Fernback v. Fernback, Unpublished Decision (12-14-2001)
Fernback v. Fernback, Unpublished Decision (12-14-2001)
Opinion of the Court
Appellant and Annette M. Fernback ("Appellee") were married on November 19, 1983. Two children were born during the marriage: Robert, born on April 30, 1987; and Joseph, born on January 14, 1991. During the marriage, Appellant worked at the General Motors ("GM") plant in Lordstown, Ohio. Appellee worked at the Mahoning County Department of Human Services until 1987, at which time she became a full time mother and housewife.
During the marriage, the couple accumulated certain assets, including their home, valued at $150,000.00 with an outstanding mortgage of $50,000.00. Appellant also accumulated a Personal Savings Plan (PSP) valued at $62,934.72 and a Savings Stock Purchase Program (SSPP) account valued at $92,872.92.
Appellee filed a complaint for divorce on August 19, 1999. On November 1, 1999, a magistrate issued a Civ.R.75(N) order requiring Appellant to pay temporary child support in the amount of $552.39 per child per month and temporary spousal support in the amount of $600.00 a month, retroactive to August 19, 1999. Appellant was also ordered to pay the monthly mortgage payment on the home, utilities for the home and automobile insurance for both vehicles.
On November 5, 1999, Appellant requested a stay of the support order. On November 30, 1999, a hearing was held and the magistrate revised the order on January 12, 2000. The revised Civ.R. 75(N) order required Appellant to pay temporary child support in the amount of $535.19 per child per month and temporary spousal support in the amount of $300.00 a month.
A contested divorce hearing occurred on July 25, 2000, and was continued to August 28 and September 25, 2000. On December 1, 2000, the trial court issued a divorce decree to both parties, including findings of fact and conclusions of law. Appellant filed a timely notice of appeal on December 21, 2000.
Appellant's assigned errors relate to the trial court's decisions regarding child support, spousal support, and the valuation and division of marital property. It is apparent that all of Appellant's assignments of error are reviewed under an abuse of discretion standard. See Biskerv. Bisker (1994),
Appellant's first assignment of error asserts:
"THE TRIAL COURT ABUSED ITS DISCRETION AND, THEREFORE, ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DID NOT DEVIATE FROM THE CHILD SUPPORT GUIDELINES BASED UPON THE SHARED PARENTING PLAN."
Appellant argues that the trial court abused its discretion when it ordered Appellant to pay one hundred percent of his calculated support obligation despite the fact that he was to retain custody of the children half of the time. The child support calculation was based on the worksheet found in former R.C. §
Appellant cites many cases which have held that a deviation from the worksheet calculation of child support was appropriate in shared parenting situations. See, e.g., Zeefe v. Zeefe (1998),
Appellant argues that he incurs the same child-rearing expenses as Appellee, including the cost of maintaining an appropriate residence for the children, because the children are with him half of the time. Appellant asserts that requiring him to pay the entire obligation without any deviation is an inequitable result and not in the best interest of the children.
Appellee responds that Ohio does not provide for an automatic credit in child support obligations under a shared parenting plan. See Pauly,supra,
Appellee contends that the trial court calculated child support properly within the guidelines of the statute. Appellee argues that the trial court considered all the statutory factors and properly concluded that a deviation from the calculated amount was unwarranted.
We cannot determine if Appellant's assignment of error has merit because the record gives contradictory signals as to the trial court's intent to deviate from the child support worksheet found in former R.C. §
Although a trial court's determination of child support will not be disturbed absent an abuse of discretion, the terms of former R.C. §
If the trial court had intended to deviate from the worksheet calculation, the court was required to specifically state that the calculated amount was unjust or inappropriate and that it was not in the best interests of the children. The court was also required to provide findings to support its deviation. Former R.C. §
Appellate courts in Ohio have had widely differing views on the issue of how to calculate child support in a shared parenting plan. A problem arises in shared parenting situations because the corresponding child support worksheet, found in former R.C. §
"Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section [R.C. Chapter 3109] and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the `residential parent,' the `residential parent and legal custodian,' or the `custodial parent' of the child." (Emphasis added.)
R.C.
The significance of being the residential parent is revealed in former R.C. §
"Except when the parents have split parental rights and responsibilities, a parent's child support obligation for a child for whom the parent is the residential parent and legal custodian shall be presumed to be spent on that child and shall not become part of a child support order, and a parent's child support obligation for a child for whom the parent is not the residential parent and legal custodian shall become part of a child support order." (Emphasis added.)
When only one parent is the residential parent, that parent's obligation is ignored and the other parent becomes the sole obligor by default. The obligor's payment is then forwarded to the residential parent. Former R.C. §
Pauly held that former R.C. §
Some appellate courts have held that both parents are required to pay child support under a shared parenting plan, but that each parent should be given credit for the time the children are with him or her, and that such credit is not a deviation from the worksheet calculations. Weddellv. Weddell (June 29, 1994), Montgomery App. No. 14274, unreported;Looker, supra.
Other appellate courts have held that both parents are required to pay child support, but that the amounts should be automatically offset so that obligor's payment is reduced by the obligee's share of child support. Beard v. Beard (1998),
The above examples show that there is a general consensus that both parents are responsible for paying their respective portions of child support under a shared parenting plan, but there is no consensus as to what that actually means.
The guidelines for determining child support obligations, when a shared parenting plan is involved, are set forth in former R.C. §
"If the court issues a shared parenting order in accordance with section
3109.04 of the Revised Code, the court shall order an amount of child support to be paid under the worksheet set forth in division (E) of this section, through line 24, except that, if the application of the schedule and the worksheet through line 24, would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child because of the extraordinary circumstances of the parents or because of any other factors or criteria set forth in division (B)(3) of this section, the court may deviate from the amount of child support that would be ordered in accordance with the schedule and worksheet, through line 24, shall consider those extraordinary circumstances and other factors or criteria if it deviates from that amount, and shall enter in the journal the amount of child support calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 24, its determination that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination." (Emphasis added.)
Former R.C. §
In Pauly, the Ohio Supreme Court rejected the idea that a shared parenting plan requires an automatic credit for the time each parent has custody of the children:
Pauly, supra, 80 Ohio St.3d at syllabus. The obligor in Pauly was seeking a credit against the amount of child support he owed for the time his children resided with him, which went beyond the shared parenting plan schedule. In rejecting the obligor's argument for an automatic setoff, Pauly also held that there was no automatic deduction of the residential parent's obligation on the worksheet, as provided by former R.C. §"R.C.
3113.215 (B)(6) does not provide for an automatic credit in child support obligations under a shared parenting order. However, a trial court may deviate from the amount of child support calculated under R.C.3113.215 (B)(6) if the court finds that the amount of child support would be unjust or inappropriate to the children or either parent and would not be in the best interest of the child."
Despite the wide variation in appellate court opinions on this issue,Pauly made it very clear that in shared parenting situations the child support worksheet must be followed through line 24, and that any deviation from the child support calculations in shared parenting cases must come from the trial court, not from an automatic adjustment based on the amount of time each parent retains custody of the children.
In the case now before us, although Appellant is not arguing for an automatic reduction in his support obligation, he does argue that the trial court abused its discretion when it did not make any adjustment to his obligation based on the time the children spend with him. Unfortunately, the trial court's judgment entry contains contradictory rulings which make it impossible to determine if the court deviated from the worksheet. The judgment entry is very clear that the court was not ordering a deviation from the child support worksheet: "The Court * * * finds that it would not be in the best interests of the minor children to deviate from the child support worksheet." (Dec. 1, 2000 Order, 19). Yet, the court did not order Appellee to pay her portion of child support, as found on line 24 of the worksheet. (Dec. 1, 2000 Order, Exh. A, 3). The court also designated Appellant as the only obligor parent. This must be viewed as a deviation from line 24 of the worksheet, which treats both parents as obligors. See Pauly, supra, 388-389.
Because of the considerable confusion caused by former R.C. §
From the record before us, we cannot determine whether the trial court intended to follow the worksheet calculations or intended to deviate from them. Although it is apparent that the trial court did not make an adjustment because Appellant took care of the children almost half the time, this only becomes an issue if the trial court intended to deviate from the worksheet. As stated above, the trial court is not required to make an adjustment based on the amount of time each parent spends with the children. Nevertheless, the trial court's discretion is limited to either following the worksheet or properly deviating from it. We must reverse the order of child support and remand it to the trial court for a clear determination of one of those two options.
Appellant's second assignment of error states:
"THE TRIAL COURT ABUSED ITS DISCRETION AND, THEREFORE, ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DETERMINED THE AMOUNT OF INCOME THAT WOULD BE IMPUTED TO APPELLANT."
Appellant argues that the trial court erroneously determined that Appellant was capable of working overtime and should not have included imputed overtime earnings in the child support calculation. Appellant testified that he did work a substantial amount of overtime in 1999 because GM had a special project that year. (Aug. 28, 2000, Tr. 185). Appellant also testified that he had no control over overtime employment. He testified that possible overtime was determined by the GM superintendent and was available only when another supervisor was ill. (Aug. 28, 2000, Tr. 66-67, 184). Appellant stated that no overtime was available in 2000. (Aug. 28, 2000, Tr. 144, 188-189). Appellant also testified that there were other maintenance supervisors that did not work any overtime. (Aug. 28, 2000, Tr. 78-79). Nevertheless, the trial court determined that Appellant was the only maintenance supervisor that did not work overtime in 2000. (Dec. 1, 2000, Order, 14). Appellant contends that the trial court used a flawed analysis to impute potential overtime income.
In addition, Appellant argues that the trial court used incorrect numbers in the child support worksheet. In particular, Appellant notes that the trial court determined his base salary to be $2,767.50 over twenty-four pay periods. Using this figure, Appellant's base salary would be $66,420.00 per year. However, Appellant argues that the trial court entered Appellant's base salary as $68,507.00 on the worksheet.
Appellee contends that Appellant has confused imputed income with overtime income. Appellee argues that imputed income accounts for the parent who is unemployed and is based upon recent work history, occupational qualifications, prevailing job opportunities and salary levels in the community. See former R.C.§
This assignment of error lacks merit. When a court is calculating the gross income of a parent, the court must include the lesser of the following as income from overtime:
"(i) The yearly average of all overtime and bonuses received during the three years immediately prior to the time when the person's child support obligation is being computed;
"(ii) The total overtime and bonuses received during the year immediately prior to the time when the person's child support obligation is being computed."
R.C. §
The trial court found that, "subsection (i) is the correct method to calculate [Appellant's] overtime, as his prior three years in overtime is less than the total overtime he received in 1999. As such, the Court shall average [Appellant's] overtime from 1997, 1998 and 1999 and finds that said average is in the amount of Twelve Thousand Five Hundred and 00/100ths ($12,500.00) Dollars, which amount shall be included in calculating [Appellant's] gross income." (Dec. 1, 2000, Order, 15).
Because the statute requires a trial court to include overtime pay in the gross pay of a parent, the trial court did not err when it added Appellant's overtime pay to his income. Appellee is correct in her assertion that the trial court did not impute income to Appellant, but rather, simply followed the child support guidelines regarding overtime pay. In addition, the trial court averaged Appellant's overtime from the prior three years rather than using the amount he received the year preceding the divorce because it was the lesser of the two calculations. The child support worksheet contains the correct numbers as calculated by the trial court.
We disagree with Appellant's contention that the wrong annual salary figure was used. The worksheet clearly lists Appellant's annual salary as $66,420.00, which is the value Appellant agrees should have been used. This assignment of error is overruled.
Appellant's third assignment of error argues:
"THE TRIAL COURT ABUSED ITS DISCRETION AND, THEREFORE, ERRED TO THE PREJUDICE OF APPELLANT WHEN IT SET THE AMOUNT AND DURATION OF SPOUSAL SUPPORT PAYABLE TO APPELLEE."
Appellant argues that a specific procedure to determine a spousal support award exists and the trial court failed to follow the procedure. Appellant contends that the trial court must first must determine each party's separate property and divide the property acquired during the marriage, pursuant to R.C. §
Based upon this procedure, Appellant contends that the award was unreasonable. Appellant believes the factors set forth in R.C. §
Appellant also asserts that the trial court placed too heavy an emphasis on maintaining Appellee's standard of living. He points out that he now lives in a two bedroom apartment furnished with old "hand-me-down" furniture, while Appellee enjoys the same standard of living she had during the marriage because she is living in the marital home. Appellant contends that there is no rigid rule that spousal support must be sufficient to maintain the same standard of living as existed prior to the divorce, citing Josselson v. Josselson (1988),
Appellant next argues that the seven year period for spousal support is unreasonable. He points out that the oldest child will reach the age of majority before the spousal support ends, with no corresponding adjustment in the support award.
Appellant also argues that the trial court abused its discretion when the trial court failed to consider the fact that Appellee had an extramarital affair under the "any other factor" category of R.C. §
Appellee responds that the trial court did consider all of the factors listed in R.C. §
We agree, in part, with Appellant's arguments. Under R.C. §
"In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:
"(a) The income of the parties * * *;
"(b) The relative earning abilities of the parties;
"(c) The ages and the physical, mental, and emotional conditions of the parties;
"(d) The retirement benefits of the parties;
"(e) The duration of the marriage;
"(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside of the home;
"(g) The standard of living the parties established during the marriage;
"(h) The relative extent of education of the parties;
"(i) The relative assets and liabilities of the parties * * *;
"(j) The contribution of each party to the education, training, or earning ability of the other party;
"(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience is, in fact, sought;
"(l) The tax consequences, for each party, of an award of spousal support;
"(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;
"(n) Any other factor that the court expressly finds to be relevant and equitable."
As is illustrated from a review of the above quoted factors, an award of spousal support is not predicated on the idea of need. R.C. §
This Court has also previously held that an award of spousal support will be viewed as reasonable if it is, "fair, proper, just, moderate, suitable under the circumstances, [and] fit and appropriate to the end view." Olenik v. Olenik (Sept. 18, 1998), Mahoning App. No. 94 CA 139, unreported. An appellate court is guided by the presumption that the lower court's findings are correct. Focke v. Focke (1992),
Appellant's suggestion that Appellee's marital infidelity, i.e., her fault in causing the divorce, should have been a factor in the spousal support award is misplaced. Ohio's statutory scheme for awarding spousal support, "does not allow a court to fine, penalize or reward either party at the time of the divorce decree." Kunkle v. Kunkle (1990),
Appellant's argument that the trial court did not take into account the fact that Appellee received a greater amount of property from the division of the marital property when determining the amount of spousal support is not directly relevant. The determination of spousal support is independent from the division of marital property. R.C. §
Under factor (d), the trial court must consider the retirement benefits of the parties. The trial court found that Appellant has retirement benefits while Appellee does not. The trial court also ordered that the parties would keep their individual retirement accounts and that Appellee would receive one half of Appellant's pension from GM. These findings appear to contradict one another.
Under factor (f), the trial court noted that Appellee has been a "stay-at-home mother" since the birth of her children. (Dec. 1, 2001, Order, 11). The trial court's analysis did not take into account that both children were of school age, the ability of Appellee to work while the children were in school, or the effect of the shared parenting plan in which Appellant would have the children one half of the time. (Dec. 1, 2001, Order, 34-35).
Perhaps the most intriguing omission in the court's findings is any explanation as to why the court awarded Appellee more spousal support than her request of $1,250 per month for six years. (Feb. 9, 2000 Pretrial Statement, 6).
The omissions in the trial court's analysis of the spousal support award make it impossible for us to properly review the fairness of the award. We reverse and remand this part of the trial court's order for a redetermination of spousal support, which should include a sufficiently detailed analysis for purposes of subsequent appellate review.
Appellant's fourth assignment of error states:
"THE TRIAL COURT ABUSED ITS DISCRETION AND, THEREFORE, ERRED TO THE PREJUDICE OF APPELLANT WHEN IT FAILED TO ISSUE A SEEK WORK ORDER AGAINST APPELLEE."
Appellant argues that the trial court abused its discretion when it failed to issue a seek work order against Appellee because Appellee is capable of working and earning money. Appellee worked during the marriage until the first child was born. Thereafter, Appellee remained at home to raise the children. Appellee also worked periodically as a model. At trial, Appellee testified that she used little effort to find employment and did nothing to prepare herself to reenter the workforce since she filed for divorce. Appellant asserts that because the children are in school and are living with Appellant half of the time, Appellee has ample time to work.
Appellee responds that R.C. §
Former R.C. §
"(D) If a court or child support enforcement agency is required under division (A), (B), or (C) of this section or any other section of the Revised Code to issue one or more withholding or deduction notices described in this division or court orders described in division (D)(3) or (4) of this section, the court shall issue one or more of the following types of notices or court orders, or the agency shall issue one or more of the following types of notices to pay the support required under the support order in question and also, if required by any of those divisions, any other section of the Revised Code, or the court, to pay any arrearages:
"* * *
"(4) If the obligor is unemployed, has no income, and does not have anaccount at any financial institution, or on request of a child supportenforcement agency made under section
Under this statute, a trial court must order an obligor to seek employment: 1) upon request of a child support enforcement agency; or 2) if the obligor is unemployed, has no income, and does not have an account at any financial institution. We agree with Chinn, supra, that R.C. §
Nevertheless, even if Appellee were the obligor, a trial court cannotsua sponte issue a seek work order unless three conditions are met: the obligor is unemployed, has no income, and does not have an account at any financial institution. It is obvious from the record that Appellee has an account at a financial institution. Therefore, there is no basis to issue a seek work order against her. It is also evident that the child support enforcement agency has not requested a seek work order against Appellee.
For these reasons, Appellant's fourth assignment of error is overruled.
Appellant's fifth assignment of error argues:
"THE TRIAL COURT ABUSED ITS DISCRETION AND, THEREFORE, ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ORDERED HIM TO PAY A PORTION OF THE COST OF APPELLEE'S BREAST ENHANCEMENT SURGERY."
Appellant argues that the trial court erred when it failed to make a determination as to whether Appellee's breast implants, acquired during the marriage, are marital or separate property. Appellant contends that the court proceeded as if they were marital property when it required Appellant to pay part of their cost. Appellant maintains that requiring him to pay for "items" of such intimate nature is an abuse of discretion.
Appellee responds that the court did not need to make any property determination because the bill from the surgery is a medical expense which is simply a marital liability. Appellee asserts that the only controversy that exists is whether the trial court abused its discretion when it determined the money owed is a marital liability.
Appellee argues that husbands and wives have a duty to support each other and, because of this duty, Appellant is required to pay for at least part of the surgery. Appellee also argues that paying for medical services is part of the statutory duty a husband owes his wife, citingWolf v. Friedman (1969),
In reviewing a property division, we may not reverse the judgment of the trial court absent a finding of an abuse of discretion. Cherry v.Cherry (1981),
Appellant borrowed money from his SSPP account to pay for Appellee's breast enhancement surgery. The loan was taken out during the marriage, which presumptively defines it as a marital liability. Pursuant to R.C. §
Appellant's sixth assignment of error asserts:
"THE TRIAL COURT ABUSED ITS DISCRETION AND, THEREFORE, ERRED TO THE PREJUDICE OF APPELLANT WHEN IT USED THE FINAL TRIAL DATE OF JULY 25, 2000 AS THE DATE OF TERMINATION OF THE MARRIAGE FOR PURPOSES OF VALUATION OF CERTAIN MARITAL ASSETS RATHER THAN A DE FACTO TERMINATION DATE OF AUGUST 19, 1999."
Appellant argues that, although the trial court found the marriage terminated on the last day of trial, July 25, 2000, the more appropriate date would be August 19, 1999, the date Appellee filed for divorce. Appellant agrees that the termination date of a marriage is usually the date of the final hearing, but contends that a court may use a de facto termination date when the earlier date would result in a more equitable valuation of the marital property. See R.C. §§
Appellant relies on Gullia, supra, in support of his argument that the trial court abused its discretion in not using August 19, 1999, as the termination date. In Gullia, the parties separated in 1984 but did not file for divorce until 1987. The divorce was granted in 1990. The evidence established that, after separation, the parties maintained separate residences, separate business activities and separate bank accounts. The Eighth District Court of Appeals held that the trial court abused its discretion by not using a de facto termination date of January, 1984, for valuation purposes.
Appellant also argues that a trial court is not required to use the same termination of marriage date as the valuation date for every piece of marital property. Berish, supra, at 19. Appellant argues that the marriage termination date for the evaluation of equity in the marital home should continue to be July 25, 2000. Appellant's argument is based on the temporary order that required him to pay the mortgage and maintain the marital residence until July 25, 2000. Appellant argues that the later date will enable him to receive some credit for the additional equity in the home which he provided. Appellant's argument is not persuasive.
"The decision to use the final hearing date as the valuation date or another alternative date pursuant to R.C. §
The trial court considered whether a de facto date of termination should be used. (Dec. 1, 2000 Order, 4). The factors listed by the trial court to find a de facto date of termination included: whether there was a bilateral agreement to end the marriage; whether the parties maintained separate residences, separate business activities, and separate bank accounts; and whether the parties failed to attempt to reconcile. (Dec. 1, 2000 Order, 4). These are all appropriate factors for the trial court to consider. Gullia, supra.
The trial court found that it was, "unable to disentangle the parties financially as of the date of separation and therefore, cannot determine a de facto termination of marriage that would be equitable to both parties." (Dec. 1, 2000 Order, 4). The record indicates that the parties acquired separate checking and savings accounts prior to the divorce, the parties lived separately, but that Appellant was supporting both parties even after separation. It is also clear that there was no separation agreement. Although Appellant was charged with domestic violence, the charge was apparently dismissed shortly afterward, and there was nothing preventing him from entering or using the marital home. Although Appellee testified that the marriage was essentially over after she filed for divorce, there is nothing in Appellant's testimony confirming this conclusion. Because of the contradictory nature of these facts, the trial court did not act arbitrarily and unreasonably when it failed to determine a de facto termination date.
Furthermore, Gullia can be distinguished from the instant case. InGullia, the homemaker-wife started her own business after the separation and was not solely dependent upon her husband during the separation. In the present case, Appellee relied solely on Appellant to provide for her even after the separation. More importantly, Appellant has not indicated how the later valuation date prejudiced him, while making it very clear that the date the trial court used benefitted him with respect to the valuation of the marital home. Gullia does not discuss the prejudicial effect of an erroneous valuation date, but, "[i]t is an elementary proposition of law that an appellant, in order to secure reversal of a judgment against him, must not only show some error but must also show that error was prejudicial to him." Smith v. Flesher (1967),
In conclusion, we overrule Appellant's second, fourth, fifth and sixth assignments of error. Based on Appellant's first and third assignments of error, we reverse the trial court's orders regarding child support and spousal support and remand those issues for further proceedings according to law and consistent with this opinion.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.
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