Carter v. Carter

[Cite as Carter v. Carter, 2012-Ohio-2475.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
DON D. CARTER C.A. No. 25981
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KIMBERLY CARTER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 1996-05-1301
DECISION AND JOURNAL ENTRY
Dated: June 6, 2012
CARR, Presiding Judge.
{¶1} Appellant, Kimberly Carter, appeals the judgment of the Summit County Court of
Common Pleas, Domestic Relations Division. This Court affirms in part and reverses in part.
I.
{¶2} Don and Kimberly Carter were divorced in 1997. One child was born of the
marriage. Pursuant to the parties’ agreement which was incorporated into the divorce decree,
Don was required to pay one-half of all college-related expenses for the child, if the child
decided to attend college. The child matriculated at Morehouse College in the fall of 2006.
{¶3} On July 26, 2007, Kimberly filed a motion to enforce the parties’ judgment entry
of divorce regarding the payment of post-secondary educational expenses and a motion for Don
to appear and show cause why he should not be held in contempt for failing to pay his share of
the child’s college expenses. On November 14, 2007, the domestic relations court found Don in
contempt and sentenced him to fifteen days in jail. The court gave Don an opportunity to purge
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the contempt by making arrangements with Kimberly to pay his arrearages in regard to the
child’s college expenses for the 2006-2007 academic year by way of regular installment
payments. The trial court then scheduled a further hearing to determine whether Don had purged
his contempt. In addition, the domestic relations court awarded judgment to Kimberly in the
amount of $256.33 for expenses incurred in the prosecution of the contempt motion and in the
amount of $5,009.62 for Don’s share of the child’s college expenses for the fall semester of the
2007-2008 academic year, plus eight percent interest. The court further ordered that Don’s
obligation to pay one-half of the child’s college expenses remained in effect, so that he would
continue to incur such an obligation for future semesters.
{¶4} After the purge hearing on May 9, 2008, the domestic relations court found that
Don had successfully purged his contempt by entering into an agreement with Kimberly to pay
her $600 per month until he had completely paid one-half of the child’s college expenses for the
child’s first two years of college. The court ordered Don to continue paying Kimberly $600 per
month until he had completely paid his one-half share of the child’s college expenses for the first
two years of college. As the child’s third year in college had not yet begun, the domestic
relations court ordered that Don, at his option, could arrange to pay his half of the child’s future
tuition obligations directly to Morehouse College as long as he properly made such payments in
compliance with the installment payment plan offered by the college.
{¶5} On September 23, 2010, after the child had graduated from college, Kimberly
filed a motion to enforce the June 2008 order regarding the payment of post-secondary
educational expenses and a motion for Don to appear and show cause why he should not be held
in contempt for failing to pay his remaining share of the child’s college expenses. Kimberly
averred in an affidavit attached to the motion that Don had violated the court’s 2008 order by (1)
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failing to fully pay his share of the child’s college expenses for the first two years of college, and
(2) failing to pay his share of the child’s college expenses for the child’s third and fourth years of
college.
{¶6} The matter was heard by a magistrate who denied Kimberly’s contempt motion
and ordered Don to continue to pay Kimberly $600 per month until he had paid a total of
$42,894.40, inclusive of all payments he had already made. Kimberly filed timely objections.
The domestic relations court overruled Kimberly’s objections, refused to hold Don in contempt,
but ordered Don to continue to pay Kimberly $600 per month until he had paid a total of
$38,394.40 in addition to the $18,100.00 he had already paid, for a grand total of $56,494.40.
Kimberly filed a timely appeal in which she raises three assignments of error for review.
{¶7} As a preliminary matter, this Court notes that appellee Don Carter has failed to
file an appellee’s brief. Accordingly, we may accept appellant Kimberly Carter’s statement of
the facts and issues as correct and reverse the judgment if Kimberly’s brief reasonably appears to
sustain such action. App.R. 18(C); see also Akron v. Carter, 9th Dist. No. 22444, 2005-Ohio-
4362, ¶ 3.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY ORDERING THE PLAINTIFF-APPELLEE,
DON CARTER, TO PAY ONLY $38,394.40 TO THE DEFENDANT IN
VIOLATION OF THE COURT’S JUDGMENT ENTRY OF NOVEMBER 14,
2007[] AND THE FINAL JUDGMENT OF DIVORCE.
{¶8} Kimberly argues that the trial court erred by rendering judgment in her favor of
only $38,394.40. This Court agrees.
{¶9} Specifically, Kimberly argues that the trial court erred by failing to include in the
judgment a sum representing to date eight percent interest on the unpaid balance of Don’s share
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of the child’s college expenses for the first two years of college, as well as her yet unpaid
expenses ($256.33) plus eight percent interest on that amount, as previously ordered by the trial
court on November 14, 2007. We construe this assignment of error as one which argues that the
judgment is against the manifest weight of the evidence.
{¶10} The Ohio Supreme Court recently clarified the civil manifest weight of the
evidence standard of review, holding that it mirrors the criminal standard. Eastley v. Volkman,
Slip Opinion No. 2012-Ohio-2179. Accordingly, we apply the following review:
When the manifest weight of the evidence is challenged, “[a]n appellate court
conducts the same manifest weight analysis in both criminal and civil cases.” Ray
v. Vansickle, 9th Dist. Nos. 97CA006897 and 97CA006907, 1998 WL 716930(Oct. 14, 1998). “‘The [reviewing] court * * * 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 [judgment] must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387
(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
Moreover, “[e]very reasonable presumption must be made in favor of the
judgment and the findings of facts [of the trial court].” Karches v. Cincinnati, 38
Ohio St.3d 12, 19 (1988). Furthermore, “if the evidence is susceptible of more
than one construction, we must give it that interpretation which is consistent with
the verdict * * * and judgment, most favorable to sustaining the trial court’s
verdict and judgment.” Id.Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001).
{¶11} Moreover,
Weight of the evidence concerns the tendency of a greater amount of credible
evidence to support one side of the issue more than the other. Thompkins, 78
Ohio St.3d at 387. Further when reversing a [judgment] on the basis that it was
against the manifest weight of the evidence, an appellate court sits as a “thirteenth
juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
Id.
State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power
should be exercised only in exceptional cases where the evidence presented weighs heavily in
favor of the appellant and against the judgment. Thompkins, 78 Ohio St.3d at 387.
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{¶12} The domestic relations court awarded judgment to Kimberly in an amount which
included one-half of the college expenses incurred by the child for tuition, fees, housing, and
meals only.
{¶13} Kimberly had moved for contempt based on Don’s failure (1) to pay his share of
the child’s college expenses for the first two years, and (2) to pay his share of the child’s college
expenses for the second two years. She had also moved to enforce only the trial court’s June
2008 order, which was issued after the purge hearing and only referenced Don’s obligation to
continue to pay his share of the child’s college expenses. Pursuant to the court’s November 2007
order, Don was ordered to pay eight percent interest on the unpaid balance of his share of the
child’s college expenses for the first two years of college. That interest became part of his share
of the college expenses due for the child’s first two years. Accordingly, the court’s June 2008
order which reiterated Don’s obligation to continue to make installment payments for his share
of the first two years’ college expenses until they were paid in full necessarily included the
accumulated interest. Kimberly made this argument at the hearing and referenced the trial
court’s previous order. Moreover, while she presented evidence of the expenses incurred for the
child’s first two years of college, she informed the court that those amounts did not include the
eight percent interest to which she was entitled. Under these circumstances, a review of the
record compels this Court to conclude that this is not the exceptional case where the evidence
weighs heavily in favor of Don. The weight of the evidence supports the conclusion that
Kimberly was entitled to judgment in an amount which included the accumulated interest on
Don’s unpaid balance for the child’s college expenses for the first two years. Kimberly’s first
assignment of error is well taken in this regard.
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{¶14} Kimberly also argues that the trial court erred by failing to include in the
judgment an amount representing Don’s obligation to pay her costs of prosecuting her July 26,
2007 contempt motion. The trial court’s November 14, 2007 order directed Don to pay $256.33
for those costs, plus eight percent interest. However, Kimberly did not move to enforce that
order or reference it in her September 23, 2010 motions. Instead, she moved to enforce the June
2008 purge order which did not reference those costs; and she moved for contempt in regard to
Don’s failure to pay college expenses, not those costs. Kimberly is entitled to payment from
Don for the $256.33 costs plus interest pursuant to the November 14, 2007 order. However, she
neither moved to enforce that order nor cited the lack of payment for those costs in her contempt
motion in the instant matter. Moreover, she presented no evidence in regard to Don’s failure to
pay those costs. Accordingly, the trial court did not err by failing to include those amounts in its
May 20, 2011 judgment. Kimberly’s first assignment of error is not well taken in this regard.
{¶15} Kimberly’s first assignment of error is sustained in regard to the domestic
relations court’s failure to render judgment in consideration of that court’s prior award of eight
percent interest on Don’s unpaid balance with respect to the child’s expenses from his first two
years of college.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ORDERING THE PLAINTIFF-APPELLEE, DON CARTER, TO CONTINUE
TO PAY $600.00 PER MONTH TO THE APPELLANT UNTIL HE HAD PAID
$38,394.40 (ALLEGEDLY DON’S REMAINING TOTAL FOR FOUR YEARS
OF COLLEGE) BECAUSE THIS OVERRIDES ITS PRIOR COURT ORDER
OF JUNE 17, 2008 WHICH REQUIRED PLAINTIFF-APPELLEE, DON
CARTER, TO PAY $600.00 PER MONTH TOWARD THEIR SON’S FIRST
TWO YEARS OF COLLEGE (EMPHASIS ADDED) WHILE THE LAST TWO
YEARS WAS TO BE PAID SEPARATELY.
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{¶16} Kimberly argues that the domestic relations court abused its discretion by
ordering Don to pay the full amount of the judgment awarded to Kimberly in monthly
installments of $600. This Court agrees.
{¶17} “As a general rule, appellate courts review the propriety of a trial court’s
determination in a domestic relations case for an abuse of discretion.” Saari v. Saari, 195 Ohio
App.3d 444, 2011-Ohio-4710, ¶ 8 (9th Dist.), citing Booth v. Booth, 44 Ohio St.3d 142, 144
(1989). “This is true because the domestic relations court, as a court of equity, ‘must have
discretion to do what is equitable upon the facts and circumstances of each case.’” Saari at ¶ 8,
quoting Booth at 144. 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).
{¶18} Kimberly argues that the parties agreed that Don would pay his share of the
child’s college expenses by way of $600 monthly installment payments only with respect to the
first two years of college. The domestic relations court recognized and incorporated that
agreement into its June 17, 2008 order issued after the purge hearing. In regard to the third and
fourth year college expenses, however, the trial court did not order that Don would be permitted
to reimburse Kimberly for half of those expenses under the same terms. Instead, the court
merely ordered that Don could coordinate directly with Morehouse College to pay his share in
monthly installments if the college offered such a payment plan. That order in no way relieved
Don of his obligation to pay half of the child’s college expenses as they were incurred.
Moreover, the parties’ divorce decree did not order Kimberly to pay all of the child’s college
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expenses and then seek reimbursement from Don. Nor did it limit Don’s financial obligation to a
sum certain every month.
{¶19} The trial court recognized that Don had not met his obligation under the divorce
decree to pay his share of the child’s college expenses for the third and fourth years of college. It
rendered judgment in favor of Kimberly for an amount encompassing Don’s share of those
college expenses. It then issued an order allowing Don to pay that judgment in monthly
installments. Kimberly has not cited any authority for the proposition that a domestic relations
court may not permit a party to pay a judgment in monthly installments. In fact, equity may
militate in favor of such an arrangement. However, under the circumstances of this case, the
domestic relations court abused its discretion in allowing Don to pay his obligation for that last
two years’ college expenses in monthly installment of $600.
{¶20} Significantly, the parties did not enter into an agreement whereby Don could meet
his obligation to pay half of the child’s college expenses for the third and fourth years by making
monthly installment payments to Kimberly. Moreover, the child had graduated from college by
the time Kimberly filed her instant motions. Kimberly presented evidence that she had paid
$121,988.80 for the child’s college expenses and that Don had only paid $18,100.00 at the time
of the hearing. In addition, the evidence established that Don had not paid any of those expenses
contemporaneously with their accrual. Rather, in every instance, he reimbursed Kimberly for
monies she had (in some cases, long ago) expended. Even limiting Don’s remaining obligation
to the $38,394.40 judgment, it would take him five and a third years to repay Kimberly.
Kimberly financed the child’s college education in part through parent loans. More unreasonable
still, not only does the trial court’s judgment not award Kimberly interest on her judgment, but it
does not take into consideration that she will have paid more than her share of the actual college
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expenses because she must pay interest on the loans she secured. Under these facts and
circumstances, the domestic relations court abused its discretion by ordering Don to pay one-half
of the child’s college expenses for the third and fourth years of college in monthly installments
of $600 until the total judgment, which moreover does not include interest, is paid in full. See
Saari, supra. Kimberly’s second assignment of error is sustained.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
REWRITING THE TERMS OF THE FINAL JUDGMENT OF DIVORCE
REGARDING COLLEGE TUITION EXPENSES AND REFUSING TO FIND
THE PLAINTIFF-APPELLEE IN CONTEMPT WHEN THE FINAL
JUDGMENT OF DIVORCE DID NOT INCLUDE A RESERVATION OF
JURISDICTION AND THE ADULT CHILD DID NOT CONSENT TO THE
MODIFICATION.
{¶21} Kimberly first argues that the domestic relations court erred by rewriting the
terms of the final judgment entry of divorce. She further argues that the domestic relations court
abused its discretion by failing to find Don in contempt. This Court declines to address the first
argument as moot and we disagree with the second.
{¶22} Kimberly argues that the trial court’s order that Don pay his portion of the child’s
college expenses by way of installment payments constitutes an unauthorized modification of the
parties’ final judgment of divorce. Because our resolution of the second assignment of error
renders this argument moot, we decline to address it.
{¶23} Kimberly further argues that the domestic relations court abused its discretion by
failing to find Don in contempt for failing to pay his share of the child’s college expenses. We
disagree.
{¶24} This Court has held that “[if] contempt proceedings are invoked solely by the
person aggrieved by disobedience of the court’s order, a refusal to punish for contempt is largely
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within the discretion of the trial court.” Akin v. Akin, 9th Dist. Nos. 25524, 25543, 2011-Ohio-
2765, ¶ 44, quoting Thomarios v. Thomarios, 9th Dist. No. 14232, 1990 WL 1777 (Jan. 10,
1990).
{¶25} Don did not dispute that he had not met his obligation to pay one-half of the
child’s college expenses. Although the trial court previously ordered that Don could make
payment arrangements directly with the college for payment of the child’s future expenses, Don
testified that he was precluded from doing so. He testified that the college officials refused to
recognize or acknowledge his attempts to obtain information about his son’s account. Kimberly
admitted that she did not contact Don about his remaining obligation until after the child had
graduated. Although Don had recently stopped making payments to Kimberly on his obligation,
he did so because he was not aware of the amount of his remaining obligation. Accordingly, the
domestic relations court exercised proper discretion when it declined to hold Don in contempt.
Kimberly’s third assignment of error is overruled.
III.
{¶26} Kimberly’s first assignment of error is sustained in part, and the second
assignment of error is sustained. The third assignment of error is overruled in part and we
decline to address the remaining issue as it has been rendered moot. The judgment of the
Summit County Court of 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.
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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 Summit, 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
DICKINSON, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
SUSAN K. PRITCHARD, Attorney at Law, for Appellant.
DON D. CARTER, pro se, Appellee.