Morrow v. Becker

[Cite as Morrow v. Becker, 2012-Ohio-3875.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JEFFREY MORROW C.A. No. 11CA0066-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SHERRI BECKER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 04 PA 0199DECISION AND JOURNAL ENTRY
Dated: August 27, 2012
CARR, Judge.
{¶1} Appellant Jeffrey Morrow appeals the judgment of the Medina County Court of
Common Pleas, Domestic Relations Division. This Court affirms in part and reverses in part.
I.
{¶2} Jeffrey Morrow (“Father”) and Sherri Becker (“Mother”) are the parents of two
children (“Mo” and “Mac”). Mac, who is two years younger than Mo, has special needs arising
out of Down Syndrome. Mother was designated as the residential parent and Father was
awarded parenting time with the children as follows: every other Wednesday from 6 p.m. until 9
a.m. the following morning with both children; alternate weekends from 6 p.m. Thursday until 9
p.m. Sunday with Mo; and the same alternate weekends on Sunday from 11 a.m. until 9 p.m.
with Mac. The court order allowed for alternative parenting time arrangements as the parties may
agree. Father was also ordered to pay child support in the amount of $2,198.05 per month.
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{¶3} A little over a year later, the trial court issued a judgment entry after a hearing on
motions to modify parenting time. The trial court awarded Father parenting time pursuant to the
court’s standard visitation schedule, with the following modifications: the parties must exchange
the children in public places; the parties would share time with the children equally during
Thanksgiving and winter breaks; and Father would not have summer vacation parenting time.
The standard order of visitation provided for alternate weekend visits from 6 p.m. Friday until 6
p.m. Sunday, plus one weekday evening, consisting of three hours on Wednesdays if the parties
could not otherwise agree. Father appealed the trial court’s reduction of his parenting time. This
Court affirmed the trial court’s judgment. Morrow v. Becker, 9th Dist. No. 07CA0054-M, 2008-
Ohio-155.
{¶4} In August 2009, Father filed a motion to modify and reduce his child support
obligation. A couple weeks later, Mother filed a motion to modify parenting time. Four months
later, she filed a motion for contempt, alleging that Father had failed to pay child support as
ordered. The magistrate scheduled and continued hearings on the motions multiple times at the
parties’ request. The magistrate heard Mother’s motion to modify parenting time on July 27,
2010, and scheduled a hearing on the issues of the modification of child support and contempt
for August 10, 2010. On July 29, 2010, Father’s attorney moved to withdraw. His subsequent
attorney moved on August 2, 2010, to continue the August 10 hearing. Given the numerous
prior continuances coupled with Father’s assertion that his new counsel would be prepared for
hearing, the magistrate denied the motion for a continuance. She heard Father’s motion to
modify child support and Mother’s motion for contempt on August 10, 2010. The magistrate
issued separate decisions arising out of the two hearings. Father filed objections to both
decisions.
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{¶5} The trial court overruled the objections, although it corrected one typographical
error. In sum, the trial court ordered the following. Father would have parenting time with the
children on alternating weekends from Friday at 6:00 p.m. until Monday when he delivered the
children to school or child care. He was no longer granted mid-week visitations, although the
parties were free to consider overnight Wednesday visitations for Mo if Father’s international
travel schedule abated in the future. The parties were required to follow the court’s standard
parenting time schedule for holidays and days of special meaning if they could not otherwise
agree regarding such days. Father would not have extended parenting time, including Christmas
break, spring break, and summer, unless Mother agreed to such extended time. The trial court
ordered Father to pay child support in the amount of $2,154.95 per month, plus a 2% processing
charge. The trial court found Father in contempt solely for failing to pay his child support
obligation through wage withholding, imposed a $250.00 fine, and ordered Father to pay Mother
$575.00 for attorney fees and costs expended to prosecute the contempt motion. Father
appealed, raising five assignments of error for review. Some assignments of error are
consolidated to facilitate review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY (1) ELIMINATING MR.
MORROW’S WEDNESDAY, THANKSGIVING, SPRING AND CHRISTMAS
BREAK PARENTING TIME, AND (2) RESTRICTING MR. MORROW’S
VISITATION WITH HIS CHILDREN TO ALTERNATING DAYS OF
SPECIAL MEANING/HOLIDAYS AND EVERY OTHER WEEKEND
UNLESS MS. BECKER AGREES TO ADDITIONAL VISITATION,
THEREBY COMMITTING REVERSIBLE ERROR AND VIOLATING MR.
MORROW’S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY MISINTERPRETING THE MAGISTRATE’S
DECISION, THEREBY COMMITTING REVERSIBLE ERROR AND
VIOLATING MR. MORROW’S RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
{¶6} Father argues that the trial court abused its discretion by modifying his parenting
time with the children. Specifically, Father argues that the trial court erred by misinterpreting
the magistrate’s decision, reducing his parenting time, and leaving the issue of additional
visitation to Mother’s sole discretion. This Court disagrees.
{¶7} In cases where the matter was initially heard by a magistrate who issued a
decision to which objections were filed and disposed, “[a]ny claim of trial court error must be
based on the actions of the trial court, not on the magistrate’s findings or proposed decision. In
other words, the standards for appellate review do not apply to the court’s acceptance or rejection
of the magistrate’s findings or proposed decision.” Mealey v. Mealey, 9th Dist. No. 95CA0093,
1996 WL 233491 (May 8, 1996), *2. Civ.R. 53(D)(4)(d) requires the trial court to conduct an
independent review of the record when ruling on objections. Civ.R. 53(D)(4)(b) allows the trial
court to adopt or reject the magistrate’s decision, in whole or in part, with or without
modification. In this case, the trial court conducted the required independent review and issued
its judgment based on that review. Because we are constrained to consider the issues on appeal
as they arise out of the trial court’s determinations and orders, Father’s argument that the trial
court misinterpreted the magistrate’s decision is not well taken. The second assignment of error
is overruled.
{¶8} As we recognized in Father’s first appeal, “‘A trial court’s decision regarding
visitation rights will not be reversed on appeal except upon a finding of an abuse of discretion.’”
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Morrow at ¶ 8, quoting Harrold v. Collier, 9th Dist. No. 06CA0010, 2006-Ohio-5634, ¶ 6. An
abuse of discretion is more than an error of judgment; it means that the trial court was
unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute
its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621
(1993).
{¶9} First, Father argues that the trial court abused its discretion by reducing his
parenting time by eliminating Wednesday evening visitation, as well as spring, Thanksgiving,
and Christmas break parenting time.
{¶10} As an initial matter, the record indicates that, rather than reducing his parenting
time, the trial court in fact increased Father’s parenting time. Although the trial court eliminated
the three-hour Wednesday evening visitation, it increased his bi-weekly weekend visitation to
include an additional evening and overnight, which necessarily also gave him additional time on
Monday morning with the children. Mother testified that both children suffer when faced with
inconsistency and that Father’s tardiness, failure to appear for some visits, and frequent absences
due to international travel have disrupted their routines to their detriment. The evidence
presented at the hearing demonstrated that Father made frequent trips to China which caused him
to miss many scheduled visits with the children. In addition, Father missed some scheduled
parenting time due to jet lag and his decision to attend Ohio State University football games
instead of exercising visitation. Father admitted that his international travel would continue into
the foreseeable future and that he could not commit to being available to spend every Wednesday
evening with the children. In ordering the modification of parenting time, the trial court
reasoned that eliminating the mid-week three-hour parenting time, while extending Father’s
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parenting time on alternate weekends was in the best interest of the children as it promoted
consistency, stability, and structure for the children. Under the circumstances, this Court cannot
say that the trial court abused its discretion when it so modified the parenting time order.
{¶11} Moreover, Father is incorrect in his assertion that the trial court eliminated his
parenting time during spring, Thanksgiving, and Christmas breaks. The trial court ordered that
“holidays and days of special meaning are to be divided as the parties agree or, if no agreement
can be reached, pursuant to the Court’s Standard Parenting Time Order.” The Medina County
Domestic Relations Court Standard Parenting Time Schedule, attached to the trial court’s
judgment, sets out a “Holiday Parenting Time” schedule in section II. That section identifies
“Holiday[s]” including “Spring Break,” “Thanksgiving,” and “Winter break.” Because these
times are expressly designated as “holidays,” the trial court’s order entitles Father to visitation as
delineated pursuant to the schedule, unless the parties agree to modify that parenting time. The
trial court’s standard order sets forth two options for visitation during each of the above-
referenced holidays and states that “in the event an option is not specified and the parties do not
agree, then Option 1 shall be in effect.” Therefore, pursuant to the plain language of the trial
court’s order and standard parenting time schedule, Father’s parenting time during spring,
Thanksgiving, and Christmas breaks has not been eliminated. Accordingly, his argument in that
regard is not well taken.
{¶12} Second, Father argues that the trial court abused its discretion by leaving the issue
of extended parenting time in the sole discretion of Mother. In support, Father relies on Barker
v. Barker, 6th Dist. No. L-00-1346, 2001 WL 477267 (May 4, 2001), in which the appellate
court concluded that the trial court abused its discretion by leaving the decision to reinstate the
father’s visitation in the sole discretion of the child’s psychologist. The Barker court concluded
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such an order was unreasonable, however, because the child’s psychologist could withhold her
consent for visitation based on matters beyond the father’s control and because the psychologist
had previously exhibited bias in favor of the mother. Id. at *5. That is not the situation in this
case.
{¶13} Here, the trial court ordered that “[Father] should receive no extended parenting
time unless agreed to by [Mother].” (Emphasis added.) In contrast to Barker, the trial court did
not empower Mother to determine whether Father could exercise parenting time at all. He
clearly had the right to certain visitation with the children. Instead, the trial court merely
acknowledged that Mother could allow Father to have additional time with the children beyond
that which had been ordered. This Court concludes that the trial court did not abuse its
discretion.
{¶14} Finally, Father complains that the trial court’s parenting time order is biased
against him because it penalizes him with forfeiture of parenting time if he is more than 30
minutes late when picking up the children for visitation. He argues that Mother, on the other
hand, may disregard the times determined for exchange of the children with impunity.
{¶15} The trial court’s order merely reiterates the court’s local rule subsumed in the
standard parenting time schedule under Section VI., captioned “Promptness.” Loc.R. 6.05, Form
6.04A. The rule states in pertinent part: “The residential parent has no duty to wait for the
nonresidential parent to pick up the children longer than thirty (30) minutes, unless the
nonresidential parent notifies the residential parent that she/he will be late, and the residential
parent agrees to remain available after the thirty (30) minute waiting period. A parent who is
more than thirty (30) minutes late loses the parenting time period.”
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{¶16} The Ohio Supreme Court has held that state courts may adopt rules of local
practice and that such local rules are enforceable as long as they are not inconsistent with the
Ohio Rules of Civil Procedure. Vance v. Roedersheimer, 64 Ohio St.3d 552, 554 (1992); see,
also, Ohio Constitution, Article IV, Section 5(B); Civ.R. 83; Sup.R. 5. Loc. R. 1.01 of the Local
Rules of the Court of Common Pleas of Medina County, Domestic Relations Division, states that
these rules “were promulgated by the Medina County Court of Common Pleas, Domestic
Relations Division, pursuant to Article IV, Section 5(B) of the Ohio Constitution and Rule 5 of
the Ohio Supreme Court Rules of Superintendence for the Courts of Common Pleas.” Father has
not argued that Loc.R. 6.05, which incorporates the standard parenting time schedule, is
inconsistent with the Ohio Rules of Civil Procedure. Moreover, he has not demonstrated how
such a local rule would be unenforceable.
{¶17} In addition, Father is incorrect in his assertion that Mother is free to delay his
access to the children by disregarding the times designated for exchange. Mother is bound to
comply with the court’s orders regarding parenting time. If she refuses or otherwise fails to do
so, Father may file a motion for contempt and Mother would be subject to contempt sanctions.
Accordingly, Father’s argument that the trial court’s order is biased in favor of Mother is not
well taken. The first assignment of error is overruled.
{¶18} For the above reasons, Father’s first and second assignments of error are
overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO
GRANT A CONTINUANCE AFTER MR. MORROW’S FORMER COUNSEL
ABANDONED HIM ON THE EVE OF TRIAL, THEREBY COMMITTING
REVERSIBLE ERROR AND VIOLATING MR. MORROW’S RIGHTS
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
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AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION.
{¶19} Father argues that the trial court erred by denying his motion to continue the
hearing on his motion to modify child support. Additionally, he argues that the denial of his
request for a continuance violated his right to due process of law. This Court disagrees.
{¶20} It is well settled that the decision to grant or deny a continuance lies in the sound
discretion of the trial judge. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The United States
Supreme Court emphasized that “not every denial of a request for more time [] violates due
process even if the party fails to offer evidences or is compelled to defend without counsel.”
Ungar, 376 U.S. at 589. Whether a denial of a request for a continuance is so arbitrary as to
violate due process depends on the circumstances of the case, particularly the reasons articulated
to the trial court in support of the request. Id. “In determining whether the trial court abused its
discretion by denying a motion for a continuance, this court must ‘apply a balancing test,
weighing the trial court’s interest in controlling its own docket, including facilitating the efficient
dispensation of justice, versus the potential prejudice to the moving party.’” Kocinski v.
Kocinski, 9th Dist. No. 03CA008388, 2004-Ohio-4445, ¶ 10, quoting Burton v. Burton, 132 Ohio
App.3d 473, 476 (3d Dist.1999).
{¶21} Father filed his motion to modify/reduce child support on August 4, 2009. The
trial court scheduled a hearing on the motion on October 23, 2009. The hearing on Mother’s
motion to modify parenting time was subsequently scheduled for the same date and time. Father
moved to extend the time in which he must respond to Mother’s discovery requests until October
19, 2009, merely four days before the scheduled hearing. The hearing date was converted to a
pretrial and the hearing was rescheduled for February 24 and 25, 2010. Father filed his witness
and exhibit lists on February 11, 2010. Thirty-six minutes before the hearing was scheduled to
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begin, Father filed a motion to continue because his attorney was involved in an ongoing
complex trial in another court. The magistrate continued the hearing until May 21, 2010. On
May 20, 2010, Father moved to continue the hearing due to his aunt’s death on May 15, 2010,
and an obligation to leave town for the funeral. The trial court bifurcated the motion hearings
and continued the hearing on Mother’s motion to modify parenting time to July 27, 2010, and
continued the hearing on Father’s motion to modify child support to August 10, 2010.
{¶22} On July 29, 2010, Father’s attorney moved to withdraw from further
representation. The trial court granted the motion. The record contains a signed letter from
Father to the magistrate in which Father asserted that he did not challenge his attorney’s
withdrawal, that he had secured alternate counsel, and that his new attorney would be prepared
for the hearing on August 10, 2010. On August 2, 2010, Father’s new attorney filed a notice of
appearance, a supplemental witness and exhibit list, and a motion to continue the hearing. In
support of a continuance, Father’s attorney asserted that he needed additional time to review
documents and provide Mother’s counsel with a supplemental witness and exhibit list. He
further asserted that Father would be unfairly prejudiced by the inability to call any additional
witnesses he might disclose in a supplemental witness list. Father did not suggest a new date for
the hearing. The magistrate denied the motion to continue on August 4, 2010. The same day,
Father’s attorney filed a second supplemental witness and exhibit list. Father’s attorney orally
renewed his motion to continue immediately prior to the hearing. The magistrate again denied
the motion.
{¶23} Based on a review of the circumstances of this case, this Court cannot say that the
domestic relations court abused its discretion by denying Father’s August 2, 2010 motion to
continue the hearing on his motion to modify child support. Father filed his motion nearly a year
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earlier, at a time he believed he could present evidence to justify the reduction. He moved for
multiple prior continuances, which the court granted. Father’s attorney did not move to
withdraw on the “eve of trial,” as Father asserts, but rather twelve days prior to trial. Father
informed the magistrate by letter the following day that he had secured new counsel who “will
prepare and be prepared for the hearing on August 10, 2010 regarding the modification of child
support.” Father’s new counsel filed two supplemental witness and exhibit lists and requested
leave to file a third supplement. Although the trial court denied leave to file the third
supplement, Father was not precluded from presenting any evidence at the hearing, even over
Mother’s objection that he had not identified such evidence prior to hearing. Father was
permitted to file two supplemental witness and exhibits beyond the deadline, and he was not
precluded from presenting any witnesses at the hearing.
{¶24} Given the indefinite nature of the requested continuance, Father’s role in creating
the circumstances giving rise to the latest request, the inconvenience of repeated delays and
uncertainty for Mother, the trial court’s right to control its docket coupled with the efficient
dispensation of justice outweighs any potential prejudice to Father. See Kocinski at ¶ 10. In
fact, because Father was not precluded from presenting all evidence and testimony he desired, he
has not demonstrated that he was prejudiced at all, let alone unfairly. Although he argues that he
had no time “to investigate the approximately $25,000 of unknown funds deposited into
[Mother’s] bank account in 2009[,]” he presented copies of Mother’s bank statements evidencing
such activity on her account and was able to cross-examine Mother extensively on the issue.
Accordingly, the denial of a continuance did not violate Father’s right to due process, and the
trial court did not abuse its discretion by denying Father’s third motion for a continuance.
Father’s third assignment of error is overruled.
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ASSIGNMENT OF ERROR IV
THE TRIAL COURT ABUSED ITS DISCRETION BY (1) IMPUTING AN
ADDITIONAL $16,756 OF INCOME FOR CORPORATE BENEFITS WHEN
CALCULATING MR. MORROW’S CHILD SUPPORT OBLIGATION (2)
AVERAGING MR. MORROW’S AND MS. BECKER’S INCOME OVER THE
PRIOR THREE YEARS THEREBY IMPUTING A GROSS INCOME THAT
DOES NOT ACCURATELY REFLECT CURRENT EARNINGS OR EITHER
PARTY AND (3) IGNORING THE BASIC CHILD SUPPORT SCHEDULE
AND TREATING THE INSTANT ACTION ON A CASE-BY-CASE BASIS.
THUS, THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
VIOLATED MR. MORROW’S RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
{¶25} Father argues that the domestic relations court abused its discretion in its
calculation of child support. Specifically, Father argues that the trial court erred by (1) including
corporate benefits in his gross income, (2) averaging the parties’ incomes and imputing income
to Father, and (3) establishing child support outside the basic child support schedule. This Court
disagrees.
{¶26} As an initial matter, a trial court’s decision regarding child support obligations
will not be overturned absent a showing of an abuse of discretion. Booth v. Booth, 44 Ohio St.3d
142, 144 (1989).
Corporate benefits as income
{¶27} Father argues that the trial court erred by including $16,756 as company benefits
as part of his gross income for purposes of determining his child support obligation. That
amount consisted of the annual values of a company car ($9,600), insurance ($4,356), a cell
phone ($1,200), and Ohio State University football tickets ($1,600). The trial court did not
include the value of the laptop computer provided to Father by his business.
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{¶28} R.C. 3119.02 requires the court to calculate the child support obligation in
accordance with the applicable child support computation worksheet. The worksheet requires
that child support be based on the gross income of the parents. R.C. 3119.01(C)(7) defines
“gross income” as “the total of all earned and unearned income from all sources during a
calendar year, whether or not the income is taxable * * *.” The statute then sets out a non-
exclusive list of the types of income included, for example, salaries, wages, tips, rents, interest,
and pensions. The list concludes with “and all other sources of income.” Moreover, the statute
expressly includes “self-generated income” in a parent’s gross income. However, certain types
of income are expressly excluded from the definition of gross income. R.C. 3119.01(C)(7)(a)-
(f). One such exclusion is “Nonrecurring or unsustainable income or cash flow items[.]” R.C.
3119.01(C)(7)(e).
{¶29} Father is the president of Ohio College of Massotherapy (OCM) and OCM
Online. OCM is a non-profit corporation, while OCM Online is a for-profit corporation. Father
receives a salary from both businesses. While those salaries are not distinguished clearly on his
2007 tax return, his 2008 tax return indicates he was paid a salary of $121,897 by OCM and
$110,316 by OCM Online. He testified that he received certain non-monetary benefits from his
employment, including a Lexus automobile, car insurance, a cell phone, and a laptop computer.
He also admitted that the company buys four-seat season tickets for Ohio State University
football games, but claimed those were a perk for “my” employees but a necessary business
expense for himself when he attended games. It is not entirely clear whether OCM provided
these benefits to Father or whether he received them from employment with both OCM and
OCM Online.
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{¶30} Father does not dispute that the monetary value of the above benefits comports
with the trial court’s finding. Rather, he argues that none of the above benefits should have been
included in the calculation of his gross income. Specifically, he argues that the value of such
benefits could only be included as “self-generated income” pursuant to R.C. 3119.01(C)(13), and
that that provision is not applicable because Father has not received those benefits as “gross
receipts received * * * from self-employment, proprietorship of a business, joint ownership of a
partnership or closely held corporation, and rents[.]” Because R.C. 3119.01(C)(13) includes in
the definition of self-generated income expense reimbursements and in-kind payments such as
company cars, Father argues that such benefits are necessarily excluded as gross income under
R.C. 3119.01(C)(7).
{¶31} This Court does not agree that reimbursements and in-kind payments such as
company cars may only be included as gross income if a parent is self-employed or has an
ownership interest in the business merely because R.C. 3119.01(C)(13) lists examples of such
benefits. There is nothing in the statute which indicates that the provision of company cars,
housing, meals, or other benefits may only be considered as gross income under the limited
circumstances where a parent receives them as self-generated income. R.C. 3119.01(C)(7)
expressly includes “all other sources of income” in the definition of gross income without regard
for the parent’s employment circumstances. R.C. 3119.01(C)(7) identifies six types of income
expressly excluded from the definition of gross income. None of those exclusions mention
benefits of the type included in the trial court’s calculation of Father’s gross income. “Inasmuch
as the legislature chose not to include such an exception it must be presumed that none was
intended.” Patton v. Diemer, 35 Ohio St.3d 68, 70 (1988). Accordingly, even assuming that
15
Father received the above benefits from OCM, a non-profit corporation in which he necessarily
had no ownership interest, there is no statutory support for excluding the value of those benefits.
{¶32} On the other hand, if Father received those benefits from his employment with
OCM Online, a for-profit corporation in which he had an ownership interest, the value of most of
those benefits would necessarily be included in his gross income as self-generated income
because the benefits “are significant and reduce personal living expenses.” See R.C.
3119.01(C)(13).
{¶33} In either event, Father testified that he had no other car or cell phone for personal
use. He admitted that he had no land line telephone at home. He testified that the company paid
for his car insurance. He admitted in his appellate brief that he would lose the benefit of these
items if he lost his job. He would, therefore, have to pay for such items out of pocket.
Accordingly, the trial court did not abuse its discretion by including the value of these benefits as
part of Father’s gross income.
{¶34} On the other hand, in regard to the Ohio State tickets, Father testified that he
provided the dates of the football games to his employees and asked them to let him know which
games they were interested in attending. He further testified that he sometimes gives some
tickets away to non-employees who have business with the companies. While Father attends
some football games every season, he reasonably does not derive a personal benefit from all four
seats of every game. Therefore, while he derives some personal economic benefit, he does not
derive the full $1,600 value of the tickets as a benefit. He did not, however, testify regarding
how many tickets he used for himself and his personal guests, such as his child Mo.
Accordingly, the trial court erred by including that entire amount in his gross income. However,
based on our resolution of the remaining issues in this assignment of error and the negligible
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result the slightly reduced income would have on Father’s child support obligation, any error was
harmless.
Imputation of income and income averaging
{¶35} Father argues that the trial court erred because it averaged his income from the
prior three years and imputed the averaged income to him without making an express finding
that he was underemployed. He further argues that the trial court erred by averaging Mother’s
income to calculate her gross income.
{¶36} R.C. 3119.01(C)(5) defines “income” depending on the circumstances of the
parent: “(a) For a parent who is employed to full capacity, the gross income of the parent; (b) For
a parent who is unemployed or underemployed, the sum of the gross income of the parent and
any potential income of the parent.” This Court has consistently held that a trial court must
expressly find a parent to be voluntarily unemployed or underemployed before imputing income
to that parent. Misleh v. Badwan, 9th Dist. No. 24185, 2009-Ohio-842, ¶ 7, citing Musci v.
Musci, 9th Dist. No. 23088, 2006-Ohio-5882, ¶ 17. However, in this case, the trial court did not
impute income to Father. Instead, the trial court averaged Father’s income based on fluctuations
in his income. Father’s reliance on law that requires the trial court to make an express finding of
voluntary underemployment before averaging income is misplaced.
{¶37} R.C. 3119.05(H) states: “When the court or agency calculates gross income, the
court or agency, when appropriate, may average income over a reasonable period of years.” This
Court had held that the decision as to the propriety of averaging a parent’s income lies in the
sound discretion of the trial court which is in the best position to weigh the facts and
circumstances. Akin v. Akin, 9th Dist. Nos. 25524, 25543, 2011-Ohio-2765, ¶ 13; Krone v.
Krone, 9th Dist. No. 25450, 2011-Ohio-3196, ¶ 32.
17
{¶38} Father testified that his income has fluctuated based on the recent decrease in
student enrollment. His accountant testified that the businesses have recently rebounded after the
economic downturn. Father testified as to the changes he made in the year before the hearing to
cut business overhead, and the accountant testified that those actions greatly improved the
companies’ financial positions. Under the circumstances, the trial court did not abuse its
discretion by averaging Father’s income from the prior three years based on the fluctuations in
his income.
{¶39} Father further argues that the trial court erred by averaging Mother’s income
because her income has steadily increased rather than fluctuated. His argument is not supported
by the record. Mother’s tax returns submitted into evidence indicated that Mother’s adjusted
gross income was $58,588 in 2007, $42,212 in 2008, and $51,716 in 2009. She testified that she
received a one-time $500 employee of the month bonus and a one-time $5000 employee of the
year bonus in 2009. By averaging Mother’s income over the past three years, properly not
including the bonuses as nonrecurring or unsustainable income pursuant to R.C.
3119.01(C)(7)(e), the trial court arrived at an amount nearly $3000 more than it would have had
it merely used Mother’s gross income from 2009 minus the nonrecurring income. By doing so, a
higher percentage of the support obligation was attributed to Mother, thereby inuring a benefit to
Father. Under the circumstances, the trial court did not abuse its discretion by averaging
Mother’s income from the prior three years based on fluctuations in her income.
Basic child support schedule
{¶40} Father argues that the trial court erred by failing to apply the basic child support
schedule because the parents’ combined gross income was not more than $150,000.
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{¶41} R.C. 3119.021 sets out the basic child support schedule which must be used to
calculate child support unless the parents’ combined gross income is less than $6,600 or more
than $150,000. R.C. 3119.04(B) states, in relevant part: “If the combined gross income of both
parents is greater than one hundred fifty thousand dollars per year, the court * * * shall determine
the amount of the obligor’s child support obligation on a case-by-case basis and shall consider
the needs and the standard of living of the children who are the subject of the child support order
and of the parents.”
{¶42} Father argues that the trial court was precluded from determining his child support
obligation on a case-by-case basis because the combination of the parents’ actual income is less
than $150,000. He argues that, because R.C. 3119.01(C)(7) defines gross income as income
earned during a calendar year, the trial court erred by using the parties’ averaged incomes. This
Court has already concluded that the trial court did not err by averaging the parents’ prior three
years’ incomes to determine their annual gross incomes. The average of Father’s prior three
years’ incomes was $143,622, while Mother’s was $49,954, resulting in a combined gross
income of $193,576 for the parents. Accordingly, the trial court was required to determine
Father’s child support obligation on a case-by-case basis.
{¶43} Father further argues that his child support obligation is more than 50% of his
current take home pay. In support, he cites Siebert v. Tavarez, 8th Dist. No. 88310, 2007-Ohio-
2643, ¶ 36, for the proposition that the trial court must “ensure that the obligor parent is not so
overburdened by child support payments that it affects that parent’s ability to survive.” Father
fails, however, to explain how his current obligation impacts his ability to survive.
{¶44} On the other hand, the evidence adduced at trial demonstrated that Father
continued to live well. He recently bought a $405,000 home with a pool on which he was able to
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make an $80,000 down payment even before he sold his prior home for $260,000. He made
certain improvements to the property and acquired new furnishings. Father was driving a Lexus
automobile, furnished by OCM, as well as an $11,000 motorcycle for which he paid cash. He
continued to travel internationally, ostensibly for business, although he had not secured any new
business opportunities from his numerous and frequent trips to China. Moreover, even though
Father recently voted to decrease his salary, because of the control he exerts on the board of
trustees for the college, he retains considerable power to establish his salary. He did not testify
that his recent decrease in salary caused him to downsize his lifestyle in any way.
{¶45} Moreover, Father cites no law to show that withholding of “over 50%” is not
permissible under these circumstances. In fact, in a garnishment context, 15 U.S.C.
1673(b)(2)(B) would allow withholding of up to 60% of Father’s disposable earnings as he is not
supporting a spouse or other dependent children. Accordingly, Father’s fourth assignment of
error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING MR.
MORROW IN CONTEMPT, THEREBY COMMITTING REVERSIBLE
ERROR AND VIOLATING MR. MORROW’S RIGHTS UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
{¶46} Father argues that the trial court erred by finding him in contempt for failing to
pay his child support obligation through wage withholding. This Court agrees.
{¶47} This Court reviews contempt proceedings for an abuse of discretion. Akin at ¶ 44,
citing Thomarios v. Thomarios, 9th Dist. No. 14232, 1990 WL 1777 (Jan. 10, 1990). An abuse
of discretion connotes that the trial court was unreasonable, arbitrary, or unconscionable in its
ruling. Blakemore, 5 Ohio St.3d at 219.
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{¶48} As this Court previously recognized: “Contempt of court is defined as
disobedience of an order of a court. It is conduct which brings the administration of justice into
disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its
functions.” Poitinger v. Poitinger, 9th Dist. No. 22240, 2005-Ohio-2680, ¶ 31, quoting
Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55 (1971), paragraph one of the syllabus.
Although contempt is generally classified as either civil or criminal to facilitate review, the Ohio
Supreme Court has recognized that contempt proceedings are sui generis, i.e., neither wholly
civil nor wholly criminal. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253. The Brown
court elaborated:
While both types of contempt contain an element of punishment, courts
distinguish criminal and civil contempt not on the basis of punishment, but rather,
by the character and purpose of the punishment. Punishment is remedial or
coercive and for the benefit of the complainant in civil contempt. Prison
sentences are conditional. The contemnor is said to carry the keys of his prison in
his own pocket, since he will be freed if he agrees to do as ordered. Criminal
contempt, on the other hand, is usually characterized by an unconditional prison
sentence. Such imprisonment operates not as a remedy coercive in its nature but
as punishment for the completed act of disobedience, and to vindicate the
authority of the law and the court. Therefore, to determine if the sanctions in the
instant cause were criminal or civil in nature, it is necessary to determine the
purpose behind each sanction: was it to coerce [Father] to obey the [child support
order], or was it to punish [him] for past violations?
(Internal citations omitted.) Id. at 253-254.
{¶49} In this case, the trial court fined Father after finding that he had failed to pay his
child support through wage withholding. However, the court gave him the opportunity to purge
his contempt and avoid paying the fine by establishing wage withholding within thirty days of
the court’s judgment. Because the trial court’s punishment was remedial and coercive in nature,
and Father had the opportunity to purge the contempt, it was civil in nature. In civil contempt
proceedings, a finding of contempt must be premised on clear and convincing evidence. Romans
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v. Romans, 9th Dist. No. 23181, 2006-Ohio-6554, ¶ 9. This Court has long recognized that the
movant’s burden of proving a prima facie case of contempt may be met by producing the order
and proof of the contemnor’s failure to comply. Rossen v. Rossen, 2 Ohio App.2d 381, 383-384
(9th Dist.1964).
{¶50} Mother alleged in her contempt motion that Father had failed to pay child support
and that he had failed to effect the mandatory wage withholding. The trial court found Father in
contempt solely on the basis that he had failed to pay his child support obligation by wage
withholding “as ordered by this Court and pursuant to the Ohio Revised Code.” The domestic
relations court cited to the parties’ March 30, 2005 agreed judgment entry which addressed
interim issues of parenting time and child support pending trial to ultimately resolve those issues.
The March 30, 2005 entry ordered Father to pay child support by wage withholding through the
Ohio Child Support Payment Central, in Columbus. That entry included the following order in
bold font: “All child support and spousal support under this order shall be withheld or deducted
from the income or assets of the Obligor pursuant to a withholding or deduction notice or
appropriate court order issued in accordance with Section 3121.03 of the Ohio Revised Code.”
Mother cited neither the March 30, 2005 order nor R.C. 3121.03 in her contempt motion.
{¶51} On March 1, 2006, the domestic relations court issued a final judgment in which it
designated Mother as the residential parent, ordered parenting time for Father, and ordered
Father to pay child support. The child support order stated: “Effective October 1, 2005, Mr.
Morrow shall pay child support through the Medina County Child Support Enforcement Agency
in the amount of $2,198.05 per month, which includes 2% processing fee.” There was no order
that the support be paid through wage withholding. Moreover, the March 1, 2006 order did not
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include any notice identical or similar to the notice in the March 30, 2005 order, referencing R.C.
3121.03 or otherwise mentioning wage withholding.
{¶52} Mother relied on the March 1, 2006 order for her allegation that Father was
required to pay child support by wage withholding. However, at the hearing, Mother admitted
that the current order for child support ordered Father to pay CSEA directly, not by wage
withholding.
{¶53} Mother failed to present clear and convincing evidence that Father violated the
current child support order. Before a party may be held in contempt for disobeying a court order,
the prior order “‘must spell out the details of compliance in clear, specific and unambiguous
terms so that such person will readily know exactly what duties or obligations are imposed upon
him.’” Collette v. Collette, 9th Dist. No. 20423, 2001 WL 986209 (Aug. 22, 2001). The interim
child support order issued on March 30, 2005, was superseded by the final judgment issued on
March 1, 2006. While the interim order ordered Father to pay child support by wage
withholding to the central agency in Columbus, the final judgment ordered Father to pay child
support directly to Medina County CSEA. Moreover, the final judgment made no reference to
R.C. 3121.03 or any other code provision which would have put Father on notice of any
obligation to pay child support by wage withholding. Accordingly, the domestic relations court
erred when it found Father in contempt for failing to pay child support by wage withholding
based on the evidence adduced at trial. Father’s fifth assignment of error is sustained.
III.
{¶54} Father’s first, second, third, and fourth assignments of error are overruled.
Father’s fifth assignment of error is sustained. The judgment of the Medina County Court of
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Common Pleas, Domestic Relations Division, is affirmed in part and reversed in part, and the
cause remanded for further proceedings consistent with this opinion.
Judgment affirmed in part,
Reversed in part,
And cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
BELFANCE, J.
CONCUR.
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APPEARANCES:
JOHN C. RAGNER, Attorney at Law, for Appellant.
LINDA HOFFMAN, Attorney at Law, for Appellee.