt incurred by the parties during their marriage for a valid marital purpose." The court reasoned that future tuition costs were not incurred during the parties' marriage and therefore these future tuition costs were not a marital debt. The court of appeals also addressed the issue of the constitutionality of ordering the payment of parochial school tuition and the court found that the order to pay parochial school tuition did not violate the establishment clause . The court of appeals then found that the payment of private school tuition was a form of child support and therefore modifiable.
5. Home School / Schooling and Accredited / Approved by the State of Ohio
Gatchel v Gatchel, Case No. 16-04-11, 3rd App. Dist., January 2005
FACTS: The Husband was ordered to pay child support for a child who was being schooled at the Christian Learning Center which was a high school that was accredited by the State of Ohio but was approved by the State. Husband appeals, affirmed.
DECISION: A parent must pay child support for a child who is home schooled. The court of appeals found that the state legislature made an exception to the requirement of compulsory attendance at school. That exception allows parents to home school their child provided the education provided to the children in the home education program meets the state standards. Thus an approved home school program is the legal equivalent of attending a public, private, or parochial school for purposes of child support under R.C. 3119.86.
The Court of Appeals also determined that attendance at a school which is approved but not accredited is sufficient in order to require the continuance of child support. Husband argued that his son was not attending an accredited high school and therefore his child support obligation should terminate. The Court of Appeals found that the phrase "recognized and accredited" as set out in R.C. 3103. 03 means approved by the state and a school which is officially recognized by the state falls within the definition of "recognized and approved."
6. Parentage, Genetic Testing and Duty of Support
Jennifer H v Harold J.D, 6th Dist. Case No. L-04-1053, February 2005
FACTS: Mother files a parentage action alleging that Harold was the father of her daughter. In July 1992 the father and mother agree that Harold is the father of the child and the court enters an agreed entry establishing parentage and child support was established. Harold doesn't pay child support and arrearage of $ 8,000.00 is established in 2003. Father then files a motion to vacate the parentage entry and to order genetic testing. Genetic testing was done and Harold was found not be the father. Trial court granted Harold's motion and vacated the July 1991 parentage entry and terminated further child support but did not vacate the child support arrearage. Harold appeals, affirmed.
DECISION: The trial court had the authority to vacate the finding of parentage pursuant to R.C. 3113.61 and not Civil Rule 60 (B) because 3113.61 gives the juvenile court continuing jurisdiction over all judgments and orders that concern the "duty of support or involve the welfare of the minor child" citing the Guthrie case 84 Ohio State 3rd 437 (1999).
PROPERTY DIVISION CASES (OTHER THAN RETIREMENT/PENSION)
1. Inherited Real Estate / 1031 Tax Exchange / Separate Property
Smith v. Smith, 5th District, Case # CT2003-008 and CT2003-0020, (January, 2004)
FACTS: Parties were married in 1968 and the Wife filed for divorce in 2001. During the marriage the husband had inherited 2 parcels of real estate and had exchanged his interest in the farm under a 1031 tax free exchange for other parcels of real estate. At least one parcel of real estate was placed in joint names and both parties signed the mortgage note on the parcel of real estate. The magistrate found the parcels to marital but on objection the trial court overruled the magistrate's decision and found that there was no showing of donative intent and ruled that the parcels were the husband's separate property. Wife appeals, Affirmed.
DECISION: the court found that the wife had failed to prove that there was a donative intent on the part of the husband to make an inter vivos gift of an interest in the real estate thereby converting separate property into marital property, citing Helton, 114 Ohio App 3d 683. To prove the elements of donative intent the wife had to show that (1) there was an intention on the part of the donor to transfer title, and right of possession to the wife, (2) there was a delivery to the donee of the gift to the extent practical with the relinquishment of ownership, dominion and control over it. The burden of proof is on the donee to show by clear and convincing evidence that the donor intended to make an inter vivos gift of an interest in property.
In this case the court found that although both parties' names appeared on the deed to the properties such fact is not determinative of whether the property is marital or separate, citing McFarland, 94-CA-12 (Richland) and 3105.171(H). At trial the husband testified that he never intended to give the wife a one half interest in the property nor told any one how to prepare the deeds. Wife also testified that she never discussed ownership of the property with the husband nor did her husband ever tell her why he was putting her name on the deeds to the property. Thus the trial court did not abuse its discretion when it found that the wife did meet her burden of proof in establishing donative intent.
2. Accumulated Sick Hours / Retirement Benefit / Period of Service
Presby v. Presby, 7th Circuit, Case No. 03MA 198 (June 2004)
FACTS: Wife at the time of the divorce had worked at the Post Office and during her marriage and employment had accumulated sick leave. Under the terms of her employment with the Post Office, any excess sick leave at the termination of her employment would be added to her pension which would give the wife a longer period of service upon which to compute her retirement benefit. The court found that the wife at the time of the divorce had 1,378,83 hours of sick leave which the court considered to be a marital asset and order the wife to pay the husband $ 9,089.16 which was one half of the sick leave times the wife's hourly wage at the divorce. Wife appealed, Reversed.
DECISION: The wife argued that it was error for the trial court to divide the sick leave and make a distribution of that sick leave benefit since the wife could not cash in the accumulated sick leave hours until such time as she retired. The court of appeals agreed with the wife and found that it was error for the trial court to order a division and payment of accumulated sick leave because the wife could not cash in the accumulated sick leave and further that there was no rational basis for the trial court to calculate the value of the accumulated sick leave by multiplying the hourly rate times the number of hours which had accumulated.
Court of Appeals recognized that the husband's interest in this marital asset had to be protected and therefore it was necessary to adjust the coverture formula on the pension. The court stated that any unused sick leave would be added to the years of service in the coverture formula (denominator) citing as authority a Montana case, of Marriage of Weeks, 915 P.2d 831 (1996).
3. Injury Settlement / Spouses Debts / Gifts
Stonehill v. Stonehill, 3rd District, Case No. 1-04-02 (June,2004)
FACTS: Prior to the parties' marriage, the wife was injured and received a settlement of $ 129,000. After the parties married, the wife paid from her settlement $ 37,000.00 towards the husband's debts (credit card, truck payments). The parties were divorced after 4 months of marriage. Trial court orders the husband to repay the wife any money which the wife had used from her injury settlement to pay the husband's debts. Husband appeals, affirmed.
DECISION: Husband argues that the payments by the wife from her separate property on his debts were a gift and therefore were not subject to repayment. Trial court found and the Court of Appeals affirmed that the payments were not a gift. Rather the court found that the wife only paid off the debt on the expectation that the marriage would continue and that by reducing the husband's debt it would make their life and marriage easier and that the husband would continue to support her since because of her injury the wife was unable to support herself.
4. Premarital Property / Real Estate Owned Prior to marriage / Private Agreements
Kershner v. Kershner, 11th District, Case No. 2003-P-0024 (March 2004)
FACTS: The parties were married in April of 1994 and the divorce was filed in March of 2002. At the time the parties were married, the Wife owned her own home. During the marriage, the parties refinanced the premarital mortgage and used part of the proceeds to pay off the husband's debts (child support from a prior marriage and an IRS tax bill). The trial court awarded the real estate to the wife and ordered the Husband to pay a city income bill. The husband appealed. Affirmed.
DECISION: The husband argued that the he and his wife had an agreement that they would divide equally the city income obligation and that the trial court should have adopted the parties agreement regarding the division of this debt. The court of appeals found citing the Szerlip case, 129 Ohio App.3d 504 that private agreements are not binding upon the court and a trial court is not relieved of the duty to divide a marital estate equitably simply because the parties have an agreement regarding the division of debt or property
5. Premarital Funds / Real Estate Purchase / Appreciation / Property Improvements
Pressler v Pressler, Case No. CA2004-03 068, 12th Dist. (March 2005)
FACTS: Prior to the parties' marriage, the parties purchased a home using the husband's premarital funds. At trial, there was evidence that the home had appreciated approximately $20,000.00 since time of the purchase. Wife argued that the appreciation was due to the parties' labor and therefore, the appreciated portion of the home was marital property. The court found that the marital residence and the appreciation were passive and therefore the home with the appreciated value was the husband's separate property. Wife appealed that determination. Affirmed.
DECISION: At trial the wife admitted that no improvements had been to the marital residence during the marriage other than having the carpets cleaned. The Court of Appeals agreed with the trial court's determination that routine or regular maintenance even with combined with the payment of property taxes and utilities is generally insufficient proof that marital residence's increase in value was due to the spouse's "labor, monetary, or in kind contribution for the purposes of creating a marital interest pursuant to R.C. 3105.171(A)(3)(a).
6. Separation Agreement / Enforceability of Separation Agreement
Brooks v Brooks, Case No. 03AP-1149 10th Dist. May 2005
FACTS: Parties through negotiation and mediation reached an agreement and executed a separation agreement incorporating their agreement. Wife then filed a divorce and requested that the court enforce the terms of the parties separation agreement. The Husband objected to the enforceability of the separation agreement. The court granted a divorce and enforced the terms of the agreement. Husband appeals the decision. Affirmed.
DECISION At trial and in the Court of Appeals, the Defendant alleged that the separation agreement was invalid because there was insufficient financial disclosure (the financial disclosure affidavit). The Defendant/husband alleged that the insufficient financial disclosure prevented the court finding that the separation agreement was fair, just and equitable. The court of appeals found that the Defendant had participated in meaningful negotiation and was aware of the parties' finances. If he didn't seek specific information about the value of assets he had to bear the consequences of his failure to inquire. Further the court of appeals held that a separation agreement is a contract and the party who is challenging the enforceability of the terms of the separation agreement had the burden of proof to that the agreement was not enforceable.
Trial court and court of appeal recognized that there are circumstances where the absence of independent legal counsel can invalidate a separation agreement. However, referring to the case of in re marriage of Kesler, the court found that unlike Kesler where the wife was isolated from policy making issues, had health issues and had been out of the work force for 10 years and therefore there was need for independent legal counsel to effect a separation agreement free from undue influence on the part of the wife's husband, this was not a case where there was a need for independent legal counsel.
The husband also argued that he had only signed the separation agreement because the wife refused to sign the waiver of dower on a parcel of real estate he was selling if the husband didn't sign the separation agreement. Husband argued that when he signed the separation agreement it was therefore under duress, was over reaching, and violated the provisions of R.C. 3103.06. The court of appeals found that there was no evidence of duress and that the need to obtain the wife's release. The need to obtain the wife's signature on the release of dower was a result of the husband's necessity and not the wife's conduct.
The Court of Appeals also discussed the "invited error doctrine" which states that a party will not be permitted to take advantage of an error that he himself invited or induced the trial court to make. The Defendant didn't tell the trial court that he did not go to the parenting seminar and then alleged his non attendance at the seminar as grounds for appeal. Court said that this was an example of the invited error doctrine.
RETIREMENT BENEFITS
1. QDRO / No QDRO Filed
Keith v Keith, 6th District, Case No. L-04-1011 (March 2004)
FACTS: In 2003 the parties were divorced. Pursuant to the terms of the parties' decree of divorce, the wife was to receive one half of the husband's pension is such a pension existed. No QDRO was filed nor was a QDRO attached to the divorce decree. The wife appealed the decision of the trial court. Appeal dismissed.
DECISION: The court of appeals found that "a clear majority" of Ohio appellate courts have consistently held that divorce orders are not final and appealable if a QDRO has been ordered but has not been prepared, citing numerous cases including the Rash case, 155 Ohio App. 3d 106 (2003)
2. QDRO / Vacate QDRO / Appealable Order
Batt .v. Batt, 8th District, Case No. 82740, 83452 (April 2004)
FACTS: Pursuant to the divorce decree (issued October 2001) the parties were to divide by way of a QDRO the husband's retirement equally between the spouses. The divorce decree further provided that a portion of the retirement account that the wife was to receive (shares in Lincap investment) were to placed in a trust for the benefit of the parties minor children. The trial court in March 2002 issued a QDRO to divide the husband's retirement per the divorce decree but the court ordered that a supplemental QDRO would issue to divide the Lincap funds for the children's benefit. April 2003, the wife filed a motion to vacate the QDRO issued in March 2003. August 2003 the trial court denied the motion and the wife appealed. Appeal dismissed.
DECISION: A judgment which divides a pension benefit between spouses is not a final appealable order until such time as a QDRO is entered that disposes of all of the retirement benefits. In this case even though there was a QDRO and that QDRO provided for the issuance of a supplemental QDRO to divide the Lincap Investment funds the Court of Appeals found that until such time as the "Supplemental QDRO" is entered dividing the Lincap Funds that there is not a final appealable determination as to the property division. Therefore, according to the Court of Appeals there is no final appealable order and the trial court lacked jurisdiction to rule on the appeal.
3. Premarital 401K / Trace Increase in Value / Equitable Distribution of 401K
Waldon v. Waldon, 12th District, Case No. CA2003-05-117 (April 2004)
FACTS: Prior to the parties' marriage, the wife had invested in a 401(k) retirement account a total of $ 53,772.00. During the parties' marriage, the wife contributed $ 50,000.00 to the 401(K) plan. At the time of the divorce the value of the 401(k) plan was $ 251,576.00. The trial court used the coverture formula to allocate the funds in the wife's retirement plan and gave to the husband $ 32,503.00 and gave the balance to the wife
($ 219,072.00). The Husband appealed. Reversed.
DECISION: On appeal the husband argued that the wife had the burden of proof to establish that the increase in her premarital contribution from $ 53,772.00 to $ 219,072.00. The husband argued that the wife could not trace this increase and therefore the increase in value is considered as martial property and should be divided evenly.
Court of Appeals said that the trial court had wide discretion in deciding an equitable division of a pension. The court of appeals said that it was not an abuse of discretion to use the coverture formula to divide a pension where the numerator would be the months during the marriage that the spouse was in the plan and contributed to the retirement plan and the denominator would be the total number of months that the wife was in the plan.
4. DOPO / STRS / STRS Pension / Remarriage
Schaffter v. Schaffter, 9th App. Dist., Case No. 04CA0028-M December, 2004
FACTS: Parties were divorced in 1998. Pursuant to the terms of the divorce, the wife was required to assign to the husband a 34.7 % interest in the wife's STRS pension. Wife remarried in 2002. Thereafter, wife retired and choose a joint and survivor annuity with her new husband. As a result of this election the monthly retirement benefit went from $ 3931.00 per month to $ 3,646.00 per month. It also reduced the amount the first husband was to receive as a percentage of the wife's pension. June 2002 the wife presented a DOPO to the first husband. The first husband refused to sign the DOPO because it did not contain survivorship or cost of living provisions. Wife began to receive her retirement in July 2002 without reduction for the first husband's interest. In September 2003 a DOPO was approved by the Court and STRS which did not contain cost of living or survivorship language. Husband then filed a contempt motion for nonpayment of his share of the wife's pension. Trial court found wife in contempt for non payment of a share of the retirement benefits from the date of retirement to the date the DOPO was approved. However, the trial court dismissed that portion of the husband's motion which requested that the trial court require cost of living and survivorship language in the DOPO. Both the husband and the wife appealed. Affirmed.
DECISION: The Court of Appeals affirmed the decision of the trial court which found that the parties had agreed that the wife upon retirement would elect a single life annuity and not joint and survivorship with her new husband. The wife argued that she was prohibited from electing a single life annuity and had to elect joint and survivor with her new husband unless her new husband waived this requirement.
The trial court and the Court of Appeals held that under R. C. 3307. 60(G). The court found that R.C. 3307.60 (G) allows the wife as the retirement to elect a single lifetime benefit upon remarriage without her new husband's consent and thus avoids the situation where the first husband subsidizes benefits to the new husband. The court further found that pursuant to R.C. 3307.60 (G) that the wife had to obtain her former husband's consent or a court order to many any change in her retirement plan upon remarriage if her former husband was to receive a joint survivor annuity.
5. Police and Fireman's Disability and Pension Fund / DOPO / Spousal Support / Division of Property
Goldshot v Carmen, Case No. 20598, 2nd App Dist. May 2005
FACTS: Parties were divorced in 1996 and the wife was awarded a share of the husband's Police and Fireman's Disability and Pension Fund. The divorce decree ordered the husband to pay to the wife her share of the husband's pension when he began to receive his pension. The divorce decree also provided that if the law should change to permit the attachment of retirement benefits, that the trial court would retain jurisdiction to issue such an order. After the law changed to allow Division of Property Orders the wife filed a motion with the court and requested that a DOPO be issued. The trial court dismissed the wife's motion on the grounds that the trial court lacked jurisdiction. Wife appealed. Reversed.
DECISION: Court of Appeals held that the payment of the wife's share of the husband's pension although labeled as spousal support was actually a division of property. The trial court and the court of appeals acknowledged that although it could not modify a property settlement, a trial court always retained jurisdiction to make orders in aid of relief granted in its property division orders. Thus, so long as the QDRO doesn't enlarge, diminish or varies the relief ordered in the divorce decree the trial court may issue a QDRO to enforce the relief as ordered by the divorce decree.
6. Social Security Benefits / Valuation of Social Security Benefits
Splitt v Splitt, 5th Dist. Case No. 2004AP060041, April 2005
FACTS: Wife filed a divorce against the Husband and as part of the evidence, the wife presented evidence regarding the value of the husband's social security benefits. The trial court, per Neville, considered the Husband's social security benefits and concluded that the benefits were too speculative and choose not to include the husband's social security benefits in the court's order regarding the division of property. Wife appealed, Affirmed.
DECISION: The trial court found that after considering the evidence regarding the value of husband's social security benefits based upon the report regarding the valuation of the husband's social security benefits were to speculative. The report prepared regarding the husband's social security benefits indicated that the report did not quantify all possibilities, that social security is complex, and benefits may change. The court of appeals said that it was not an abuse of discretion to not consider the husband's social security benefits.
PARENTAL RIGHTS
1. Custody Procedure Jurisdiction / Venue
In re E.T. 9th District, Case# 03CA008294 (January 2004)
FACTS: Father in 1999 obtains custody of his child and with permission of the mother moves to Arizona. Two years later, mother files for change of custody. Trial court dismisses the motion on the basis that it did not have jurisdiction. Mother appeals, affirmed.
DECISION: The trial court committed error when it found that it did not have jurisdiction because the child had lived in Ohio for 6 months as required by R.C 3109.22 (A)(1) at the commencement of the action or within 6 months of the commencement of the action. The court of appeals found that although the child had lived in Arizona for more than 6 months preceding the filing of the motion for change of custody, the child did live in Ohio for 6 months at the time of the original custody order in 1999 and therefore Ohio had jurisdiction over the matter.
However, Court of appeals approved the trial court's decision that it was an inconvenient forum. There are 4 factors for a court to consider whether it is in the child's best interest to assume jurisdiction. Those 4 factors are: (1) if another state is the child's home state,(2) if an other state has a closer connection to the child or his family(3) whether evidence of the child's present or future care, education or training or personal relationships are more readily available in the other state, (4) whether the parties have agreed to a separate appropriate forum. The court of appeals found that the trial court had sufficient evidence before it in the record to conclude that Ohio was an inconvenient forum and that the matter should be heard in Arizona and it was therefore not an abuse of discretion to dismiss the case on the basis of inconvenient forum.
The Court of appeals also found that although it is preferable to conduct an evidentiary hearing, the failure to conduct such a hearing is not necessarily error, citing the Mayor case 71 Ohio App 3d 789. The mother didn't suggest that there was any existence of any evidence that would have lead the court to any result other than the determination that Arizona is a more convenient forum in which to make a parental rights determination.
2. Relocation of Residential Parent / Contempt / Visitation
Miller v Miller, 3rd District, Case No. 7-03-09 (May, 2004)
FACTS: As a part of the divorce settlement, the wife was designated as the residential parent of the parties' children. The parties further greed that the wife would not relocate from Henry County or adjacent counties without either the permission of the husband or the court. Post divorce the wife files a motion to allow her to relocate to Indiana. Husband files contempt claiming that the wife was already living in Indiana in violation of the court order. Magistrate granted the motion to relocate, and the trial court adopted the decision of the Magistrate. Husband appeals, affirmed.
DECISION: In affirming the trial court's decision to allow the wife to relocate the court of appeals found that R.C. 3109.051 does not permit a trial court to prohibit a residential parent from relocating . The residential parent has a constitutional right to live wherever chooses and to relocate at will. The court found that a motion to relocate is merely gives to the trial court the authority and opportunity to revise the visitation schedule. However, if the trial court denies the motion to relocate and does not modify the visitation schedule then the result is that the parent who sought/filed the motion to relocate can relocate but in relocating must find a way to comply with the visitation schedule or be in contempt.
3. Residential Parent / Parentage / Genetic Testing / Bioligical Parent / Relationship with Child
Jennings v Jennings, 5th District, Case No. 2003-CA-00067 (May 2004)
FACTS: In July 2001 the parties' marriage was dissolved. As a part of dissolution the parties agree that the wife would be designated as the residential parent and the husband would have parenting time with the children. Prior to the dissolution being granted and unknown to the Husband the wife had undergone genetic testing and it was determined that the husband was not the father of the one child (son) but was the father of the other child
(daughter). Post dissolution, the wife denies visitation between the father and son but allows visitation between the father and the daughter.
Wife files a motion pursuant to 60B and seeks to join the biological father of the son to the litigation. Trial court upon joining the biological dad to the litigation makes a finding that both the wife and the biological dad are the residential parent of the son. However, because the husband had a relationship with the son the trial court refused to terminate the parent child relationship between the husband and the son or to terminate the husband's parenting time with the son. Wife appeals, affirmed.
DECISION: The wife argued that pursuant to Troxel v. Granville, that the trial court should have deferred to the wife and biological dad's decision as parents of the son to not allow the husband to have visitation. The wife argued that as the natural parent of the son that they had "the fundamental right to determine who they will allow their child to visit with".
The court of appeals found that this case differed from Troxel for several reasons and therefore Troxel did not apply. The court distinguished this case from Troxel because in Troxel, the mother was not attempting to cut off visitation rights but rather was only trying to limit the right to visit. In this case the court found that the mother sought to terminate all contact between the son and the husband despite the existence of a father child relationship and a sister brother relationship . The court of appeals also distinguished this case from Troxel because in this case the wife had perpetrated a fraud on the court in not disclosing the results of the DNA test before the dissolution was granted. Finally, the Court found in this case that there was evidence presented at trial which established that it was in the child's best interest to continue the relationship with the Husband.
4. Children Outside of Marriage Wedlock / Custody / Visitation /
Loudermilk v. Loudermilk, 11 Dist. Case No. 2002-A-0044, and 2002 A-0045, September 2004
FACTS: Mother and Father were never married. Mother had custody on one child and Father had custody of the other child. Each parent had standard visitation with the child not in their custody. Several years later, Mother and Father each filed separate motions seeking to be designated as the residential parent of both children. At the conclusion of the hearing on the motions the trial court ordered both parents to file motions for shared parenting. In Each plan the parent named themselves as the residential parent and proposed standard visitation to the other parent. The court then adopted the husband's plan for shared parenting. The mother appealed. Reversed.
DECISION: A trial court may not modify a prior order of custody unless it conducts a 3 step inquiry:
a. was there a change in circumstances of the child or parents
b. proposed change of custody is in the child's best interests
c. One of the 3 conditions set forth in 3109.04(E)(1)
(a) i - iii must be satisfied.
In this case, the trial court never considered whether considered whether there was a change of circumstances. The trial court heard the evidence and then directed that each side submit a shared parenting plan without first finding that there had been a change of circumstances.
5. Same Sex Parents / Shared Parenting / Parental Rights of Non Parents / Custodial Relationship
In the Matter of J.D.M , 12th Dist., Case No. CA2003-11-113, October 2004
FACTS: Appellants are same sex partners who are living together. Cheryl donated an egg which was implanted in Jennifer and then was artificially inseminated. After the child was born the appellants filed a shared parenting plan for the care of the child. The trial court dismissed the shared parenting plan on the theory that the plan did not offer any benefit to the child since the parties to the shared parenting plan were living together and not apart. Parties appeal. Reversed.
DECISION: In denying the parties request for shared parenting, the trial court observed that purpose of shared parenting in part was to preserve a custodial relationship for custodians no longer residing together in the child's household. The court of appeals found that the lack of controversy (i.e. the parties living apart rather than together) is not factor to consider in reviewing a plan for shared parenting., citing In Re Bonfield, 97 Ohio St 3d 387(2002).
The juvenile court has the jurisdiction to adjudicate custody rights for non parents (since same sex partner of the mother was not a parent for purposes of a shared parenting plan as defined by R.C. 3109.04). In adjudicating parental rights to non parents, the trial court must address and determine 2 criteria. First, the proposed custodian is the proper person to assume the care, training and education of the child. Two, the trial court has to give due consideration to all know factors in determining the best interests of the child.
6. Parent Relocation / Visitation Problems / Contempt / Interference with Visitation
Lawrence v Lawrence, 11th Dist., Case No. 2004-L-089
FACTS: After the parties obtained a divorce, the mother moves with the child to Florida. Because of visitation problems, the father files for contempt. Trial court finds mother in contempt and sentences her to 5 days in jail, Husband files to enforce the terms of the sentence. Husband also files to reallocate parental rights. Trial court imposes the sentence and also reallocates parental rights and designated the husband as the residential parent. Wife appeals, Affirmed.
DECISION: The trial court can not change custody as a sanction for contempt. However, in this case, the trial court found that there was a change of circumstances due the wife's deep anger towards her husband, hatred towards his family, interference with visitation and communication and the fact that she encouraged the children to lie to their father.
The court of appeals found that the trial court had considered all of the factors in R.C. 3109. 04(F)(1) and terminated the shared parenting plan, and designated the husband as the residential parent.
SPOUSAL SUPPORT
1. Standard of Living / Long Term Marriage / Calculation Basis
Carmony v. Carmony, 6th District, Case # L-02-1354 (March ,2004)
FACTS: Parties were married in 1969 and at the time of their marriage and for a considerable period of time during their marriage the parties lived a modest life style and each had a modest income (both earned in the mid 20,000.00) . In 1998 the husband obtains a job earning $ 69,000.00 and wife gets a job earning $ 40,000.00 per year. In 2000 the parties separate. Wife files for divorce and seeks spousal support. Trial court denies the request for support. Wife appeals, affirmed.
DECISION: the court of appeals after going through all of the factors for spousal support set out in 3105.18(C) (1) finds that the through out most of the parties 33 year marriage their life style and income was modest and that the parties did not enjoy a high standard of living until the final year of marriage prior to their separation. The court of appeals found that it wasn't an abuse of discretion to not award spousal support taking into consideration the parties life style during the majority of their marriage (3105.18 (c )(1)(g) Standard of living established during the marriage) and not the higher standard of living that the parties enjoyed for only one year prior to their separation and divorce.
2. Support / Cohabitation / Definition of Cohabitation
Coe v. Coe, 9th District, Case No 03CA0104-M (July, 2004)
FACTS: At the parties divorce, the husband was ordered to pay spousal support for a term of 4 years which would also terminate upon remarriage, death or cohabitation. Subsequent to the divorce, the husband files to terminate spousal support on the basis that the wife was cohabitating. The trial court granted the motion and terminated spousal support. The wife appeals, Affirmed.
DECISION: The court of appeals first defined cohabitation as (1) a sharing of familial or financial responsibility and (2) cohabitation. Factors which establish familial or financial responsibility include provisions for the payment of shelter, food, clothing utilities and or commingled assets. Facts that establish consortium include "mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. In this case the testimony established that the boyfriend lived at the home of the wife, received mail at the home, had his personal items at the home, and aided the wife in the care of the family. However, there was no evidence that the boyfriend assumed any financial responsibility and the court of appeals affirmed that the parties were cohabiting in a manner that was the functional equivalent of a marriage even though the boyfriend had not obligated himself to be financial responsible for the debts of the wife.
3. Use of Formula in Spousal Support / Equitable Result
Manley v. Manley, 2nd Dist. Case NO. 20426, January 2005
FACTS: Trial court awarded spousal support of $ 879.00 per month for 8.7 years (and which represented 1/3 of the marriage). Husband appeals, affirmed in part, reversed in part.
DECISION: The husband argued that the trial court's award of spousal support was based on a mathematical formula. Wife disagreed and said it was not based upon a formula. The Court of Appeals said it "obvious" that the trial court had used a formula to arrive at the amount and duration of the support. The court of appeals said that a trial court should not use a formula to set the duration of a support order except as a starting point in determining what spousal support to award in a long term marriage. Citing Kaechle the court said that the goal in fashioning a spousal support order was to reach an equitable result and the method by the way the goal is achieved cannot be reduced to a mathematical formula.
The court found that the formula did provide the benefit of predictability and that it thus provided assistance to counsel in advising their client's regarding the likelihood as to the amount of support and duration. The evidence in this case established a need for support and the ability to pay support and therefore the order was affirmed.
4. International Marriage / Internet / Visa Application Financial Support / Divorce of Immigrant
Davis v. Davis, 6th Dist. Case No. WD-04-020, December, 2004
FACTS: Husband met his wife on the internet. Husband was an American citizen and the wife was a Ukrainian national. Husband sponsors the wife in her visa application and brings the wife to the United States . As part of the Visa application Husband signs the support affidavit obligating himself to provide support the wife is granted a visa at a level which was no less than 125% of the poverty level. Husband files for divorce, wife files for legal separation and support based upon the Financial Support Affidavit. Trial court refuses to enforce the Financial Support Affidavit and award spousal support . Wife appeals, reversed.
DECISION: Court of Appeals said that the Financial Support Affidavit which the husband signed as a part of the Wife's Visa application was a legally enforceable and binding contract. The Financial Support Affidavit could be enforced in either state court or federal court by either the immigrant or any other entity that provided support for the immigrant. Finally, the Court found that the granting of the divorce did not terminate the husband's obligation to support his wife pursuant to the terms of the Financial Support Affidavit submitted as a part of the Wife's Visa application.
5. Wife Paying Support / Cohabitation / Modification Modify Spousal Support
Barrows v Barrows, 9th Dist. Case No. 22059, December 2004
FACTS: In March 2001 the Wife was ordered by the trial court to pay spousal support. In December 2002 the Wife files to modify her spousal support obligation. Trial court denies the motion and wife appeals. While case was on appeal, the wife files a second motion to modify spousal support. Trial court reduced the wife's support but not in the amount requested by the wife. Wife appeals, reversed and remanded.
DECISION: The court of appeals found that the trial court lacked jurisdiction to rule on the wife's second motion to modify spousal support when the first appeal was still pending. In the first appeal, the wife had alleged that the trial court should have terminated her spousal support obligation because the husband was cohabitating with an unrelated adult female. In the second motion to modify support the wife alleged the same grounds for modification, to wit the husband was cohabitating with an unrelated adult female.
Court of appeals held that a trial court retains jurisdiction on all matters which are not inconsistent with the appellate court's to review, modify the final order from which the appeal has been perfected. However, in this case, the appeal of the wife involved the issue of the husband's cohabitation and since that issue was before the court of appeals the trial court was divested of jurisdiction to hear the second motion to modify spousal support based on the allegation of cohabitation.
6. Early Retirement / Modification Modify Spousal Support / Voluntary Involuntary Underemployment
Tissue v Tissue, 8th Dist. Case No. 83708, November 2004
FACTS: In 1986 husband was ordered to pay spousal support to the wife in the sum of $ 1,775.00 per month. In 1996 Husband takes early retirement and also files a motion to modify and reduce his spousal support on the basis of reduced income. Husband argued that he took early retirement because his retirement was based upon the 3 highest years of employment and that due to the economy his income had been reduced from $ 116,000 at the time of the divorce to $ 43,000 at the time he retired and there was little chance that hisincome would increase. Trial court reduces the spousal support obligation to $ 750.00 per month and orders that the support terminate when the wife's mother dies. Husband and Wife appeal. Affirmed.
DECISION: Court of appeals recognizes that early retirement can be considered as an involuntary decrease in a person's salary when that party retiring can demonstrate that it was economically sound to take early retirement and thus preserve a person's pension.
The Court also affirmed the trial court's termination of spousal support based upon the death of the wife's mother. The court found that the wife was the sole beneficiary of a cash account which had a balance of approximately $ 700.,000.00. The court of appeals said that it was not error for the trial court to consider a potential future interest in an unrealized inheritance since the trial court must consider in determining spousal support the "income of the parties from all sources when determining the duration of spousal support (citing R.C. 3105. 18 (C) (1).