Sober v. Montgomery ( 2011 )

[Cite as Sober v. Montgomery, 2011-Ohio-3218.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STACY SOBER : Sheila G. Farmer, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 10-CA-50
:
:
KURTIS MONTGOMERY : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County
Court of Common Pleas, Domestic
Relations Division, Case No. 1995 PA
00029JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 28, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANGELA J. SEIMER GARY S. WELLBAUM
124 West Main Street, Suite 201 P.O. Box 163486
Lancaster, Ohio 43130 Columbus, Ohio 43216-3486
BENJAMIN T. SWAIN
Special Assistant Prosecuting Attorney
Fairfield County Child Support Enforcement Agency
239 West Main Street
Lancaster, Ohio 43130
[Cite as Sober v. Montgomery, 2011-Ohio-3218.]
Edwards, J.
{¶1} Defendant-appellant, Kurtis Montgomery, appeals from the October 14,
2009, Entry, the October 27, 2009, Child Support Worksheet, and the November 3,
2009, Nunc Pro Tunc Entry of the Fairfield County Court of Common Pleas, Domestic
Relations Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Kurtis Montgomery is the father of A.M. who was born on
October 11, 1993. Appellee Stacy Sober is the mother of such child.
{¶3} On January 11, 1996, the trial court had, via an Agreed Judgment Entry,
established appellant as the father of A.M. In the most recent redress of child support
issues prior to the events leading to the within appeal, the trial court issued an order in
August of 2002, requiring appellant to pay $1,056.53 per month to appellee for the
support of A.M., effective September 1, 1999.
{¶4} In approximately December of 2008, appellant requested an
administrative review of the child support order through the Fairfield County Child
Support Enforcement Agency (FCCSEA). On March 19, 2009, following its review,
FCCSEA issued its Administrative Adjustment Recommendation, modifying the support
order to $1,941.98 per month, plus processing charges, effective April 1, 2009. This
amount included a downward deviation of $270.00 a month plus processing charges.
{¶5} Appellant thereupon filed with the trial court an objection to the
administrative modification, requesting a court hearing on the issue. The trial court
ultimately set the matter for a hearing on September 22, 2009.
Fairfield County App. Case No. 10-CA-50 3
{¶6} At the hearing, appellant testified that he was living in Florida for work
reasons. Appellant testified that the last time he was in court regarding child support,
which was in March of 2002, he was employed by Thomas & King, a franchisee of
Applebee’s International. At the time, appellant was the regional Vice President. He
remained the regional Vice President until he was given the option of either taking a
lower position with lower pay or leaving the company with a six month severance
package. Because, due to the economy and the state of the restaurant business, he did
not think that stepping down to a lower position at lower pay was a viable option,
appellant took the severance package. His last day of employment with Thomas & King
was on May 1, 2008 and he then received six months of full pay. Appellant did
consulting work for Thomas & King from May of 2008 through mid-July of 2008 and
received a lump sum for his work. His severance package ran out in November of 2008.
{¶7} At the hearing, appellant testified that, in mid-April of 2009, he became
equal partners with three other individuals in a business venture. The purpose of the
business venture was to run a Buffalo Wild Wings franchise in southern Idaho.
Appellant testified that they had the rights to open up five restaurants in Idaho. As of the
hearing, the partnership also owned franchises for three restaurants in Florida.
Appellant testified that he had to buy into the partnership and that he initially paid an up-
front fee of $110,000.00 and then recently had paid an additional $33,000.00. He
testified that he had not received any compensation as a partner for the partnership.
{¶8} Appellant testified that, as of June 1, 2009, he became an employee with
the partnership and was making $100,000.00 a year as director of operations. He
testified that after leaving Thomas & King, he did not have any offers exceeding
Fairfield County App. Case No. 10-CA-50 4
$100,000.00. Appellant also testified that he maintained health insurance coverage for
A.W. and for his child from another marriage. He testified that the cost of maintaining
health insurance coverage for himself and the two children was $672.44 a month and
that he spent $39.81 a month on dental coverage for all of them. The annual cost of
maintaining insurance coverage for A.W. was $1,976.58. Appellant testified that while a
court order required him to pay $500.00 a month in child support for his other child,
Dillon, and to invest an additional $200.00 a month for Dillon’s education, Dillon’s
mother agreed to reduce the amount of child support to $400.00 a month.
{¶9} At the hearing, appellee indicated to the trial court that she earned
$52,732.27 in 2008.
{¶10} Pursuant to an Entry filed on October 14, 2009, the trial court ordered
appellant to pay child support to appellee in the amount of $618.10 per month plus a 2%
processing fee. The trial court, in its Entry, stated, in relevant part, as follows:
{¶11} “The new child support worksheet prepared by the hearing officer used an
income of over $150,000.00 for the Defendant ($237,024.60). Using ORC 3113.04,
there is no evidence or finding by the hearing officer to prove or justify an amount of
support over the income of $150,000.00.
{¶12} “The Defendant testified that his current income is $100,000.00 and he is
a one-fourth (1/4) owner of a business venture that may provide him additional income.
Using the facts available, the Court is using the $150,000.00 income figure for the
Defendant, instead of $237,024.60.”
{¶13} On November 3, 2009, appellant filed a request for findings of fact and
conclusions of law. On the same date, the trial court filed a Nunc Pro Tunc Entry stating
Fairfield County App. Case No. 10-CA-50 5
that the child support was $605.98 a month, plus 2% processing fee, for a total of
$618.10 a month effective November 1, 2009.
{¶14} On November 6, 2009, appellee filed a Notice of Appeal. The appeal was
assigned Case No. 09 CA 0064. Appellant filed a Notice of Cross-Appeal on November
12, 2009. Pursuant to a Judgment Entry filed by this Court on March 12, 2010,
appellee’s appeal in such case was dismissed for want of prosecution.
{¶15} Pursuant to an Opinion filed in Case No. 09 CA 0064 on August 23, 2010,
this Court dismissed the Cross-Appeal filed by appellant in such case, finding that the
Judgment Entry appealed from was not a final appealable order because the trial court
had not filed findings of fact and conclusions of law as requested. On September 28,
2010, the trial court issued Findings of Fact and Conclusions of Law.
{¶16} Appellant filed his Notice of Appeal in this case on October 7, 2010.
Appellee filed a Notice of Cross-Appeal on October 29, 2010. Appellee’s Cross-Appeal
was voluntarily dismissed as memorialized in a Judgment Entry filed in this Court on
December 28, 2010.
{¶17} Appellant now raises the following assignments of error on appeal:
{¶18} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION IN FAILING TO ADOPT THE EFFECTIVE DATE USED BY THE
LICKING COUNTY CHILD SUPPORT ENFORCEMENT AGENCY IN RULING ON
DEFENDANT/APPELLANT/CROSS-APPELLEE’S OBJECTIONS.
{¶19} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW IN DETERMINING DEFENDANT/APPELLANT/CROSS-
APPELLEE’S GROSS INCOME FOR CHILD SUPPORT CALCULATION PURPOSES.
Fairfield County App. Case No. 10-CA-50 6
{¶20} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW IN ENTERING A FINDING OF FACT (SPECIFICALLY NUMBERED
FINDING 12) HOLDING THAT DEFENDANT/APPELLANT/CROSS-APPELLEE’S
OWNERSHIP OF A BUSINESS VENTURE ‘MAY PROVIDE [HIM] ADDITIONAL
INCOME.’”
I
{¶21} Appellant, in his first assignment of error, argues that the trial court erred
in failing to adopt the effective date used by the Licking County Child Support
Enforcement Agency for child support modification. We agree.
{¶22} The child support modification in this case arose from an administrative
review. The effective date of a modification which arose from an administrative review
is governed by R.C. 3119.71. R.C. 3119.71(B) states as follows: “(B) If the obligor or
obligee requests a court hearing on the revised child support amount and the court,
after conducting a hearing, modifies the court child support amount under the order, the
modification shall relate back to the first day of the month following the date on which
the review of the court child support order began pursuant to division (A) of section
3119. 60 of the Revised Code.”
{¶23} In the case sub judice, on March 19, 2009, following its administrative
review, FCCSEA issued its Administrative Adjustment Recommendation, modifying the
support order to $1,941.98 per month, plus processing charges, effective April 1, 2009.
However, the trial court, in its November 3, 2009, Nunc Pro Tunc Entry stated that the
child support was $605.98 a month, plus 2% processing fee, for a total of $618.10 a
Fairfield County App. Case No. 10-CA-50 7
month effective November 1, 2009.1 The trial court, therefore, erred in using November
1, 2009, as an effective date for the child support modification. Pursuant to R.C.
3119.71(B), the trial court should have made the modification retroactive to April 1,
2009, the first day of the month following the date CSEA commenced its administrative
review. See Carpenter v. Carpenter, Noble App. No. 09 NO 367, 2010-Ohio-6601.
{¶24} Appellant’s first assignment of error is, therefore, sustained.
II
{¶25} Appellant, in his second assignment of error, argues that the trial court
erred in determining that appellant’s gross annual income for child support purposes
was $150,000.00 a year. We agree.
{¶26} In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio
Supreme Court determined that the abuse of discretion standard is the appropriate
standard of review in matters concerning child support. In order to find an abuse of
discretion, we must determine that the trial court's decision was unreasonable, arbitrary,
or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Furthermore, as an appellate court, we
are not the trier of fact. Our role is to determine whether there is relevant, competent,
and credible evidence upon which the factfinder could base his or her judgment.
Tennant v. Martin-Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, 936 N.E.2d 1013, ¶ 16,
citing Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, 1982 WL 2911.
1
The trial court, in its September 28, 2010, Findings of Fact and Conclusions of Law, stated, in paragraph
J, that “[p]ursuant to Ohio Revised Code §3119.71, [child support] modification relates back to the first
day of the month following the date on which the review of the Court child support order began to wit:
April 1, 2009.”
Fairfield County App. Case No. 10-CA-50 8
{¶27} At the hearing in this matter, appellant testified that, since July 1, 2009, he
had been earning $100,000.00 a year working for the partnership. Appellant testified
that he did not receive any compensation as a partner from the partnership and that,
after leaving Thomas & King, he did not have any employment offers exceeding
$100,000.00. Appellant further testified that, in order to buy into the partnership, he had
to pay $110,000.00 up front and recently had to make an additional payment of
$33,000.00. There was no evidence adduced at the hearing to contradict appellant’s
testimony. We further note that while a court may impute income to a parent who is
voluntarily unemployed or voluntarily underemployed pursuant to R.C. 3119.01(C)(11),
there is no evidence that the court did so in this case. Appellant clearly was not
unemployed at the time of the hearing and there was no evidence that he was
voluntarily underemployed.
{¶28} Based on the foregoing, we find that the trial court erred in determining
that appellant’s income for child support purposes was $150,000.00 a year. There was
no evidence adduced at trial to support using such a figure.
{¶29} Appellant’s second assignment of error is, therefore, overruled.
III
{¶30} Appellant, in his third assignment of error, argues that the trial court erred
in finding, in its findings of fact and conclusions of law, that appellant’s one-fourth
ownership of a business venture may provide appellant with additional income. We
agree.
{¶31} In the case sub judice, the trial court, in its October 14, 2009, Entry,
stated, in relevant part, that appellant “testified that his current income is $100,000.00
Fairfield County App. Case No. 10-CA-50 9
and he is one-fourth (1/4) owner of a business venture that may provide him additional
income.” In its September 28, 2010, Findings of Fact and Conclusions of Law, the trial
court stated, in paragraph 12, that appellant “testified that he is one-quarter owner of a
business venture that may provide additional income.”
{¶32} At the hearing in the case sub judice, appellant testified that he was an
equal partner in a four person partnership. He testified that he did not receive any
compensation as a partner and that he had to purchase his interest in the partnership
for $110,000.00 and recently had to invest an additional $33,000.00. There was no
testimony that the partnership may provide appellant with income at any time in the
future. As noted by appellant, “[a]ny projection as to the future returns that [appellant]
might receive from his one-fourth ownership interest in the partnership are merely
unsupported speculation.”
{¶33} Appellant’s third assignment of error is, therefore, sustained.
Fairfield County App. Case No. 10-CA-50 10
{¶34} Accordingly, the judgment of the Fairfield County Court of Common Pleas,
Domestic Relations Division, is reversed and this matter is remanded to the trial court
for further proceedings.
By: Edwards, J.
Farmer, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0317
[Cite as Sober v. Montgomery, 2011-Ohio-3218.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STACY SOBER :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
KURTIS MONTGOMERY :
:
Defendant-Appellant : CASE NO. 10-CA-50
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Fairfield County Court of Common Pleas, Domestic Relations Division,
is reversed and this matter is remanded to the trial court for further proceedings. Costs
assessed to appellee – Stacy Sober.
_________________________________
_________________________________
_________________________________
JUDGES