Massey v. Lambert

[Cite as Massey v. Lambert, 2011-Ohio-1341.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: )
NICHOLAS MONTGOMERY MASSEY, ) CASE NO. 09 CO 29)
GREGORY MASSEY, )
)
PLAINTIFF-APPELLANT, )
)
- VS - ) OPINION
)
PAMELA MONTGOMERY LAMBERT, )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Juvenile Division,
Case No. P-2007-0153
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Attorney Matthew Oberholtzer
116 Cleveland Avenue, NW
Courtyard Center, Ste. 650
Canton, OH 44702-1727
For Defendant-Appellee: Attorney Tracey L. Laslo
325 E. Main Street
Alliance, OH 44601
Attorney Shirley Smith
1399 E. Western Reserve Rd., Suite 2
Poland, OH 44514
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Dated: March 14, 2011
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DeGenaro, J.
{¶1} Plaintiff-Appellant, Gregory Massey, appeals the July 14, 2009 decision of
the Columbiana County Court of Common Pleas, Juvenile Division, ordering him to pay
child support for his minor child to the child's mother, Defendant-Appellee, Pamela
Montgomery Lambert. On appeal, Massey challenges the trial court's determination of
his gross income and its resulting child support calculation.
{¶2} The trial court properly used the limited information it had before it to
project Massey's annual gross income. Thus, the trial court’s income determination was
supported by competent, credible evidence and not an abuse of discretion. Accordingly,
the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} Massey and Lambert were never married, but have one minor child
together, Nicholas Montgomery Massey, who was born on April 19, 1999. Since birth,
Nicholas had very little contact with his father. On February 27, 2007, Massey filed a
complaint in the Columbiana County Juvenile Court to establish paternity and for
custody. Prior to Massey's initiation of this custody action, Lambert had filed an action in
the Columbiana County Probate Court to change Nicholas' surname. The probate case
was eventually transferred to the Juvenile Division and consolidated with the present
case. At the time the custody complaint was filed, Massey lived in Alabama and
Lambert lived in Columbiana County with Nicholas. The trial court issued temporary
parenting-time orders granting Massey some limited visitation with Nicholas in
Columbiana County.
{¶4} As the case proceeded, Lambert was continually frustrated by Massey's
failure to respond to discovery requests regarding Massey's employment history and
income. On February 28, 2008, Lambert filed a motion to compel discovery. On March
5, 2008, the court ordered Massey to immediately produce the requested discovery and
to pay all Lambert's costs and attorney fees for filing the motion to compel.
{¶5} On June 16, 2008, Lambert filed a motion to dismiss the custody complaint
and a motion to set child support. Lambert alleged that Massey had failed to comply
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with the court's March 5 order requiring him to produce all requested discovery and to
pay the costs and attorney fees associated with her motion to compel. She further
noted that Massey had failed to appear at two scheduled hearings. Lambert requested
that the court dismiss Massey's motion for custody and order him to pay $850.00 for
attorney fees and $75.00 for filing fees per the court's earlier ruling on the motion to
compel. Further, Lambert stated it was her understanding that Massey works for
several realty companies in Alabama. She represented she had continually attempted
to subpoena Massey's financial information from those companies, beginning in 2007.
In February 2008, Lambert finally received a response to a subpoena from one
company, RealtySouth, which she attached, indicating Massey earned $39,593.76 from
real estate commissions during the first four months of 2007. Lambert requested that
the court annualize this income and award child support based on that amount,
retroactive to February 28, 2007. Lambert attached a child support worksheet using the
annualized amount, from which a $1,221.63 per month support obligation had been
calculated.
{¶6} On June 16, 2008, the case came for hearing on the merits of Massey's
complaint for allocation of parental rights and responsibilities along with the issue of
child support. The court also considered Lambert's motion to dismiss. According to a
June 26, 2008 judgment entry memorializing the hearing, the court was advised there
was outstanding financial information which made the resolution of child support
impossible. Further, the court noted that after extensive discussions, the parties came
to an agreement regarding custody, whereby Lambert would have sole legal custody
and Massey would get visitation. The details of this arrangement were read into the
record. The court ordered Massey to pay temporary child support, during the pendency
of the proceedings, of $850.00 per month plus processing fee, effective June 16, 2008.
He was also ordered to pay part of the guardian ad litem fees, and a show cause
hearing was set in the event Massey failed to comply. Each parent was ordered to
submit a financial disclosure affidavit detailing earnings from all sources from tax years
2005-2007, plus 2008 to date, along with evidence of such earnings. Finally the court
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set the matter for additional hearing on August 25, 2008 to determine the child support
obligations.
{¶7} On August 6, 2008, the trial court approved the agreed judgment entry
regarding custody and visitation. Both parties filed financial affidavits. However,
Massey's was not notarized and he failed to provide any supporting documentation.
Specifically, Massey did not provide copies of any 1099 or W-2 forms.
{¶8} On August 25, 2008, Lambert filed a motion for contempt. She alleged
that Massey had failed to comply with the court's March 5, 2008 order to provide
discovery and that Massey had failed to pay the $850.00 in attorney fees and $75.00 in
court costs as ordered. Further, she alleged Massey had failed to provide tax returns,
W-2 forms, 1099 forms or other evidence to support his financial affidavit, in violation of
the court's June 26, 2008 order. In addition, Lambert contended that the subpoenas
Lambert sent to Massey's prior employers at the addresses provided by Massey had
been returned as undeliverable. She attached copies of the envelopes as an exhibit.
Finally, she asserted that Massey had failed to remit the temporary support as ordered
by the court on June 26, 2008.
{¶9} On August 25, 2008, the court held a hearing on child support. Quite
notably, a transcript of this hearing was not ordered by Massey for inclusion in the
appellate record and he omits any discussion of this hearing in his brief. Ultimately,
Lambert had the transcript prepared and supplemented the record on appeal with it.
{¶10} During the hearing, Lambert's counsel reiterated the arguments made in
the contempt motion she filed that same day. She noted again that the only information
she had received to verify Massey's income was a response from RealtySouth which
indicated Massey had earned $39,593.76 in real estate commissions during the first four
months of 2007. As she did in her June 16, 2008 motion to set child support, Lambert
asked the court to use this information to project Massey's annual gross income at
$118,781.00 and to use that amount to calculate his child support obligation, which
pursuant to her submitted worksheet would be $1,246.06, including processing fee.
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{¶11} Massey's counsel insisted that $39,593.76 represented the total amount of
income Massey made in 2007 and asked the court to use that figure as his gross annual
income to calculate child support, which pursuant to his proposed worksheet would
amount to $479.94 per month.
{¶12} Massey then testified. With regard to his education and employment
history, he stated he completed high school and three years of college. In the past, he
owned a flooring company and then a home building company called Horizon Custom
Homes. He said Horizon went bankrupt in 2001, after which time he began to work as a
real estate agent. Since then, he had been affiliated with RealtySouth, Remax, and
ERA Oxford. Because the residential real estate market had been declining, Massey
began to do more commercial real estate work.
{¶13} When confronted with his own answers to interrogatories, Massey became
confused. While he himself had listed "Houzor Hills" as a business interest, he testified
"I don't remember anything about Houzor Hills." He admitted he had been married
previously, yet he listed his number of prior marriages as "zero" in his unsworn financial
affidavit. He agreed he failed to pay the $850 per month in temporary support per the
court's order, explaining that his attorney's secretary had told him he need not pay.
{¶14} Massey claimed between January 1, 2008 and July 1, 2008, he earned
only $9,600.00. When asked upon what he based that amount, he stated, "um
commission checks." When asked if he had any verification of that, Massey replied: "I
do, but not with me." Massey also agreed that despite his purportedly low income he
had monthly expenses totaling just over $3,000.00 per month. His expenses included,
among other things: $800.00 in rent; $300.00-$400.00 in utilities; and $700.00 in credit
card payments. He testified he had $4,600.00 in his checking account, a $20,000.00
certificate of deposit, and three motor vehicles.
{¶15} When asked how he managed to meet his expenses on such a low
income, his only explanation was that he received a $30,000.00 inheritance from his
mother three years earlier.
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{¶16} Massey further testified that his real estate commissions were sporadic
and that he had to pay about $250.00 in overhead costs every month regardless of
whether he made money. Yet when asked to testify about specific sales and
commissions, he was evasive:
{¶17} "Q. And could you tell me what your real estate sales were in December of
07?
{¶18} "A. December of 07? My real estate sales, no I can't remember.
{¶19} "Q. Could you tell me approximately?
{¶20} "A. I can't remember.
{¶21} "Q. How about November of 07?
{¶22} "A. I can't. I don't remember. I just can't tell you. I don't know exactly
what it was.
{¶23} " * * *
{¶24} "Q. Do you recall any sales in those months?
{¶25} "A. Not unless I got my paperwork I couldn't tell you.
{¶26} "Q. How about any sales in October of 07, can you tell me what your sales
were then?
{¶27} "A. Uh I am going to tell you again I don't. * * *."
{¶28} When pressed further for any information about his sales during 2007,
Massey started laughing and said he could not recall without his "paperwork." And then
he admitted he personally received a subpoena for earnings information at his current
realty company, ERA Oxford, but had declined to act on it or to supply any financial
information.
{¶29} Massey asked the court to use $39,593.76 as his gross income for child
support purposes, as this was listed on his tax return for 2007. Yet he also admitted
that he received one commission check for $45,000.00 during 2007. Specifically, he
testified: "I made a sale on a piece of property that I did receive a $45,000.00 check on.
* * * But I didn't think it was in 08. I know it wasn't in 08 it was 07."
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{¶30} Finally, Massey testified he had mailed verification of his earnings, namely
1099's and W-2's, to his attorney three or four months earlier, but that counsel must not
have received it. However, he admitted he never received a call from his counsel's
office notifying him that the documents had not been received. Massey promised to
provide all the earnings verification by fax to his attorney as soon as he returned to
Alabama. He also promised to pay his temporary child support arrearage.
{¶31} Following the hearing, the trial court issued a judgment entry dated
September 10, 2008 stating in pertinent part:
{¶32} "The Court finds that Gregory Massey has continued in his failure to
comply with providing full answers to discovery as originally filed by the defendant. Mr.
th
Massey has also failed to comply with the Court's specific orders of June 26 , 2008,
requiring his production of financial documents. When presented with his purported
answers to interrogatories by counsel for the defendant, Mr. Massey was confused and
unable to even identify the information contained in the answers to which he had
previously sworn to their accuracy. The Court has reason to discount virtually all the
testimony of Mr. Massey as unreliable."
{¶33} The trial court also found Massey in contempt of its prior orders of June
26, 2008 and February 28, 2008. The court ordered Massey to pay Lambert's attorney
fees for the contempt proceedings. The court sentenced Massey to thirty days in jail
and ordered him to pay court costs. Massey was given the opportunity to purge the
contempt by: (1) paying Lambert's counsel $1,000.00 in attorney fees for the contempt
action, plus $850.00 in attorney fees as ordered on June 26, 2008, plus $75.00 in costs;
(2) providing full, complete and accurate answers to Lambert's interrogatories; (3)
producing all financial information as ordered by the court on June 26, 2008; and (4)
paying his child support arrearage under the temporary orders of June 26, 2008 in full.
The hearing to establish child support orders was continued.
{¶34} On September 16, 2008, Massey filed his tax returns from 2005, 2006 and
2007. However, he failed to include any supporting documentation such as W-2 or 1099
forms. The hearing to determine child support was then continued several more times.
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{¶35} On May 11, 2009, Lambert filed a "motion for commitment," alleging
Massey had failed to purge himself of the contempt in accordance with the court's
September 10, 2008 order and that he continually failed to abide by the court's prior
orders thereby requiring commitment to jail. Specifically, she alleged that Massey failed
to provide any current income information or W-2/1099 information, having only
provided alleged tax returns for 2005-2007. Also she complained that Massey
continued to list invalid addresses for his employers when responding to her discovery
requests. She stated that subpoenas had been repeatedly issued in an attempt to gain
employment history, all of which were returned undeliverable. Lambert attached as
exhibits, inter alia, copies of envelopes sent to the employers at the addresses as
provided by Massey, all of which had been returned as undeliverable. Further, Lambert
alleged that Massey had failed to pay his temporary child support arrearage. Lambert
also requested the court to order Massey to pay the additional attorney fees incurred as
a result of Massey's noncompliance with court orders. The same day, Lambert also filed
a separate motion for contempt, which essentially made the same allegations.
{¶36} On May 11, 2009, the case came for further hearing on the establishment
of child support. Massey failed to appear. Lambert's counsel argued that because
Massey continued to be evasive about his earnings, and because the court had deemed
him not credible, that the court should use the only verified earnings information it had
before it; the $39,593.76 in commissions from the first four months of 2007, annualize
that amount, and on that basis, order Massey to pay $1,246.06 in monthly child support
retroactive to February 2007. She represented that Lambert's financial information had
not changed since she filed her financial affidavit pursuant to the court's June 2008
order.
{¶37} Massey's counsel then spoke on behalf of his client. He claimed that
Massey had failed to appear because he could not afford to travel from Alabama to Ohio
for the hearing. He submitted a child support worksheet which used $16,705.02 as
Massey's annual gross income, a figure which resulted in a $148.34 per month child
support obligation.
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{¶38} Lambert's counsel took issue with several aspects of Massey's proposed
worksheet, and claimed that Massey was severely underreporting his income. Further,
counsel stated that from her independent research she determined there were
numerous Alabama properties for which Massey was the listed real estate agent. She
named several of these properties and their asking prices.
{¶39} In a June 12, 2009 judgment entry the court ruled:
{¶40} "The Court finds that the obligee continues to be frustrated in obtaining
verification of Mr. Massey's wages. Responses to discovery apparently did not include
correct addresses for multiple employers. The Court has given Mr. Massey a very
substantial opportunity to be forthright and produce verification of his earnings. At prior
hearing the Court had reviewed the obligee's projection of annual income for Mr.
Massey based upon the limited evidence that was available to verify his earnings. The
Court finds that the projections of the obligee are the best evidence before the Court
and are appropriate for the Court in determining annual income of the obligee [sic]."
{¶41} The court ordered Lambert's counsel to file a proposed child support order
based on the income and the calculations in her proposed worksheet. The court sua
sponte ordered Massey to appear before the court to show cause as to why the prior jail
sentence should not be imposed as well as additional sanctions for his failure to appear
at the May 11, 2009 hearing.
{¶42} A final judgment entry was filed by the court on July 14, 2009 which
ordered Massey to pay $1,246.06 per month plus processing fees, effective February 7,
2007 to Lambert through the Columbiana County CSEA. Attached was a child support
computation worksheet which listed Massey's gross income as $118,781.00 and
Lambert's as $27,136.00.
Income Determination
{¶43} All three of Massey's assignments of error challenge the trial court's
calculation of his gross income and the resulting child support determination and will be
discussed together:
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{¶44} "The trial court erred in utilizing incorrect income in calculating Appellant's
modified child support obligations."
{¶45} "The trial court erred as a matter of law, to the prejudice of Appellant, in
imputing income to Appellant without first finding he was voluntarily unemployed or
underemployed pursuant to R.C. 3119.1 (C) 11 [sic]. The trial court further erred in
using this imputed income to calculate child and spousal support [sic] obligations."
{¶46} "The trial court [sic] determination of the parties' income for purposes of
the child support calculation was against the manifest weight of the evidence."
{¶47} Because determination of a parent's child support obligation falls within the
discretion of the trial court, that decision "will not be disturbed absent a showing of an
abuse of discretion." Pauly v. Pauly (1997), 80 Ohio St.3d 386, 390, 686 N.E.2d 1108,
citing Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. The term
"abuse of discretion" implies more than an error of law or judgment; it implies that the
court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
{¶48} However, "challenges to factual determinations upon which the child
support order is based are reviewed using the 'some competent credible evidence'
standard. Since a determination of gross income for support purposes is a factual
finding, we must review the trial court's decision to determine whether it is supported by
competent credible evidence." Heywood v. Heywood, 12th Dist. No.,CA2010-02-013,
2010-Ohio-3565, at ¶12, quoting, Glassman v. Offenberg, 8th Dist. Nos. 85838, 85863,
87175, 2006-Ohio-3837, at ¶20.
{¶49} Further, the trial court must follow the mandatory statutory child-support
requirements in all material respects. Sapinsley v. Sapinsley, 171 Ohio App.3d 74,
2007-Ohio-1320, 869 N.E.2d 702, at ¶8; see, also, Marker v. Grimm (1992), 65 Ohio
St.3d 139, 601 N.E.2d 496, paragraph two of the syllabus.
{¶50} Massey claims the trial court's determination of his gross income was
erroneous for several reasons. First, he argues the trial court's ultimate child support
order of $1,246.06 per month was unreasonable because the court had earlier only
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ordered $850.00 per month. This argument is flawed since the $850.00 per month was
a temporary child support order. Such orders are not final and the court need not find a
change in circumstances to modify them:
{¶51} "A temporary order is merely an order to provide for the needs of the
parties during the pendency of the [ ] action. The trial court has discretion to order an
amount different from the temporary order after final hearing, even without evidence of a
change in circumstances. The trial court need not justify a difference between a
temporary and a permanent child support award." Schumann v. Schumann, 8th Dist.
Nos. 83404, 83631, 2005-Ohio-91, at ¶50.
{¶52} Second, Massey contends he was somehow prohibited from introducing
evidence of his actual earnings. This argument is disingenuous. Throughout the
proceedings, Massey provided inaccurate and incomplete answers to discovery
questions regarding his employment history and income. Massey's testimony regarding
his earnings at the August 2008 hearing was inconsistent and evasive, to the point
where the trial court stated it had reason to "discount virtually all the testimony of Mr.
Massey as unreliable." On appeal, Massey not only omitted this testimony from his
argument, he did not order a transcript of this hearing to be included in the record of this
appeal. Lambert ordered the transcript to supplement the appellate record.
{¶53} Further, Massey failed to appear for the May 2009 hearing, which was a
continuation of the August hearing on his child support obligations. Massey now claims
he believed the purpose of the May 2009 hearing was merely to "review compliance with
previous orders," and not to establish child support. He claims the court denied him the
opportunity to present evidence of his earnings since he was unaware of the true
purpose of the hearing. This contention is unsupported by the record.
{¶54} In a September 10, 2008 judgment entry the trial court ordered: "Hearing
on the Motion to establish financial orders is continued and will come on before the
Court on the 3rd day of November, 2008 at 11:30 o'clock a.m." Lambert's counsel filed
a motion to continue that hearing which was granted, and the child support hearing was
continued to January 26, 2009. Subsequently, Massey's counsel filed a motion to
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continue the child support hearing, which was granted and the hearing rescheduled to
February 17, 2009. Then, on March 2, 2009, the court issued an entry stating:
{¶55} "This matter was scheduled before the Court for February 17th, 2009 for
Merit Hearing on Financial Obligation. Due to illness of Judge Baronzzi, it was
necessary to continue the hearing as scheduled. IT IS, THEREFORE, the order of the
Court that [ ] The Merit Hearing on Financial Obligations originally scheduled for
February 17, 2009 is continued and rescheduled and shall come on for Merit Hearing
before the Court on Monday May 11, 2009 at 11:30 a.m."
{¶56} Both Massey and his counsel were sent notice of this judgment entry.
Thus, Massey's argument on appeal that he was "unaware" that the May 11, 2009
hearing involved his child support obligations is meritless.
{¶57} Third, Massey contends the trial court abused its discretion by failing to
use the federal tax returns he provided for the years 2005-2007 to compute his gross
income. First, a court is not limited to considering the gross income as stated in the tax
returns. See Staffrey v. Smith, 7th Dist. No. 09-MA-107, 2010-Ohio-1296, at ¶28.
"Although federal and state tax documents provide a proper starting point to calculate a
parent's income, they are not the sole factor for the trial court to consider." (Citations
omitted.) Id. Further, Massey failed to provide the court with any supporting
documentation such as W-2's or 1099's to support what he alleged to be his gross
income. Finally, as discussed, the trial court expressly found after the August 25, 2008
hearing that almost all of Massey's testimony was unreliable. As such, the court chose
not to rely solely on Massey's tax returns when determining his gross income.
Generally, an appellate court defers to the credibility determinations made by the trial
court. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.
Thus, this argument is meritless.
{¶58} Fourth, Massey claims the trial court erred by imputing income to him
without first finding he is voluntarily unemployed or underemployed and then analyzing
the criteria set forth in R.C. 3119.01(C)(11). The trial court did not impute income to
Massey. Rather the trial court extrapolated Massey's annual gross income from the
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limited verified financial data it had before it, i.e., his commissions from the first four
months of 2007. Ohio courts have held that if a parent is evasive or avoidant in
providing income verification, a court may use the financial data that is available to
determine the parent's gross income, even if the parent is not voluntarily unemployed or
underemployed. Cole v. Cole, 5th Dist. No. 2006-CA-00190, 2007-Ohio-54; Bach v.
Bach (Sept. 10, 1999), 2d Dist. No. 17497.
{¶59} First, in Cole, the father testified during a second trial on remand that he
was unsure of his current income. In calculating gross income for child and spousal
support purposes, the trial court used the father's income information from a worksheet
submitted at the original trial several years earlier. On appeal, like Massey, the father
argued that the trial court erred by imputing income to him without first finding he was
voluntarily unemployed or underemployed pursuant to R.C. 3119.01(C)(11). The Fifth
District disagreed, concluding that since the father "testified evasively" and "attended
trial with little or no information regarding his finances," the trial court properly relied on
the past income information to determine his support obligations. Id. at ¶22-23. The
appellate court noted that the father had the option of moving for modification if he could
present sufficient financial information demonstrating his income had decreased. Id.
{¶60} Second, in Bach, the Second District held that the trial court did not abuse
its discretion by estimating the father's income based on other information in the record
where the father was evasive, forgetful, kept poor business records and the trial court
was therefore skeptical about his credibility. Id. at *4-5.
{¶61} Similarly, Massey was evasive regarding his income. He listed incorrect
addresses for his prior employers. He failed to provide documentation, such as W-2 or
1099 forms to support his unsworn financial affidavit or his tax returns. He testified that
pursuant to his 2007 tax return he earned $39,593.76 in 2007, but later admitted he had
one sale in 2007 that resulted in a commission check of $45,000.00. Further, Massey
testified he had over $3,000.00 in monthly expenses, and that all of his bills were
current, yet he claimed to have earned only $9,600.00 from January 1, 2008 to July 1,
2008. He claimed he had received a $30,000.00 inheritance from his mother in 2005,
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but otherwise could not explain how he was meeting his monthly expenses with such a
low income. After the August 25, 2008 hearing, the trial court found Massey not
credible. And despite his promises during that hearing to provide verification of his
income as ordered by the court, Massey never did so, and failed to appear for an
additional hearing on the matter. For these reasons, the trial court was reasonable in
calculating Massey's gross income using the limited verified information it had before it.
{¶62} In conclusion, all of Massey's assignments of error are meritless. The trial
court properly used the limited information it had before it to project Massey's annual
gross income. Thus, the trial court’s income determination was supported by
competent, credible evidence and not an abuse of discretion. Accordingly, the judgment
of the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.