Cummin v. Cummin ( 2017 )

[Cite as Cummin v. Cummin, 2017-Ohio-7877.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
KIMBERLY IRETON CUMMIN, :
: Case Nos. 16CA19
Plaintiff-Appellee, : 16CA20
:
vs. : DECISION AND JUDGMENT
: ENTRY
DAVID LAWRENCE CUMMIN, :
:
Defendant-Appellant. : Released: 09/21/17
_____________________________________________________________
APPEARANCES:
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.
K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellee.1
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal of David Cummin from two judgments issued
by the Hocking County Court of Common Pleas following a limited remand
by this Court in Cummin v. Cummin, 2015-Ohio-5482, 55 N.E.3d 467. On
appeal, Appellant raises two assignments of error, contending that 1) the trial
court erred in calculating his income on remand; and 2) the trial court erred
in computing his gross income for purposes of the motion to modify child
support. Because we find the trial court abused its discretion in disregarding
the mandate given in our limited remand order, the trial court’s July 28,
1
Appellee has failed to file a brief or otherwise participate in this appeal.
Hocking App. Nos. 16CA19 and 16CA20 2
2016, Remand Decision and Journal Entry is reversed, and the matter is
again remanded for the limited purpose of determining how much of
Appellant’s income, as already determined by the trial court to be $258,
427.00, constituted imputed income. Further, because we find that the trial
court failed to dispose of all pending issues that were newly raised post-
remand, the trial court’s August 18, 2016, Decision on Child Support and
Judgment Entry does not constitute a final, appealable order and we lack
jurisdiction to consider it. Accordingly, these appeals, which have been
consolidated, are reversed, in part, remanded, in part, and dismissed, in part.
FACTS
{¶2} We set forth the facts as previously observed in Cummin v.
Cummin, supra:
“The parties were married on July 18, 1992 and have four
children, all of which are still minors. A divorce decree was
issued on November 4, 2011. As part of the divorce decree, the
trial court ordered shared parenting, ordered Appellant to pay
child support based upon the parties' full combined annual
income, which exceeded $300,000.00, and also ordered
Appellant to pay spousal support to Appellee. Appellant is a
physician and Appellee, at the time of the divorce, had been out
of the work force for several years while raising the parties' four
children. However, at the time of the divorce, it was anticipated
that Appellee would return to work and the trial court imputed
income in the amount of $65,000.00 to Appellee for purposes
of calculating child support. No initial direct appeal was taken
from the divorce decree and associated orders.
Hocking App. Nos. 16CA19 and 16CA20 3
Subsequently, Appellant filed a motion to modify support on
January 7, 2014. Appellee then filed a cross-motion to modify
child support, as well as a motion to modify visitation. A final
hearing was held on June 25, 2014, with the parties having
already worked out the majority of the parenting time issues. As
such, the hearing primarily focused on financial issues that
pertained to the motions to modify support. Appellant's new
wife, Crystal Cummin, testified at the hearing. She testified that
she and Appellant had been on several trips, including an Aruba
vacation in which they took Appellant's children, a honeymoon
to Croatia, a cruise to Puerto Rico, which was paid for by her
employer, and a trip to New York. She testified that she earns
approximately $116,000.00 annually working for Johnson &
Johnson.
Appellant testified that he earns $25,100.00 annually as the
elected county coroner, most recently had a business net income
of $150,206.00 and also has rental property income. He
testified, however, that although he previously earned
$11,000.00 annually as the hospital chief of staff, he would no
longer receive that income because he was term-barred from
continuing in that position. He further testified that his rental
income had decreased and would continue to decrease in future
years, as he had lost tenants and did not expect to be able to
find new tenants. He also testified that his income had
decreased due to the fact that he no longer performed inpatient
hospital work. He testified that inpatient work did not pay well,
and that he had reduced his work load in order to spend more
time with his children. He estimated that he had decreased his
weekly working hours from over one hundred hours to about
seventy hours. On cross-examination, Appellant testified that he
completed eighteen hours of continuing medical education
while he was in Croatia for his honeymoon and, as a result, he
deducted those travel expenses from his business income.
Appellee also testified during the hearing. She testified that her
annual income was between sixty-eight and sixty-nine thousand
dollars, not including any support payments she receives. She
testified that until recently, she had provided the children's
health insurance benefits, despite the prior order that Appellant
Hocking App. Nos. 16CA19 and 16CA20 4
do so. She testified that it was her belief that Appellant's current
income was $240,000.00 and that he was capable of earning
that much.
After considering the testimony of the parties and reviewing tax
returns, the trial court issued its decision finding Appellant to
be voluntarily underemployed. The trial court reduced spousal
support by $100.00 a month, from $2,000.00 per month to
$1,900.00, but increased child support from $832.59 per month
to $1,371.83 per month. The trial court noted in its entry, in
connection with its finding that Appellant was voluntarily
underemployed, that ‘[t]he net results cannot be precisely
computed but the Court has made an effort to develop a
reasonable child support calculation.’ The trial court properly
attached a child support computation worksheet to its decision,
noting that it had calculated support based upon a $150,000.00
income limit as well as based upon the parties' actual combined
annual income, which was $320,586.40, and had decided not to
cap the support at the $150,000.00 limit. * * *”
{¶3} On his first, direct appeal of the matter, Appellant argued that
the trial court erred in extrapolating his child support obligation beyond the
obligation for a combined income of $150,000, and that the trial court erred
in calculating his income. Cummin at ¶ 6. With regard to the income
calculation contention, Appellant argued that the trial court erred in finding
he was voluntarily underemployed and imputing income to him. Appellant
also argued the evidence did not support the gross income calculation the
trial court attributed to him. Id. at ¶ 17.
{¶4} On appeal, this Court affirmed the trial court’s decision to
extrapolate Appellant’s child support obligation. Id. at ¶ 16. We also
Hocking App. Nos. 16CA19 and 16CA20 5
affirmed the trial court’s calculation of Appellant’s gross income, including
its decision that Appellant was voluntarily underemployed and, as such, its
decision to impute income to Appellant. Id. at ¶ 25. However, we observed
as follows:
“Here, although the record is clear on the reasons the trial court
decided to impute income, we cannot ascertain from the trial
court’s journal entry the amount of potential income the trial
court actually imputed to Appellant.”
Because we found the record “unclear as to how much income was
imputed[,]” we reversed the decision, in part, and remanded the matter to the
trial court for further proceedings consistent with our opinion. Id. at ¶ 26.
{¶5} The trial court held a remand hearing on May 18, 2016. In its
remand decision the trial court noted that “[w]hile the parties understood the
Court was asked only to supply an income figure that was imputed to
Defendant in a prior decision, they expressed a mutual desire to submit other
current issues.” As such, the trial court permitted the parties to put on
additional evidence related to issues involving the medical, dental and
optical insurance coverage for the children and the management of the
children’s 529 College Savings Plans. Appellant also made an oral motion
to modify child support based upon changed circumstances which involved
the emancipation of one of the parties’ children as well as the birth of a child
between Appellant and his new wife.
Hocking App. Nos. 16CA19 and 16CA20 6
{¶6} Following the hearing, the trial court issued a Remand Decision
and Journal Entry on July 28, 2016. Appellant filed a timely appeal from
that decision. The trial court issued another decision on August 18, 2016,
entitled Decision on Child Support and Judgment Entry. Appellant also
appealed that decision. This Court sua sponte consolidated the appeals on
September 1, 2016. Appellant now raises two assignments of error for our
review, as follows.
ASSIGNMENTS OF ERROR
“I. THE TRIAL ERRED IN CALCULATING DR. CUMMIN’S
INCOME ON REMAND.
II. THE TRIAL COURT ERRED IN COMPUTING DR. CUMMIN’S
GROSS INCOME FOR PURPOSES OF THE MOTION TO
MODIFY CHILD SUPPORT.”
ASSIGNMENT OF ERROR I
{¶7} In his first assignment of error, Appellant contends that the trial
court erred in calculating his income on remand. Appellant also contends
that the trial court failed to comply with this Court’s remand mandate, and
therefore abused its discretion. For the following reasons, we agree with
Appellant's remand argument.
{¶8} We review child support matters under an abuse-of-discretion
standard. See Booth v. Booth, 44 Ohio St. 3d 142, 144, 541 N.E.2d 1028
(1989). “ ‘Although the abuse of discretion standard usually affords
Hocking App. Nos. 16CA19 and 16CA20 7
maximum [deference] to the lower court, no court retains discretion to adopt
an incorrect legal rule or to apply an appropriate rule in an inappropriate
manner. Such a course of conduct would result in an abuse of discretion.’ ”
See 2-J Supply, Inc. v. Garrett & Parker, L.L.C., 4th Dist. Highland No.
13CA29, 2015 -Ohio- 2757, ¶ 9; quoting Safest Neighborhood Assn. v.
Athens Bd. of Zoning Appeals, 2013–Ohio–5610, 5 N.E.3d 694, ¶ 16; citing
Harsha, William, H., The Substance of Appeals, 17 Ohio Lawyer, No. 6, 17.
When applying the abuse-of-discretion standard of review, appellate courts
must not substitute their judgment for that of the trial courts. See In re Jane
Doe 1, 57 Ohio St. 3d 135, 138, 566 N.E.2d 1181 (1991). Furthermore, an
appellate court must presume that the findings of the trial court are correct
because the finder of fact is best able to observe the witnesses and to use
those observations to weigh witness credibility. Seasons Coal Co. v.
Cleveland, 10 Ohio St. 3d 77, 81, 461 N.E.2d 1273 (1984); see also
Mahlerwein v. Mahlerwein, 160 Ohio App. 3d 564, 2005-Ohio-1835, 828
N.E.2d 153, ¶ 19 (4th Dist.).
{¶9} R.C. 3119.022 governs the procedure for awarding and
calculating child support. The statute's overriding concern is to ensure the
best interest of the child for whom support is being awarded. Rock v. Cabral,
67 Ohio St. 3d 108, 110, 616 N.E.2d 218 (1993). Thus, the statute's
Hocking App. Nos. 16CA19 and 16CA20 8
provisions are mandatory in nature and courts must follow the statute
literally and technically in all material aspects. Marker v. Grimm, 65 Ohio
St.3d 139, 601 N.E.2d 496, paragraph two of the syllabus (1992); see also
Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, ¶ 7.
If a trial court makes the proper calculations on the applicable worksheet, the
amount shown is “rebuttably presumed” to be the correct amount of child
support due. See Rock at 110; Albright; see also R.C. 3119.03.
{¶10} Further, as we noted in Cummin, supra, at ¶ 19, “ ‘[i]n
calculating child support, a trial court must determine the annual income of
each of parent.’ ” McLaughlin v. Kessler, 12th Dist. Fayette No. CA2011–
09–021, 2012-Ohio-3317, ¶ 13. For an unemployed or underemployed
parent, income is the “sum of the gross income of the parent and any
potential income of the parent.” Id.; R.C. 3119.01(C)(5)(b).
{¶11} During the first, direct appeal of this matter, this Court
affirmed the trial court's overall calculation of Appellant's annual income, as
well as the trial court' determination that Appellant was voluntarily
underemployed. We also affirmed the trial court's decision to impute
income to Appellant as a result of his voluntary underemployment. As
explained above, we ordered a limited remand solely for the purpose of
determining how much of Appellant's annual income, as determined by the
Hocking App. Nos. 16CA19 and 16CA20 9
trial court to be $258,427.00, constituted imputed income. The trial court
was not ordered, nor was it authorized, to completely recalculate Appellant's
annual income, or to revisit its prior decision regarding Appellant's
voluntarily underemployment and whether income should be imputed.
Those issues had already been determined by the trial court and had been
affirmed by this Court on appeal.
{¶12} However, on remand, it appears the trial court permitted
additional testimony regarding Appellant's 2014 annual income and instead
of clarifying how much of Appellant's annual income figure was imputed
income, the trial court found that Appellant's annual income of $258,427.00
was actual income and did not include any imputed income. In fact, despite
expressly acknowledging, both on the record during the remand hearing and
in its remand decision, that the case has been remanded solely for a
determination regarding the amount of income that had been imputed, the
amount of imputed income was not even addressed by the trial court. As
such, the trial court's remand proceedings were not consistent with this
Court's prior decision in this case or our remand order.
{¶13} “When the issues before the trial court on remand are
substantially similar to those involved in the prior appeal, the trial court is
bound to follow the determination of the law as found by the appellate
Hocking App. Nos. 16CA19 and 16CA20 10
court.” F.M.D. v. Medina (Apr. 5, 2000), 9th Dist. Medina No. 2962–M,
2000 WL 354115; citing Nolan v, Nolan, 11 Ohio St. 3d 1, 3, 462 N.E.2d
410 (1984). An inferior court has no discretion to disregard a superior
court's mandate from a previous appeal in the same case. Nolan at 5.
Furthermore, the court is “without authority to extend or vary from the
mandate given.” Id. at 4. Additionally, in a case involving a partial remand,
the trial court may not try an issue that was not set forth in the appellate
court's mandate. Pingue v. Hyslop, 10th Dist. Franklin No. 01AP–1000,
2002–Ohio–2879, ¶ 35; quoting Oliver v. Empire Equip. Co., 8th Dist.
Cuyahoga No. 48686, 1985 WL 7950, *4 (1985).
{¶14} In Nolan, the appellate court reversed the trial court's decision
awarding the parties joint occupancy of the marital home and remanded the
matter for further proceedings. Nolan at 2. On remand, the trial court made
no finding regarding the right of the occupancy of the marital home and
instead restructured the real estate settlement. Id. The appellate court
subsequently affirmed the remand decision and the case was appealed to the
Supreme Court of Ohio. Id. at 3. Presented with the essential question of
whether the trial court "impermissibly exceeded the scope of its authority on
remand[,]" the Supreme Court found necessary a review of the "law of the
Hocking App. Nos. 16CA19 and 16CA20 11
case" doctrine. Id. The Nolan court explained the law of the case doctrine as
follows:
"Briefly, the doctrine provides that the decision of a reviewing
court in a case remains the law of that case on the legal
questions involved for all subsequent proceedings in the case at
both the trial and reviewing levels. Gohman v. St. Bernard
(1924), 111 Ohio St. 726, 730, 146 N.E. 291, reversed on other
grounds New York Life Ins. Co. v. Hosbrook (1935), 130 Ohio
St. 101, 196 N.E. 888 [3 Ohio Op. 138]; Gottfried v. Yocum
(App.1953), 72 Ohio Law. Abs. 343, 345, 133 N.E.2d 389.
The doctrine is considered to be a rule of practice rather than a
binding rule of substantive law and will not be applied so as to
achieve unjust results. Gohman, supra, 111 Ohio St. at 730-731,
146 N.E. 291. However, the rule is necessary to ensure
consistency of results in a case, to avoid endless litigation by
settling the issues, and to preserve the structure of superior and
inferior courts as designed by the Ohio Constitution. See State,
ex rel. Potain, v. Mathews (1979), 59 Ohio St. 2d 29, 32, 391
N.E.2d 343 [13 O.O.3d 17].
In pursuit of these goals, the doctrine functions to compel trial
courts to follow the mandates of reviewing courts. See, e.g.,
State, ex rel. Special Prosecutors, v. Judges (1978), 55 Ohio St.
2d 94, 378 N.E.2d 162 [9 O.O.3d 88]; Charles A. Burton, Inc.
v. Durkee (1954), 162 Ohio St. 433, 123 N.E.2d 432 [55 Ohio Op.
247]; Schmelzer v. Farrar (1976), 48 Ohio App. 2d 210, 212,
356 N.E.2d 751 [2 O.O.3d 178]; Miller v. Miller (1960), 114
Ohio App. 234, 235, 181 N.E.2d 282 [19 O.O.2d 108]." Nolan
at 3.
Ultimately, the Supreme Court determined that the sole basis for remand
was the issue of occupancy of the marital home and that the trial court's
decision to instead rework the financial aspects of the marital home
Hocking App. Nos. 16CA19 and 16CA20 12
disposition and failure to even address the subject of remand defeated the
purposes of the doctrine of law of the case. Nolan at 4-5.
{¶15} We conclude that here, much like the Nolan case, the trial
court's decision on remand to recalculate and re-classify Appellant's annual
income as all actual income, instead of determining the imputed amount of
income as directed in the remand order, violated the law of the case doctrine
and exceeded the scope of the limited remand. As such, Appellant's first
assignment of error is sustained and the judgment of the trial court is
reversed. Further, we again remand this matter for the limited purpose of
determining how much of Appellant’s income, as already determined by the
trial court to be $258,427.00, constituted imputed income.
ASSIGNMENT OF ERROR II
{¶16} In his second assignment of error, Appellant contends that the
trial court erred in computing his gross income for purposes of the motion to
modify child support. Appellant specifically argues that 1) the trial court
relied upon inadmissible evidence when imputing $220,000.00 worth of
gross income to Appellant; 2) the trial court failed to separately calculate his
actual income and the amount of income it was imputing; 3) the trial court
erred by including his income from his Coroner’s position while also
imputing the full salary of a private practice physician; 4) the trial court
Hocking App. Nos. 16CA19 and 16CA20 13
erred by failing to credit him with an adjustment for having a resident child;
5) the trial court erred in allocating credits for the provision of health
insurance; and 6) the trial court failed to make findings of fact and
conclusion of law, despite his timely request.
{¶17} Before we reach the merits of Appellant's arguments under this
assignment of error, we must first determine whether the trial court's August
18, 2016 entry constitutes a final appealable order. This Court has
previously noted that “[a]n appellate court's jurisdiction over trial court
judgments extends only to final orders.” Elliott v. Rhodes, 4th Dist.
Pickaway No. 10CA26, 2011-Ohio-339, ¶ 17; citing Ohio Const. Art. IV,
Section 3(B)(2). Section 2505.02(B)(2) defines “a final order that may be
reviewed, affirmed, modified, or reversed” as one that “affects a substantial
right made in a special proceeding * * *.” Further “[a]n order affects a
substantial right if, in the absence of an immediate appeal, one of the parties
would be foreclosed from appropriate relief in the future.” Koroshazi v.
Koroshazi, 110 Ohio App. 3d 637, 640, 674 N.E.2d 1266 (1996); citing Bell
v. Mt. Sinai Med. Ctr., 67 Ohio St. 3d 60, 63, 616 N.E.2d 181 (1993). In
order to constitute a final order, the order must dispose of the whole case or
some separate and distinct branch. See, e.g., Noble v. Colwell, 44 Ohio St. 3d
92, 94, 540 N.E.2d 1381 (1989). Generally, when an order does not
Hocking App. Nos. 16CA19 and 16CA20 14
contemplate further action and no other related issues remain pending, the
order normally constitutes a final order. Elliott v. Rhodes at ¶ 17; citing In re
H.T.-W., 6th Dist. Lucas No. L–10–1027, 2010–Ohio–1714, ¶ 7; see also
Christian v. Johnson, 9th Dist. Summit No. 24327, 2009–Ohio–3863.
{¶18} As set forth above, this matter was remanded to the trial court
for clarification of the amount of income the trial court imputed to
Appellant. However, by agreement of the parties, several new issues were
brought before the trial court, including Appellant’s oral motion for a
modification of child support based upon changed circumstances which
included the emancipation of one of the parties’ children, as well as the birth
of a child between Appellant and his new wife. The other issues brought
before the trial court involved the management of the parties’ children’s 529
College Savings Plans, and the provision of medical, dental and optical
insurance for the children. Testimony was presented on all of these issues
during the remand hearing.
{¶19} At the conclusion of the hearing, the trial court stated, on the
record, that an agreed entry regarding the 529 College Savings Plans needed
to be filed, and that an agreed entry regarding the provision of medical,
dental and optical insurance coverage needed to be filed. Further, the trial
court expressly stated in its August 18, 2016 entry that it was “still awaiting
Hocking App. Nos. 16CA19 and 16CA20 15
the agreed entry from counsel resolving the allocation of
medical/dental/optical insurance.” Our review of the record indicates that at
the time the trial court issued its judgment on August 19, 2016, the issues
related to the 529 College Savings Plans and the insurance coverage for the
children remained unresolved and pending. Thus, it appears that although
the trial court resolved the issues related to Appellant’s post-remand, oral
motion to modify child support, and despite its language in the entry that the
judgment was a final appealable order, the trial court did not resolve these
other pending issues. Accordingly, because this case includes multiple
claims and the trial court’s judgment did not resolve all pending issues, the
trial court’s decision does not constitute a final, appealable order. See Elliott,
supra, at ¶ 18. Accordingly, we hereby dismiss this portion of Appellant’s
appeal. Further, this matter is again remanded for the limited purpose of
determining how much of Appellant’s income, as already determined by the
trial court to be $258,427.00, constituted imputed income.
JUDGMENT REVERSED IN
PART, REMANDED IN PART,
AND DISMISSED IN PART.
Hocking App. Nos. 16CA19 and 16CA20 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED IN PART,
REMANDED IN PART, AND DISMISSED IN PART. Appellant shall
recover costs from Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error I;
Concurs in Judgment Only as to Assignment of Error II.
Hoover, J.: Concurs in Judgment Only.
For the Court,
BY: __________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.