Disher v. Disher ( 2021 )

[Cite as Disher v. Disher, 2021-Ohio-3164.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
BRENT DISHER,
Plaintiff-Appellee,
v.
TIFFANY DISHER, NKA STEPHEN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 20 MO 0014
Domestic Appeal from the
Court of Common Pleas of Monroe County, Ohio
Case No. 2018-442
BEFORE:
Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed
Atty. Michael Shaheen, and Atty. Kristina Herman, Shaheen Law Group, 128 South
Marietta Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee and
Atty. Elgine McArdle, McArdle Law Office, 2139 Market Street, Wheeling, West Virginia
26003, for Defendant-Appellant.
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Dated:
September 13, 2021
Donofrio, J.
{¶1} Defendant-appellant, Tiffany Disher nka Stephen, appeals from a Monroe
County Common Pleas Court judgment ruling in favor of plaintiff-appellee, Brent Disher,
on his motion to allow him to claim the parties’ minor children for tax purposes.
{¶2} The parties share three minor children. On October 31, 2018, appellee
filed a complaint for divorce. A partial agreement was placed on the record. On August
19, 2019, the trial court issued its judgment entry decree of divorce. The court’s judgment
entry included the parties’ agreement to many of the issues and ruled on the remaining
issues submitted by the parties. But the judgment entry failed to address who would be
entitled to claim the children for tax purposes.
{¶3} On April 15, 2020, appellee filed a motion seeking an order allowing him
to claim the minor children for tax purposes from the 2019 tax year forward. He argued
that he pays child support for the children and maintains health insurance for them.
Appellee filed a request for service with the motion asking the clerk to serve appellant at
her last known address in Ohio. A failure of service was filed by the clerk on April 23,
2020. On May 4, 2020, appellee filed a new praecipe for service asking the clerk to serve
appellant at a different address in West Virginia. The clerk’s docket reflects that this time
service was successful.
{¶4} Appellee next filed a motion for contempt on June 1, 2020, seeking an
order requiring appellant to appear and show cause for her violation of the divorce decree
for failing to pay her portion of the marital debt. That motion was successfully served on
appellant at the West Virginia address.
{¶5} The clerk issued a summons of contempt. On August 6, 2020, the matter
came before the trial court for hearing. Appellant appeared at the hearing pro se.
Appellee did not appear but his counsel did. The court heard arguments from appellee’s
counsel and testimony from appellant.
{¶6} On August 24, 2020, the trial court issued its judgment entry. As to the
non-payment contempt issue, the court found that appellant had since paid her portion of
the marital debt. But it ordered appellant to reimburse appellee for the costs and fees he
Case No. 20 MO 0014
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incurred in filing the motion. It found that appellant recklessly claimed all three minor
children on her 2019 tax return. The court ordered that from tax year 2020 forward
appellee would be entitled to claim the children for federal, state, and local tax purposes.
In addition, the court stated that if appellant was to earn over $20,000 for a future tax
year, she would be entitled to claim one of the children that year.
{¶7} Appellant filed a timely notice of appeal on September 23, 2020. She now
raises a single assignment of error, which states.
THE TRIAL COURT’S RULING ON THE ALLOCATION OF THE
TAX EXEMPTION WAS AN ABUSE OF DISCRETION WHERE
APPELLANT [HEREINAFTER MS. STEPHENS] DID NOT RECEIVE
PROPER SERVICE OF THE MOTION CONCERNING THE TAX
EXEMPTIONS AND THE COURT BASED ITS SUBSTANTIVE RULING
ON STATEMENTS FROM OPPOSING COUNSEL AS OPPOSED TO
EVIDENCE FROM THE APPELLEE WHO WAS NOT PRESENT FOR THE
HEARING.
{¶8} Appellant argues that procedural due process required service of the
motion to allocate the tax exemption prior to the deprivation of a property interest and that
substantive due process required an opportunity to be heard and to object to evidence at
the hearing prior to the deprivation of said property interest. The bulk of appellant’s
argument is that she was not properly served prior to the hearing on the motion for the
tax exemption. She states that she appeared at the hearing expecting it to be about the
non-payment of the marital debt. But the hearing also dealt with the allocation of the tax
exemption. She claims that this resulted in her not having the ability to prepare or consult
counsel. Appellant argues that the fact that appellee did not appear at the hearing denied
her of due process.
{¶9} Procedural due process requires reasonable notice and an opportunity to
be heard before deprivation of a recognized property interest. Ohio Assn. of Pub. School
Emp., AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. Of Edn., 68 Ohio St.3d 175,
177, 624 N.E.2d 1043 (1994). Appellant claims she was not given reasonable notice.
Case No. 20 MO 0014
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{¶10} Appellee filed his motion for the allocation of the tax exemption on April
15, 2020. He sent a copy of the motion to appellant at her Ohio address by certified mail.
The certified mail was returned, stamped “unable to forward.” Appellee was notified by
the clerk’s office of the failure of service on April 23, 2020.
{¶11} On May 4, 2020, appellee filed a praecipe for service asking the clerk to
serve the motion for the allocation of the tax exemption on appellant at a West Virginia
address. The clerk’s docket reflects that service was made on appellant on May 5, 2020,
by certified mail. Thus, despite appellant’s assertion that she was not aware of the
hearing on the motion for allocation of the tax exemption, the clerk’s docket demonstrates
otherwise.
{¶12} Moreover, appellant appeared at the hearing. And at no point during the
hearing did appellant assert she was unaware of the purpose of the hearing. Appellant
answered questions regarding her income and the tax exemption issues when asked by
the trial court. When a party does not raise the issue of improper service at the trial court,
that issue is waived upon appeal. BSI Sec. Servs. v. Ohio Dept. of Public Safety, 2d Dist.
Montgomery No. 24050, 2011-Ohio-4866, ¶ 13.
{¶13} Appellant also argues because appellee did not appear at the hearing to
present evidence of his finances, she was denied due process.
{¶14} Appellee filed the motion regarding the tax allocation. His counsel
appeared at the hearing on his behalf. Appellee was under no obligation to attend the
hearing. Appellant was properly given notice of the hearing and an opportunity to be
heard.
{¶15} At the hearing, appellant testified that she claimed all three children on her
2019 tax return. (Tr. 11-12). She stated that her 2019 income was between $12,000 and
$13,000. (Tr. 17). And she testified that appellee pays her $1,400 per month in child
support. (Tr. 23). Appellee’s counsel argued that appellant only worked part-time and
earned less than $20,000 per year. (Tr. 7). He further argued that appellee works full-
time, pays significant child support, and exercises regular parenting time. (Tr. 7).
{¶16} In addition to the testimony and arguments, the trial court also had access
to all of the parties’ financial documents from the divorce hearing that had taken place
less than a year before the motion hearing. The court was able to verify the parties’
Case No. 20 MO 0014
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incomes from both the child support worksheet and from the parties’ affidavits of income
and expenses, which are all part of the record. Moreover, appellant testified that she
continues to receive $1,400 in monthly child support. Because appellee’s child support
obligation has remained the same, it is reasonable to conclude that his income has also
remained the same. Thus, the court had competent, reliable evidence of the parties’
finances on which to base its order regarding the tax allocation even without appellee’s
testimony.
{¶17} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
{¶18} For the reasons stated above, the trial court’s judgement is hereby
affirmed.
Robb, J., concurs.
D’Apolito, J., concurs in judgment only; concurring opinion.
Case No. 20 MO 0014
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D’Apolito, J., concurs in judgment only; concurring opinion:
{¶19} For the following reasons, I concur in judgment only with the majority’s
resolution of the second part of Appellant’s sole assignment of error, as I would affirm the
judgment entry of the trial court for a different reason. In the second part of Appellant’s
sole assignment of error Appellant asserts that the trial court abused its discretion in
sustaining, in part, Appellee’s motion to allocate the tax exemptions for the children from
Tax Year 2019 forward.
{¶20} Although the trial court found that Appellant’s 2019 earnings “likely do not
meet or exceed the income requirement to file an income tax return,” the trial court did
not sustain Appellee’s motion as it relates to Tax Year 2019. (8/24/20 J.E. at p. 2.) With
respect to Tax Year 2020 forward, the judgment entry reads, in pertinent part:
This Court orders that from Tax Year 2020 forward, [Appellee] is entitled to
claim the three (3) minor children for Federal, State, and Local tax purposes.
If [Appellant] earns in excess of $20,000.00 for the tax year, she is entitled
to claim one (1) of the minor children for Federal, State. And Local tax
purposes so long as her income is provided to [Appellee] by February 15th
of each year.
(Id. at p. 3.)
{¶21} Despite its statutory obligation, the trial court failed to designate the parent
that could claim the children for tax purposes in the divorce decree. R.C. 3119.82
provides:
Whenever a court issues, or whenever it modifies, reviews, or otherwise
reconsiders a court child support order, it shall designate which parent may
claim the children who are the subject of the court child support order as
Case No. 20 MO 0014
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dependents for federal income tax purposes as set forth in section 151 of
the “Internal Revenue Code of 1986,” 100 Stat. 2085, 26 U.S.C. 1, as
amended. In cases in which the parties do not agree which parent may
claim the children as dependents, the court shall consider, in making its
determination, any net tax savings, the relative financial circumstances and
needs of the parents and children, the amount of time the children spend
with each parent, the eligibility of either or both parents for the federal
earned income tax credit or other state or federal tax credit, and any other
relevant factor concerning the best interest of the children.
{¶22} The trial court’s determination of which parent may claim the minor child as
a dependent for federal income tax purposes is reviewed under an abuse of discretion
standard. In re J.H., 7th Dist. No. 10 JE 15, 2011-Ohio-6536, 2011 WL 6400283, ¶ 13.
In order to find an abuse of discretion, a reviewing court must find that a trial court's
decision was arbitrary, unconscionable or unreasonable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶23} The majority opinion affirms the judgment entry of the trial court based on
the historical financial information submitted during the divorce proceedings. The child
support worksheet and the parties’ affidavits of income establish that Appellee was the
sole wage earner from 2015 to 2018, and that he earned between $69,000.00 and
$100,000.00 annually from American Energy Corporation from 2015 to 2019. Further, in
an affidavit dated March 30, 2020 and filed in support of the motion, Appellee avers that
“[a]t all time relevant, [Appellee has] been employed with American Energy Corporation.”
(Aff., ¶ 5.)
{¶24} At the October 27, 2020 hearing, Appellant described herself at a “full-time
student” with some “in between [ ] semesters” income.” Appellant attends graduate
school through the GI Bill, that is, the federal government pays 80% of her tuition and
provides a monthly non-taxable stipend of several hundred dollars when she is attending
classes.
{¶25} Appellant testified that her “taxable income” in 2019 was “between twelve
and $13,000.” (Id. at 15-17.) The terms “taxable income” and “income” were used
interchangeably regarding Tax Year 2019 at the hearing, so it is not clear that Appellee
Case No. 20 MO 0014
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understood the distinction. In summarizing Appellant’s testimony regarding 2019, the trial
court stated that “she reported $13,000 in income.” (Id. at 22.) However, Tax Year 2019
is not relevant because the trial court did not sustain Appellee’s motion as it relates to
Tax Year 2019.
{¶26} According to Appellant’s testimony, she received “some minimal income”
from Cabela’s Distribution Center and [a month of substitute teaching prior to the COVID-
19 outbreak] in 2020. (Id. at 19-21.) She estimated her income from substitute teaching
to be roughly $1,200.00. She testified that she worked at Cabela’s for two or three months
and received $15 per hour. Assuming arguendo that Appellant worked on a full-time basis
for three months, her income would be $7,800.00 ($15 x 40 hours x 13 weeks). Her total
income would be $9,000.00 in Tax Year 2020, far below the standard deduction.
{¶27} Appellee’s counsel offered no testimonial or documentary evidence of
Appellee’s current income, but warranted that “[Appellee] continues to work in the energy
industry and continues to pay significant child support.” (Hrg. Tr. at 7.) When asked by
the trial court if Appellee’s 2019 earnings exceeded $13,000.00, Appellee’s counsel
responded, “Oh, certainly, [h]e’s – I don’t have it in front of me, but it’s probably sixty or
$80,000. And obviously, we’ve not been back seeking a change in Child Support.” (Id. at
22-23.)
{¶28} According to Appellant’s sworn testimony at the hearing, and contrary to the
argument advanced by Appellee’s counsel, Appellee “moved to Illinois after he left
Alabama, he lives there and works in a federal prison.” (Hrg. Tr. at 12.) Appellant further
testified that she is “not sure of [Appellee’s] income,” but that he gets a “substantial
amount” from the Veterans’ Association. (Hrg. Tr. at 12.) She conceded that Appellee
continues to pay monthly child support in the amount of $1,400.00 through wage
withholding, and that he has made no effort to reduce the obligation. (Id. at 23-24.)
{¶29} In In re Marriage of Chewning, 11th Dist. Portage No. 2004-P-0021, 2005-
Ohio-698, the Eleventh District affirmed a magistrate’s decision allocating tax exemptions
to the father, where the evidence established that the mother could derive no tax benefit
from the exemptions. Specifically, the magistrate found the tax exemptions would result
in no tax savings for the mother but would save the father $3,062.00. The magistrate
opined that the best interest of the children would be served by maximizing the available
Case No. 20 MO 0014
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income in both households. Id. at ¶ 14; see also Singer v. Dickinson, 63 Ohio St.3d 408,
588 N.E.2d 806, 807 (1992)(allocation of the dependency exemption may be awarded to
the noncustodial parent when that allocation would produce a net tax savings for the
parents, thereby furthering the best interest of the child.)
{¶30} Although I am troubled by the failure of Appellee to offer any evidence
regarding his current employer or projected income in Tax Year 2020, I find that the
evidence offered at the hearing establishes that Appellant had no taxable income that
year. Because the testimony at the hearing establishes that Appellant would reap no
benefit from the tax exemptions, I cannot conclude that the trial court acted arbitrarily or
unreasonably in allocating the tax exemptions to Appellee, despite the fact that no
information regarding Appellee’s income was offered at the hearing.
{¶31} Even assuming arguendo that Appellee, like Appellant, had no taxable
income in Tax Year 2020, the best interest of the children would not be affected as neither
parent would benefit from the exemption. Further, the continuing jurisdiction of the trial
court over child support issues leaves open the possibility that the exemption issue may
be revisited when Appellant, the custodial parent, completes her education and is
gainfully employed.
{¶32} I write separately as I predicate no part of my decision on the historical data
relied upon by the trial court and the majority. The uncontroverted testimony at the
hearing establishes that Appellee has a new job, and I find that the historical data does
not constitute evidence of Appellee’s current income. My decision is predicated
exclusively upon the testimony at the hearing.
Case No. 20 MO 0014
[Cite as Disher v. Disher, 2021-Ohio-3164.]
For the reasons stated in the Opinion rendered herein, the sole assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Monroe County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.