Downing v. Downing , 2014 Ohio 4725 ( 2014 )


Menu:
  • [Cite as Downing v. Downing, 
    2014-Ohio-4725
    .]
    IN THE COURT OF APPEALS OF OHIO
    SIXTH APPELLATE DISTRICT
    ERIE COUNTY
    Tiffany N. Downing                                  Court of Appeals No. E-13-050
    Appellee                                  Trial Court No. 2010-DR-0115
    v.
    Amos S. Downing, et al.                             DECISION AND JUDGMENT
    Appellant                                 Decided: October 24, 2014
    *****
    Tiffany Downing, pro se.
    Michele A. Smith, for appellant.
    *****
    SINGER, J.
    {¶ 1} This is an appeal from the Erie County Court of Common Pleas, Domestic
    Relations Division, in which the trial court granted appellant, Amos Downing, and
    appellee, Tiffany Downing, a divorce from each other. For the following reasons, we
    affirm.
    {¶ 2} Appellant sets forth seven assignments of error:
    I. It was an abuse of discretion for the trial court to hold that the
    copies of credit card statements presented as evidence of marital debt, were
    not competent credible evidence to prove the existence of marital debt
    when the copies were stipulated to by the parties at the judge’s insistence.
    II. It was an abuse of discretion for the trial court to find that the
    debt incurred by appellant’s family, for the payment of marital expenses
    during the courts of the parties’ marriage, was a “gift” rather than marital
    debt.
    III. It was an abuse of discretion for the trial court to fail to admit
    the summaries and pie charts as presented by appellant to evidence the
    appellee’s income and then for the court to instead imputed (sic) minimum
    wage to the appellee for determination of child support and in determining
    the appellee’s ability to pay various marital debts.
    IV. It was an abuse of discretion for the trial court to not hold a
    hearing upon the issuance of temporary orders within 28 days in
    accordance with civil rule 78(N)(2) and in not retroactively modifying the
    appellant’s child support under temporary orders.
    V. It was an abuse of discretion for the court to not use correct
    figures and deductions in its child support calculation within the final
    divorce decision and in retroactively modifying temporary support orders.
    2.
    VI. The trial court erred by failing to grant a deviation in child
    support to the appellant under both the temporary orders and post-divorce
    orders.
    VII. The trial court judge exhibited a bias against the appellant
    based upon incorrect presumptions and by insinuating evidence that was
    not presented to the court.
    {¶ 3} The parties were married in 2004. They are the parents of two minor
    children.
    {¶ 4} In his first assignment of error, appellant contends that the court abused its
    discretion in finding that copies of credit card statements were not competent, credible
    evidence of the parties’ marital debt.
    {¶ 5} At a hearing, Erin G. Bartle, appellant’s mother, testified that she loaned
    money to the parties, since 2004, through a credit card in her name with appellant as the
    secondary accountholder. At the court’s urging, both counsel agreed to stipulate that
    defendant’s exhibit A, a compilation of numerous documents, represented the amount of
    debt Bartle was claiming she was owed. The credit card statements at issue were
    included in defendant’s exhibit A.
    {¶ 6} In the judgment entry, the court refused to consider the credit card
    statements as evidence of marital debt because they were not true copies of the originals
    and did not include Bartle’s name. Appellant contends that because the credit card
    3.
    statements were included in an agreed stipulation, the court was wrong to discount the
    statements as competent, credible evidence.
    A stipulation is defined as a voluntary agreement, admission, or
    concession, made in a judicial proceeding by the parties or their attorneys
    concerning disposition of some relevant point so as to eliminate the need
    for proof or to narrow the range of issues to be litigated. Vengrow v.
    Vengrow, 9th Dist. Summit No. 24907, 
    2010-Ohio-2568
    , ¶ 10, quoting
    Baum v. Baum, 9th Dist. Wayne No. 97CA0022, 
    1997 WL 775770
    (Nov. 26, 1997).
    {¶ 7} Here, the parties merely stipulated to the amount of the alleged debt, not the
    debt’s classification as marital. Following the stipulation, the debt’s status remained the
    subject of the hearing. Significantly, upon accepting the stipulation, the court stated on
    the record:
    Just so we’re clear about this, the fact that she stipulates to the
    exhibit doesn’t mean she stipulates to the fact that she owes it or that it’s
    marital debt, it’s just that they have paid this and it’s subject to cross-
    examination. Are we clear about that?
    {¶ 8} A trial court’s allocation of marital debt will not be reversed absent an abuse
    of discretion. Elliott v. Elliot, 4th Dist. Ross No. 05CA2823, 
    2005-Ohio-5405
    , ¶ 17. A
    trial court does not abuse its discretion when there is some competent, credible evidence
    4.
    to support its decision. Smith v. Smith, 4th Dist. Butler No. CA2001-10-251, 2002-Ohio-
    4232, ¶ 7.
    {¶ 9} Following the stipulation, it remained the court’s role to determine whether
    or not the evidence submitted supported appellant’s claim. Upon review of the trial court
    record, we do not find that the court erred in exercising its discretion. Appellant’s first
    assignment of error is found not well-taken.
    {¶ 10} In his second assignment of error, appellant contends that the court erred in
    determining that the debt incurred by appellant’s family for payment of the parties’
    marital expenses was a gift.
    {¶ 11} The classification of property as a loan or a gift is a factual determination
    and is reviewed by this court under a manifest weight standard of review. Johnson v.
    Johnson, 12th Dist. Warren No. CA99-01-001, 
    1999 WL 760978
    , *4 (Sept. 27, 1999);
    Bertsch v. Bertsch, 9th Dist. Wayne No. 97CA0009, 
    1997 WL 760951
    , *1 (Nov. 19,
    1997). The factual findings accompanying the trial court’s classification of property as
    marital or separate “are reviewed to determine whether they are supported by competent,
    credible evidence.” Johnson at *4; see also Crull v. Maple Park Body Shop, 
    36 Ohio App.3d 153
    , 154, 
    521 N.E.2d 1099
     (12th Dist.1987). If the judgment of the lower court
    is supported by some competent, credible evidence going to all the essential elements of
    the case, it will not be reversed by a reviewing court as being against the weight of the
    evidence. Seasons Coal Co., Inc. v. City of Cleveland, 
    10 Ohio St.3d 77
    , 80, 
    461 N.E.2d 1273
     (1984).
    5.
    {¶ 12} Bartle testified that she loaned the parties money in the form of credit card
    purchases and cash. The credit card was in her name with appellant listed as a secondary
    accountholder. She had a verbal agreement with the parties that they were to pay her
    back when they received their tax refund check. She testified that she has expected
    payment for eight years, although she never verbally demanded repayment or instituted a
    legal action against the parties for repayment until the divorce was filed.
    {¶ 13} Appellant’s grandmother, Wilma Davidson, testified that during the
    parties’ marriage she wrote checks to cover some of their expenses such as a tax bills,
    automobile insurance and mortgage payments. As with Bartle, Davidson testified that the
    parties had a verbal agreement to pay her back from their tax refund check each year.
    Counsel introduced defendant’s exhibit D which was a document dated January 6, 2008,
    and signed by the parties stating that they agreed to deposit their 2008 tax refund check
    into Davidson’s account. Davidson testified that she had the parties sign the document
    after she had loaned them money for over three years without repayment. In 2010,
    appellant wrote a check to Davidson in the amount of $2,000 from their 2008 refund
    check. She also testified that she never spoke to appellee about paying her back because
    she “didn’t want to bother her.”
    {¶ 14} Appellant testified that Bartle and Davidson never told him that the money
    loaned to him and appellee over the years was a gift as opposed to a loan.
    {¶ 15} In finding that there was no competent, credible evidence that there was
    marital debt owed to Bartle, the court noted that there is no written evidence that the
    6.
    parties promised to pay her back. Although the money was distributed from 2005 to
    2008, Bartle never initiated a claim or legal action against the parties. The court also
    noted that even though Bartle prepared the parties’ tax returns during this time and was
    aware of the amount of their refunds, appellant never repaid his mother. Moreover,
    appellant never listed Bartle as a creditor on his court financial disclosure form.
    {¶ 16} In finding that there was no competent, credible evidence that there was
    marital debt owed to Davidson, the court acknowledged that appellant did list Davidson
    as a creditor on his financial disclosure form. The majority of the money was for home
    improvements, mortgage payments, utility bills and car repairs. When asked about this
    money, Davidson stated “I wanted to help them.” The court found it significant that
    among the many times Davidson had distributed money to the parties, she only once
    executed a document in writing for repayment, and payment that was received. She
    never initiated a claim or legal action for the remaining money she had distributed to
    them.
    {¶ 17} If the evidence presented to the trial court is susceptible to more than one
    interpretation, we are bound to give it the construction that is consistent with the trial
    court’s judgment and finding of facts. Jones v. Holmes, 12th Dist. Butler No. CA2012-
    07-133, 
    2013-Ohio-448
    , ¶ 24. The underlying rationale of this deferential standard rests
    with the understanding that “the trial judge is best able to view the witnesses and observe
    their demeanor, gestures and voice inflections, and use these observations in weighing the
    credibility of the proffered testimony.” Seasons Coal Co., 
    10 Ohio St.3d 77
     at 80.
    7.
    {¶ 18} Here, the court considered many factors in finding there was no marital
    debt. Ultimately, the court found the witnesses’ contention that, the money at issue was
    intended to be a loan, to be at odds with their actual behavior over the course of the
    approximate eight-year marriage. Such a credibility determination will not be disturbed
    by this court.
    {¶ 19} Appellant contends that the court erred in referencing, in her decision,
    statements supposedly made by appellee regarding the money. Appellant contends this
    was error because appellee never testified at the hearing. We find this argument to be
    without merit. Error, if any, would be harmless as the court’s decision is adequately
    supported by the testimony of Bartle, Davidson and appellant. Simply put, the court did
    not find them to be credible. Appellant’s second assignment of error is found not well-
    taken.
    {¶ 20} The record shows that appellee works approximately 30 hours a week, at
    $6.50 an hour, as a bartender at a local AMVETS Post. In his third assignment of error,
    appellant contends that the court erred in failing to admit certain exhibits to support his
    position that appellee underreported her income for purposes of calculating child support.
    Appellant contends that in failing to admit the exhibits, the court could not include the
    amount of tips appellee has received while working as a bartender. Tips that appellee
    herself admitted she sometimes did not report.
    {¶ 21} A hearing to determine child support was held before a magistrate on
    May 25, 2011. Appellant’s counsel called Amanda Dendinger to the stand for purposes
    8.
    of reviewing appellee’s bank statements. Dendinger testified that she is a paralegal with
    the law firm of Murray and Murray in Sandusky, Ohio. Before she could continue her
    testimony, appellee’s counsel objected to her as a witness. Counsel argued that she was
    not a competent witness because a paralegal is not necessarily trained in banking matters
    and because Dendinger is employed by the same law firm that employs appellant’s
    stepfather. The magistrate overruled the objection stating “[L]ets give her an opportunity
    to testify and see exactly what we are talking about.”
    {¶ 22} Dendinger testified that as part of her duties at the firm, she creates
    spreadsheets, graphs and charts based on data entry she has obtained from reviewing case
    records. Upon reviewing appellees’ bank statements from 2009 to 2011, Dendinger
    created summaries and pie charts in an effort to decipher the sources of appellee’s bank
    deposits. On the basis of the best evidence rule, appellee’s counsel objected to the
    documents being admitted into evidence because the original bank statements were
    already before the court. The magistrate took the objection under advisement but never
    officially ruled on the objection. Consequently, appellant raised this issue in his
    objections to the magistrate’s decision.
    {¶ 23} It is well settled that the admission or exclusion of relevant evidence rests
    within the sound discretion of the trial court. State v. Sage, 
    31 Ohio St.3d 173
    , 180, 
    510 N.E.2d 343
     (1987). “Thus, we only reverse for an abuse of discretion, which is
    characterized by a ruling that lacks a sound reasoning process.” Bigler v. Personal Serv.
    9.
    Ins. Co., 7th Dist. Belmont No. 12 BE 10, 
    2014-Ohio-1467
    , ¶ 76, citing State v. Morris,
    
    132 Ohio St.3d 337
    , 
    2012-Ohio-2407
    , 
    972 N.E.2d 528
    , ¶ 14.
    {¶ 24} The court, in the final decision, sustained the objection stating:
    The bank records are the best evidence of plaintiff’s deposits, and if
    indicated on the account, the source of deposits. Where miscellaneous
    deposits were made, [appellant’s] speculation as to their origins is not
    proof.
    {¶ 25} The “best evidence rule” rests on the fact that an original writing is more
    reliable, complete, and accurate as to its contents and meaning. United States v. Holton,
    
    116 F.3d 1536
    , 1545 (D.C.Cir.1997).
    {¶ 26} Even though appellee admitted that she did not always report her tips, the
    self -serving exhibits prepared by appellant offered no proof of any amount appellee may
    have failed to report. Because the court already had the bank records, we find no abuse
    of discretion in the court’s decision to exclude the exhibits. Appellant’s third assignment
    of error is found not well-taken.
    {¶ 27} In appellant’s fourth assignment of error, appellant contends that the court
    abused its discretion in failing to hold a hearing on appellant’s motions to modify the
    court’s temporary orders.
    {¶ 28} Civ.R. 75(N)(2) provides that a party requesting a modification of a
    temporary support order shall be granted an oral hearing within twenty-eight days.
    10.
    {¶ 29} On the same day appellee filed for divorce, she filed a motion for
    temporary orders of custody and spousal and child support. On August 6, 2010, the court
    issued the temporary orders. Appellant filed a motion seeking modification of the orders
    and asked for a hearing. On August 20, 2010, the court issued a judgment entry stating:
    “[U]pon consideration and for good cause shown it is hereby ORDERED, ADJUDGED,
    and DECREED that an (sic) Pretrial Hearing on the Temporary Orders will be heard on:
    September 8, 2010 at 8:30 a.m.”
    {¶ 30} It is unclear from the record before us whether the September 8 hearing
    ever took place. However, on September 10, 2010, the court issued a notice for an
    “evidentiary hearing on temporary orders” to be held on October 29, 2010.
    {¶ 31} There is no evidence in this record that an October hearing was ever held
    until appellant, in December, filed a “motion for an emergency hearing concerning the
    temporary orders.” In this motion, appellant argued that it was his understanding that an
    agreement had been reached to modify child support but appellee had chosen to dishonor
    the agreement. With his motion, appellant attached a “consent judgment entry/temporary
    reduction of child support order.” The order states that the matter came before the court
    on October 29 and that the parties had reached an agreement regarding a reduction in
    child support to reflect the fact that appellant would be off work for eight weeks due to
    back surgery. This “consent judgment entry” is signed by appellant’s counsel. It is not
    signed by the magistrate, the judge, or by appellee’s counsel. Appellant also attached a
    letter from appellee’s counsel stating she would not sign the proposed consent judgment
    11.
    entry because she had not received proof of appellant’s reduced income. The court
    scheduled the matter for a hearing on January 12, 2011. It appears from the record that
    no such hearing took place.
    {¶ 32} On February 2, 2011, appellant filed a “motion for hearing on temporary
    orders to be held on February 7, 2011.” Appellant sought a hearing on his December
    motion for an emergency hearing. The court granted the motion. There is no evidence in
    the record that a hearing took place on February 7.
    {¶ 33} The parties’ final divorce hearing was scheduled for April 12, 2011. On
    March 18, 2011, appellant filed a motion asking the court to convert the final divorce
    hearing into a hearing on the temporary orders. In the motion, appellant referenced a
    tentative agreement that had been reached regarding modified child support. Appellant
    alleged that the parties had not followed through on the agreement because appellee
    refused to accurately report her income. The court denied the motion.
    {¶ 34} Appellant is correct that the court is required to hold a hearing within 28
    days of his motion to modify the temporary orders. The court timely scheduled a hearing
    the first time appellant filed such a motion. In fact, the court scheduled a total of four
    hearings for the purpose of addressing appellant’s modification requests. From the
    record, it is evident that during this time, the parties were attempting to unsuccessfully
    negotiate a resolution and when the negotiations failed, appellant would once again
    request a hearing. It is clear from the record that the court never ignored appellant’s
    request for a hearing. Most importantly for purposes of this assignment of error, hearings
    12.
    on the temporary orders were ultimately held on May 25 and July 18, 2011. Appellant’s
    fourth assignment of error is found not well-taken.
    {¶ 35} In his fifth assignment of error, appellant contends that the court relied on
    incorrect figures in calculating child support. A trial court’s calculation of child support
    is reviewed for an abuse of discretion. Dunbar v. Dunbar, 
    68 Ohio St.3d 369
    , 371, 
    627 N.E.2d 532
     (1994). A trial court in a domestic relations case “must have discretion to do
    what is equitable upon the facts and circumstances of each case,” including on issues of
    child support. Booth v. Booth, 
    44 Ohio St.3d 142
    , 144, 
    541 N.E.2d 1028
     (1989).
    1. Retroactive Application of Temporary Order
    {¶ 36} Appellant initially contends that the temporary order failed to show the
    correct income for appellee. As discussed earlier, the court used appellee’s bank records
    as proof of income which we have already determined to be adequate.
    {¶ 37} Appellant argues that the temporary support order was based on other
    incorrect figures. In the judgment entry, the judge specifically addressed this issue and
    acknowledged problems with the temporary order.
    [T]he magistrate deducted spousal support of $1800 from
    [appellant’s] income, deducted local taxes from the defendant’s income of
    $409 although he does not incur local tax, failed to deduct uniform expense
    of $296, failed to reduce [appellant’s] health insurance cost solely for the
    two children to $2,299, and determined his income to be $40,905.
    13.
    {¶ 38} As the court agreed with appellant that the temporary order was flawed, he
    now contends that the court should have retroactively modified his child support. The
    court expressly declined to do so and gave the following explanation:
    [I]t is unreasonable, unjust, and not in the best interest of [the
    children] to retroactively apply the modification of the child support to June
    of 2010 when a hearing was held December 10, 2012, given the following.
    The compelling evidence provided by [appellant’s] employer is that
    [appellant] is voluntarily underemployed, excluding vacation, holiday and
    medical leave. [Appellant’s] earnings, if he worked as scheduled by his
    employer, would produce a greater child support award that the court is
    ordering. The court finds it more equitable to set the final trial date of
    December 10, 2012, as the date for modification of child support than to
    impute earnings to appellant.
    {¶ 39} When computing child support, the trial court must evaluate the income of
    each of the parents. Drummer v. Drummer, 3d Dist. Putnam No. 12-11-10, 2012-Ohio-
    3064, ¶ 24. While reviewing the parties’ income, the trial court may determine that a
    party is voluntarily underemployed. 
    Id.
     If the trial court makes such a finding, the trial
    court must consider the party’s potential income, “which is income the parent would have
    earned if he or she had been fully employed.” 
    Id.,
     citing R.C. 3119.01(C)(5)(b), and
    (11)(a). In imputing the potential income the trial court must review multiple factors, as
    mandated by R.C. 3119.01(C)(11)(a):
    14.
    (i) The parent’s prior employment experience;
    (ii) The parent’s education;
    (iii) The parent’s physical and mental disabilities, if any;
    (iv) The availability of employment in the geographic area in which
    the parent resides;
    (v) The prevailing wage and salary levels in the geographic area in
    which the parent resides;
    (vi) The parent’s special skills and training;
    (vii) Whether there is evidence that the parent has the ability to earn
    the imputed income;
    (viii) The age and special needs of the child for whom child support
    is being calculated under this section;
    (ix) The parent’s increased earning capacity because of experience;
    (x) The parent’s decreased earning capacity because of a felony
    conviction;
    (xi) Any other relevant factor.
    {¶ 40} Appellant is employed hourly as a machinist at Alco Manufacturing. An
    employee testified that the companies’ policies are lenient with regards to attendance.
    The company’s records show that appellant has missed a significant amount of work
    between 2009 and the beginning of 2011. Citing the first quarter of 2011, the court noted
    that appellant had missed 16 days of work. This amounted to a loss of approximately
    15.
    $2,000 ($16.50 an hour, eight hours a day). Previous testimony had established that
    appellant lives in a house owned by his mother rent free and that his family generously
    helps him pay his bills. The court stated:
    [Appellant] has the ability to fail to appear for work when scheduled
    without consequences from his employer. [Appellant] has the ability to be
    supported by his family when, perhaps due to his reduced earnings, he is
    unable to pay for his expenses. Unfortunately, his reducing his work hours,
    etc., and reduction in earnings impact his children’s standard of living by
    reducing the amount of child support they receive.
    {¶ 41} Based on the evidence before the court, we find that the court did not abuse
    its discretion in failing to retroactively modify appellant’s child support.
    2. Shared Parenting Setoff
    {¶ 42} Appellant contends that because the parties had entered into a shared
    parenting agreement, they were entitled to an offset in their child support obligations.
    However, “the General Assembly has not provided for such a calculation, and instead, the
    statute provides the court may make a case by case analysis and adjust the support order,
    always guided by the best interest of the child.” Laubacher v. Laubacher, 5th Dist. Stark
    No. 2009CA00279, 
    2010-Ohio-5335
    , ¶ 13. Accordingly, the court did not err in not
    failing to automatically set off their child support obligations because of the existence of
    a shared parenting agreement.
    16.
    3. Child Care
    {¶ 43} Appellant contends that the court erred in crediting appellee with the
    amount of $4,800 in child care on the child support worksheet because appellee never
    provided any receipts to prove the amount. The court derived the figure from the parties’
    joint federal tax return as well as each of their court financial disclosure forms filed with
    the court. We find this to be competent, credible evidence of appellee’s child care costs.
    {¶ 44} Appellant also contends that the court erred in failing to label the child care
    expenses as “qualified” as opposed “total child care expenses.” Appellant did not raise
    this issue below, as such, it is waived.
    {¶ 45} We have thoroughly reviewed the lengthy record, including the detailed
    judgment entry at issue in this case and find that the court’s determinations with regard to
    temporary and final child support to be well reasoned and supported by competent,
    credible evidence. Appellant’s fifth assignment of error is found well-taken.
    {¶ 46} In appellant’s sixth assignment of error, he contends that the court should
    have granted him a deviation in child support because of the costs he incurs to provide
    health insurance for the children, the expense of maintaining adequate housing for the
    children and the fact that he has the children an additional 28 days per year beyond a
    standard visitation order.
    {¶ 47} In denying appellant’s request for a deviation, the court once again noted
    that appellant lives in a house rent and mortgage free. The court pointed out that when
    the children are visiting him, they spend a great deal of time with their paternal
    17.
    grandparents rather than with appellant. The paternal grandparents generously attend to
    the children’s needs. The court stated:
    There is no equitable reason for deviation of the child support for the
    temporary or final order given the significant difference in affordable
    lifestyles between the parties * * * It is not in the children’s best interest to
    further reduce their standard of living in their mother’s care which is at a
    subsistence level when they enjoy a significantly higher standard of living
    when the father is entitled to possession. The amount of child support is
    not inappropriate, not unjust, not unreasonable, and is in the children’s best
    interest not to deviate.
    {¶ 48} We find no abuse of discretion in the trial court’s determination of this
    issue. Appellant’s sixth assignment of error is found not well-taken.
    {¶ 49} In appellant’s seventh assignment of error, appellant contends that the trial
    judge exhibited an unwarranted bias against him. Interestingly, the original trial judge in
    this case recused himself after the parties accused him of being biased.
    {¶ 50} We have carefully reviewed the record in this case as well as appellant’s
    alleged “examples” of the trial court’s bias against him. Merely ruling in favor of the
    opposite party in trial matters does not amount to “unwarranted bias” against the other
    party. We find no basis to conclude that the trial judge was biased against appellant.
    Appellant’s seventh assignment of error is found not well-taken.
    18.
    {¶ 51} On consideration whereof, we find that substantial justice was done the
    party complaining and the judgment of the Erie County Court of Common Pleas,
    Domestic Relations Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to
    pay the costs of this appeal.
    Judgment affirmed.
    A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
    See also 6th Dist.Loc.App.R. 4.
    Mark L. Pietrykowski, J.                       _______________________________
    JUDGE
    Arlene Singer, J.
    _______________________________
    Stephen A. Yarbrough, P.J.                                 JUDGE
    CONCUR.
    _______________________________
    JUDGE
    This decision is subject to further editing by the Supreme Court of
    Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
    version are advised to visit the Ohio Supreme Court’s web site at:
    http://www.sconet.state.oh.us/rod/newpdf/?source=6.
    19.
    

Document Info

Docket Number: E-13-050

Citation Numbers: 2014 Ohio 4725

Judges: Singer

Filed Date: 10/24/2014

Precedential Status: Precedential

Modified Date: 4/17/2021