Category Archives: Appeals

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.

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.

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