Tyler v. Tyler
2010-Ohio-1428
Eighth Appellate District
Cuyahoga County
-Spousal Support - "Tacking" of previous marriage
Plaintiff-appellant Kenneth Tyler appeals the portion of his divorce decree dividing property and awarding spousal support to Diana Tyler. Specifically, Kenneth objects to the lifetime award of spousal support.
Kenneth and Diana were first married in February 1989 and divorced in 1993. They reunited, began living together again in 1996 and were remarried in July of 2002. The couple separated in 2008. At the time of their second divorce, Diana was receiving permanent disability in the amount of $753 per month while Kenneth anticipated earning $74,000 in that respective calendar year.
After a hearing, the trial court determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court. Kenneth asserts that the trial court erred when it ordered him to pay "lifetime spousal support for a marriage lasting 6.5 years." The appellate court affirmed.
From the Opinion:
{¶ 13} Specifically, Kenneth argues that the trial court’s decision — making the spousal support indefinite — was not consistent with the Ohio Supreme Court’s holding in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83. in Kunkle, the Ohio Supreme Court held, at paragraph one of the syllabus:"Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties’ rights and responsibilities."
{¶ 14} Notably, however, the Kunkle court also recognized that "providing a termination date is not legally mandated and, in some situations, it could work a hardship on either the payor or payee. " Id. at 68, quoting Koepke v. Koepke (1983), 12 Ohio App.3d 80, 81, 466 N.E.2d 570. The high court further pointed out that "if under reasonable circumstances a divorced spouse does not have the resources, ability or potential to become self-supporting, then an award of
sustenance alimony for life would be proper." (Emphasis sic.) Id. at 69.
{¶ 15} In the present case, the trial court found that Diana suffered from obsessive compulsive disorder with depression and "has been deemed by the Social Security Administration to be permanently disabled." The court further found that Diana’s disability prevents her from seeking gainful employment and that she "cannot complete her daily activities of life." And based on a report from the SSA, the court also determined that Diana "cannot maintain employment," and that her income from Social Security disability was $9,036 per year.
{¶ 16} The trial court considered that Kenneth’s income was $74,000 per year and that he was "gainfully employed in an area that is highly specialized."
{¶ 17} The trial court then determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court.
{¶ 19} Although the trial court in this case found the duration of the marriage to be 6.5 years, it also heard evidence that the parties were previously married and that they lived together all but three years since they were first married in 1989 (thus, all but three out of 20 years). Under similar circumstances, the Ninth District upheld an indefinite spousal support. See Moore v. Moore (1992), 83 Ohio App.3d 75, 613 N.E.2d 1097. In Moore, the parties were married twice, with the second marriage lasting only four years. The court found that "the previous legal, marital relationship [was] relevant to the trial court’s decision to award spousal support" under R.C. 3105.18(C)(1)(n) ("any other factor that the court *** finds to be relevant and equitable"). See, also, Jernigan v. Jernigan (July 2, 1998), 8th Dist. No. 72899 (recognizing the principle set forth in Moore that the parties’ first marriage may be considered in determining spousal support for the second marriage); Swartz v. Swartz (Feb. 24, 1997), 12th Dist. No. CA96-07-063 (parties’ first marriage may be relevant to a spousal support determination).
{¶ 20} Moreover, the trial court (unlike the trial court in Kunkle) reserved jurisdiction to modify the amount and the term of the spousal support award pursuant to R.C. 3105.18(E). The failure to assign a termination date is not a lifetime award where the court retains continuing jurisdiction to decrease or terminate the spousal support based on a change in either party’s circumstances. Donese v. Donese (Apr. 10, 1998), 2d Dist. No. 97CA70. And at a modification hearing, the court can once again determine if it is appropriate to set a termination date. See Vanke v. Vanke (1992), 80 Ohio App.3d 576, 581, 609 N.E.2d 1328. Accordingly, appellant is not without a remedy should future facts demonstrate a modification is warranted.
Monday, April 26, 2010
Termination of Parenting Time (Juvenile Visitation)
Dubec v. Pochiro
2010-Ohio-1293
Seventh District Court of Appeals
Mahoning County
Juvenile Visitation
Defendant-appellant Christopher Pochiro appeals a decision terminating visitation with his fourteen-year-old daughter (Lana) and reducing his contact to weekly phone calls. The parties were never married. Several years of battling and one relocation resulted in Pochiro being granted the Standard Order of Visitation with visitation to take place at the paternal grandmother’s residence. The Order was effective September 15, 2008.
On October 8, 2008, less than a month after the Order took effect, Pochiro’s mother died. Pochiro exercised his regularly scheduled visitation the weekend of the funeral. During the weekend, the police were called to Pochiro’s residence. After Lana expressed concerns regarding her safety, the police decided to remove her from Pochiro’s care and placed her in the temporary custody of her maternal aunt. Venuto (Plaintiff-appellee) filed a motion to suspend visitation. After a hearing the court terminated Pochiro’s physical visitation with Lana, but did allow weekly telephone contact. On appeal, Pochiro asserted three assignments of error. All of which were found to have merit.
From the Opinion:
{¶23} Generally, the trial court looks only to the factors enumerated in R.C. 3109.051(D) and determines if modification of visitation is in the best interest of the child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist. No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction with other factors derived from caselaw to protect against infringement upon an individual’s constitutional rights. Id.
{¶24} This court has specifically held that "[t]he nonresidential parent has a fundamental and natural right to visitation." Anderson v. Anderson (2002), 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. "The child also has a fundamental right to visitation with the nonresidential parent." Id., citing Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.
{¶25} Concerning this fundamental right of the nonresidential parent to visitation with their child, this court has also noted that the right should be denied only under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of proof is on the one contesting visitation to demonstrate extraordinary circumstances by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d 213.
{¶26} Pettry identified two extraordinary circumstances that would qualify: (1) if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child. Another court has held that it would be an extraordinary circumstance if the noncustodial parent were imprisoned for a term of years for a crime of violence. In re Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry and Hall are not meant to provide an exclusive list of possible extraordinary circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual battery against subject child’s stepsister). Once the custodial parent proves the existence of an extraordinary circumstance, the burden shifts back to the noncustodial parent to prove that any visitation would be in the best interests of the child. Id.
{¶30} Given that the trial court terminated Pochiro’s constitutionally protected visitation rights, we must now review the court’s judgment based on the standard elucidated above. The trial court did review Lana’s best interests under the factors enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4); her adjustment to home, school, and community; R.C.3109.051(D)(5); her wish to not spend time with Pochiro, R.C. 3109.051(D)(6); and the "perceived safety of the child," R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment entry reveals that it did not make the required initial finding that there was clear and convincing evidence of extraordinary circumstances that would justify terminating Pochiro’s visitation rights. The trial court skipped that step and instead limited its review to R.C. 3109.051(D)’s best interests of the child factors.
2010-Ohio-1293
Seventh District Court of Appeals
Mahoning County
Juvenile Visitation
Defendant-appellant Christopher Pochiro appeals a decision terminating visitation with his fourteen-year-old daughter (Lana) and reducing his contact to weekly phone calls. The parties were never married. Several years of battling and one relocation resulted in Pochiro being granted the Standard Order of Visitation with visitation to take place at the paternal grandmother’s residence. The Order was effective September 15, 2008.
On October 8, 2008, less than a month after the Order took effect, Pochiro’s mother died. Pochiro exercised his regularly scheduled visitation the weekend of the funeral. During the weekend, the police were called to Pochiro’s residence. After Lana expressed concerns regarding her safety, the police decided to remove her from Pochiro’s care and placed her in the temporary custody of her maternal aunt. Venuto (Plaintiff-appellee) filed a motion to suspend visitation. After a hearing the court terminated Pochiro’s physical visitation with Lana, but did allow weekly telephone contact. On appeal, Pochiro asserted three assignments of error. All of which were found to have merit.
From the Opinion:
{¶23} Generally, the trial court looks only to the factors enumerated in R.C. 3109.051(D) and determines if modification of visitation is in the best interest of the child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist. No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction with other factors derived from caselaw to protect against infringement upon an individual’s constitutional rights. Id.
{¶24} This court has specifically held that "[t]he nonresidential parent has a fundamental and natural right to visitation." Anderson v. Anderson (2002), 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. "The child also has a fundamental right to visitation with the nonresidential parent." Id., citing Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.
{¶25} Concerning this fundamental right of the nonresidential parent to visitation with their child, this court has also noted that the right should be denied only under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of proof is on the one contesting visitation to demonstrate extraordinary circumstances by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d 213.
{¶26} Pettry identified two extraordinary circumstances that would qualify: (1) if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child. Another court has held that it would be an extraordinary circumstance if the noncustodial parent were imprisoned for a term of years for a crime of violence. In re Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry and Hall are not meant to provide an exclusive list of possible extraordinary circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual battery against subject child’s stepsister). Once the custodial parent proves the existence of an extraordinary circumstance, the burden shifts back to the noncustodial parent to prove that any visitation would be in the best interests of the child. Id.
{¶30} Given that the trial court terminated Pochiro’s constitutionally protected visitation rights, we must now review the court’s judgment based on the standard elucidated above. The trial court did review Lana’s best interests under the factors enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4); her adjustment to home, school, and community; R.C.3109.051(D)(5); her wish to not spend time with Pochiro, R.C. 3109.051(D)(6); and the "perceived safety of the child," R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment entry reveals that it did not make the required initial finding that there was clear and convincing evidence of extraordinary circumstances that would justify terminating Pochiro’s visitation rights. The trial court skipped that step and instead limited its review to R.C. 3109.051(D)’s best interests of the child factors.
Thursday, April 8, 2010
Social Security Benefits to Offset Public Pension
Obar v. Obar
2010-Ohio-1333
Fifth District
Ashland County
-Social security benefits evaluated in relation to the other party’s interest in a public pension
Plaintiff-Appellant, Richard Don Obar appeals from the Decree of Divorce entered by the Ashland County DR Court. The appellant raised two assignments of error, but for the purposes of this review, we will only discuss the social security offset.
Appellant argues that the trial court erred by not considering the hypothetical Social Security offset against appellants PERS pension. Specifically, appellant argues that because appellee’s social security retirement benefits are not subject to division then the fact that appellant’s PERS is subject to division, and was, in fact, divided by the trial court, such division would obviously be unfair unless the PERS value is adjusted for the discrepancy.
After determining that "illumination of this issue is warranted," the court examines several approaches to considering social security benefits when dividing a public pension. The court examined Cornbleth v. Cornbleth, 580 A.2d 369, 372 (calculation of a hypothetical social security benefit to deduct from the public pension), Neville v. Neville, 791 N.E.2d 434 (the trial court may consider the parties’ future Social Security benefits in relation to all marital assets) and R.C. 3105.171(F)(9).
The trial court’s decision was upheld on the basis of R.C. 3105.171(F)(9) which, when enacted in April of 2009, made it clear that the trial court has discretion as to whether to consider social security benefits in dividing a public pension.
From the Opinion:
{¶18} "In the leading case of Cornbleth v. Cornbleth (1990), 397 Pa.Super. 421, 427, 580 A.2d 369, 372, the court stated:
{¶19} "’To facilitate a process of equating [public pension participants] and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the [public plan] participant been participating in the Social Security system. This present value should then be deducted from the present value of the [public pension] at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.'
{¶20} "This formula, which calculates a ‘hypothetical Social Security benefit’ for a party who has, in reality, participated in a public retirement plan, not Social Security, and then deducts that hypothetical amount from the public pension, has been adopted by several appellate districts in Ohio.
{¶21} "[T]he Cornbleth method seems to be both the most thorough and the most equitable under the circumstances presented herein. Specifically, this method appears to give both parties comparable credit in terms of the years of participation in their respective programs, whereas, in practice, the other methods may well penalize the PERS participant by subjecting a larger proportionate share of that spouse's retirement to division as a marital asset. On remand, the trial court should apply the Cornbleth formula of calculation* * *." Id. at 30-32.
{¶25} "However, as appellant concedes, the Ohio Supreme Court has not mandated the Cornbleth approach as the preferred method of addressing these types of private/public retirement benefit scenarios. Moreover, our most recent ruling in this realm can be found in Back v. Back (Dec. 29, 1999), Richland App. No. 99 CA 46, unreported. In that case, appellant wife was employed by the City of Mansfield and participated in PERS, the public employees' retirement plan. Appellee husband worked for a waste management company, participating in social security but not in any pension plans. We held: Upon reconsideration, we find the trial court did not abuse its discretion in calculating the division of retirement benefits on remand even though the trial court did not follow the mandate of this court. We conclude, as did the trial court, the proper division of retirement benefits is to subtract appellee's potential social security benefit from appellant's potential PERS benefit and divide the remaining portion of the potential monthly PERS benefit equally between the parties. Id. at 2." Id at 2.
{¶27} The cases appellant cites pre-date the Ohio Supreme Court's decision in Neville. In Neville, the Court held that "to make an equitable distribution of marital property, [the trial court] may consider the parties' future Social Security benefits in relation to all marital assets." (Emphasis added.) Id at paragraph 11. As noted by the court in Rorick v. Rorick, Lorain App. No. 09CA009533, 2009-Ohio-3173. "Neville clearly does not mandate that the trial court consider Social Security benefits when equitably dividing marital assets." Id at paragraph 12.
{¶28} Subsequent to Neville, R.C. 3105.171(F)(9) was adopted, effective April 7, 2009. It states, "In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: …. (9) Any retirement benefits of the spouse, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension,…" While Neville allowed social security benefits to be considered against all martial assets, this section limits social security benefits to be considered "as may be relevant" in dividing public pensions. This statute took effect only days before the decree in this case. And this statute still seems to leave it to the
discretion of the trial court as to whether to consider said benefits in dividing a public pension. In addition, the statement of this assignment of error by the appellant specifically argues for the Cornbleth method, not the procedure set forth by us in Bourjaily or by the Ohio Supreme Court in Neville or by R.C. 3105.171(F)(9).
{¶29} We find, therefore, that the trial court did not err in refusing to consider appellant’s ypothetical social security offset against appellant’s PERS pension.
2010-Ohio-1333
Fifth District
Ashland County
-Social security benefits evaluated in relation to the other party’s interest in a public pension
Plaintiff-Appellant, Richard Don Obar appeals from the Decree of Divorce entered by the Ashland County DR Court. The appellant raised two assignments of error, but for the purposes of this review, we will only discuss the social security offset.
Appellant argues that the trial court erred by not considering the hypothetical Social Security offset against appellants PERS pension. Specifically, appellant argues that because appellee’s social security retirement benefits are not subject to division then the fact that appellant’s PERS is subject to division, and was, in fact, divided by the trial court, such division would obviously be unfair unless the PERS value is adjusted for the discrepancy.
After determining that "illumination of this issue is warranted," the court examines several approaches to considering social security benefits when dividing a public pension. The court examined Cornbleth v. Cornbleth, 580 A.2d 369, 372 (calculation of a hypothetical social security benefit to deduct from the public pension), Neville v. Neville, 791 N.E.2d 434 (the trial court may consider the parties’ future Social Security benefits in relation to all marital assets) and R.C. 3105.171(F)(9).
The trial court’s decision was upheld on the basis of R.C. 3105.171(F)(9) which, when enacted in April of 2009, made it clear that the trial court has discretion as to whether to consider social security benefits in dividing a public pension.
From the Opinion:
{¶18} "In the leading case of Cornbleth v. Cornbleth (1990), 397 Pa.Super. 421, 427, 580 A.2d 369, 372, the court stated:
{¶19} "’To facilitate a process of equating [public pension participants] and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the [public plan] participant been participating in the Social Security system. This present value should then be deducted from the present value of the [public pension] at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.'
{¶20} "This formula, which calculates a ‘hypothetical Social Security benefit’ for a party who has, in reality, participated in a public retirement plan, not Social Security, and then deducts that hypothetical amount from the public pension, has been adopted by several appellate districts in Ohio.
{¶21} "[T]he Cornbleth method seems to be both the most thorough and the most equitable under the circumstances presented herein. Specifically, this method appears to give both parties comparable credit in terms of the years of participation in their respective programs, whereas, in practice, the other methods may well penalize the PERS participant by subjecting a larger proportionate share of that spouse's retirement to division as a marital asset. On remand, the trial court should apply the Cornbleth formula of calculation* * *." Id. at 30-32.
{¶25} "However, as appellant concedes, the Ohio Supreme Court has not mandated the Cornbleth approach as the preferred method of addressing these types of private/public retirement benefit scenarios. Moreover, our most recent ruling in this realm can be found in Back v. Back (Dec. 29, 1999), Richland App. No. 99 CA 46, unreported. In that case, appellant wife was employed by the City of Mansfield and participated in PERS, the public employees' retirement plan. Appellee husband worked for a waste management company, participating in social security but not in any pension plans. We held: Upon reconsideration, we find the trial court did not abuse its discretion in calculating the division of retirement benefits on remand even though the trial court did not follow the mandate of this court. We conclude, as did the trial court, the proper division of retirement benefits is to subtract appellee's potential social security benefit from appellant's potential PERS benefit and divide the remaining portion of the potential monthly PERS benefit equally between the parties. Id. at 2." Id at 2.
{¶27} The cases appellant cites pre-date the Ohio Supreme Court's decision in Neville. In Neville, the Court held that "to make an equitable distribution of marital property, [the trial court] may consider the parties' future Social Security benefits in relation to all marital assets." (Emphasis added.) Id at paragraph 11. As noted by the court in Rorick v. Rorick, Lorain App. No. 09CA009533, 2009-Ohio-3173. "Neville clearly does not mandate that the trial court consider Social Security benefits when equitably dividing marital assets." Id at paragraph 12.
{¶28} Subsequent to Neville, R.C. 3105.171(F)(9) was adopted, effective April 7, 2009. It states, "In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: …. (9) Any retirement benefits of the spouse, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension,…" While Neville allowed social security benefits to be considered against all martial assets, this section limits social security benefits to be considered "as may be relevant" in dividing public pensions. This statute took effect only days before the decree in this case. And this statute still seems to leave it to the
discretion of the trial court as to whether to consider said benefits in dividing a public pension. In addition, the statement of this assignment of error by the appellant specifically argues for the Cornbleth method, not the procedure set forth by us in Bourjaily or by the Ohio Supreme Court in Neville or by R.C. 3105.171(F)(9).
{¶29} We find, therefore, that the trial court did not err in refusing to consider appellant’s ypothetical social security offset against appellant’s PERS pension.
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