Daniel v. Hester

[Cite as Daniel v. Hester, 2016-Ohio-7543.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
ANNEMARIE DANIEL, :
Plaintiff-Appellant, : CASE NO. CA2016-02-037
: OPINION
- vs - 10/31/2016
:
COLIN HESTER, :
Defendant-Appellee. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR2014-07-0773
Glenn J. Rossi, 7787 Joan Drive, West Chester, Ohio 45069, for plaintiff-appellant
Cornetet, Meyer, Rush & Stapleton, Karen P. Meyer, 123 Boggs Lane, Cincinnati, Ohio
45246, for defendant-appellee
PIPER, P.J.
{¶ 1} Annemarie Daniel ("Wife") appeals a decision of the Butler County Court of
Common Pleas, Domestic Relations Division, which resolved issues in her divorce from Colin
Hester ("Husband").
{¶ 2} The parties were married in 1998 and Wife filed for divorce in 2014. The court
conducted a trial to resolve issues that Wife and Husband could not agree on, including the
identity of marital property, reimbursement for living expenses paid by Wife for the benefit of
Butler CA2016-02-037
Husband after the couple separated, and child support matters. Wife now appeals the trial
court's decision on these issues and raises four assignments of error for our review.
{¶ 3} Assignment of Error No. 1:
{¶ 4} THE TRIAL COURT'S ALLOCATION OF TWO PARCELS OF PROPERTY TO
WIFE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 5} The court found that two parcels of property, which were held in Wife's limited
liability company, were marital property. Wife contends that the parcels were not marital
property, but were actually owned by other members of her family.
{¶ 6} In dividing property in a divorce proceeding, a trial court must first determine
what constitutes marital property and what constitutes separate property. Sieber v. Sieber,
2015-Ohio-2315, 37 N.E.3d 776, ¶ 18 (12th Dist.), appeal not allowed, 144 Ohio St. 3d 1458,
2016-Ohio-172. Marital property includes all real property that is currently owned by either or
both of the spouses and that was acquired by either or both of the spouses during the
marriage. R.C. 3105.171(A)(3)(a)(i). Marital property "does not include any separate
property." R.C. 3105.171(A)(3)(b). Separate property encompasses "[a]ny gift of any real or
personal property * * * that is made after the date of the marriage and that is proven by clear
and convincing evidence to have been given to only one spouse." R.C.
3105.171(A)(6)(a)(vii).
{¶ 7} A trial court's classification of property as marital or separate must be supported
by the manifest weight of the evidence. Sieber at ¶ 19. The manifest weight of the evidence
refers to the greater amount of credible evidence offered in trial to support one side of the
issue rather than the other. In reviewing a challenge to the manifest weight of the evidence,
a court of appeals weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether, in resolving conflicts in the evidence, the
finder of fact clearly lost its way and created such a manifest miscarriage of justice that the
-2-
Butler CA2016-02-037
judgment must be reversed. This court is guided by the presumption that the trial judge is
best able to view the witnesses and observe their demeanor, gestures, and voice inflections,
and use those observations in weighing the credibility of the testimony. Id.
{¶ 8} We find that the trial court's decision classifying the two parcels as marital
property was supported by the manifest weight of the evidence. At trial, both parties agreed
that the two parcels were held by Wife's company and were acquired during marriage.
However, Wife denied that she had any "right, title or interest" in the parcels. Other than this
testimony, Wife offered no clear evidence, either testimonial or documentary, explaining how
she lacked an interest in these parcels held by her company. Nor did Wife explain who
owned the properties. At best, Wife testified that the "use" of the properties was a "gift" from
some family member, presumably her father or sister. Accordingly, Wife failed to meet her
burden of setting forth clear and convincing evidence that the two parcels were not marital
property and Wife's first assignment of error is overruled.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
HUSBAND AND WIFE'S ANNUAL INCOMES IN ITS CHILD SUPPORT COMPUTATION.
Husband's Income
{¶ 11} Wife argues that that the trial court should have found that Husband was
voluntarily underemployed and imputed income to him for purposes of establishing the
amount of his child support payment. A trial court's decision concerning whether a parent is
voluntarily underemployed is a question of fact and will not be disturbed on appeal absent an
abuse of discretion. McLaughlin v. Kessler, 12th Dist. Fayette No. CA2011-09-021, 2012-
Ohio-3317, ¶ 13-14.
{¶ 12} In calculating child support, a trial court must determine the annual income for
each parent. For an unemployed or underemployed parent, income is the "sum of the gross
-3-
Butler CA2016-02-037
income of the parent and any potential income of the parent." R.C. 3119.01(C)(5)(b).
Potential income includes imputed income that a trial court determines the parent would have
earned if fully employed based upon the criteria set forth in R.C. 3119.01(C)(11)(a)(i)-(xi),
which includes the parent's prior employment experience, education, skills and training,
employment availability, and local wages. Before a trial court may impute income to a
parent, however, it must first find that the parent is voluntarily underemployed. R.C.
3119.01(C)(11); Kessler at ¶ 13. The parent who claims the other parent is voluntarily
underemployed bears the burden of proof. Reynolds-Cornett v. Reynolds, 12th Dist. Butler
No. CA2013-09-175, 2014-Ohio-2893, ¶ 10.
{¶ 13} Husband testified that he worked 40 hours a week at a grocery store, earning
$11 an hour. He also had a part-time job at a flavoring company earning $14.50 an hour.
From these two jobs the court concluded that Husband's annual income for child support
purposes was about $29,000 per year. However, Wife contends that the trial court should
have imputed income to Husband because he testified that he has a Ph.D in chemistry and
just recently turned down a position with a pharmaceutical company.
{¶ 14} The trial court did not abuse its discretion in failing to find Husband
underemployed. Wife failed to meet her burden of demonstrating Husband's potential for
increased earning and the amount of income that the court should impute. Other than
holding an advanced degree, there is little else in the record indicating Husband's potential
for increased earnings.
{¶ 15} Husband testified that he was a stay-at-home parent for ten years prior to the
couple's separation in 2014. The record does not indicate if Husband held any employment
during this time. The only indication in the record concerning Husband's past employment
involving the possible use of his chemistry degree was a job with a company in the ink
industry. But the record contains no evidence concerning when that employment occurred,
-4-
Butler CA2016-02-037
what Husband earned, or Husband's potential of securing future employment in the same
field.
{¶ 16} With respect to the pharmaceutical company that offered him a job, Husband
testified that he did not accept the offer because the job required night shifts and he could
not work at night. Husband did not testify as to what the job entailed, but he explained that it
was offered to him through an employment agency. And because he did not accept the
offer, he knew neither the identity of the company, nor the pay. Given these circumstances,
there is no evidence the pharmaceutical company was offering Husband a job in which the
work or salary would be commensurate with holding an advanced degree in chemistry.
{¶ 17} There is a dearth of evidence in the record concerning Husband's potential to
utilize his advanced education to obtain increased income. Accordingly, Wife did not meet
her burden of proof and we cannot find that the court abused its discretion in failing to impute
income to Husband.
Wife's Income
{¶ 18} Wife argues that the court erred in determining her income for child support
purposes based on the three-year average of her yearly income from 2012 through 2014,
which was around $32,000. Wife argues that the court ignored her testimony that her income
was substantially reduced in 2015 because of past cancer treatments and increased
obligations to take care of the couple's children. A trial court's decision regarding child
support obligations falls within the discretion of the trial court and will not be disturbed absent
a showing of an abuse of discretion. Vaughn v. Vaughn, 12th Dist. Warren No. CA2007-02-
021, 2007-Ohio-6569, ¶ 12.
{¶ 19} We find no abuse of discretion in the trial court's decision to determine Wife's
income for child support purposes based on her recent historical earnings. Wife testified that
her cancer treatments limited her ability to work as a real estate agent. However, Wife
-5-
Butler CA2016-02-037
grossed nearly $80,000 during the year she underwent treatment and testified at trial that her
cancer had been cured. There is nothing in the record to suggest that the trial court ignored
her testimony. Instead, the court considered what little evidence was presented on the
subject of Wife's income and arrived at a reasonable estimation of Wife's earning potential as
demonstrated by the evidence before the court. This second assignment of error is
overruled.
{¶ 20} Assignment of Error No. 3:
{¶ 21} THE TRIAL COURT ERRED IN ITS CHILD SUPPORT ORDER BY
ESTABLISHING AN EFFECTIVE DATE OF NOVEMBER 2015.
{¶ 22} Wife contends that the trial court erred in its choice of the effective date of the
child support order. Prior to the trial, in a May 2015 order, the court named Wife temporary
residential parent for five of the couple's six children. Thus, Wife argues that the court should
have made the child support order retroactive to May 2015 instead of November 2015, the
date of the court's decision on the couple's contested issues. The standard of review for this
issue is abuse of discretion. Vaughn at ¶ 12.
{¶ 23} We find no abuse of discretion occurred here. Before trial, Wife never sought
a temporary child support order. Nor did Wife request an arrearage for child support before
or during the trial. If a court's decision is authorized by statute, a party who fails to request
specific relief cannot later claim that the trial court abused its discretion in failing to provide
that unrequested relief. Eichenberger v. Eichenberger, 10th Dist. Franklin No. 00AP-948,
2001 WL 410276, *4 (Apr. 24, 2001). Given Wife's failure to request a child support
arrearage, we cannot conclude that the trial abused its discretion in failing to provide that
unrequested relief. The third assignment of error is overruled.
{¶ 24} Assignment of Error No. 4:
{¶ 25} THE TRIAL COURT ERRED IN DETERMINING THAT WIFE SHOULD NOT
-6-
Butler CA2016-02-037
BE CREDITED OR REIMBURSED FOR INSURANCE PREMIUMS PAID ON BEHALF OF
HUSBAND FROM OCTOBER 2014 TO MAY 2015.
{¶ 26} Wife argues that the court erred in failing to order Husband to reimburse her
for medical and dental insurance premiums she paid for Husband's benefit. Again, our
standard of review is abuse of discretion. Booth v. Booth, 44 Ohio St. 3d 142, 144 (1989).
While the divorce was pending, and pursuant to court order, Wife paid Husband's health
insurance premiums from August 2014 to May 2015. In October 2014, Husband obtained
separate health insurance through his employer. Husband testified that he told Wife he had
obtained his own insurance and no longer needed to be covered by her policy.
{¶ 27} In April 2015, Wife moved the court to allow her to stop paying Husband's
insurance premiums. In May 2015, the court granted Wife's request. At trial, Wife asked the
court to order Husband to reimburse her for all health insurance premiums she paid for his
benefit. Ultimately, the court ordered Husband to reimburse Wife only for his insurance
premiums between August and October 2014.
{¶ 28} The trial court presumably believed Husband's testimony that he alerted Wife
to when he obtained insurance coverage through his employer. We generally defer to the
trial court on credibility determinations. Richards v. Newberry, 12th Dist. Clermont No.
CA2014-08-061, 2015-Ohio-1932, ¶ 32. Wife then waited until April 2015 to request
permission to stop paying Husband's insurance premiums. In other words, Wife requested
the court to order Husband to reimburse her for insurance premiums she knew were
unnecessary and which she could have stopped paying had she petitioned the court earlier.
We perceive no abuse of discretion in the court's denial of this request for reimbursement.
The fourth assignment of error is overruled.
{¶ 29} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.
-7-