Category Archives: Family Law

Termination of Child Support and Criminal Contempt

Termination of Child Support and Criminal Contempt are Improper Where a Party is Denied Proper Notice and a Hearing

Success on Appeal! The Law Office of Anthony W. Greco successfully reversed a trial Court’s ruling involving the termination of child support and holding the mother in criminal contempt. This appeals case arose out of a post-decree modification and contempt action filed by the Father against the Mother. Among other findings, the trial court retroactively terminated the Father’s obligation to pay child support to Mother based upon parental alienation, and sentenced Mother to 30 days in the county jail on a finding of criminal contempt. After receiving this Order, Mother retained the Law Office of Anthony W. Greco to represent her for the purpose of appealing the trial Court’s decision.

In addition to initiating the appeals process, the Law Office of Anthony W. Greco obtained an Order staying the enforcement of the trial Court’s decision during the pendency of the appeal. In addition to other issues, the Law Office of Anthony W. Greco argued that the trial Court’s decision was improper as the Mother was not provided with adequate notice of the possibility that her child support would be terminated and that she may be found in criminal contempt. On review, the Fifth District Court of Appeals agreed with this argument and REVERSED the trial Court’s decision. The Court of Appeals stated that “[t]he trial court’s sua sponte modification of child support as to [the minor children] fails to meet the due process requirements of notice and opportunity to defend. . .” and, further, that “[t]he trial court erred in summarily punishing [the Mother] for criminal contempt without notice and an opportunity for a hearing.”

To read the full decision of the Court of Appeals, click here: http://law.justia.com/cases/ohio/fifth-district-court-of-appeals/2015/14caf050033.html.

High Income Child Support; How to Calculate

High Income Child Support Case; How to Calculate

When calculating high income child support, the first step a trial court must take is to determine the income’s of the parent’s.  Once each parents’ income is determined, the incomes are combined for purposes of applying the child support guidelines.  If the combined gross income of the parent’s are more than $150,000., then the parent’s income qualify as high income child support income.  Then the trial court must determine, on a case-by-case basis, what child support amount is in the best interests of the minor child.  This is done by looking at various factors including but not limited to the life style of the child, if any special needs exist and the incomes of the parent’s.  The “extrapolation method” is where the child support guidelines are applied beyond the $150,000. combined gross income number found in the child support guidelines.

On December 21, 2015, the Fourth Appellate Court District upheld the trial court’s ruling in “extrapolating” the child support guidelines and imputing income to a doctor, in Cummin v. Cummin, 2015-Ohio-5482.  In this case the Court of Appeals went through a very detailed analysis of how to calculate child support where the parent’s combined gross incomes are more than $150,000.  Here, the trial court made an initial child support determination when the parties’ divorce was final in 2011. The child support worksheet attached to the original divorce decree indicates that the trial court based the child support on the parties’ actual income, rather than capping their combined income at $150,000 for purposes of calculating child support.  At the time the original divorce decree was issued, the trial court determined the parties’ combined annual income was $306,997.50.  The court used the “extrapolation method” at that time. Three years later, the trial court modified its prior award of child support, once again using the “extrapolation method,” rather than capping the parties’ combined income at $150,000.00. Because Appellant did not object to the trial court’s method of calculating support initially, we conclude it is improper for him to raise that argument for the first time in this current appeal. However, even if this argument is not waived, both statutory and case law indicate that it is within the trial court’s discretion to either cap income at $150,000.00 or use parties’ actual income when crafting a child support order.

In summary, once the trial court properly calculates the combined gross income of the parties, and determines that it is in excess of $150,000., the trial court shall determine on a case-by-case basis, taking into consideration the needs and standard of living of the children, the amount of child support to be paid.  In that situation, a trial court must find that an award based upon a higher income amount would be unjust, inappropriate or not in the best interests of the child.  It is very important to note the trial court found that because the parties extrapolated child support in prior child support Orders, that the prior agreement for upward extrapolations was used to support the trial court’s upward extrapolation in the present case.

To read the entire case, see  http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2015/2015-Ohio-5482.pdf.

Employer Benefits Included in Child Support Income

A recent ruling by the Ohio Supreme Court addressed the issue of whether or not employer provided “perks” or other employer provided benefits, such as the value of a car, car insurance, a cell phone and the cell phone service, should be added into a parent’s income, for purposes of calculating child support.  While “employer provided benefits” have regularly been included in the gross income for purposes of child support calculation who are “self-employed”, there has been conflicting case law in the state of Ohio when the issue of employer provided benefits or “perks” has been raised for individuals who are not “self-employed.”  Employer benefits included in child support income calculations.

How is gross income defined for child support

Ohio Revised Code Section 3119.01(C)(7) defines gross income as the total of all earned and unearned income from all sources during a calendar year.  Also, Ohio Revised Code section 3119.01(C)(13) defines “self-generated income” as including “company cars, free housing, reimbursed meals, and other benefits, if the reimbursements are significant and reduce personal living expenses.”  The issue of whether employer benefits included in child support guideline calculation was proper for W-2 type employees who were not “self-employed” is one of the most notable questions that is answered by the Ohio Supreme Court in this case.  For the full Ohio Revised Code Section, see, http://codes.ohio.gov/orc/3119.01.

Employer Benefits Included in Child Support Income

The 2013 Ohio Supreme Court case of Morrow v. Becker clarifies how “gross income” is calculated for purposes of child support when “employer provided benefits” are involved, also known as employer provided, non-cash “perks”. The Court ruled that the value of the employer paid benefits were properly included in gross income for purposes of the calculation of child support.  See Morrow v. Becker, 138 Ohio St. 3d 11.   Employer benefits included in Child Support Guideline calculation.

Child Support Modification and Change of Circumstances

Child Support Modification Requires a Change in Circumstances Not Contemplated at the Time of the Prior Order

The Law Office of Anthony W. Greco, in another successful appeal, defended a father in a case concerning an ex-wife’s motion to modify the father’s child support obligation, the father had the trial court reversed. This specific case involved the child support modification, the parties had a Shared Parenting Plan, each parent had alternating week parenting time, and the parties agreed in their Divorce Decree that neither parent would pay child support to the other because each was responsible for the costs of the child during each of their respective parenting times. The Third District Court of Appeals found that the trial court made a mistake as a matter of law, when it granted the ex-wife’s motion to increase the father’s child support obligation, and reversed the trial court ruling.

The Appeals Court ruled that a trial court may modify a child support obligation if it finds (1) that a substantial change of circumstances has occurred since the time the obligation was imposed and (2) that the substantial change in circumstances was not contemplated at the time the obligation was imposed.  To read the full Court opinion see,  http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2013/2013-Ohio-2947.pdf.

In this case, the Union County trial court granted the ex-wife’s child support modification motion, and Ordered father to now pay child support to the mother because the trial court found a substantial change of circumstances had in fact occurred. However, Court of Appeals ruled the error the trial court made was that it failed to find that the substantial change of circumstances was not contemplated at the time the child support obligation was imposed. As a result, the Court of Appeals reversed the trial court’s decision and remanded the case for further proceedings.

When dealing with a child support modification, it is important to note that the phrase “not contemplated at the time the obligation was imposed” is extremely case and fact specific, and can come down to whether or not the parties thought about, talked about, or knew that the change of circumstances was likely to happen at some point in the future.

Child Support Modification

Modify Child Support in an Agreed Shared Parenting Plan

Attorney Anthony Greco successfully represents a father in the Court of Appeals against a Union County trial Court ruling  which imposed a child support obligation upon the father and ordered him to pay his ex-wife’s attorney’s fees and litigation costs. However, the Third District Court of Appeals reversed the trial court on both issues.  To read Court’s full opinion see, http://statecasefiles.justia.com/documents/ohio/third-district-court-of-appeals/14-12-03.pdf?ts=1370459681.

Change of Circumstances Required to Modify Child Support

As to the ex-wife’s motion to modify child support, the Court of Appeals found that the trial court abused its discretion in finding that a substantial change of circumstances occurred. The Court of Appeals came to this conclusion because the ex-wife and father maintained the same allocation of parenting time, the child’s needs had not changed, and no evidence in the record demonstrated that the earnings and financial positions of the ex-wife and father had changed. Further, the Court of Appeals held that changes to a shared parenting plan which were voluntarily agreed to by the parties do not constitute a substantial change of circumstances. This is so because such a change was “a change to the parties’ agreement, not their circumstances.”

Attorney’s Fees

Regarding the ex-wife’s award of more than $ 10,000 in attorney’s fees and litigation costs, the Court of Appeals found that the trial court abused its discretion in awarding attorney’s fees and litigation costs to the ex-wife. The award was an abuse of discretion because the ex-wife failed to request attorney’s fees and litigation costs in her motion to modify child support and failing to so request precludes such an award.

As a result of the trial court’s reversal, the mother was denied both child support and attorney’s fees.  In addition, mother was Ordered to repay all child support that had been paid by father while the Court of Appeals case was pending.

Modify Child Support and Attorney’s Fees.

Termination of a Shared Parenting Plan

Ohio Revised Code section 3109.04(E)(2)(c) deals with the termination of a Shared Parenting Plan and states, “The court may terminate a prior final shared parenting decree that includes a Shared Parenting Plan … upon the request of one or both parents or whenever it determines that shared parenting is not in the best interests of the children.”  In Kougher v. Kougher 194 OhioApp.3d 703, the Court of Appeals reversed the lower trial court who refused to terminate the parties Shared Parenting Plan because the court found that there had not been a change in circumstances since the Shared Parenting Decree went into effect.  To read the full case see, http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2011/2011-ohio-3411.pdf.

Termination of a Shared Parenting Plan:   3 Ways

This case demonstrates that a Shared Parenting Plan can be terminated in 3 ways:  (1) upon the request of one parent; (2) upon the request of both parents;  OR (3) if the court finds that shared parenting is not in the best interests of the children.  The statute does not require that either parent have a specific reason to terminate the shared parenting plan, it just requires that one or both of the parents make the request.  Having said that, if a party has filed a Motion to Terminate a Shared Parenting Plan, although it is not specifically required under the statute, it is always important to be able to explain to the court as part of your case, why the Shared Parenting Plan isn’t working.  This is simply because once a Shared Parenting Plan is terminated, the court must have a custody trial and take evidence from the parties as to what is in the children’s best interests when awarding custody to one of the parents.  To make this determination, the Court will weigh the evidence and apply each of the factors listed in the “best interest test”.  This will usually result in one parent or the other receiving “full custody”.

 

How to Modify Sole Custody vs Shared Parenting Plan

Equal Parenting Time Does Not Mean Shared Parenting

The Ninth District Court of Appeals ruled on a case where a Mother filed a “Motion to Terminate a Shared Parenting Plan”  two months after the trial Court issued a Divorce Decree where Mother was named sole residential parent.  The Court of Common Pleas modified the prior Order, and Father appealed. The Court of Appeals reversed the trial Court stating, “Before a trial court may modify a prior decree allocating parental rights and responsibilities, the court must make a threshold determination that a change in circumstances has occurred.” The court also stated that modification of a prior decree cannot happen, “Unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parent’s which are subject to a shared parenting decree, and that the modification is necessary to serve the best interests of the child.” The Court also found that just because there is 50-50 parenting time allocation, that does not mean there is a shared parenting plan. Sejka v. Sejka, 195 Ohio App.3d 335. To read the full case, see   http://www.leagle.com/decision/In%20OHCO%2020110919596

This case is extremely interesting, in that, it appears from the Appeals Court ruling that both of the parties’ believed that a “Shared Parenting Plan” was in effect after the initial trial, as the Mother filed a Motion entitled “Motion to Terminate Shared Parenting Plan”, and the Father filed an Appeal alleging that the trial Court was not permitted to modify the Shared Parenting Plan, however, no document entitled “Shared Parenting Decree” or “Shared Parenting Plan” was made an Order of the Court during or after the trial.

Pursuant to R.C. 3109.04(E)(1)(a), a trial court cannot modify an existing
allocation of parenting rights and responsibilities “[U]nless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.” Also, “ ‘before a modification can be made pursuant to R.C. 3109.04(E)(1)(a), the trial court must make a threshold determination that a change in circumstances has occurred.’ ” Buttolph v. Buttolph, 9th Dist. No. 09CA0003, 2009-Ohio-6909, at ¶ 11, quoting Gunderman v. Gunderman, 9th Dist. No. 08CA0067-M, 2009-Ohio-3787, ¶ 9, citing Fisher 116 Ohio St.3d 53, 2007-Ohio-5589, at syllabus. The Ohio Supreme Court has held that the requisite change of circumstances “must be a change of substance, not a slight or inconsequential change.” Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418.

Determining Spousal Support – How Much and How Long

This case involves a Fairfield County Spousal Support Award.  Husband (then age 53) and Wife (then age 42) get married in 1993. It is the 2nd marriage for Husband and 3rd marriage for Wife.  At the time of marriage, husband has been a teacher for 29 years.  There are no minor children of marriage.  Husband retires in 2004 and files for divorce in 2007, and at the time of the divorce Husband is receiving a pension in the net amount of $ 3,187.36.  In determining spousal support, the Fairfield County Trial Court Ordered Husband to pay spousal support (alimony) to Wife in the amount of $ 1,250. per month, indefinitely ( which was defined as, termination only upon death, remarriage or cohabitation with unrelated adult male).  The Trial Court also Orders Husband to pay Wife credit card that she used after the divorce was filed.  The Fifth District Court of Appeals upheld that decision.

What a Court Must Consider When Determining Spousal Support “How Much” and “How Long”

When determining spousal support, pursuant to R.C. 3105.18(B), a trial court may award reasonable spousal support to either party upon request and after the court determines the division or disbursement of property under R.C. 3105.171. Fairfield County, Case No. 2010 CA 25 17.  In determining spousal support and whether it is appropriate and reasonable, and in determining the nature, amount, terms of payment, and duration of spousal support, R.C. 3105.18(C)(1) directs the trial court to consider all 14 factors set forth therein:

“(a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed under section
3105.171 of the Revised Code;
“(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 the
home;
“(g) The standard of living of the parties established during the marriage;
“(h) The relative extent of education of the parties;
“(i) The relative assets and liabilities of the parties, including but not limited
to any court-ordered payments by the parties;
“(j) The contribution of each party to the education, training, or earning
ability of the other party, including, but not limited to, any party’s contribution to the
acquisition of a professional degree of the other party; Fairfield County, Case No. 2010 CA 25 18
“(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, and employment 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.”

In addition, R.C. 3105.18(C)(2) states that in determining spousal support and whether it is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital income.  Trial courts must consider all of the factors listed in R.C. 3105.18(C) when determining spousal support.

See the full case at, http://www.fifthdist.org/dec272010/Howcroft.pdf.

Determining Spousal Support.  16 year marriage out of Fairfield County, Ohio.

To Modify Spousal Support Change of Circumstances Defined

To Modify Spousal Support based upon receipt of inheritance.  Ex-Husband asked the Court to terminate or modify spousal support after wife received an inheritance. The Marion County Court of Common Pleas denied husband’s request to terminate because the Trial Court stated that the parties contemplated the inheritance at the time of the divorce and thus, it was not unforeseeable. The Court of Appeals affirmed the Trial Court’s decision and stated that, “A trial court will have jurisdiction to modify a prior order of spousal support only if the decree of the court expressly reserved jurisdiction to make the modification and if the court finds that a substantial change in circumstances has occurred and that the change had not been contemplated at the time of the original decree.

Inheritance and How It Can Modify Spousal Support

The court of Appeals opinion provided a very interesting and informative discussion addressing the is of an inheritance, and how that may effect spousal support a spousal support modification by referencing the ex-husband’s case cites in which Ohio courts have found that an inheritance constituted an unforeseen change of circumstances. See, e.g., Howell v. Howell, 167 Ohio App.3d 431, 2006-Ohio-3038, 855 N.E.2d 533. However, the Court of Appeals found that “the facts in Howell and the other case are very different from those in this case. For instance, in Howell, the appellant was only a contingent beneficiary of his grandfather’s trust fund at the time of the divorce. He had no rights to the trust fund until after the death of both his parents, and there was no information concerning the likelihood of their demise in the near future. We are cognizant of the fact that there certainly might be situations in which a party’s inheritance would constitute a substantial change of circumstances that was not contemplated at the time of the original decree. Every situation may have varying facts and circumstances that can affect the final determination. That is why the trial court is vested with the discretion to review and evaluate the individual merits of each case.”

To view the full case, January 10, 2011. Timberlake v. Timberlake. Marion County, Ohio. click .http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2011/2011-ohio-38.pdf.

Modify Spousal Support and Inheritance issue.

 

Cohabitation Results in Termination of Spousal Support

Termination of Spousal Support because of Ex-Wife’s Cohabitation.  August 22, 2011. Success on Appeal.

The Law Office of Anthony W. Greco successfully represented its Client in overturning a Fairfield County Trial Court’s ruling refusing to the termination of spousal support based upon Wife’s cohabitation. The ex-husband specifically challenged the Fairfield County Trial Court’s Order finding that Wife was not cohabiting with her boyfriend. The Court of Appeals referenced the Supreme Court of Ohio’s ruling which set forth two primary factors to consider in determining cohabitation: “Having considered the above definitions of ‘cohabitant’ and ‘family or household member,’ we conclude that the essential elements of ‘cohabitation’ are (1) sharing of familial or financial responsibilities and (2) consortium. R.C. 2919.25(E)(2) and related statutes. In addressing the termination of spousal support issue, the Court of Appeals stated that “Many factors may be considered in deciding whether cohabitation exists in a particular set of facts. We previously addressed the issue of “cohabitation” as an issue of lifestyle, not a housing arrangement. Further, when considering the evidence, the trial court should look to three principal factors. These factors are “(1) an actual living together; (2) of a sustained duration; and (3) with shared expenses with respect to financing and day-today incidental expenses.” The Court of Appeals, Fifth District, noted that both Ex-Wife and her boyfriend stated that boyfriend provided no support for Ex-Wife or her residence. Although boyfriend admitted to using appellee’s utilities and cable, he insisted that he did not pay for anything and was not an extra burden on the utilities. At one point, boyfriend took the absurd position that he did not even use toilet paper. Proof of shared expenses does not have to be by direct evidence alone, but can be established by circumstantial evidence.

The evidence for termination of spousal support

In this case, the direct evidence of the unexplained funds leads to the logical inference that Ex-Wife is receiving funds from her boyfriend. The Court went on to state, either we accept boyfriend’s position that he is a visitor at Ex-Wife’s residence, living off the income of a woman who makes substantially less than him, or we make the inference that these are two intelligent individuals who understand the cohabitation issue (boyfriend also pays spousal support) who are trying to delude the trial court. Either boyfriend is a “moocher” or he is paying his way. Both agree if they were married, the financial issues would be the same save health benefits. The Court of Appeals then concluded that the third factor in determining cohabitation, shared expenses with respect to financing and day-to-day incidental expenses, has been minimally satisfied and the trial court erred in not finding cohabitation. The Court of Appeals then Reversed Fairfield County Court’s ruling, terminated Husband’s spousal support, and Remanded the matter back to the trial court for a determination as to when cohabitation first started, so the termination of spousal support could be applied retroactively.

To see the full case, click the link http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2011/2011-ohio-4213.pdf.

Ex-husband Receives Retroactive Reimbursement for Spousal Support

Update (10/3/12): On remand, the trial court awarded ex-husband $90,360.00 in over payment of spousal support.  Child support that was to be paid by our Client via a previous order was ordered to be deducted and offset by the amount owed in reimbursement for spousal support until the parties’ minor child emancipated on November 10, 2014.  Upon the minor child’s emancipation, the Ex-Wife was ordered to pay our Client the full remainder of the $90, 360.00 still owed.

Termination of spousal support based upon cohabitation.