Adams v. Adams , 2013 Ohio 2947 ( 2013 )

[Cite as Adams v. Adams, 2013-Ohio-2947.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
MARISSA D. ADAMS,
PLAINTIFF-APPELLEE, CASE NO. 14-13-01
v.
MICHAEL J. ADAMS, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Domestic Relations Division
Trial Court No. 04-DR-0168
Judgment Reversed and Cause Remanded
Date of Decision: July 8, 2013
APPEARANCES:
Anthony W. Greco for Appellant
Rebecca J. Stumler for Appellee
Case No. 14-13-01
ROGERS, J.
{¶1} Defendant-Appellant, Michael Jason Adams (“Jason”), appeals the
judgment of the Court of Common Pleas of Union County modifying his child
support obligation and awarding Plaintiff-Appellee, Marissa Adams (“Marissa”),
her attorney fees and litigation costs. On appeal, Jason argues that the trial court
erred by: (1) finding that a substantial change of circumstances occurred; (2)
finding that the parties agreed to remove Jason’s obligation to reimburse Marissa
for the cost of their minor child’s health insurance; (3) failing to make findings
regarding Jason’s designation as obligor for child support purposes; (4) improperly
calculating the parties’ incomes; and (5) awarding Marissa her attorney fees and
costs. For the reasons that follow, we reverse the trial court’s judgment.
{¶2} Jason and Marissa were married in June 2003. The couple has one
minor child, A.A., who is approximately 12 years old. In August 2004, divorce
proceedings commenced and were concluded on January 13, 2005 when the
parties entered into an agreed judgment entry and divorce decree.
{¶3} The divorce decree incorporated a shared parenting plan (the “Original
Plan”). The Original Plan stated relevantly that “[t]he parties have agreed to a
deviation in their child support obligation so that neither party shall pay the other
child support.” (Docket No. 48). It also required that Jason reimburse Marisa for
A.A.’s health insurance premium up to a maximum of $200.00 per month.
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{¶4} On October 19, 2010, Marissa filed a post-decree motion to terminate
the Original Plan in which she requested to be designated A.A.’s residential parent
and to receive approximately $600.00 in monthly child support. Her motion did
not request an award of attorney fees or litigation expenses.
{¶5} The parties resolved many of the issues raised in Marissa’s motion by
filing an amended shared parenting plan (the “Amended Plan”) on June 20, 2011.
The Amended Plan, which was adopted by the trial court on July 12, 2011, left
several issues unresolved, however, including child support, dependency tax
exemptions, and health insurance. As to health insurance, the Amended Plan
provided that “[t]he cost of health insurance coverage for [A.A.] shall be included
in the child support calculation.” (Docket No. 108, p. 12).
{¶6} After the filing of Marissa’s motion, the parties experienced a variety
of discovery disputes that were highlighted by several competing motions to
compel and for Civ.R. 11 sanctions. Although the parties dismissed their
discovery-related motions by agreement on August 2, 2011, Marissa filed a
continuance motion on August 23, 2011 due to Jason’s alleged failure to provide
discovery. The trial court orally denied the motion on August 24, 2011, which
was the date of the hearing on Marissa’s motion for child support.
{¶7} At the hearing, the following relevant evidence was adduced. First,
Jason was called by Marissa as though on cross-examination. He testified at
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length regarding the payment of his monthly expenses and the relationship
between his trucking business, MLA Trucking, and Adams Brother Farms, which
is partly owned by his father, Michael Adams. Outside of this testimony, Jason
did not discuss anything relating to a change in his financial circumstances since
the Original Plan.
{¶8} Marissa then called Chrissy A. Powers, a forensic accountant, as an
expert witness. Based on her review of the financial records disclosed by Jason,
she found that several of the items he labeled as business expenses were
questionable. Powers also found that Jason was using MLA funds to cover
personal expenses. She estimated that from 2007 to 2011, Jason’s income had an
approximate range of $45,000.00 to $105,000.00. On cross-examination, Powers
acknowledged that the items she labeled as questionable business expenses were
properly claimed as business expenses for tax deduction purposes. She also
admitted that her estimate of $105,000.00 for Jason’s 2011 income was merely an
estimate. Since Powers’ testimony simply related to Jason’s income from 2007 to
2011, it did not cover any changes in Jason’s financial position since the 2005
filing of the Original Plan.
{¶9} Marissa then testified. According to her testimony, she had to cash in
the proceeds from two retirement plans in 2008 and 2009 and that at various points
she had to work two jobs to make ends meet. Despite her actions, Marissa said
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that she was still running a $1,600.00 monthly deficit. Further, Marissa indicated
that while Jason had repaid her for A.A.’s health insurance premium every month
as required by the Original Plan, he did not reimburse her for the previous two
months. Marissa also discussed the payment of her housing expenses. She owned
her house with a roommate, who contributed $1,000.00 to the monthly payment of
the mortgage. Additionally, Marissa rented part of the house out to another
person, who paid anywhere from $400.00 to $700.00 per month. Despite covering
her current financial situation, Marissa did not testify to her current position in
relation to her position at the time of the Original Plan’s filing.
{¶10} On October 19, 2011, the magistrate issued a decision with the
following relevant findings: (1) Marissa’s income for child support purposes was
approximately $46,000.00 per year; (2) Jason’s income for child support purposes
was approximately $78,000.00 per year; and (3) there was a substantial change of
circumstances meriting a modification of the original child support order. Based
on these findings, the trial court awarded Marissa approximately $700.00 per
month in child support. The trial court also ordered Jason to pay $2,036.67 in
attorney fees and $8,427.90 in litigation expenses to Marissa.
{¶11} Jason appealed the trial court’s judgment to this court. On appeal,
we found as follows:
Since the parties entered into an agreement to deviate the child
support obligation to zero, * * * the trial court was required to find
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more than a ten-percent deviation under R.C. 3119.79(A); the trial
court was also required to find a substantial change in circumstances
that was not contemplated at the time of the issuance of the child
support order under R.C. 3119.79(C). The trial court failed to make
this additional finding prior to modifying the child support order
here, and therefore, erred as a matter of law. Adams v. Adams, 3d
Dist. No. 14-12-03, 2012-Ohio-5131, ¶ 30 (hereinafter, “Adams I”).
Consequently, we reversed the trial court’s judgment and remanded this matter
with the instruction that the trial court “make further findings under R.C.
3119.79(C) based upon evidence in the record.” Id.{¶12} After remand, the trial court issued a judgment entry on December
17, 2012 in which it found that a substantial change of circumstances had occurred
under R.C. 3119.79(C). The trial court’s finding was as follows:
In the present case, the court FINDS that a substantial change of
circumstances that was not contemplated at the time of the issuance
of the original child support order has occurred since the last order
setting child support; specifically, on June 20, 2011, the parties filed
a first amended shared parenting plan, resolving many of the issues
in Marissa’s motion to terminate the original shared parenting plan,
with the exceptions of child support, the dependency tax exemption,
and health insurance, those issues “[t]o be determined by the court.”
* * * It is clear that [sic] both parties that these three issues would
be resolved by the Court upon further hearing. By incorporating the
agreement of the parties to remove [Jason]’s obligation to reimburse
[Marissa] for the cost of providing health insurance for [A.A.] and
that “the cost of health insurance coverage for the minor child shall
be included in the child support calculation,” the agreed upon first
amended shared parenting plan on its face sets forth a substantial
change of circumstances that was not contemplated at the time of the
issuance of the original child support order.
On July 12, 2011, the trial court adopted the parties’ first
amended shared parenting plan. * * * The court notes that [Jason]
thereafter relied upon this agreement by not tendering
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reimbursement to [Marissa] of the cost of providing health insurance
to the child in the two months following the filing of the amended
plan for shared parenting through the date of the motion hearing.
Clearly there was a bargained for exchange between the parties upon
which both parties relied and which constituted a substantial change
of circumstances that was not contemplated at the time of the
issuance of the original child support order and which occurred since
the last order setting child support. (Docket No. 166, p. 4-5).
The trial court also readopted the other portions of its previous ruling.
{¶13} Jason timely appealed this judgment, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FINDING THAT THE FIRST AMENDED
SHARED PARENTING PLAN’S LANGUAGE REMOVING
FATHER’S OBLIGATION TO REIMBURSE MOTHER FOR
THE COST OF PROVIDING HEALTH INSURANCE FOR
THE MINOR CHILD AND INCORPORATING THE COST
OF HEALTH INSURANCE COVERAGE INTO THE CHILD
SUPPORT CALCULATION SETS FORTH A SUBSTANTIAL
CHANGE OF CIRCUMSTANCES THAT WAS NOT
CONTEMPLATED AT THE TIME OF THE ISSUANCE OF
THE ORIGINAL CHILD SUPPORT ORDER.
Assignment of Error No. II
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FINDING THAT THE PARTIES AGREED
TO REMOVE FATHER’S OBLIGATION TO REIMBURSE
MOTHER FOR THE COST OF THE MINOR CHILD’S
HEALTH INSURANCE AS SAID FINDING IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
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Assignment of Error No. III
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT FAILED TO MAKE A FINDING OF
FACT AS TO WHY FATHER IS DESIGNATED AS THE
OBLIGOR FOR CHILD SUPPORT PURPOSES.
Assignment of Error No. IV
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY NOT PROPERLY CALCULATING BOTH
MOTHER’S AND FATHER’S INCOMES BY FAILING TO
CONSIDER MOTHER’S CONSISTENT RENTAL INCOME,
BY FAILING TO CONSIDER DISCREPANCIES IN
MOTHER’S MANY REPORTED GROSS INCOMES, AND BY
IMPROPERLY IMPUTING INCOME TO FATHER FOR
COSTS PAID FOR DEFENDANT’S RESIDENCE.
Assignment of Error No. V
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY AWARDING MOTHER’S ATTORNEY’S
FEES AND LITIGATION COSTS.
Assignment of Error No. I
{¶14} In his first assignment of error, Jason argues that the trial court erred
in finding a substantial change of circumstances that supported the modification of
his child support obligation. We agree.
Standard of Review
{¶15} Since trial courts are vested with broad discretion in deciding
whether to modify child support orders, Woloch v. Foster, 98 Ohio App.3d 806,
810 (2d Dist. 1994), we review a trial court’s modification of a child support order
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merely for an abuse of discretion, Pauly v. Pauly, 80 Ohio St.3d 386, 390 (1997).
A trial court abuses its discretion when its decision is contrary to law,
unreasonable, not supported by the evidence, or grossly unsound. State v. Boles,
2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18. When applying the abuse of
discretion standard, a reviewing court may not simply substitute its own judgment
for that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
R.C. 3119.79
{¶16} R.C. 3119.79 controls the modification of child support orders and
provides, in pertinent part, as follows:
(A) If an obligor or obligee under a child support order requests
that the court modify the amount of support required to be paid
pursuant to the child support order, the court shall recalculate the
amount of support that would be required to be paid under the child
support order in accordance with the schedule and the applicable
worksheet through the line establishing the actual annual obligation.
If that amount as recalculated is more than ten per cent greater than
or more than ten per cent less than the amount of child support
required to be paid pursuant to the existing child support order, the
deviation from the recalculated amount that would be required to be
paid under the schedule and the applicable worksheet shall be
considered by the court as a change of circumstance substantial
enough to require a modification of the child support amount.
***
(C) If the court determines that the amount of child support
required to be paid under the child support order shall be changed
due to a substantial change of circumstances that was not
contemplated at the time of the issuance of the original child support
order or the last modification of the child support order, the court
shall modify the amount of child support required to be paid under
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the child support order to comply with the schedule and the
applicable worksheet through the line establishing the actual annual
obligation, unless the court determines that the amount calculated
pursuant to the basic child support schedule and pursuant to the
applicable worksheet would be unjust or inappropriate and would
not be in the best interest of the child and enter in the journal the
figure, determination, and findings specified in section 3119.22 of
the Revised Code.
We have previously found that where the original child support order resulted
from the parties’ voluntary agreement, “R.C. 3119.79(A) must be read in
conjunction with R.C. 3119.79(C)” to appropriately determine whether a
modification of the order is proper. Adams I at ¶ 24.
{¶17} This matter focuses on the substantial change of circumstances
requirement under R.C. 3119.79(C). A trial court granting a modification of child
support “must find both (1) a change of circumstances, and (2) that such change in
circumstance ‘was not contemplated at the time of the issuance of the child
support order.’” Bonner v. Bonner, 3d Dist. No. 14-05-26, 2005-Ohio-6173, ¶ 11,
quoting R.C. 3119.79(C). It is well-established “that ‘changes in the
circumstances of the parties that may be considered must be material and not
purposely brought about by the complaining party, and must be considered on the
basis that the judgment sought to be modified was justified and proper when
made.’” Frey v. Frey, 3d Dist. No. 5-09-11, 2009-Ohio-5275, ¶ 14, quoting Nash
v. Nash, 77 Ohio App.3d 155 (9th Dist. 1945), paragraph two of the syllabus.
Based on this general rule, a substantial change of circumstances typically exists
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where the minor child’s needs or the allocation of parenting time has changed.
E.g., Melick v. Melick, 9th Dist. No. 26488, 2013-Ohio-1418, ¶ 14-17 (finding
substantial change of circumstances where couple’s son developed violent
tendencies, father stopped exercising his overnight visitations as a result, and son
required additional child care); Green v. Tarkington, 3d Dist. No. 10-10-02, 2010-
Ohio-2165, ¶ 14 (finding substantial change of circumstances where parental
rights were reallocated under shared parenting plan and father spent more time
with minor child); Smith v. Smith, 10th Dist. Nos. 99AP-453, 99AP-88 (Feb. 10,
2000) (finding substantial change of circumstances where shared parenting plan
was terminated and residential parent designation changed). Conversely, there is
generally not a substantial change of circumstances where there is a lack of
evidence indicating that the parents’ employment, parenting time, or respective
financial positions have changed after the issuance of the original child support
order. E.g., Frey at ¶ 16 (finding no substantial change of circumstances where
the parties’ parenting time did not change significantly and where the mother’s
employment did not change); Adams v. Sirmans, 3d Dist. No. 5-08-02, 2008-Ohio-
5400, ¶ 11 (finding no substantial change of circumstances where parties moved
and remarried); Steggeman v. Steggeman, 3d Dist. No. 8-06-23, 2007-Ohio-5482,
¶ 16 (finding no substantial change of circumstances where there was no evidence
that father’s remarriage, mother’s sharing of living expenses with significant other,
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and mother’s filing of bankruptcy petition occurred after the issuance of the
original child support order); accord Bright v. Collins, 2 Ohio App.3d 421, 423
(10th Dist. 1982) (“[F]or if there has been no change in either the needs of the
child for support, or in the ability of his parents to pay, then it follows that the
original order must stand.”).
{¶18} With these principles in mind, we are unable to find that there was a
substantial change of circumstances in this matter. A review of the record reveals
that since the Original Plan was instituted, John and Marissa have maintained the
same allocation of parenting time and that A.A.’s needs have not dramatically
changed. There is also no evidence in the record showing that the parties’
earnings or financial positions have changed since the Original Plan. Based on
this, we find that this matter falls under the ambit of cases in which the courts have
not found a substantial change of circumstances.
{¶19} The trial court based its finding of a substantial change of
circumstances on the Original and Amended Plans’ different handling of A.A.’s
health insurance costs. Even if the Amended Plan removes Jason’s obligation to
reimburse Marissa for A.A.’s health insurance premium,1 it cannot constitute a
1
We note that Marissa testified as follows regarding the Amended Plan’s handling of health insurance:
Q: And you and Jason had an agreement prior to the shared parenting plan where he
would basically pay 100 percent of [A.A]’s cost for health insurance?
A: The premium. Correct.
Q: The premium. I’m sorry, ma’am. And in our shared parenting plan you
basically left the issue of health insurance premium reimbursement or sharing of it for the
Court’s order in this case, correct?
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substantial change in circumstances because Marissa voluntarily agreed to the
Amended Plan. In effect, there was a change in the parties’ agreement, not in their
circumstances, and Marissa knowingly brought on any changed treatment of
A.A.’s health insurance by entering into the Amended Plan. See Frey, 2009-Ohio-
5275, at ¶ 14. As a result, the trial court abused its discretion in finding that a
substantial change of circumstances existed and awarding Marissa child support.
{¶20} Accordingly, we sustain Jason’s first assignment of error.
Assignments of Error Nos. II, III & IV
{¶21} Our resolution of Jason’s first assignment of error renders his second,
third and fourth assignments of error moot. Consequently, we decline to address
them. See App.R. 12(A)(1)(c).
Assignment of Error No. V
{¶22} In his fifth assignment of error, Jason argues that the trial court erred
in awarding Marissa her attorney fees and litigation costs. Specifically, he claims
that Marissa is barred from recovering her fees and costs since she failed to
request them in writing. We agree and consequently reverse the trial court’s
award of attorney fees and litigation expenses.
{¶23} Since this is a post-divorce decree proceeding, the dictates of R.C.
3105.73(B) apply. It provides, in pertinent part, as follows:
A: Right. And I believe since it was left for the Court, what we said in mediation
that all of that would not change and would remain the same until the Court made a new
decision. Hearing Tr., p. 150-51.
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In any post-decree motion or proceeding that arises out of an action
for divorce, * * * the court may award all or part of reasonable
attorney’s fees and litigation expenses to either party if the court
finds the award equitable. In determining whether an award is
equitable, the court may consider the parties’ incomes, the conduct
of the parties, and any other relevant factor the court deems
appropriate * * *. R.C. 3105.73(B).
We review a trial court’s award of attorney fees and litigation costs under R.C.
3105.73(B) for an abuse of discretion. Patterson v. Patterson, 197 Ohio App.3d
122, 2011-Ohio-5644, ¶ 7 (1st Dist.).
{¶24} Our decision in Barto v. Barto, 3d Dist. No. 5-08-14, 2008-Ohio-
5538, is directly on-point to this matter. There, the trial court awarded attorney
fees to the mother under R.C. 3105.73(B) even though she did not request such an
award in her motion. Id. at ¶ 38. Due to the lack of such a request, we sustained
the father’s assignment of error and reversed the trial court’s attorney fees award.
Id. at ¶ 40; see also Hubbard v. Hubbard, 3d Dist. No. 4-08-37, 2009-Ohio-2194,
¶ 11 (reversing attorney fee award where the party “did not seek attorney fees in
her original motion”); Miller v. Miller, 9th Dist. No. 09CA0025, 2010-Ohio-1251,
¶ 31 (same). Based on this well-established precedent, we likewise find that the
trial court abused its discretion in awarding attorney fees and litigation expenses to
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Marissa, who did not request attorney fees in her original motion for child
support.2
{¶25} Accordingly, we sustain Jason’s fifth assignment of error.3
{¶26} Having found error prejudicial to Jason in the first and fifth
assignments of error, we reverse the trial court’s judgment and remand this matter
for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr
2
We also note that our resolution of the first assignment of error renders Marissa a non-prevailing party.
Under well-settled law, non-prevailing parties are generally precluded from recovering attorney fees and
litigation expenses. E.g., Hubbard at ¶ 11.
3
Marissa also failed to comply with Loc.R. 18.12(A), which states that “[a] request for attorney fees and
expenses to prosecute an action shall be made in writing and shall be included in the body of a motion or
other pleading that gives rise to the request for fees.”
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