Category Archives: Divorce

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.

Attorney Fees in Child Custody Case Mother Gets $40,000

June 13, 2011. Success on Appeal.  Attorney Fees in Child Custody Case.

The Law Office of Anthony W. Greco successfully represented its Client in defending a Father Motion for Custody and obtaining a Order in the Union County Court for the reimbursement of attorney fees in child custody case in the amount of $40,000.00.  Not only was our Client successful in defeating the Father’s request for custody, but the Mother was successful in defeating Father’s request for additional parenting time.  The Union County Trial Court found that there was no change in circumstances requiring any change in custody of Mother, nor for the visitation of Father. Further, the trial court ruled that awarding the Mother’s attorney fee’s in child custody case was, “based upon the scope, sophistication and duration of the litigation initiated by Father.”  The Union County Trial Court’s ruling was then upheld by the Court of Appeals of Ohio, Third Appellate Court District.

Change in Circumstances Required

In this case, the parties were divorced and in their Agreed Judgement Entry they agreed that Mother would have sole custody of the minor child, and Father would have parenting time that was less than the Union County Local Rule.  Several years later Father filed a Motion for Reallocation of Parental Rights and Responsibilities seeking full custody, or in the alternative, an increase in parenting time.  After a full trial, the Union County trial Court ruled that Father failed to prove that a change in circumstances had occurred, and therefore, no modification of the original Order could occur, neither in child custody, nor parenting time.

Attorney Fees in Child Custody Case

The Mother filed a Motion for Attorney Fees in child custody case, and as the trial Court ruled, that as a prevailing party, and due to the scope, sophistication and duration of the litigation initiated by Father, Mother was awarded $40,000.00 in attorney fees in child custody case.

Change in Circumstances and attorney fees in child custody case.

For the full case opinion, click here for link.

http://law.justia.com/cases/ohio/third-district-court-of-appeals/2011/2011-ohio-2847.html

 

 

Spousal Support Modification

When a Court deals with the issue of spousal support modification, the Court must first make the determination as to whether the spousal support obligation is “modifiable” or “non-modifiable”.  The issue between these two choices is extremely critical for both the person paying spousal support, as well as the person receiving spousal support.  For the person paying spousal support, a spousal support order that is “non-modifiable” means that under no circumstances what so ever can a Court change the amount or length or “term” of the original spousal support Order.  If the spousal support is “modifiable” then that means that the Court has the legal authority, discretion and ability to change or modify the previously Ordered spousal support as to the amount being paid, and or the term for which the spousal support  was originally Ordered to be paid.

Spousal Support Modification:  What do you need to prove

However, in situations where the Court has the legal authority, discretion and ability to change the previously Ordered spousal support amount and term, to actually modify or change a spousal support Order, the party requesting the change must first be able to satisfy several legal requirements.  The first requirement involves proving that the Court has “continuing jurisdiction” to modify the spousal support.  This requires that the Original Divorce Decree contain specific language wherein the Court states it shall retain continuing jurisdiction for a spousal support modification.  The second requirement requires that the party requesting the change must then prove with admissible evidence, at a formal hearing, that there has been a substantial change in circumstances which were not anticipated at the time of the Divorce.  The third requirement requires that the party requesting the change must then prove by a preponderance of the evidence that the existing spousal support Order is no longer appropriate and reasonable.  Decided November 4, 2010 in Burkart v. Burkart, 191 Ohio App.3d 169.  For the full case see, http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2012/2012-ohio-1825.pdf.

Spousal Support Modification

Modifying Shared Parenting – If You Snooze You Might Lose

Modifying Shared Parenting.  I would categorize the case of Livermore v. Livermore, 2006-Ohio-485 under the section “if you snooze you loose”, or “strike while the irons hot”.  The basic facts of the case as outlined in the court of Appeals decision are as follows.

Modifying Shared Parenting:  Case Facts

The Father appealed the judgment of the Common Pleas Court of Crawford County, Ohio, denying his motion to name him the residential parent of the parties’ three minor children and find defendant Mother in contempt of court.  On November 15, 1999, the parties were divorced. The parties agreed at that time to a shared parenting arrangement regarding their three minor children, with a 9 month to 3 month split in which the children spent the school year with Mother in Florida and the summer months with Father, who resided in Ohio. Mother was designated the residential parent during the school year and James was designated the residential parent during the summer.

On March 15, 2001, the eldest child, Cory, came to live with Father, and in October 2003, the youngest child, Kimberly, moved to Ohio to live with Father also. The middle child, Ashley, lived with Mother at all times until the summer of 2004. Late in the
summer of 2004, Mother advised Father that Cory and Kimberly would be staying in
Florida with her for the next school year.  Father disagreed, and filed a Motion asking the Court to name him residential parent.

In addressing the issue of Modifying Shared Parenting, the trial Court denied Father’s Motion and the Court of Appeals upheld the trial Court’s denial.  The Court of Appeals reasoned that the purpose of a shared parenting plan is to provide the parties the necessary flexibility within the court’s order to act in concert in the best interests of their children. As all persons who have raised or are raising children know, matters will arise in the course of their development that cannot necessarily be predicted at the time of divorce. These issues may be educational, emotional, psychological or otherwise. Shared parenting allows divorced parents the ability to cooperate with each other to make parenting decisions as unforeseen needs arise.

Modifying Shared Parenting.  It appears that the Father did not file his Motion to be named residential parent until after the children had already re-enrolled and started back to school in Florida.  As a result he apparently lost the ability to persuasively assert the argument that since one of the children had already been attending school in his school district for 2 years, and one of the other children had been attending school in his school district for one year, why wouldn’t the Court just issue an Order formally recognizing what the parties had informally agreed upon.  However, as the Father waited as long as he did to file a Motion and start the case for custody, he lost the ability to make his best argument while the children were physically living with him in his school district.  It appears from the record that by the time the case came to trial, the children had all been residing in Florida with their mother.

So the lesson from this case is…If you snooze you might just lose, so strike while the iron is hot.

To read the full case, see http://statecasefiles.justia.com/documents/ohio/third-district-court-of-appeals/2006-ohio-485.pdf?ts=1370460035.

Modifying Shared Parenting – If you snooze, you might loose. Modifying Shared Parenting.