Category Archives: Appeals

Retirement Account Gains After Date of Divorce

The Law Office of Anthony W. Greco successfully challenged an award of gains on a retirement account to our client’s Ex-Wife.  The parties were subject to a decree that stated “[a]ll retirement assets of the parties shall be equalized as of [the day of divorce].”  Three years later, Ex-Wife filed a motion to enforce the terms of the decree, as one of Husband’s accounts had not been divided yet.  Ex-Wife claimed that she was entitled to at least $443,225.24.  The Trial Court ruled for Ex-Wife and awarded her $220,000 from the retirement account.  Husband appealed this ruling.

Wife Not Entitled to Gains

Our firm successfully argued that the Ex-Wife had no claim to the gains that had accrued since the divorce.  The Appeals Court applied the “normal rules of contract interpretation” to analyze the statement “[a]ll retirement assets of the parties shall be equalized as [the day of divorce].”  The Appeals Court determined that the decree was unambiguous in its intent to divide the assets equally based on their value as of the date of divorce, and that “the language of the decree [did] not indicate that [Ex-Wife], a non-participant under the retirement plan, has any right to any gains or losses on the assets accruing after [the date of divorce].”  The Appeals Court found for our client and overturned the Trial Court’s ruling, saving our client $220,000 in gains on his retirement account.

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Attorney Anthony W. Greco has over 25 years experience fighting for his clients.  Our firm consists of numerous talented attorneys, each with the extensive knowledge and skill necessary to protect our clients’ interests.  As a result, every member of our team treats each client’s case as unique, focusing on what is important to that individual client.  We represent clients in disputes regarding various family law matters, including fights over retirement accounts, gains, and other financial interests.  Click Here to contact us and see what sets us apart from other firms.

Service Was Not Complete Because Wife Never Touched the Papers

The Law Office of Anthony W. Greco successfully defended a Client in a battle over service and jurisdiction. Husband and Wife had filed competing divorce cases in Franklin County and Pickaway County.  Husband filed the Pickaway County case, while Wife had filed the Franklin County case.  In his Franklin County case, Husband asserted that Wife had been “personally served” with the Husband’s divorce papers, by a court-appointed process server.  However, the court determined that she had not been personally served, resulting in the dismissal of the Pickaway action.

Court Ruling Service was Incomplete 

In this case, Husband claimed although the process server made his service attempt at night, never got within 50-ft of Wife, and never physically handed the papers to her, that Wife had been personally served.  Further, he argued, that this meant that venue was proper in Pickaway County.

The Court determined that Wife had not been personally served as required by Civil Rule 4.1 (B), because the process server failed to “tender process to the wife personally.”  The Court of Appeals affirmed the trial court’s decision that service was incomplete “because [the process server] did not personally touch [wife] with the papers and she did not acknowledge service, and his having left them in the door was not sufficient because they fell to the ground when she opened the door and she left the papers there.”  This outcome allowed our client to proceed with her divorce action in her preferred venue, Franklin County.

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Attorney Anthony W. Greco has over 25 years experience fighting for his clients.  Our firm consists of numerous talented attorneys, each with the extensive knowledge and skill necessary to protect our clients’ interests.  As a result, every member of our team treats each client’s case as unique, focusing on what is important to that individual client.  We have represented numerous clients in disputes regarding nearly all matters within family law, including fights over service and jurisdiction.  Click Here to contact us and see what sets us apart from other firms.

Successful Defense of a $40,000 Attorney’s Fees Award

The Law Office of Anthony W. Greco successfully defended a trial court’s award of $40,000 in attorney’s fees to a mother defending against her ex-husband’s motion to modify.  The parties were subject to a decree that designated Mother as residential parent, setting guidelines for Father’s parenting time.  Four years after the decree was filed, Father filed a Motion to Modify Custody.  Father’s grounds were Mother’s decision to enroll their child in a part-time kindergarten class  instead of a full-time class.  However, one year after Father filed his motion, the trial court entered a final order denying Father’s motion and awarding Mother $40,000 in attorney’s fees.  Father then appealed this order.

Affirmation of Attorney’s Fees Award

Our firm successfully argued that because Father made significantly more money than Mother, interviewed seven witnesses compared to Mother’s two witnesses, flew his accountant in from Florida, and was uncooperative in providing his financial records; he was intentionally trying to cause Mother to incur a significant amount in attorney’s fees.  Ultimately, Mother had to rely on her parents to help with the costs of Father’s motion.  Overall, the Appeals court affirmed the trial courts award of attorney’s fees in the amount of $40,000.

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Attorney Anthony W. Greco has over 25 years experience fighting for his clients.  Our firm consists of numerous talented attorneys, each with the extensive knowledge and skill necessary to protect our clients’ interests.  Every member of our team treats each client’s case as unique, focusing on what is important to that individual client.  We have represented numerous clients in disputes regarding nearly all matters within family law, as well as successfully defending the attorney fees awarded to many of our clients.  Click Here to contact us and see what sets us apart from other firms.

Bankruptcy Could Increase One’s Ability to Pay Spousal Support

The Law Office of Anthony Greco successfully defended the trial court’s ruling regarding an award of permanent spousal support, an order to liquidate $30,000 in unpaid support, and attorney fees.  The divorce decree provided for Ex-Husband to pay our client spousal support.  Four months later, Wife filed a Motion for Contempt for Ex-Husband’s failure to pay his spousal support obligation.  The same month Ex-Husband filed for Chapter 13 bankruptcy protection.  As a defense, Ex-Husband argued his disabled status, according to the Social Security Administration, and his filing for Chapter 13 Bankruptcy made it impossible to afford the spousal support payments and the lump sum payment to liquidate his “arrearage” (otherwise known as the amount he was behind on his payments).

Appeals Court Upholds Spousal Support Despite Bankruptcy

However, our firm successfully refuted Ex-Husband’s argument on appeal.  We argued that the trial court considered that his business was unprofitable and that he was contemplating bankruptcy when our client received the spousal support award.  The Appeals Court stated that the Ex-Husband’s bankruptcy “…actually eliminated or reduced most of his debt and expenses”.  The Court further held that because Ex-Husband was receiving Social Security Disability benefits he was in a better financial situation to pay the support than he was when the court originally ordered the payments.  Overall, our client retained her spousal support, payments to liquidate the arrearage, and attorney fees.

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Attorney Anthony W. Greco has over 25 years experience fighting for his clients.  Our firm consists of numerous talented attorneys, each with the extensive knowledge and skill necessary to protect our clients’ interests.  Every member of our team treats each client’s case as unique, focusing on what is important to that individual client.  We have represented numerous clients in disputes over their spousal support, as well as other matters within family law.  Click Here to contact us and see what sets us apart from other firms.

Termination of Child Support and Criminal Contempt

The Facts from Trial

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 Mother in criminal contempt.  This appeals case arose out of a post-decree modification and contempt action filed by Father against Mother.  Among its other findings, the trial court retroactively terminated Father’s obligation to pay child support to Mother based upon parental alienation, in addition to sentencing 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.

The Ruling to Terminate Child Support

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.  On top of the other issues argued by our firm, the Law Office of Anthony W. Greco argued that the Trial Court’s decision was improper as Mother in this case 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 Court of Appeals agreed with this argument and REVERSED the Trial Court’s decision.

The Court of Appeals stated in their ruling 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 [Mother] for criminal contempt without notice and an opportunity for a hearing.”

The Appeals Court held that because Mother was not provided her due process rights, she could not defend herself.  This failure prevented the Trial Court from holding her in criminal contempt, which prevents the order of jail-time for Mother.  Further, the Appeals Court ruled that the lack of notice prevented the Trial Court from issuing their order of termination of child support.

To read the full decision of the Court of Appeals on termination of child support, Click Here.

High Income Child Support — How to Calculate

This case falls under previous Ohio law.  Under this law, there was a $150,000 “cap” on income for purposes of child support calculations.  This meant that those with an income over that “cap”, were subject to further scrutiny by the court.

The Case

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.

Summary

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 would determine on a case-by-case basis.  The court would take 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, click here.

New Updates to the Child Support Statute in March of 2019

As of March 28, 2019, Ohio updated its child support guidelines for the first time in 25 years. Under the original law, passed in 1992, child support was calculated by utilizing a formula that determined how much it should cost to raise a child and dividing that cost between the parents based on their relative incomes. Over the past two and a half decades the cost of raising children has gone up, yet Ohio continued to utilize the old, outdated formula. The main goal of the new law is to calculate support orders based on the current costs of raising a child and utilize common factors to simplify calculations across different families and circumstances.

The new law can have varying effects on a child support order established under the old law, depending on what the combined income of the parents is and, if combined income is over $150,000.00 (the old cap), whether the court utilized “limited” or “extrapolated” guideline in the original child support order.

For those who are paying child support under an order which extrapolated guideline child support due to the parents’ combined income being in excess of $150,000.00, it is likely that you will get a better outcome under the new child support guidelines. Instead of maxing out at $150,000.00, the guidelines are now calculated to $300,000.00 using the tables.

To read more on the new changes, Click Here.

Child Support Modification and Change of Circumstances

The Law Office of Anthony W. Greco successfully defended Father in Appeals Court against Mother’s motion to modify Father’s child support obligation.  The parties had a Shared Parenting Plan where weekly parenting time alternated between the two.  The parties agreed in their Divorce Decree that neither parent would pay child support to the other, as each was responsible for the costs of the child during their parenting time.

However, Mother filed a Motion to Modify Child Support after the divorce had concluded, despite the parties’ earlier agreement.  The Trial Court granted Mother’s motion and ordered Father to pay child support to Mother.  The Trial Court argued it had found a substantial change of circumstances had occurred, justifying the modification.

Must Not “Contemplate” the Change of Circumstances

Upon our appeal, the Court of Appeals ruled a trial court may modify a child support obligation if (1) 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.

However, the Appeals Court ruled the Trial Court failed to find that the change in circumstances was not contemplated by the parties at the time they agreed to the child support order.  As a result, the Court of Appeals reversed the Trial Court’s decision and remanded the case for further proceedings.

The phrase “not contemplated at the time the obligation was imposed” is extremely case and fact specific.  Whether the parties “contemplated” something can come down to whether or not they thought about, talked about, or knew that the change of circumstances were likely to happen at some point in the future.  In this case, the Appeals Court found this was not present.

Proving the “contemplation” of a change of circumstances requires in depth, and serious consideration of the current realities involved in the case, as well as extensive work to provide proof of either side of the argument.  When one has an issue involving the modification of support, we recommend retaining skilled and experienced counsel.

To read the full Court opinion Click Here.

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Attorney Anthony W. Greco has over 25 years experience as an attorney.  Our firm consists of talented divorce and custody attorneys, with significant knowledge of the law surrounding the modification of child support.  Each attorney has had time in a courtroom, fighting for our clients’ interests.  With our “results-oriented” approach, and a focus on our clients’ needs and wants, we have helped many clients get the results they wanted.  Click Here to contact us today and see what sets us apart from other firms.

Motion to Modify Child Support in an Agreed Shared Parenting Plan Overturned

Attorney Greco successfully represented a Father in appealing a trial court modifying child support he was ordered to pay.  Further, the court ordered Father to pay Mother’s attorney’s fees.  However, the Third District Court of Appeals reversed the trial court on both issues.

Change of Circumstances Required to Modify Child Support

The Court of Appeals found the trial court abused its discretion in finding a substantial change of circumstances occurred.  The Court of Appeals came to this conclusion because Mother 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 Mother and Father had changed.  Further, the Appeals Court held that changes to a shared parenting plan which the parties voluntarily agreed to 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 Mother’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 Mother.  The award was an abuse of discretion because Mother 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, Mother was denied both child support and attorney’s fees.  Further, Mother was ordered to repay all child support Father had paid during the pendency of the appeal.

Click Here to read the Court’s full ruling.

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Attorney Anthony W. Greco has over 25 years experience fighting for his clients.  Our firm consists of numerous talented attorneys, each with the extensive knowledge and skill necessary to protect our clients’ interests.  Every member of our team treats each client’s case as unique, focusing on what is important to that individual client.  We have represented numerous clients on both sides of modifying child support.  Click Here to contact us and see what sets us apart from other firms.

Termination of Spousal Support Upon Cohabitation

The Law Office of Anthony W. Greco successfully represented our Client in overturning a Trial Court’s ruling refusing to the termination of spousal support based upon Wife’s cohabitation.  Our Client challenged the Trial Court’s Order finding that Wife was not cohabiting with Boyfriend.  The Court of Appeals referenced the Supreme Court of Ohio’s ruling which set forth two factors in determining cohabitation: (1) Sharing of familial or financial responsibilities and (2) Consortium.  In addressing the termination of spousal support issue, the Court of Appeals ruled there are three factors to consider: (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 Ex-Wife and Boyfriend both stated that he provided no support for Ex-Wife or her residence.  Although he admitted to using Ex-Wife’s utilities and cable, Boyfriend insisted that he did not pay for anything and did not increase the utility bill.  At one point, Boyfriend claimed that he did not even use Ex-Wife’s 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

In this case, the direct evidence of the unexplained funds in Ex-Wife’s account leads to the logical inference that Ex-Wife is receiving funds from Boyfriend. The Court went on to state that they must accept one of two positions.  Option one, that Boyfriend is merely a visitor at Ex-Wife’s home, living off Ex-Wife, who makes substantially less than him.  Option two, that Ex-Wife and Boyfriend are two intelligent individuals who understand cohabitation, but are trying to delude the court.  Either Boyfriend is a “moocher” or he is paying his way.  However, both Ex-Wife and Boyfriend agree if that they were married, their financial situations would not change except for healthcare.

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.  They reversed the Trial Court’s ruling, resulting in the termination of Husband’s spousal support.  The Court then returned the case back to the Trial Court for a determination as to when cohabitation first started, so the termination of spousal support could be applied retroactively.

Husband Receives Retroactive Reimbursement for Spousal Support

Update (10/3/12): On remand, the trial court awarded Father $90,360.00 in overpayment of spousal support.  Child support that was to be paid by our Client under a previous order was ordered to be subtracted by the amount owed by Ex-Wife to reimburse our Client for spousal support.  Upon the child’s emancipation, our Client would receive the remainder of the $90,360.00 still owed.

To read the full Appeals Court ruling, click here.

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

The Law Office of Anthony W. Greco successfully represented a Mother in obtaining a Order for Father to reimburse $40,000 to Mother for attorneys fees in her child custody case.  Not only was Mother successful in defeating Father’s custody request, but Mother successfully defeated 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 court stated Mother’s award was, “based upon the scope, sophistication and duration of the litigation initiated by Father”.  The Appeals Court then upheld the Trial Court’s ruling.

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.  Years later, Father filed a Motion for Reallocation 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 attorneys fees, 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 entitled to $40,000.00 in attorney fees in her child custody case.  The court ordered Father pay this because his actions greatly increased the time and expenses incurred in the case.

For the full case opinion, click here for the link.

Contact Us

Attorney Anthony W. Greco has over 25 years experience fighting for his clients.  Our firm consists of numerous talented attorneys, each with the extensive knowledge and skill necessary to protect our clients’ interests.  Every member of our team treats each client’s case as unique, focusing on what is important to that individual client.  We have represented numerous clients on both sides of modifying child support.  Click Here to contact us and see what sets us apart from other firms.