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.
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 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
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.”
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.