Category Archives: Family Law

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.