Acus v. Acus
2010-Ohio-856
Twelfth District Court of Appeals
Madison County
-Custody: Relocation of Custodial Parent
Appellant-Mother appeals from the decision of the Madison County DR Court denying her request to relocate to Cleveland with her daughter following her divorce from Appellee-Father. Mother, as residential parent argues that pursuant to R.C. 3109.051, the DR Court erred in its decision preventing her from relocating.
The Appellate Court, after reviewing R.C. 3109.051 reversed and remanded finding that the DR Court did not comply with the required statute. In short, the statute gives the DR Court the authority to determine, at a hearing, whether it is in the best interest of the child to revise the parenting time schedule for the child. The statute does not give the DR Court the authority to prevent the residential parent from relocating with the child.
From the Opinion:
{¶12} R.C. 3109.051(G)(1), which deals with the requirements of a residential parent intending to relocate, states, in pertinent part:
{¶13} "If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. * * * Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child." (Emphasis added.)
{¶14} In turn, while the express terms of R.C. 3109.051(G)(1) permit the trial court to schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child," the statute "does not give the trial court the authority to prevent the residential parent from relocating with the child."[citations omitted].
{¶15} In this case, there were no prior agreements preventing Mother from relocating, nor were there any provisions in the dispositional order regarding her ability to relocate.2 See In re T.M. at ¶13, citing Williams v. Williams, Trumball App. No. 2002- T-0101, 2004-Ohio-3992; Kassavei, 2001 WL 589392 at *2; see, also, Zimmer v. Zimmer, Franklin App. No. 00AP-383, 2001-Ohio-4226, 2001 WL 185356, at *2-*4. As a result, and under the facts of this case, the trial court did not have the authority to prevent Mother from relocating to Cleveland with her minor daughter. Instead, pursuant to R.C. 3109.051(G)(1), the court could merely schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child."3 See In re Noble, 2001 WL 314889 at *2; Kassavei, 2001 WL 589392 at *2; Spain, 1995 WL 380067 at *2. Therefore, because the trial court's decision preventing Mother from relocating with her daughter outside of the "Madison County area" was contrary to law, appellant's assignments of error are sustained and this matter is remanded for further proceedings. Kassavei, 2001 WL 589392 at *2.
Sunday, March 28, 2010
Amending a QDRO That Does Not Reflect a Divorce Decree's Intent
Schneider v. Schneider
2010-Ohio-534
Fifth Appellate District
Stark County
-Qualified Domestic Relations Orders (QDRO)
Appellant, Paul and Appellee Helen were divorced on November 7, 1996. The decree divided appellant’s pension equally (50/50). A QDRO was filed and approved by the trial court on March 4, 1997. Upon retiring on December 31, 2008, appellant discovered appellee woudl receive fifty percent of his pension for the entire period of his employment rather than for the years of the parties’ marriage.
On October 28, 2008, appellant filed a motion for clarification. On March 30, 2009, the trial court found no ambiguity in its order and denied appellant’s motion for clarification. Appellant appealed claiming the QDRO incorrectly applied a coverture formula because of an ambiguity in the divorce decree’s award of pension benefits.
The QDRO language included the 50% of the "Marital Portion of the Partifipant’s Accrued Benefit," but the denominator as defined extended the benefit to the entire time the appellant participated in the plan. The ultimate result was that appellee would receive a benefit for some twelve years beyond the termination of marriage.
After finding that the QDRO acknowledged it pertained only to the marital portion the appellate court reversed and remanded the trial court to modify the QDRO to correct the clear error in the denominator.
From the Opinion:
{¶10} "The trial court has broad discretion in clarifying ambiguous language by considering not only the intent of the parties but the equities involved.***An interpretive decision by the trial court cannot be disturbed upon appeal absent a showing of an abuse of discretion.***" Bond v. Bond (1990), 69 Ohio App.3d 225, 227-228, citations omitted. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶11} In Mckinney v. Mckinney (2001), 142 Ohio App.3d 604, 608, our brethren from the Second District explained the following:
{¶12} "A QDRO is a current distribution of the rights in a retirement account that is payable in the future, when the payee retires. It is ordinarily issued subsequent to and separate from the decree of divorce itself, after the employer payor has approved its terms as conforming with the particular pension plan involved. A QDRO is, therefore, merely an order in aid of execution on the property division ordered in the divorce decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which R.C. 3109.171(I) prohibits, and the court does not lack jurisdiction to issue it. Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036, unreported."
{¶16} The QDRO filed March 4, 1997 specifically stated the following:
{¶17} "7. Amount of Alternate Payee's Benefit: This Order assigns to Alternate Payee an amount equal to the actuarial equivalent of Fifty Percent (50%) of the Marital Portion of the Participant's Accrued Benefit under the Plan as of the Participant's benefit commencement date, or the Alternate Payee's benefit commencement date, if earlier. The Marital Portion shall be determined by multiplying the Participant's Accrued Benefit by a fraction (less than or equal to 1.0), the numerator of which is the number of months of the Participant's participation in the Plan earned during the marriage (from June 8, 1968 to November 7, 1996), and the denominator of which is the total number of months of the Participant's participation in the Plan as of the earlier of his date of cessation of benefit accruals or the date that Alternate Payee commences her benefits hereunder."
{¶18} The QDRO language includes the fifty percent of the "Marital Portion of the Participant's Accrued Benefit," but the denominator as defined extends the benefit to the entire time appellant participated in the plan. The ultimate result is that appellee will receive a benefit for some twelve years beyond the termination of the marriage.
{¶19} As explained in McKinney, supra, a QDRO is basically a vehicle to effectuate the provisions of a divorce decree. It is the equivalent of a quitclaim deed. A trial court therefore has the right and privilege to amend a QDRO that does not reflect a divorce decree's intent.
{¶20} As we read the divorce decree in toto, paragraph five cited supra divided a marital asset; therefore, the retirement benefit should be determined by the amount of time the parties were married. See, R.C. 3105.171(A)(3)(a). Even the QDRO acknowledges it pertains to the marital portion.
2010-Ohio-534
Fifth Appellate District
Stark County
-Qualified Domestic Relations Orders (QDRO)
Appellant, Paul and Appellee Helen were divorced on November 7, 1996. The decree divided appellant’s pension equally (50/50). A QDRO was filed and approved by the trial court on March 4, 1997. Upon retiring on December 31, 2008, appellant discovered appellee woudl receive fifty percent of his pension for the entire period of his employment rather than for the years of the parties’ marriage.
On October 28, 2008, appellant filed a motion for clarification. On March 30, 2009, the trial court found no ambiguity in its order and denied appellant’s motion for clarification. Appellant appealed claiming the QDRO incorrectly applied a coverture formula because of an ambiguity in the divorce decree’s award of pension benefits.
The QDRO language included the 50% of the "Marital Portion of the Partifipant’s Accrued Benefit," but the denominator as defined extended the benefit to the entire time the appellant participated in the plan. The ultimate result was that appellee would receive a benefit for some twelve years beyond the termination of marriage.
After finding that the QDRO acknowledged it pertained only to the marital portion the appellate court reversed and remanded the trial court to modify the QDRO to correct the clear error in the denominator.
From the Opinion:
{¶10} "The trial court has broad discretion in clarifying ambiguous language by considering not only the intent of the parties but the equities involved.***An interpretive decision by the trial court cannot be disturbed upon appeal absent a showing of an abuse of discretion.***" Bond v. Bond (1990), 69 Ohio App.3d 225, 227-228, citations omitted. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶11} In Mckinney v. Mckinney (2001), 142 Ohio App.3d 604, 608, our brethren from the Second District explained the following:
{¶12} "A QDRO is a current distribution of the rights in a retirement account that is payable in the future, when the payee retires. It is ordinarily issued subsequent to and separate from the decree of divorce itself, after the employer payor has approved its terms as conforming with the particular pension plan involved. A QDRO is, therefore, merely an order in aid of execution on the property division ordered in the divorce decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which R.C. 3109.171(I) prohibits, and the court does not lack jurisdiction to issue it. Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036, unreported."
{¶16} The QDRO filed March 4, 1997 specifically stated the following:
{¶17} "7. Amount of Alternate Payee's Benefit: This Order assigns to Alternate Payee an amount equal to the actuarial equivalent of Fifty Percent (50%) of the Marital Portion of the Participant's Accrued Benefit under the Plan as of the Participant's benefit commencement date, or the Alternate Payee's benefit commencement date, if earlier. The Marital Portion shall be determined by multiplying the Participant's Accrued Benefit by a fraction (less than or equal to 1.0), the numerator of which is the number of months of the Participant's participation in the Plan earned during the marriage (from June 8, 1968 to November 7, 1996), and the denominator of which is the total number of months of the Participant's participation in the Plan as of the earlier of his date of cessation of benefit accruals or the date that Alternate Payee commences her benefits hereunder."
{¶18} The QDRO language includes the fifty percent of the "Marital Portion of the Participant's Accrued Benefit," but the denominator as defined extends the benefit to the entire time appellant participated in the plan. The ultimate result is that appellee will receive a benefit for some twelve years beyond the termination of the marriage.
{¶19} As explained in McKinney, supra, a QDRO is basically a vehicle to effectuate the provisions of a divorce decree. It is the equivalent of a quitclaim deed. A trial court therefore has the right and privilege to amend a QDRO that does not reflect a divorce decree's intent.
{¶20} As we read the divorce decree in toto, paragraph five cited supra divided a marital asset; therefore, the retirement benefit should be determined by the amount of time the parties were married. See, R.C. 3105.171(A)(3)(a). Even the QDRO acknowledges it pertains to the marital portion.
Termination of Spousal Support Based on a Change in Circumstances
Tufts v. Tufts
2010-Ohio-641
Ninth District Court of Appeals
Summit County
-Spousal Support
Defendant-Appellant, Frederick N. Tufts ("Husband") appeals from the judgement of the Summit County DR Court denying his motion to terminate/modify spousal support being paid to Plaintiff-Appellee, Sandra L. Tufts ("Wife").
The parties were married for 35 years before divorcing in March of 1995. The Decree of Divorce awarded $2,500 per month to wife with the TC retaining jurisdiction to modify the amount of spousal support based on a change in circumstances. At the time of the divorce, Husband’s base salary was 107k, with his total compensation reaching 240k annually.
In 2000 Husband’s income dropped to approximately 64k. He filed a motion to modify and his spousal support obligation dropped to $1,600 per month. In May 2008, Husband filed a motion to modify on the basis of a change in circumstances as his income had dropped to 48k annually. Following a hearing, the magistrate denied Husband’s motion. Husband objected and the TC overruled those objections and adopted the magistrate’s findings.
On appeal, Husband asserted four assignments of error. The Ninth Circuit reversed after finding the TC erred by not making the requisite findings to establish jurisdiction over Husband’s motion to terminate. The reversal was based on what constitutes a "change in circumstances" under the recently decided Mandelbaum v. Mandelbaum.
From the Opinion:
{¶8} It is well established that R.C. 3105.18 requires a two-step analysis before an award of spousal support may be modified. Malizia v. Malizia, 9th Dist. No. 22565, 2005-Ohio-5186, at ¶8, citing Leighner v. Leighner (1986), 33 Ohio App.3d 214, 215. The first step is jurisdictional and requires the trial court to determine whether the original divorce decree provided continuing jurisdiction to modify the spousal support award, and if so, whether the circumstances of either party have changed. Malizia at ¶8. See, also, R.C. 3105.18(E). With respect to this jurisdictional hurdle, the Ohio Supreme Court has clarified that "[a] trial court lacks jurisdiction to modify a prior order of spousal support unless the decree of the court expressly reserved jurisdiction to make the modification and unless the court finds (1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree." (Emphasis added.) Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, at paragraph two of the syllabus. Once jurisdiction is established, the second step of the analysis requires the trial court to determine whether the existing support order should be modified in light of the change in circumstances that has occurred. Johnson v. Johnson, 9th Dist. No. 24159, 2008-Ohio-4557, at ¶7. Such a determination is conducted in consideration of the factors set forth in R.C. 3105.18(C). Id.
{¶9} Recently, this Court considered the implications of Mandelbaum when deciding appeals related to spousal support modification. Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, at ¶6-11. In doing so, we noted that "we are bound by the Supreme Court’s precedent which abrogated our holding in Kingsolver [reasoning that any change in circumstance could warrant a modification to spousal support] and concluded that in order to modify spousal support a trial court must have continuing jurisdiction and must find ‘(1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree.’" Johns at ¶8, quoting Mandelbaum at ¶33. In doing so, we held that, "because the trial court’s entry d[id] not include these findings, *** the trial court erred in modifying the spousal support award[.]" Id. at ¶10
{¶11} Upon review of the trial court’s July 2009 entry, it is apparent that the trial court did not make the requisite findings under Mandelbaum because it did not recount whether there was a substantial change in circumstances and that the change was not contemplated by the parties at the time of the divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10. Given that the trial court failed to make such findings to properly establish jurisdiction over this matter, it further erred in proceeding to the second step of the analysis where it determined whether the existing support order should be terminated or reduced. Mandelbaum v. Mandelbaum, 2d Dist. No. 21817, 2007-Ohio-6138, at ¶95 (concluding that a court may only proceed to the second step in the spousal support modification analysis once it has satisfied the first).
{¶12} Pursuant to the Supreme Court’s holding in Mandelbaum and this Court’s application of Mandelbaum in Johns, this matter must be remanded to the trial court for a determination of whether there was a substantial change in circumstances and whether the change was contemplated by the parties at the time of their divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10.
2010-Ohio-641
Ninth District Court of Appeals
Summit County
-Spousal Support
Defendant-Appellant, Frederick N. Tufts ("Husband") appeals from the judgement of the Summit County DR Court denying his motion to terminate/modify spousal support being paid to Plaintiff-Appellee, Sandra L. Tufts ("Wife").
The parties were married for 35 years before divorcing in March of 1995. The Decree of Divorce awarded $2,500 per month to wife with the TC retaining jurisdiction to modify the amount of spousal support based on a change in circumstances. At the time of the divorce, Husband’s base salary was 107k, with his total compensation reaching 240k annually.
In 2000 Husband’s income dropped to approximately 64k. He filed a motion to modify and his spousal support obligation dropped to $1,600 per month. In May 2008, Husband filed a motion to modify on the basis of a change in circumstances as his income had dropped to 48k annually. Following a hearing, the magistrate denied Husband’s motion. Husband objected and the TC overruled those objections and adopted the magistrate’s findings.
On appeal, Husband asserted four assignments of error. The Ninth Circuit reversed after finding the TC erred by not making the requisite findings to establish jurisdiction over Husband’s motion to terminate. The reversal was based on what constitutes a "change in circumstances" under the recently decided Mandelbaum v. Mandelbaum.
From the Opinion:
{¶8} It is well established that R.C. 3105.18 requires a two-step analysis before an award of spousal support may be modified. Malizia v. Malizia, 9th Dist. No. 22565, 2005-Ohio-5186, at ¶8, citing Leighner v. Leighner (1986), 33 Ohio App.3d 214, 215. The first step is jurisdictional and requires the trial court to determine whether the original divorce decree provided continuing jurisdiction to modify the spousal support award, and if so, whether the circumstances of either party have changed. Malizia at ¶8. See, also, R.C. 3105.18(E). With respect to this jurisdictional hurdle, the Ohio Supreme Court has clarified that "[a] trial court lacks jurisdiction to modify a prior order of spousal support unless the decree of the court expressly reserved jurisdiction to make the modification and unless the court finds (1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree." (Emphasis added.) Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, at paragraph two of the syllabus. Once jurisdiction is established, the second step of the analysis requires the trial court to determine whether the existing support order should be modified in light of the change in circumstances that has occurred. Johnson v. Johnson, 9th Dist. No. 24159, 2008-Ohio-4557, at ¶7. Such a determination is conducted in consideration of the factors set forth in R.C. 3105.18(C). Id.
{¶9} Recently, this Court considered the implications of Mandelbaum when deciding appeals related to spousal support modification. Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, at ¶6-11. In doing so, we noted that "we are bound by the Supreme Court’s precedent which abrogated our holding in Kingsolver [reasoning that any change in circumstance could warrant a modification to spousal support] and concluded that in order to modify spousal support a trial court must have continuing jurisdiction and must find ‘(1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree.’" Johns at ¶8, quoting Mandelbaum at ¶33. In doing so, we held that, "because the trial court’s entry d[id] not include these findings, *** the trial court erred in modifying the spousal support award[.]" Id. at ¶10
{¶11} Upon review of the trial court’s July 2009 entry, it is apparent that the trial court did not make the requisite findings under Mandelbaum because it did not recount whether there was a substantial change in circumstances and that the change was not contemplated by the parties at the time of the divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10. Given that the trial court failed to make such findings to properly establish jurisdiction over this matter, it further erred in proceeding to the second step of the analysis where it determined whether the existing support order should be terminated or reduced. Mandelbaum v. Mandelbaum, 2d Dist. No. 21817, 2007-Ohio-6138, at ¶95 (concluding that a court may only proceed to the second step in the spousal support modification analysis once it has satisfied the first).
{¶12} Pursuant to the Supreme Court’s holding in Mandelbaum and this Court’s application of Mandelbaum in Johns, this matter must be remanded to the trial court for a determination of whether there was a substantial change in circumstances and whether the change was contemplated by the parties at the time of their divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10.
Spousal Support Modification - Examining the Obligee's "Need" for Spousal Support
Hutchinson v. Hutchinson
2010-Ohio-597
Twelfth District Court of Appeals
Clermont County
-Spousal Support
Defendant-Appellant, Pamel S. Hutchinson, appeals an order of the Clermont County DR Court reducing the spousal support obligation paid to her by Plaintiff-Appellee, Dennis R. Hutchinson upon his retirement.
After 31 years of marriage, the parties divorced in 1995. By Decree of Divorce, Dennis was ordered to pay Pamela 1k per month in spousal support until death with the TC retaining jurisdiction. Dennis retired in 2007 at the age of 62.
In 2008, Dennis moved to modify his spousal support obligation on the ground that his retirement had significantly decreased his annual income. Pamela moved to increase Dennis’ spousal support obligation on the grounds that she was unable to afford housing and that retirement had not significantly impacted Dennis’ income.
At a hearing held November 17, 2008, Dennis testified regarding the reduction in his income after divorce and also testified that after the divorce, Pamela’s gambling habits spun out of control. By his calculations, Pamela had spent up to 54k at local casinos in 2007. The magistrate found that there was a change in the parties’ circumstances justifying a reduction in, but not a termination of, Dennis’ spousal support obligation.
The magistrate found that Pamela had been gambling excessively and has been dissipating not only her income, but her assets and as such, Dennis should not be expected to subsidize Pamela’s excessive gambling. The magistrate found that $607 per month would provide for Pamela’s current needs but did not subsidize her gambling.
Pamela asserted two assignments of error on appeal. First, Pamela stated that the TC lacked jurisdiction to reduce Dennis’ spousal support obligation under Mandelbaum and the TC erred by reducing her spousal support. The Twelfth District affirmed the TC’s decision.
From the Opinion:
{¶19} Here, the change of circumstances for Dennis was his retirement from Ethicon in 2004. Pamela argues that Dennis' retirement was "voluntary" and therefore cannot be considered in determining whether a substantial change in circumstances occurred. However, this court has held that voluntary retirement "does not bar consideration of [a party's] decrease in income when determining if there was a substantial change of circumstances." Robinson v. Robinson (Apr. 4,
1994), Brown App. Nos. CA93-02-027, CA93-03-047, 1994 WL 110197, at *1.
{¶20} In evaluating the effects of Dennis' retirement upon his ability to pay spousal support, the magistrate concluded that "all of [Dennis'] investments have been declining in value." In addition, the magistrate accounted for the sharp decline in Dennis' annual income after retirement. Before retirement, Dennis made roughly $70,000 annually; after retirement, Dennis made only $36,300 annually, consisting of Social Security benefits of $1,600 per month ($19,200 per year) and a pension of $1,425 per month ($17,100 per year). In essence, Dennis' gross annual income after retirement was cut in half – a substantial change in circumstances by any standard.
See Carnahan, 118 Ohio App.3d 393 (the trial court did not abuse its discretion in finding a substantial change in circumstances where an obligor spouse made $72,000 annually before retirement and $19,000 afterward); Reveal v. Reveal, Montgomery App. No. 19812, 2003-Ohio- 5335, ¶18 ("a reduction in income due to voluntary retirement is literally a change of circumstances").
{¶21} Upon considering the foregoing, we cannot say that the trial court abused its discretion in upholding the magistrate's finding that Dennis' retirement caused a change in circumstances warranting a modification of the spousal support award.
{¶22} However, this does not end our examination of the change in Dennis' circumstances. Pamela also argues that Dennis' retirement was contemplated at the time of the divorce. At the divorce hearing in 1995, Dennis testified that he anticipated Ethicon would offer him an "early retirement package" on his 50th birthday, which fell in the fourth quarter of that year. However, when the offer failed to come, Dennis continued to work for Ethicon for nine more years until 2004. It is clear that the retirement Dennis contemplated at the time of the divorce was his "early retirement" in 1995 and not his actual retirement in 2004. Thus, Pamela's argument that Dennis' retirement in 2004 was necessarily contemplated at the time of divorce is without merit.
{¶23} Pamela next argues that even if the trial court had authority to review the spousal support award based on a change in circumstances, the trial court abused its discretion in adopting the magistrate's modification. Pamela claims that the magistrate failed to consider all relevant factors under R.C. 3105.18(C)(1) when he determined an unreasonably low spousal support figure. Pamela argues that in modifying the support award, the magistrate erred on three distinct fronts: (1) the modification was erroneously based solely on Pamela's "needs," [edited].
{¶31} In calculating the new spousal support award, the magistrate determined Pamela's "need" by totaling her monthly expenses and comparing them to her current assets, social security income, and benefits she received from Dennis' pension plan. The magistrate also assessed Dennis' post-retirement ability to pay spousal support by reviewing his pension benefits, social security income, and investment assets. Based on the totality of the parties' circumstances, the magistrate concluded that $607 per month was an appropriate amount of spousal support to
support Pamela's lifestyle, minus her gambling habits, and that Dennis had the "ability to pay" this amount, based on his reduced income.
{¶32} In sum, the magistrate factored Pamela's former standard of living into his calculations and determined that Dennis was not responsible for Pamela's deteriorated lifestyle; rather, Pamela's mismanaged finances and gambling habits were clearly to blame. Upon review of the record, we find that the magistrate's decision modifying the spousal support award is supported by the evidence, and that the trial court did not abuse its discretion in upholding the modification.
2010-Ohio-597
Twelfth District Court of Appeals
Clermont County
-Spousal Support
Defendant-Appellant, Pamel S. Hutchinson, appeals an order of the Clermont County DR Court reducing the spousal support obligation paid to her by Plaintiff-Appellee, Dennis R. Hutchinson upon his retirement.
After 31 years of marriage, the parties divorced in 1995. By Decree of Divorce, Dennis was ordered to pay Pamela 1k per month in spousal support until death with the TC retaining jurisdiction. Dennis retired in 2007 at the age of 62.
In 2008, Dennis moved to modify his spousal support obligation on the ground that his retirement had significantly decreased his annual income. Pamela moved to increase Dennis’ spousal support obligation on the grounds that she was unable to afford housing and that retirement had not significantly impacted Dennis’ income.
At a hearing held November 17, 2008, Dennis testified regarding the reduction in his income after divorce and also testified that after the divorce, Pamela’s gambling habits spun out of control. By his calculations, Pamela had spent up to 54k at local casinos in 2007. The magistrate found that there was a change in the parties’ circumstances justifying a reduction in, but not a termination of, Dennis’ spousal support obligation.
The magistrate found that Pamela had been gambling excessively and has been dissipating not only her income, but her assets and as such, Dennis should not be expected to subsidize Pamela’s excessive gambling. The magistrate found that $607 per month would provide for Pamela’s current needs but did not subsidize her gambling.
Pamela asserted two assignments of error on appeal. First, Pamela stated that the TC lacked jurisdiction to reduce Dennis’ spousal support obligation under Mandelbaum and the TC erred by reducing her spousal support. The Twelfth District affirmed the TC’s decision.
From the Opinion:
{¶19} Here, the change of circumstances for Dennis was his retirement from Ethicon in 2004. Pamela argues that Dennis' retirement was "voluntary" and therefore cannot be considered in determining whether a substantial change in circumstances occurred. However, this court has held that voluntary retirement "does not bar consideration of [a party's] decrease in income when determining if there was a substantial change of circumstances." Robinson v. Robinson (Apr. 4,
1994), Brown App. Nos. CA93-02-027, CA93-03-047, 1994 WL 110197, at *1.
{¶20} In evaluating the effects of Dennis' retirement upon his ability to pay spousal support, the magistrate concluded that "all of [Dennis'] investments have been declining in value." In addition, the magistrate accounted for the sharp decline in Dennis' annual income after retirement. Before retirement, Dennis made roughly $70,000 annually; after retirement, Dennis made only $36,300 annually, consisting of Social Security benefits of $1,600 per month ($19,200 per year) and a pension of $1,425 per month ($17,100 per year). In essence, Dennis' gross annual income after retirement was cut in half – a substantial change in circumstances by any standard.
See Carnahan, 118 Ohio App.3d 393 (the trial court did not abuse its discretion in finding a substantial change in circumstances where an obligor spouse made $72,000 annually before retirement and $19,000 afterward); Reveal v. Reveal, Montgomery App. No. 19812, 2003-Ohio- 5335, ¶18 ("a reduction in income due to voluntary retirement is literally a change of circumstances").
{¶21} Upon considering the foregoing, we cannot say that the trial court abused its discretion in upholding the magistrate's finding that Dennis' retirement caused a change in circumstances warranting a modification of the spousal support award.
{¶22} However, this does not end our examination of the change in Dennis' circumstances. Pamela also argues that Dennis' retirement was contemplated at the time of the divorce. At the divorce hearing in 1995, Dennis testified that he anticipated Ethicon would offer him an "early retirement package" on his 50th birthday, which fell in the fourth quarter of that year. However, when the offer failed to come, Dennis continued to work for Ethicon for nine more years until 2004. It is clear that the retirement Dennis contemplated at the time of the divorce was his "early retirement" in 1995 and not his actual retirement in 2004. Thus, Pamela's argument that Dennis' retirement in 2004 was necessarily contemplated at the time of divorce is without merit.
{¶23} Pamela next argues that even if the trial court had authority to review the spousal support award based on a change in circumstances, the trial court abused its discretion in adopting the magistrate's modification. Pamela claims that the magistrate failed to consider all relevant factors under R.C. 3105.18(C)(1) when he determined an unreasonably low spousal support figure. Pamela argues that in modifying the support award, the magistrate erred on three distinct fronts: (1) the modification was erroneously based solely on Pamela's "needs," [edited].
{¶31} In calculating the new spousal support award, the magistrate determined Pamela's "need" by totaling her monthly expenses and comparing them to her current assets, social security income, and benefits she received from Dennis' pension plan. The magistrate also assessed Dennis' post-retirement ability to pay spousal support by reviewing his pension benefits, social security income, and investment assets. Based on the totality of the parties' circumstances, the magistrate concluded that $607 per month was an appropriate amount of spousal support to
support Pamela's lifestyle, minus her gambling habits, and that Dennis had the "ability to pay" this amount, based on his reduced income.
{¶32} In sum, the magistrate factored Pamela's former standard of living into his calculations and determined that Dennis was not responsible for Pamela's deteriorated lifestyle; rather, Pamela's mismanaged finances and gambling habits were clearly to blame. Upon review of the record, we find that the magistrate's decision modifying the spousal support award is supported by the evidence, and that the trial court did not abuse its discretion in upholding the modification.
Failure to Disclose Marital Assets Results in Relief From Judgment
Baker v. Baker
2010-Ohio-570
Sixth Appellate District
Erie Count
-Rule 60(B) Motion
Appellant, Daniel P. Baker, appeals a judgement of the Erie County DR Court granting appellee, Kathleen Baker’s motion to vacate judgment pursuant to Civ. R. 60(B). Appellant asserts three assignments of error. I will only discuss one of appellants claims in this post, that appellee’s Civ. R. 60(B) motion should have been dismissed since evidence presented by appellee was not ‘newly discovered’ and was capable of discovery prior to the final hearing in the divorce.
Appellee filed a motion for relief from judgment after she discovered a document from Fidelity Trust Management Company listing two accounts in appellant’s name. Appellee claimed that only one of the accounts was disclosed to her during the divorce proceedings.
A hearing was held on March 9, 2009 where both parties testified. Appellee asserted she had no knowledge of the Fidelity Account and Appellant testified that the account had been disclosed. Specifically, appellant testified that he discussed the Fidelity Account at a meeting with all necessary parties present. Appellant stated that he informed appellee and her counsel that withdrawls were being made on the accounts to pay the marital bills and she agreed with this practice.
After examining the credibility of the parties, the magistrate awarded appellee proceeds from the Fidelity Account.
From the Opinion:
{¶ 8} Civ.R. 60(B), in material part, provides:
{¶ 9} "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * *"
{¶ 10} In order to be granted relief under Civ.R. 60(B)(2), "the moving party must demonstrate that: (1) the evidence was actually 'newly discovered', that is, it must have been discovered subsequent to trial; (2) the movant exercised due diligence; and (3) the evidence is material, not merely impeaching or cumulative, and that a new trial would probably produce a different result." Cominsky v. Malner, 11th Dist. No. 2002-L-103,4. 2004-Ohio-2202, ¶ 20, citing Holden v. Bureau of Motor Vehicles (1990), 67 Ohio App.3d 531.
{¶ 11} The question of whether relief should be granted or denied is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. An abuse of discretion is more than a mistake of law or an error of judgment, the term connotes that the court's attitude is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 15} A review of the transcript of the proceedings before the magistrate indicates that his decision finding that appellant had failed to disclose certain assets was based on the credibility of the parties. The trial court relied on the magistrate's assessment of the parties' credibility, and we will do the same, as the magistrate was in the best position to make this assessment. Singh v. Singh, 12th Dist. No. CA2002-08-080, 2003-Ohio-2372.
2010-Ohio-570
Sixth Appellate District
Erie Count
-Rule 60(B) Motion
Appellant, Daniel P. Baker, appeals a judgement of the Erie County DR Court granting appellee, Kathleen Baker’s motion to vacate judgment pursuant to Civ. R. 60(B). Appellant asserts three assignments of error. I will only discuss one of appellants claims in this post, that appellee’s Civ. R. 60(B) motion should have been dismissed since evidence presented by appellee was not ‘newly discovered’ and was capable of discovery prior to the final hearing in the divorce.
Appellee filed a motion for relief from judgment after she discovered a document from Fidelity Trust Management Company listing two accounts in appellant’s name. Appellee claimed that only one of the accounts was disclosed to her during the divorce proceedings.
A hearing was held on March 9, 2009 where both parties testified. Appellee asserted she had no knowledge of the Fidelity Account and Appellant testified that the account had been disclosed. Specifically, appellant testified that he discussed the Fidelity Account at a meeting with all necessary parties present. Appellant stated that he informed appellee and her counsel that withdrawls were being made on the accounts to pay the marital bills and she agreed with this practice.
After examining the credibility of the parties, the magistrate awarded appellee proceeds from the Fidelity Account.
From the Opinion:
{¶ 8} Civ.R. 60(B), in material part, provides:
{¶ 9} "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * *"
{¶ 10} In order to be granted relief under Civ.R. 60(B)(2), "the moving party must demonstrate that: (1) the evidence was actually 'newly discovered', that is, it must have been discovered subsequent to trial; (2) the movant exercised due diligence; and (3) the evidence is material, not merely impeaching or cumulative, and that a new trial would probably produce a different result." Cominsky v. Malner, 11th Dist. No. 2002-L-103,4. 2004-Ohio-2202, ¶ 20, citing Holden v. Bureau of Motor Vehicles (1990), 67 Ohio App.3d 531.
{¶ 11} The question of whether relief should be granted or denied is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. An abuse of discretion is more than a mistake of law or an error of judgment, the term connotes that the court's attitude is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 15} A review of the transcript of the proceedings before the magistrate indicates that his decision finding that appellant had failed to disclose certain assets was based on the credibility of the parties. The trial court relied on the magistrate's assessment of the parties' credibility, and we will do the same, as the magistrate was in the best position to make this assessment. Singh v. Singh, 12th Dist. No. CA2002-08-080, 2003-Ohio-2372.
Dividing a Country Club Membership Years After Purchase
Hardy v. Hardy
2010-Ohio-561
Twelfth District Court of Appeals
Montgomery County
-Division of Property
Appellant Nancy Hardy appeals from the DR Court after the DR Court ordered appellee to reimburse Nancy $1,500 for her marital interest in the Dayton Racquet Club membership and $1,500 for her marital interest in the Moraine Country Club membership. The amount awarded represents one-half the marital funds used to acquire the memberships at the time of purchase, many years ago.
Nancy argues on appeal that the award by the DR Court fails to consider the present value of the memberships and further contends that she “can think of no reason why these ‘valuable’ assets should be treated any differently than other assets that typically appreciate in value, such as a marital residence.”
The Court of Appeals reversed the DR Court’s ruling as it found the compensation ordered to Nancy for the amounts that were paid for the memberships unjust.
From the Opinion:
{¶ 9} R.C. 3105.171(A)(2) requires the domestic relations court, when it orders a division of marital property that R.C.3105.171 requires, to adopt a value for that property in the amount
of its value as of the date of the final hearing in the action, unless the court selects a different date on a finding that it would be more equitable. In the present case, the court did not expressly find that the dates when the two club memberships were purchased would be a more equitable date for their valuation. Instead, the court relied on our holding in Maloney adopting that date, as we said it should.
{¶ 10} We are aware of no holding, other than our holding in Maloney, which addresses the value to be assigned to club memberships of this kind. Further, Maloney did not explain the
basis for the valuation it ordered. The present appeal presents an opportunity to revisit the issue.
{¶ 11} The two club memberships at issue are marital property, being assets that were acquired during the marriage and purchased with marital funds. The domestic relations court is required by R.C. 3105.171(C)(1) to divide marital property equally. However, and unlike a marital residence, a club membership is an intangible asset. Furthermore, being non-transferrable, these two memberships are illiquid assets that lack any fair market value. Lawrence will not gain a benefit he does not now enjoy by retaining the memberships. Nancy will, however, relinquish a benefit she formerly enjoyed because she will no longer be a member of the
two clubs.
{¶ 12} In dividing marital property, the domestic relations court is charged by R.C. 3105.171(F)(5) to consider “[t]he economic desirability of retaining intact an asset or interest in an asset.” An award of the memberships to one of the parties to the divorce action, in this case Lawrence, preserves intact the memberships that would otherwise lapse. The issue is the amount of compensation for her loss that Nancy should be awarded.
{¶ 13} R.C. 3105.171(E)(1) states: “The court may make a distributive award to facilitate, effectuate, or supplement a division of marital property.” R.C. 3105.171(A)(1) defines a distributive award to mean “any payment or payments, in real or personal property, that are payable in a lump sum or over time, in fixed amounts, that are made from separate property or income, and that are not made from marital property and do not constitute payments of spousal support, as defined in section 3105.18 of the Revised Code.”
{¶ 14} The goal of any property division the court orders is equity. R.C. 3105.171(B). The nature and character of these club memberships favor determining their monetary value as marital property for purposes of division as of the date they were acquired, not at their current cost. Therefore, the domestic relations court did not abuse its discretion when the court valued and divided the memberships as it did, awarding Nancy $1,500 for each. However, where it is impractical or burdensome to reach an equitable division comprised of marital property alone, the court may also make an R.C. 3105.171(E)(1) distributive award to supplement the
marital property division the court orders.
2010-Ohio-561
Twelfth District Court of Appeals
Montgomery County
-Division of Property
Appellant Nancy Hardy appeals from the DR Court after the DR Court ordered appellee to reimburse Nancy $1,500 for her marital interest in the Dayton Racquet Club membership and $1,500 for her marital interest in the Moraine Country Club membership. The amount awarded represents one-half the marital funds used to acquire the memberships at the time of purchase, many years ago.
Nancy argues on appeal that the award by the DR Court fails to consider the present value of the memberships and further contends that she “can think of no reason why these ‘valuable’ assets should be treated any differently than other assets that typically appreciate in value, such as a marital residence.”
The Court of Appeals reversed the DR Court’s ruling as it found the compensation ordered to Nancy for the amounts that were paid for the memberships unjust.
From the Opinion:
{¶ 9} R.C. 3105.171(A)(2) requires the domestic relations court, when it orders a division of marital property that R.C.3105.171 requires, to adopt a value for that property in the amount
of its value as of the date of the final hearing in the action, unless the court selects a different date on a finding that it would be more equitable. In the present case, the court did not expressly find that the dates when the two club memberships were purchased would be a more equitable date for their valuation. Instead, the court relied on our holding in Maloney adopting that date, as we said it should.
{¶ 10} We are aware of no holding, other than our holding in Maloney, which addresses the value to be assigned to club memberships of this kind. Further, Maloney did not explain the
basis for the valuation it ordered. The present appeal presents an opportunity to revisit the issue.
{¶ 11} The two club memberships at issue are marital property, being assets that were acquired during the marriage and purchased with marital funds. The domestic relations court is required by R.C. 3105.171(C)(1) to divide marital property equally. However, and unlike a marital residence, a club membership is an intangible asset. Furthermore, being non-transferrable, these two memberships are illiquid assets that lack any fair market value. Lawrence will not gain a benefit he does not now enjoy by retaining the memberships. Nancy will, however, relinquish a benefit she formerly enjoyed because she will no longer be a member of the
two clubs.
{¶ 12} In dividing marital property, the domestic relations court is charged by R.C. 3105.171(F)(5) to consider “[t]he economic desirability of retaining intact an asset or interest in an asset.” An award of the memberships to one of the parties to the divorce action, in this case Lawrence, preserves intact the memberships that would otherwise lapse. The issue is the amount of compensation for her loss that Nancy should be awarded.
{¶ 13} R.C. 3105.171(E)(1) states: “The court may make a distributive award to facilitate, effectuate, or supplement a division of marital property.” R.C. 3105.171(A)(1) defines a distributive award to mean “any payment or payments, in real or personal property, that are payable in a lump sum or over time, in fixed amounts, that are made from separate property or income, and that are not made from marital property and do not constitute payments of spousal support, as defined in section 3105.18 of the Revised Code.”
{¶ 14} The goal of any property division the court orders is equity. R.C. 3105.171(B). The nature and character of these club memberships favor determining their monetary value as marital property for purposes of division as of the date they were acquired, not at their current cost. Therefore, the domestic relations court did not abuse its discretion when the court valued and divided the memberships as it did, awarding Nancy $1,500 for each. However, where it is impractical or burdensome to reach an equitable division comprised of marital property alone, the court may also make an R.C. 3105.171(E)(1) distributive award to supplement the
marital property division the court orders.
Tuesday, March 16, 2010
Enforceability of a Prenuptual Agreement
Barth v. Barth
2010-Ohio-425
Fourth Appellate District
Washington County
Appellant, Jackie Barth, appeals the Trial Court's ("TC") decision awarding her husband, Appellee Christopher Barth, certian real property in their divorce action. Specifically, the Appellant states the TC erred in finding th parties had entered into a valid, binding premarital agreement and objects to the resulting property division.
Two days prior to their marriage, Appellant signed a premarital agreement which had been prepared by Appellee's father, melvin Barth. The premarital agreement concerned real property and a residence that was to be constructed after the marriage. The premarital agreement was drafted to protect real property transferred to appellee more than two years before the marriage took place. After the marriage, Melvin Barth arranged for a series of transfers of money from his wife's mother and aunt to pay for the construction of the home. The controbutions from the women totaled approximately $190,000.
From the Opinion:
{¶10} Though the provisions of the document itself were not in dispute, the parties' testimony concerning the circumstances surrounding the document’s execution was vastly different. Appellee and Melvin Barth testified that: Appellant willingly provided information for the creation of the agreement, namely her debts and assets; she was given a copy of the full agreement for her review prior to the day she signed it; she understood the terms of the agreement, including that it was to protect the money being transferred to Appellee for the construction of the house; she was told that, if she did not sign the agreement, the money to build the house would not be forthcoming, and she had a discussion with Melvin Barth to that effect; and Melvin Barth specifically told her the document was a premarital agreement.
Directly contradicting that testimony, Appellant testified that: she had nothing to do with creating the agreement, but she did admit to providing her father-in-law information about her assets; she was not provided a copy of the agreement before she signed it and had never seen any part of it until the day she signed it; the document she signed was not the full, premarital agreement; she never read the agreement and did not know what she was signing; a discussion about the availability of the money to build the house being contingent upon her signing the agreement never took place; she was told the agreement was just insurance to protect her and her children from the potential claims of her previous spouses; the document was never referred to as a premarital agreement; and had she known it was a premarital agreement, she never would have signed it.
As the parties do not contest the terms of the agreement itself, but rather the circumstances surrounding its execution, the validity and enforceability of the agreement are issues of fact. The magistrate determined that while the testimony of both parties could be seen as selfserving, Appellant’s version of events was less credible than Appellee’s. The magistrate found that the agreement contained both detailed information regarding the parties’ respective assets and an acknowledgement concerning each party’s right to seek the advice of counsel, which was located
immediately above the dated and notarized signatures. Further, the magistrate found the parties had signed not only the primary document but also the exhibits listing the parties assets and liabilities and an acknowledgement that each had received copies of the other parties’ exhibits.
As previously stated, determining the validity of a prenuptial agreement is primarily an issue for the trier of fact. That deference is particularly appropriate in the present case, where the parties’ testimony is factually contradictory on a number of vital issues, including whether Appellant was provided with a copy of the document prior to the day of signing, and whether the document was understood to be a premarital agreement. “The underlying rationale for appellate courts to defer to the trier of fact on matters of evidence weight and witness credibility is that the trier of fact is best positioned to view the witnesses and to observe their demeanor, gestures, and voice inflections and to use those observations to weigh credibility.” Cox Paving, Inc. v. Indell Constr. Corp., 4th Dist. No. 08CA11 at ¶11, citing Myers v. Garson (1993), 66 Ohio St.3d 610, 615, 614 N.E.2d 742; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80,
461 N.E.2d 1273.
Here, the magistrate found Appellant’s version of events to be less credible than Appellee’s version. Under the particular circumstances of the case, we cannot say the trial court, which adopted the magistrate’s decision, abused its discretion in determining that Appellant entered into the premarital agreement with full knowledge and without fraud, duress, coercion or overreaching. Accordingly, Appellant’s first assignment of error is overruled.
2010-Ohio-425
Fourth Appellate District
Washington County
Appellant, Jackie Barth, appeals the Trial Court's ("TC") decision awarding her husband, Appellee Christopher Barth, certian real property in their divorce action. Specifically, the Appellant states the TC erred in finding th parties had entered into a valid, binding premarital agreement and objects to the resulting property division.
Two days prior to their marriage, Appellant signed a premarital agreement which had been prepared by Appellee's father, melvin Barth. The premarital agreement concerned real property and a residence that was to be constructed after the marriage. The premarital agreement was drafted to protect real property transferred to appellee more than two years before the marriage took place. After the marriage, Melvin Barth arranged for a series of transfers of money from his wife's mother and aunt to pay for the construction of the home. The controbutions from the women totaled approximately $190,000.
From the Opinion:
{¶10} Though the provisions of the document itself were not in dispute, the parties' testimony concerning the circumstances surrounding the document’s execution was vastly different. Appellee and Melvin Barth testified that: Appellant willingly provided information for the creation of the agreement, namely her debts and assets; she was given a copy of the full agreement for her review prior to the day she signed it; she understood the terms of the agreement, including that it was to protect the money being transferred to Appellee for the construction of the house; she was told that, if she did not sign the agreement, the money to build the house would not be forthcoming, and she had a discussion with Melvin Barth to that effect; and Melvin Barth specifically told her the document was a premarital agreement.
Directly contradicting that testimony, Appellant testified that: she had nothing to do with creating the agreement, but she did admit to providing her father-in-law information about her assets; she was not provided a copy of the agreement before she signed it and had never seen any part of it until the day she signed it; the document she signed was not the full, premarital agreement; she never read the agreement and did not know what she was signing; a discussion about the availability of the money to build the house being contingent upon her signing the agreement never took place; she was told the agreement was just insurance to protect her and her children from the potential claims of her previous spouses; the document was never referred to as a premarital agreement; and had she known it was a premarital agreement, she never would have signed it.
As the parties do not contest the terms of the agreement itself, but rather the circumstances surrounding its execution, the validity and enforceability of the agreement are issues of fact. The magistrate determined that while the testimony of both parties could be seen as selfserving, Appellant’s version of events was less credible than Appellee’s. The magistrate found that the agreement contained both detailed information regarding the parties’ respective assets and an acknowledgement concerning each party’s right to seek the advice of counsel, which was located
immediately above the dated and notarized signatures. Further, the magistrate found the parties had signed not only the primary document but also the exhibits listing the parties assets and liabilities and an acknowledgement that each had received copies of the other parties’ exhibits.
As previously stated, determining the validity of a prenuptial agreement is primarily an issue for the trier of fact. That deference is particularly appropriate in the present case, where the parties’ testimony is factually contradictory on a number of vital issues, including whether Appellant was provided with a copy of the document prior to the day of signing, and whether the document was understood to be a premarital agreement. “The underlying rationale for appellate courts to defer to the trier of fact on matters of evidence weight and witness credibility is that the trier of fact is best positioned to view the witnesses and to observe their demeanor, gestures, and voice inflections and to use those observations to weigh credibility.” Cox Paving, Inc. v. Indell Constr. Corp., 4th Dist. No. 08CA11 at ¶11, citing Myers v. Garson (1993), 66 Ohio St.3d 610, 615, 614 N.E.2d 742; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80,
461 N.E.2d 1273.
Here, the magistrate found Appellant’s version of events to be less credible than Appellee’s version. Under the particular circumstances of the case, we cannot say the trial court, which adopted the magistrate’s decision, abused its discretion in determining that Appellant entered into the premarital agreement with full knowledge and without fraud, duress, coercion or overreaching. Accordingly, Appellant’s first assignment of error is overruled.
Dischargability of a Marital Obligation in Bankruptcy - Bankruptcy Filing in a Divorce Proceeding
Horvath v. Horvath, 2010-Ohio-316
Third District Court of Appeals
Union County
Rendered February 1, 2010
Plaintiff-Appellant/Cross-Appellee Suzanne Horvath (“Suzanne”)appeals the June 5, 2009 Judgment Entry of the Union County Court of Common Pleas, Domestic Relations Division, granting a divorce between Suzanne and Defendant-Appellee/Cross-Appellant Jeffrey Louis Horvath (“Jeffrey”) specifying the division of marital property and apportioning the marital debt between the parties. We will focus on Suzanne’s claim that the TC erred by equally dividing the parties’ marital debt when Ms. Horvath received a discharge in Bankruptcy for the outstanding marital debt owed to Jeffrey.
On January 15, 2008, Suzanne filed a complaint for divorce. On July 8, 2008, the Court stayed the divorce proceedings due to Suzanne’s filing of a Chapter 7 Bankruptcy petition. In Suzanne’s voluntary petition for bankruptcy, Suzanne listed Jeffrey as an unsecured creditor with a disputed non-priority claim. In describing Jeffrey’s claim, Suzanne stated, “potential disputed claim of estranged spouse” and listed the amount of the claim as “unknown”.
At trial, Suzanne presented the testimony of her Bankruptcy attorney and her Bankruptcy petition was entered into evidence. When the trial court equally split the marital debt (including the joint debt Suzanne had listed in the petition), Suzanne appealed. Suzanne argues that he action of listing Jeffrey as a potential creditor in her Bankruptcy petition - regardless of any claim actually materializing during the pendency of the Bankruptcy or thereafter - deprived the state trial court of jurisdiction to apportion any of the marital debt to her in the subsequent divorce action.
The Court of Appeals held that based on the principles of concurrent jurisdiction shared by the trial court and the Bankruptcy court in these matters, the TC had the authority to divide the marital debts in dispute.
From the Opinion:
Adopting Suzanne’s argument would effectively allow any party in a pending state divorce case to file a bankruptcy petition listing one debt and naming the spouse as a potential creditor and thereby permanently deprive the state court of any further authority to apportion marital debt between the parties— not only for those debts actually listed in the bankruptcy—but as to any debts that could have been listed.
We are not persuaded that Suzanne’s argument is consistent with basic principles of concurrent jurisdiction between the state and federal judicial systems in domestic relations matters. See Barnett v Barnett (1984), 9 Ohio St.3d 47, 49, 458 N.E.2d 834. Nor is Suzanne’s argument consistent with the “domestic relations exception” to federal jurisdiction which recognizes that state courts have exclusive jurisdiction in matters involving the issuance of a divorce, alimony, or
child support. See In Re: McMinis (Bkrtcy.N.D.Ohio 2008), No. 07-32411; see also Ankenbrant v. Richards (1992), 504 U.S. 689, 704.
In domestic relations matters, it has been established that state courts have concurrent jurisdiction with the bankruptcy courts in determining the allocation of specific obligations that arise from divorce actions. Barnett, supra. In particular, other appellate districts have stated that the nature of concurrent jurisdiction permits a state court to determine the dischargeability of a marital obligation despite the fact that the issue of dischargeability of that debt was not raised in the bankruptcy. See Loveday v. Loveday, (stating “that when [the] dischargeability of a marital debt is not raised in bankruptcy court, then it is an issue which may be ruled on by a court with concurrent jurisdiction after the discharge in bankruptcy.”); see also Markley v. Markley, 9th Dist. No. 07CA0085, 2008-Ohio-3208 (reiterating that the concurrent jurisdiction allows a state court to rule on the issue of a marital debt after a discharge in bankruptcy).
Third District Court of Appeals
Union County
Rendered February 1, 2010
Plaintiff-Appellant/Cross-Appellee Suzanne Horvath (“Suzanne”)appeals the June 5, 2009 Judgment Entry of the Union County Court of Common Pleas, Domestic Relations Division, granting a divorce between Suzanne and Defendant-Appellee/Cross-Appellant Jeffrey Louis Horvath (“Jeffrey”) specifying the division of marital property and apportioning the marital debt between the parties. We will focus on Suzanne’s claim that the TC erred by equally dividing the parties’ marital debt when Ms. Horvath received a discharge in Bankruptcy for the outstanding marital debt owed to Jeffrey.
On January 15, 2008, Suzanne filed a complaint for divorce. On July 8, 2008, the Court stayed the divorce proceedings due to Suzanne’s filing of a Chapter 7 Bankruptcy petition. In Suzanne’s voluntary petition for bankruptcy, Suzanne listed Jeffrey as an unsecured creditor with a disputed non-priority claim. In describing Jeffrey’s claim, Suzanne stated, “potential disputed claim of estranged spouse” and listed the amount of the claim as “unknown”.
At trial, Suzanne presented the testimony of her Bankruptcy attorney and her Bankruptcy petition was entered into evidence. When the trial court equally split the marital debt (including the joint debt Suzanne had listed in the petition), Suzanne appealed. Suzanne argues that he action of listing Jeffrey as a potential creditor in her Bankruptcy petition - regardless of any claim actually materializing during the pendency of the Bankruptcy or thereafter - deprived the state trial court of jurisdiction to apportion any of the marital debt to her in the subsequent divorce action.
The Court of Appeals held that based on the principles of concurrent jurisdiction shared by the trial court and the Bankruptcy court in these matters, the TC had the authority to divide the marital debts in dispute.
From the Opinion:
Adopting Suzanne’s argument would effectively allow any party in a pending state divorce case to file a bankruptcy petition listing one debt and naming the spouse as a potential creditor and thereby permanently deprive the state court of any further authority to apportion marital debt between the parties— not only for those debts actually listed in the bankruptcy—but as to any debts that could have been listed.
We are not persuaded that Suzanne’s argument is consistent with basic principles of concurrent jurisdiction between the state and federal judicial systems in domestic relations matters. See Barnett v Barnett (1984), 9 Ohio St.3d 47, 49, 458 N.E.2d 834. Nor is Suzanne’s argument consistent with the “domestic relations exception” to federal jurisdiction which recognizes that state courts have exclusive jurisdiction in matters involving the issuance of a divorce, alimony, or
child support. See In Re: McMinis (Bkrtcy.N.D.Ohio 2008), No. 07-32411; see also Ankenbrant v. Richards (1992), 504 U.S. 689, 704.
In domestic relations matters, it has been established that state courts have concurrent jurisdiction with the bankruptcy courts in determining the allocation of specific obligations that arise from divorce actions. Barnett, supra. In particular, other appellate districts have stated that the nature of concurrent jurisdiction permits a state court to determine the dischargeability of a marital obligation despite the fact that the issue of dischargeability of that debt was not raised in the bankruptcy. See Loveday v. Loveday, (stating “that when [the] dischargeability of a marital debt is not raised in bankruptcy court, then it is an issue which may be ruled on by a court with concurrent jurisdiction after the discharge in bankruptcy.”); see also Markley v. Markley, 9th Dist. No. 07CA0085, 2008-Ohio-3208 (reiterating that the concurrent jurisdiction allows a state court to rule on the issue of a marital debt after a discharge in bankruptcy).
Dischargability of a Marital Obligation in Bankruptcy
Horvath v. Horvath
Cite as [Horvath v. Horvatyh, 2010-Ohio-316]
Third District Court of Appeals
Union County
Rendered February 1, 2010
Bankruptcy filing in a Divorce Proceeding
Plaintiff-Appellant/Cross-Appellee Suzanne Horvath (“Suzanne”)appeals the June 5, 2009 Judgment Entry of the Union County Court of Common Pleas, Domestic Relations Division, granting a divorce between Suzanne and Defendant-Appellee/Cross-Appellant Jeffrey Louis Horvath (“Jeffrey”) specifying the division of marital property and apportioning the marital debt between the parties. We will focus on Suzanne’s claim that the TC erred by equally dividing the parties’ marital debt when Ms. Horvath received a discharge in Bankruptcy for the outstanding marital debt owed to Jeffrey.
On January 15, 2008, Suzanne filed a complaint for divorce. On July 8, 2008, the Court stayed the divorce proceedings due to Suzanne’s filing of a Chapter 7 Bankruptcy petition. In Suzanne’s voluntary petition for bankruptcy, Suzanne listed Jeffrey as an unsecured creditor with a disputed non-priority claim. In describing Jeffrey’s claim, Suzanne stated, “potential disputed claim of estranged spouse” and listed the amount of the claim as “unknown”.
At trial, Suzanne presented the testimony of her Bankruptcy attorney and her Bankruptcy petition was entered into evidence. When the trial court equally split the marital debt (including the joint debt Suzanne had listed in the petition), Suzanne appealed. Suzanne argues that he action of listing Jeffrey as a potential creditor in her Bankruptcy petition - regardless of any claim actually materializing during the pendency of the Bankruptcy or thereafter - deprived the state trial court of jurisdiction to apportion any of the marital debt to her in the subsequent divorce action.
The Court of Appeals held that based on the principles of concurrent jurisdiction shared by the trial court and the Bankruptcy court in these matters, the TC had the authority to divide the marital debts in dispute.
From the Opinion:
Adopting Suzanne’s argument would effectively allow any party in a pending state divorce case to file a bankruptcy petition listing one debt and naming the spouse as a potential creditor and thereby permanently deprive the state court of any further authority to apportion marital debt between the parties— not only for those debts actually listed in the bankruptcy—but as to any debts that could have been listed.
We are not persuaded that Suzanne’s argument is consistent with basic principles of concurrent jurisdiction between the state and federal judicial systems in domestic relations matters. See Barnett v Barnett (1984), 9 Ohio St.3d 47, 49, 458 N.E.2d 834. Nor is Suzanne’s argument consistent with the “domestic relations exception” to federal jurisdiction which recognizes that state courts have exclusive jurisdiction in matters involving the issuance of a divorce, alimony, or
child support. See In Re: McMinis (Bkrtcy.N.D.Ohio 2008), No. 07-32411; see also Ankenbrant v. Richards (1992), 504 U.S. 689, 704.
In domestic relations matters, it has been established that state courts have concurrent jurisdiction with the bankruptcy courts in determining the allocation of specific obligations that arise from divorce actions. Barnett, supra. In particular, other appellate districts have stated that the nature of concurrent jurisdiction permits a state court to determine the dischargeability of a marital obligation despite the fact that the issue of dischargeability of that debt was not raised in the bankruptcy. See Loveday v. Loveday, (stating “that when [the] dischargeability of a marital debt is not raised in bankruptcy court, then it is an issue which may be ruled on by a court with concurrent jurisdiction after the discharge in bankruptcy.”); see also Markley v. Markley, 9th Dist. No. 07CA0085, 2008-Ohio-3208 (reiterating that the concurrent jurisdiction allows a state court to rule on the issue of a marital debt after a discharge in bankruptcy).
Cite as [Horvath v. Horvatyh, 2010-Ohio-316]
Third District Court of Appeals
Union County
Rendered February 1, 2010
Bankruptcy filing in a Divorce Proceeding
Plaintiff-Appellant/Cross-Appellee Suzanne Horvath (“Suzanne”)appeals the June 5, 2009 Judgment Entry of the Union County Court of Common Pleas, Domestic Relations Division, granting a divorce between Suzanne and Defendant-Appellee/Cross-Appellant Jeffrey Louis Horvath (“Jeffrey”) specifying the division of marital property and apportioning the marital debt between the parties. We will focus on Suzanne’s claim that the TC erred by equally dividing the parties’ marital debt when Ms. Horvath received a discharge in Bankruptcy for the outstanding marital debt owed to Jeffrey.
On January 15, 2008, Suzanne filed a complaint for divorce. On July 8, 2008, the Court stayed the divorce proceedings due to Suzanne’s filing of a Chapter 7 Bankruptcy petition. In Suzanne’s voluntary petition for bankruptcy, Suzanne listed Jeffrey as an unsecured creditor with a disputed non-priority claim. In describing Jeffrey’s claim, Suzanne stated, “potential disputed claim of estranged spouse” and listed the amount of the claim as “unknown”.
At trial, Suzanne presented the testimony of her Bankruptcy attorney and her Bankruptcy petition was entered into evidence. When the trial court equally split the marital debt (including the joint debt Suzanne had listed in the petition), Suzanne appealed. Suzanne argues that he action of listing Jeffrey as a potential creditor in her Bankruptcy petition - regardless of any claim actually materializing during the pendency of the Bankruptcy or thereafter - deprived the state trial court of jurisdiction to apportion any of the marital debt to her in the subsequent divorce action.
The Court of Appeals held that based on the principles of concurrent jurisdiction shared by the trial court and the Bankruptcy court in these matters, the TC had the authority to divide the marital debts in dispute.
From the Opinion:
Adopting Suzanne’s argument would effectively allow any party in a pending state divorce case to file a bankruptcy petition listing one debt and naming the spouse as a potential creditor and thereby permanently deprive the state court of any further authority to apportion marital debt between the parties— not only for those debts actually listed in the bankruptcy—but as to any debts that could have been listed.
We are not persuaded that Suzanne’s argument is consistent with basic principles of concurrent jurisdiction between the state and federal judicial systems in domestic relations matters. See Barnett v Barnett (1984), 9 Ohio St.3d 47, 49, 458 N.E.2d 834. Nor is Suzanne’s argument consistent with the “domestic relations exception” to federal jurisdiction which recognizes that state courts have exclusive jurisdiction in matters involving the issuance of a divorce, alimony, or
child support. See In Re: McMinis (Bkrtcy.N.D.Ohio 2008), No. 07-32411; see also Ankenbrant v. Richards (1992), 504 U.S. 689, 704.
In domestic relations matters, it has been established that state courts have concurrent jurisdiction with the bankruptcy courts in determining the allocation of specific obligations that arise from divorce actions. Barnett, supra. In particular, other appellate districts have stated that the nature of concurrent jurisdiction permits a state court to determine the dischargeability of a marital obligation despite the fact that the issue of dischargeability of that debt was not raised in the bankruptcy. See Loveday v. Loveday, (stating “that when [the] dischargeability of a marital debt is not raised in bankruptcy court, then it is an issue which may be ruled on by a court with concurrent jurisdiction after the discharge in bankruptcy.”); see also Markley v. Markley, 9th Dist. No. 07CA0085, 2008-Ohio-3208 (reiterating that the concurrent jurisdiction allows a state court to rule on the issue of a marital debt after a discharge in bankruptcy).
What Happens When a Juvenile Court and a Domestic Relations Court Both Assert Jurisdiction and Then Enter Different, Potentially Conflicting Orders?
Heisler v. Heisler 2010-Ohio-98
Fourth Appellate District
Hocking County
This case is on appeal from the Hocking County Court of Common Pleas where Mr. Heisler’s motion to modify a divorce decree allocating parental rights and responsibilities was dismissed.
A year after Mr. Heisler filed his motion, the parties reached an agreement, which was reduced to a handwritten entry signed by both parties. Mr. Heisler was ordered to present a formal agreed entry. Before Ms. Heisler received her copies, their son became subject to delinquency and truancy charges in Fairfield County Juvenile Court. Ms. Heisler then argued that, due to the action in Fairfield County Juvenile Court, that Hocking County had lost Jurisdiction to decide the motion to modify. The Hocking County Court of Common Pleas dismissed Mr. Heisler’s motion.
In his appeal, Mr. Heisler claims that the Hocking County Court of Common Pleas retained jurisdiction over the allocation of parental rights despite a pending delinquency matter in the Fairfield County Juvenile Court. The court held that the courts had concurrent jurisdiction and “where two courts have concurrent jurisdiction, the general rule is that the court where proceedings are first properly initiated acquired the right to adjudicate the matter to the exclusion of all other courts.” See State ex rel. Phillips v. Polcar (1977), 50 Ohio St. 2d 279, 364 N.E.2d 33.
From the Opinion:
A DR Court that enters an order allocating parental rights and responsibilities retains jurisdiction of those issues. R.C. 3109.06 provides, in part: “In any case in which a court of common pleas, or other court having jurisdiction, has issued an order that allocates parental rights and responsibilities for the care of minor children and designates their place of residence and legal custodian of minor children, has made an order...the jurisdiction of the courts shall not abate upon the death of the person awarded custody but shall continue for all purposes during the minority of the children. The court, upon its own motion or the motion of either parent or of any interested person acting on behalf of the children may proceed to make further disposition of the case in the best interests of the children and subject to sections 3109.42 to 3109.48 of the Revised Code.
But, somewhat contradictorily, a juvenile court obtains “exclusive original jurisdiction” concerning the custody of a child against whom delinquency is alleged. R.C. 2151.23(A). R.C. 2151.23(A)(1) and (2) provide that “[t]he juvenile court has exclusive original jurisdiction under the Revised Code as follows: (1) [c]oncerning any child who on or about the date specified in the complaint, indictment, or information is alleged *** to be a juvenile traffic offender or a delinquent, unruly, abused, neglected, or dependent child *** to determine the custody of any child not a ward of another court of this state[.]”
In In re Poling, 64 Ohio St.3d 211, 1992-Ohio-144, 594 N.E.2d 589, the Supreme Court of Ohio held that, despite the “not a ward of another court” language, a juvenile court may issue orders concerning the custody of a child who is the subject of a previous custody order contained in a separate domestic relations court’s divorce decree. Id. at syllabus. In effect, when a domestic relations court enters a decree addressing the allocation of parental rights and responsibilities concerning a child, the child does not become a “ward” of the domestic relations court for purposes of R.C. 2151.23. Id. at 214. The Court further held that where a domestic relations court has entered a decree regarding the custody of the child, and the child later comes under the jurisdiction of the juvenile court, the courts share “concurrent jurisdiction” over the custody of the child. Id. at 215.
Where courts share concurrent jurisdiction, the general rule is that the court where proceedings are first properly initiated acquires the right to adjudicate the matter to the exclusion of all other courts. See State ex rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279, 364 N.E.2d 33, at syllabus; Miller v. Court of Common Pleas (1944), 143 Ohio St. 68, 70, 54 N.E.2d 130. Under this rule, the domestic relations court, which first established jurisdiction through the divorce decree, would retain exclusive jurisdiction to entertain custody issues involving a child the subject of an earlier divorce decree in that court. But in Poling the Court held that the legislative scheme set forth in R.C. 2151.23 (requiring juvenile courts to determine custody matters in accordance with R.C. 3109.04) indicated that juvenile courts may nonetheless make “particularized determinations regarding the care and custody of children subject to its jurisdiction, while respecting the continuing jurisdiction of the domestic relations or common pleas court that makes a custody decision in a divorce case.” Poling at 216.
The Trial Court did not address the more troubling issue of what happens when a juvenile court and a domestic relations court, possessing concurrent jurisdiction over the issues of custody and allocation of parental rights, both assert jurisdiction and then enter different, potentially conflicting orders. But we need not address that quandary. We are only faced with the question of whether Hocking County retained jurisdiction over the support matters addressed in the Memorandum Entry. And based on Poling, we hold that it did. Fairfield County Juvenile Court shares concurrent jurisdiction over the issue of custody by virtue of the delinquency charges. But this action did not divest Hocking County of the ability to modify its existing divorce decree.
Fourth Appellate District
Hocking County
This case is on appeal from the Hocking County Court of Common Pleas where Mr. Heisler’s motion to modify a divorce decree allocating parental rights and responsibilities was dismissed.
A year after Mr. Heisler filed his motion, the parties reached an agreement, which was reduced to a handwritten entry signed by both parties. Mr. Heisler was ordered to present a formal agreed entry. Before Ms. Heisler received her copies, their son became subject to delinquency and truancy charges in Fairfield County Juvenile Court. Ms. Heisler then argued that, due to the action in Fairfield County Juvenile Court, that Hocking County had lost Jurisdiction to decide the motion to modify. The Hocking County Court of Common Pleas dismissed Mr. Heisler’s motion.
In his appeal, Mr. Heisler claims that the Hocking County Court of Common Pleas retained jurisdiction over the allocation of parental rights despite a pending delinquency matter in the Fairfield County Juvenile Court. The court held that the courts had concurrent jurisdiction and “where two courts have concurrent jurisdiction, the general rule is that the court where proceedings are first properly initiated acquired the right to adjudicate the matter to the exclusion of all other courts.” See State ex rel. Phillips v. Polcar (1977), 50 Ohio St. 2d 279, 364 N.E.2d 33.
From the Opinion:
A DR Court that enters an order allocating parental rights and responsibilities retains jurisdiction of those issues. R.C. 3109.06 provides, in part: “In any case in which a court of common pleas, or other court having jurisdiction, has issued an order that allocates parental rights and responsibilities for the care of minor children and designates their place of residence and legal custodian of minor children, has made an order...the jurisdiction of the courts shall not abate upon the death of the person awarded custody but shall continue for all purposes during the minority of the children. The court, upon its own motion or the motion of either parent or of any interested person acting on behalf of the children may proceed to make further disposition of the case in the best interests of the children and subject to sections 3109.42 to 3109.48 of the Revised Code.
But, somewhat contradictorily, a juvenile court obtains “exclusive original jurisdiction” concerning the custody of a child against whom delinquency is alleged. R.C. 2151.23(A). R.C. 2151.23(A)(1) and (2) provide that “[t]he juvenile court has exclusive original jurisdiction under the Revised Code as follows: (1) [c]oncerning any child who on or about the date specified in the complaint, indictment, or information is alleged *** to be a juvenile traffic offender or a delinquent, unruly, abused, neglected, or dependent child *** to determine the custody of any child not a ward of another court of this state[.]”
In In re Poling, 64 Ohio St.3d 211, 1992-Ohio-144, 594 N.E.2d 589, the Supreme Court of Ohio held that, despite the “not a ward of another court” language, a juvenile court may issue orders concerning the custody of a child who is the subject of a previous custody order contained in a separate domestic relations court’s divorce decree. Id. at syllabus. In effect, when a domestic relations court enters a decree addressing the allocation of parental rights and responsibilities concerning a child, the child does not become a “ward” of the domestic relations court for purposes of R.C. 2151.23. Id. at 214. The Court further held that where a domestic relations court has entered a decree regarding the custody of the child, and the child later comes under the jurisdiction of the juvenile court, the courts share “concurrent jurisdiction” over the custody of the child. Id. at 215.
Where courts share concurrent jurisdiction, the general rule is that the court where proceedings are first properly initiated acquires the right to adjudicate the matter to the exclusion of all other courts. See State ex rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279, 364 N.E.2d 33, at syllabus; Miller v. Court of Common Pleas (1944), 143 Ohio St. 68, 70, 54 N.E.2d 130. Under this rule, the domestic relations court, which first established jurisdiction through the divorce decree, would retain exclusive jurisdiction to entertain custody issues involving a child the subject of an earlier divorce decree in that court. But in Poling the Court held that the legislative scheme set forth in R.C. 2151.23 (requiring juvenile courts to determine custody matters in accordance with R.C. 3109.04) indicated that juvenile courts may nonetheless make “particularized determinations regarding the care and custody of children subject to its jurisdiction, while respecting the continuing jurisdiction of the domestic relations or common pleas court that makes a custody decision in a divorce case.” Poling at 216.
The Trial Court did not address the more troubling issue of what happens when a juvenile court and a domestic relations court, possessing concurrent jurisdiction over the issues of custody and allocation of parental rights, both assert jurisdiction and then enter different, potentially conflicting orders. But we need not address that quandary. We are only faced with the question of whether Hocking County retained jurisdiction over the support matters addressed in the Memorandum Entry. And based on Poling, we hold that it did. Fairfield County Juvenile Court shares concurrent jurisdiction over the issue of custody by virtue of the delinquency charges. But this action did not divest Hocking County of the ability to modify its existing divorce decree.
Wife Held In Contempt for Failure to Reiburse Half of College Expenses
Smith v. Smith, 2010-Ohio-31
Second District Court of Appeals
Darke County
Rendered: January 8, 2010
Plaintiff, Deborah Smith, appeals from a final judgment of the Court of Common Pleas holding her in contempt.
The parties marriage was terminated November 18, 2002 after the court granted a Decree of Dissolution. The Decree adopted the terms of a Separation Agreement the parties signed and filed. The Separation Agreement provided, among other things, that the parties equally split the minor child’s college educational expenses.
The Defendant, in his motion for contempt, alleged that he paid $4,752.70 to Wright State University on behalf of the minor child and that Plaintiff had failed to reimburse him for her half of those expenses. At a hearing on the issue, Plaintiff admitted that she had failed to reimburse Defendant but defended her failure by stating, “that while it was her ‘intention’ to pay an equal share when she signed the Separation Agreement, that intention was conditioned on her ability to do so. The [Plaintiff] testified that she now lacks that ability, and therefore did not reimburse the [Defendant] the amount he asked her for.
The Magistrate filed a written decision recommending that the Plaintiff be found in contempt, applying breach of contract principles. The Magistrate held that the Separation Agreement is a written contract, and that its terms regarding the intentions of the parties are unambiguous. The Magistrate reasoned that because “the parties specifically stated their intent to share costs equally,” ... “it was inherent in the language that the Plaintiff has the same obligation” as the Defendant.
After stating that a Separation Agreement is a contract, the Court of Appeals agreed with the Magistrate.
From the Opinion:
We agree with the finding of the magistrate, implicitly adopted by the trial court, that the separation agreement is not ambiguous. Accordingly, the parties’ intent is to be found solely within the four corners of the agreement. Blasser v. Enderlin (1925), 113 Ohio St.121.
Confining ourselves to the language of the agreement we can only conclude, as did the magistrate and trial court, that the parties obligated themselves to equally share their child’s college expenses.
The parties anticipated that their child would attend college. The first sentence of Article XII makes clear the parties’ “intention” to equally share the child’s college expenses. Any possible doubt about whether the word “intention” is merely aspirational is dispelled by the word “shall” in each of the remaining four sentences, particularly the second and fifth sentences. “Shall” is a word of obligation, not aspiration. Defendant wouldn’t be obligated to pay 50% of the expenses to Deborah, or 50% of equivalent expenses should the child attend an out-of-state school, if Deborah is not obligated to pay the other 50%. The agreement does not obligate the parties’ child to pay these expenses. That Defendant is to pay his share to Plaintiff recognizes that Plaintiff was the child’s custodial parent, as of the time the marriage was dissolved, as the magistrate observed.
Second District Court of Appeals
Darke County
Rendered: January 8, 2010
Plaintiff, Deborah Smith, appeals from a final judgment of the Court of Common Pleas holding her in contempt.
The parties marriage was terminated November 18, 2002 after the court granted a Decree of Dissolution. The Decree adopted the terms of a Separation Agreement the parties signed and filed. The Separation Agreement provided, among other things, that the parties equally split the minor child’s college educational expenses.
The Defendant, in his motion for contempt, alleged that he paid $4,752.70 to Wright State University on behalf of the minor child and that Plaintiff had failed to reimburse him for her half of those expenses. At a hearing on the issue, Plaintiff admitted that she had failed to reimburse Defendant but defended her failure by stating, “that while it was her ‘intention’ to pay an equal share when she signed the Separation Agreement, that intention was conditioned on her ability to do so. The [Plaintiff] testified that she now lacks that ability, and therefore did not reimburse the [Defendant] the amount he asked her for.
The Magistrate filed a written decision recommending that the Plaintiff be found in contempt, applying breach of contract principles. The Magistrate held that the Separation Agreement is a written contract, and that its terms regarding the intentions of the parties are unambiguous. The Magistrate reasoned that because “the parties specifically stated their intent to share costs equally,” ... “it was inherent in the language that the Plaintiff has the same obligation” as the Defendant.
After stating that a Separation Agreement is a contract, the Court of Appeals agreed with the Magistrate.
From the Opinion:
We agree with the finding of the magistrate, implicitly adopted by the trial court, that the separation agreement is not ambiguous. Accordingly, the parties’ intent is to be found solely within the four corners of the agreement. Blasser v. Enderlin (1925), 113 Ohio St.121.
Confining ourselves to the language of the agreement we can only conclude, as did the magistrate and trial court, that the parties obligated themselves to equally share their child’s college expenses.
The parties anticipated that their child would attend college. The first sentence of Article XII makes clear the parties’ “intention” to equally share the child’s college expenses. Any possible doubt about whether the word “intention” is merely aspirational is dispelled by the word “shall” in each of the remaining four sentences, particularly the second and fifth sentences. “Shall” is a word of obligation, not aspiration. Defendant wouldn’t be obligated to pay 50% of the expenses to Deborah, or 50% of equivalent expenses should the child attend an out-of-state school, if Deborah is not obligated to pay the other 50%. The agreement does not obligate the parties’ child to pay these expenses. That Defendant is to pay his share to Plaintiff recognizes that Plaintiff was the child’s custodial parent, as of the time the marriage was dissolved, as the magistrate observed.
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