In re G.B. , 2019 Ohio 236 ( 2019 )

[Cite as In re G.B., 2019-Ohio-236.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
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IN RE: G.B. : Appellate Case No. 27992
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: Trial Court Case No. 2015-3161
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: (Appeal from Common Pleas Court-
: Juvenile Division)
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OPINION
Rendered on the 25th day of January, 2019.
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JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 10532 Success Lane, Dayton, Ohio
45458
Attorney for Plaintiff-Appellant Mother
ELLEN C. WEPRIN, Atty. Reg. No. 0042354, 4 E. Schantz Avenue, Dayton, Ohio 45409
Attorney for Defendant-Appellee Father
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DONOVAN, J.
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{¶ 1} This matter is before the court on Mother’s May 4, 2018 Notice of Appeal
from the juvenile court’s April 6, 2018 order, which denied her three motions to show
cause why Father should not be held in contempt and granted Father’s motion for child
support. The court issued its order without conducting an evidentiary hearing on any of
the motions. We conclude that the juvenile court abused its discretion, and we reverse
and remand the matter for further proceedings consistent with this opinion.
{¶ 2} Mother and Father’s son, G.B., was born in 2008. The parents’ litigation has
a complicated history, which we reviewed in In re G.B., 2d Dist. Montgomery No. 27601,
2017-Ohio-8418. This court noted that a circuit court in Oakland County, Michigan
originally exercised jurisdiction over this matter, when Mother lived in Michigan.
Pursuant to a 2013 order of the Michigan court, Father had custody of G.B. and Mother
had parenting time. In May 2015, Mother filed a petition to register a foreign order in the
Montgomery County, Ohio juvenile court pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act. By mid-2015, Mother had moved to Ohio, and the
Montgomery County juvenile court had accepted jurisdiction over matters related to G.B.’s
parenting. In the 2017 Opinion, this court affirmed the juvenile court’s April 26, 2017
judgment, which overruled Mother’s contempt motion, implemented shared parenting,
designated Father as the residential parent, and granted Mother visitation with G.B.
pursuant to the juvenile court’s standard order of visitation.
{¶ 3} This matter is now on appeal from the juvenile court’s April 6, 2018 order.
That order summarized the parties’ filings as follows:
This matter is before the Court upon the Motions to Show Cause * * *
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filed by [Mother] [on] filed March 31, 2017, April 26, 2017, and June 22,
2017. This matter is also before the Court on the Motion for Support * * *
filed by [Father] * * * on March 15, 2017. A Motion to Dismiss [Father’s]
Motion was filed by [Mother] on March 31, 2017. A hearing on the Motion
was originally scheduled for August 7, 2017. Following a series of
continuances, a pre-trial hearing was conducted on January 23, 2017 [sic].
Following the pre-trial hearing, the Court ordered the parties to submit
proposals to the Court to resolve the pending Motions.1 [Father] filed a
proposal on February 13, 2018. [Mother] filed a proposal on February 14,
2018. [Mother] filed replies to [Father’s] proposal on February 22, 2018
and on March 12, 2018.
{¶ 4} The court noted that, in his proposal, Father requested that Mother pay
retroactive child support “to the prior date of filing,” that the parties split medical expenses
“according to percentage of income,” and that he be consulted prior to medical treatment.
The court noted that Father also asked the court to dismiss Mother’s motions to show
cause.
1 The court’s January 24, 2018 order provided as follows:
This matter came before the Court for a pretrial hearing on January 23, 2018. In
contemplation of the hearing, the Court ORDERS the following:
● Both parties shall submit an Affidavit of Income and Expenses for the purpose of
determining a proper child support order;
● Both parties shall submit documentation of any and all medical expenses and
counseling fees incurred from April 26, 2017 until present;
● Both parties shall submit a proposed parenting time agreement to the Court no later
than February 14, 2018. The proposed parenting agreements shall address the issues of
visitation and party communication, as well as any other issues or requests relating to
parenting time deemed relevant by the parties for consideration by this Court. * * *
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{¶ 5} The court noted that, in Mother’s proposals, she argued that Father “denied
her parenting time on various occasions and ha[d] not paid his portion of medical
expenses,” and Mother requested that she be named the legal and physical custodian of
the child. Mother also argued that Father should be found in contempt, that she should
be granted “compensatory parenting time,” and that daily telephone communication with
the child should be ordered. Mother also sought an award of attorney fees. In her reply
to Father’s proposal, Mother further asserted that “any ordered support should not be
retroactive.” The court noted that Mother asked the court to impute income to Father
and to split medical expenses evenly.
{¶ 6} In resolving the parties’ motions, the court made the following orders:
● Pick up and drop off of the child for parenting time shall occur at the child’s
school. All other provisions of the Standard Order of Parenting Time in
regard to pick up and drop off of the child remain in effect.
● All communications between the parties shall be through Our Family
Wizard. Each party shall be responsible for the yearly cost.
● Parties shall split all medical and counseling bills according to their
percentage of income. In accordance with line 16 of the support
worksheet, [Mother] shall be responsible for 77.38% of the
medical/counseling costs, while [Father] shall be responsible for 22.62% of
the costs. Each party must notify the other within three (3) days from
receipt of any medical bill. Payments shall be made as soon as practicably
possible.
● Unless an appointment is agreed upon by both parties, medical and
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counseling appointments scheduled by one parent shall only take place
during their respective parenting time schedule. The only exception shall
be in the event of an emergency.
● In order to better balance the time available to each parent for the
scheduling of counseling or other medical appointments, Mother shall
exercise visitation with the child every week on Wednesday AND Thursday
from 5:00 PM until 9:00 PM. If this additional mid-week parenting time is
set to occur during a break from school, the parties shall follow the
guidelines under the Standard Order of Parenting Time. All other
provisions of the Montgomery County Juvenile Court Standard Order of
Parenting Time shall remain in effect, including the suspension of mid-week
parenting time during the child’s summer vacation.
● The child shall not be removed from school premises by either party
during school hours if said school days take place during the other parent’s
parenting time schedule, unless agreed upon by the parties or in the event
of an emergency.
● A support order shall be issued in accordance with the worksheet and
support order as attached and incorporated herein to this Order. [Father’s]
income shall be calculated based on the three year average of his base
income. The support order shall be effective concurrent with the filing date
of this Order.
● Each party shall be solely responsible for their own legal fees.
Based on the circumstances, the Motion(s) for Contempt are DENIED.
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The Motion for Support is GRANTED.
{¶ 7} The support order attached to the juvenile court’s order required Mother to
pay child support in the amount of $933.31 per month when private medical insurance
was provided, and $905.86 per month as well as $121.33 per month cash medical support
when private health insurance was not provided. A child support computation worksheet
was also attached.
{¶ 8} On April 18, 2018, Mother filed a motion for findings of fact and conclusions
of law. The motion requested that “the finding of facts and conclusion of law be in
accordance with Civ.R. 52” and that “there be a full hearing on all aspects of all Motions
before the court that led to this decision.” The juvenile court did not rule on this motion.
{¶ 9} On May 4, 2018, Mother filed a notice of appeal from the juvenile court’s
April 6, 2018 order; although no hearing had been held, she also filed a “Praecipe of
Transcript,” in which she requested “that the Court Reporter prepare a transcript of the
hearing in this matter on April 6, 2018.” On the same date, Mother filed a “Motion for
Copy of Exhibits All Delivered to Court,” in which she requested “that any exhibits in
support of her Motion filed be a part of the original record of proceedings for the Court of
Appeals in this matter.”
{¶ 10} On May 8, 2018, Mother filed a “Motion for Stay of Judgment in
Accordance with Civil Rule 62.” The motion provided in part as follows:
It is requested herein that there was never a trial on the issue or
decision that was a summary judgment of the court. The court entered a
judgment after requesting a brief and exhibits. A brief and exhibits were
submitted by the Natural Mother * * *, on the 14th day of February. The
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exhibits were personally delivered to the court and reviewed by the court in
reaching its decision.
It is requested in accordance with Civil Rule 62 that there be a trial
of this matter.
In accordance with Civil Rule 52, there be findings of facts and
conclusions of law that were requested. It is requested that there be relief
for [sic] judgment in this matter as and to all aspects, including any finding
of child support and failures to find additional time of the Mother with the
minor child.
There has been a failure to have a record, failure to have a trial,
failure to have summary judgment, failure to have ruling on the exhibits
presented, failure to have visitation, failure to have telephone calls, failure
to follow court orders, failure to pay monies for medical care and doctor
visits, and such other relief as stated in this Motion, that same be heard
forthwith, by this court and there be a stay of all provisions of this Order.
It is requested that this be immediately set for hearing in accordance
with law.
{¶ 11} The juvenile court did not rule upon the motion for stay.
{¶ 12} On July 25, 2018, Mother filed a “Motion Granting a Trial.” The motion
provided as follows:
First, it is respectfully requested that the Court allow a trial to be
heard because there was no such trial was allowed before or after receiving
the Entry and Order on April 6, 2018. The judge set it on submission and
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did not call it summary judgment and decided on it on summation and trial
was requested.
Second, there was a motion for findings of fact and conclusions of
law filed on April 18, 2018 and there has been no ruling on said motion.
Third, there was a motion for stay of judgment in accordance with
civil rule 62 filed on May 8, 2018 and to date there has been no ruling on
said motion.
As such, it is respectfully requested that a trial on all matters be
granted. It is requested that this be immediately set for a hearing in
accordance with law.
{¶ 13} The court did not rule on the motion for a new trial.
{¶ 14} Mother asserts two assignments of error herein, which we will consider in
reverse order for ease of analysis. Her second assignment of error is as follows:
THE TRIAL COURT ERRED IN NOT PROVIDING HEARING OR TRIAL
ON ALL ORIGINAL MOTIONS.
{¶ 15} Mother asserts as follows:
According to Rule 402 [Mother] is entitled to a trial as it is the duty of
the Court especially when [Mother] respectfully requested such hearing
throughout this entire matter. Due to the lack of action by the Montgomery
County Juvenile Court [Mother] has been forced to file several motions
requesting relief and/or requesting a hearing on the matters. To date
neither have come to fruition and [Mother] is stuck without an answer and
2
Juv.R. 40 governs the appointment and authority of magistrates.
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uncertainty in her legal matter. Therefore, [Mother] respectfully requests
that a hearing and trial be granted on all pending matters.
We construe this assignment of error to assert that Mother was entitled to an evidentiary
hearing or trial on her motions to show cause and Father’s motion for child support.
{¶ 16} Juv.R. 19, which governs motions filed in juvenile court, provides in part:
“An application to the court for an order shall be by motion. * * * It shall state with
particularity the grounds upon which it is made and shall set forth the relief or order
sought. It shall be supported by a memorandum containing citations of authority and
may be supported by an affidavit.” Finally, the rule provides: “To expedite its business,
unless otherwise provided by statute or rule, the court may make provision by rule or
order for the submission and determination of motions without oral hearing upon brief
written statements of reasons in support and opposition.”
{¶ 17} We initially conclude that the intent of the Court’s January 24 pretrial order
(requiring the parties to submit certain documents to the court) is not clear, since it
ordered the parties to submit that information “in contemplation of the hearing.” This could
mean that “in consideration of” the previous day’s pretrial hearing and pursuant to
Juv.R.19, the parties must submit documents and arguments for the court to decide the
pending motions without a separate hearing. Or it could mean “in anticipation of” a hearing
on the pending motions, the parties must submit certain documents and arguments to
assist the court at the hearing. However, this latter interpretation is weakened by the
content and tenor of the parties’ subsequent “proposals” and “memorandums,” which
sound more like closing arguments than opening statements. We conclude that the
court’s April 6, 2018 “Entry and Order” was not supported by the record – i.e. the filings
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prior to the non-oral hearing – and constituted an abuse of discretion, insofar as it
addressed disputed factual issues, such as Father’s alleged underemployment and the
averaging of his total income rather than his base, and Mother’s and Father’s diametrically
opposed versions of their problems with visitation. We will further address each party’s
motions individually.
Mother’s Contempt Motions
{¶ 18} The juvenile court’s April 6, 2018 order overruled Mother’s three contempt
motions by stating, “based on the circumstances, the Motion(s) for Contempt are
DENIED.” This conclusion was reached without conducting an evidentiary hearing or
reciting the supporting circumstances.
{¶ 19} It is within a trial court’s discretion whether to provide a litigant seeking a
contempt finding an evidentiary hearing. Hillman v. Edwards, 10th Dist. Franklin No.
10AP-950, 2011-Ohio-2677, ¶ 29. A court abuses its discretion when a judgment is
unreasonable, arbitrary, or unconscionable. Abrams v. Abrams, 2017-Ohio-4319, 92
N.E.3d 368, ¶ 19 (2d Dist.). Most often, a trial court’s judgment constitutes an abuse of
discretion because it is unreasonable, with an unreasonable judgment being one where
there is “no reasoning process” supporting the judgment. Id., quoting DeWitt v. DeWitt,
2d Dist. Darke No. 1386, 1996 WL 125920, *2 (March 22, 1996). A trial court, assuming
factual issues exist, abuses its discretion by denying a contempt motion without
conducting an evidentiary hearing. State ex rel. Dewine v. C&D Disposal Technologies,
L.L.C., 7th Dist. Jefferson No. 11 JE 19, 2012-Ohio-3005. Conversely, a trial court does
not abuse its discretion by overruling a contempt motion without conducting an evidentiary
hearing when the record, in the absence of a hearing, allows such a determination.
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Burchett v. Burchett, 4th Dist. Scioto No. 16CA3784, 2017-Ohio-2667.
{¶ 20} We conclude that the April 6, 2018 judgment overruling Mother’s contempt
motions was unreasonable, and, thus, an abuse of discretion, because the judgment does
not articulate the court’s rationale in denying the motions. Accordingly, we hereby
reverse and remand with instructions for the juvenile court to either conduct an evidentiary
hearing or issue a revised judgment which articulates the court’s rationale for the
summary overruling of Mother’s motions.
FATHER’S CHILD SUPPORT MOTION
{¶ 21} The worksheet attached to the court’s order determined each party’s
income based upon the affidavits the parties filed to comply with the January 24 order.
Father’s affidavit reported that he was self-employed, that his base income in 2015 was
$35,000, that he had $75,000 in overtime, commission or bonus income in 2015, that his
base income in 2016 was also $35,000, that he had $17,000 in overtime, commission, or
bonus income in 2016, and that he had no income from any source in 2017. Despite the
April 6 judgment’s language that Father’s income would be “calculated based upon the
three year average of his base income,” the worksheet used $31,666.67 as Father’s
income, which reflected neither a three-year average of his base income nor a three-year
average of his total income. The worksheet also calculated Mother’s income using a
three-year average, based upon her affidavit. Mother’s affidavit reported her 2015
income as $105,000, her 2016 income as $110,000, and her 2017 income as also
$110,000, with the three-year average being $108,333.33. The support order
established Mother’s child support obligation using each party’s three-year average
income as set forth in the child support worksheet. The record establishes that Mother,
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in a document filed on March 12, 2018, questioned Father’s unemployed status, stating
that he has a “bachelor’s degree * * * and many years of professional experience.” Thus,
Mother requested that income be imputed to Father.
{¶ 22} We review child support decisions under an abuse of discretion standard.
Mossing-Landers v. Landers, 2016-Ohio-7625, 73 N.E.3d 1060, ¶ 21 (2d Dist.), citing
Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). This being said, a
litigant is entitled to procedural due process “where shared parenting plans are
terminated, parental rights are modified, and child support payments are ordered.”
Whitman v. Whitman, 3d Dist. Hancock No. 5-05-36, 2007-Ohio-4231, ¶ 16, citing
Doerfler v. Doerfler, 9th Dist. Wayne No. 06CA21, 2006-Ohio-6960 and In re Murphy, 5th
Dist. Stark No. 2005CA109, 2005-Ohio-5656. Procedural due process requires “notice
of the hearing and * * * an opportunity to be heard.” Id., citing Goldberg v. Kelly, 397
U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) and Mathews v. Eldridge, 424 U.S. 319,
96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Whether a person has been afforded procedural
due process is a matter of law to be determined de novo. Id. at ¶ 15.
{¶ 23} “[T]he starting point for determining the proper amount of child support to
be paid is parental income, defined as gross income for those employed to full capacity
or gross income plus potential income for those not employed to full capacity.” Abrams,
2017-Ohio-4319, 92 N.E.3d 368, ¶ 42, quoting Wolf-Sabatino v. Sabatino, 10th Dist.
Franklin No. 12AP-1042, 2014-Ohio-1252, ¶ 7. (Other citations omitted.)
{¶ 24} We conclude that the juvenile court abused its discretion in establishing
Mother’s child support obligation. The child support order was unreasonable because it
did not address, and without a hearing could not address, Father’s unemployment and
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whether, based upon the circumstances of the unemployment, it was appropriate to
impute income to Father for 2017. Further, the order, without explanation and therefore
unreasonably, determined Mother’s child support obligation using only a portion of
Father’s reported income. In short, in light of the issues relating to Father’s income,
Mother had a due process right to be heard regarding Father’s child support request.
Accordingly, we reverse the juvenile court’s child support order and remand the issue to
the juvenile court so that an evidentiary hearing can be conducted.
{¶ 25} Based upon the foregoing, Mother’s second assignment of error is
sustained.
{¶ 26} Mother’s first assignment of error is as follows:
THE TRIAL COURT DID ERR IN NOT RULING ON PENDING
MOTIONS.
{¶ 27} Mother argues that, upon receiving the juvenile court’s order of April 6,
2018, she “timely filed for recordings of the proceedings and other additional filings were
done. A new trial was requested and to date there has been no ruling from the Court.”
Mother asserts that she “requested that a finding be made in accordance with Civil Rule
52 and that a full hearing be granted. To date there has been no ruling on said motion
nor has a trial date ever been set nor has there ever been summary judgment.” Mother
argues the “Court has a duty to provide answers to pending motions whether it is to grant
or deny motions. Due to Montgomery County Juvenile Courts not ruling on said pending
motions presented by [Mother] it is requested they do so in accordance with the law.
Thus have a hearing or a trial that was never granted.”
{¶ 28} Mother’s May 8, 2018 motion for a stay and her July 25, 2018 motion for a
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trial were filed after her notice of appeal, and thus are not properly before this court.
Therefore, Mother’s second assignment of error is overruled.
{¶ 29} The judgment of the trial court is reversed, and the matter is remanded for
further proceedings in accordance with this opinion.
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FROELICH, J. and TUCKER, J., concur.
Copies sent to:
James R. Kirkland
Ellen C. Weprin
Hon. Helen Wallace