Hoskins v. Hoskins

[Cite as Hoskins v. Hoskins, 2013-Ohio-1126.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ROBERT HOSKINS, : APPEAL NOS. C-120130
C-120213
Plaintiff-Appellant, : TRIAL NO. DR-1002604
vs. : O P I N I O N.
KRISTEN HOSKINS, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: March 27, 2013
Robert H. Hoskins, pro se.
Katz, Greenberger, & Norton, LLP, and Christina Yager, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
D INKELACKER , Judge.
{¶1} In this divorce proceeding, defendant-appellant Robert Hoskins
claims that the trial court erred when it: (1) awarded defendant-appellee Kristen
Hoskins $43,391.50 in marital equity; (2) failed to modify child and spousal support
based on his decreased income; (3) improperly set the couple’s parenting schedule;
and (4) ordered him to pay half of her attorney fees. Because we conclude that the
trial court abused its discretion when it accepted an improper valuation for the
marital home, we must reverse.
{¶2} The parties were married in 2003 and had two children. Mr. Hoskins
filed for divorce when he learned that Ms. Hoskins was having an affair with a
neighbor. Mr. Hoskins had worked as an attorney at a large Cincinnati law firm, and
later had worked there supervising the technological aspects that come with modern
complex litigation. During the divorce proceedings, he was fired from that position
and began his own practice. The couple had reached an agreement in which they
shared custody of the children.
{¶3} In his first assignment of error, Mr. Hoskins claims that the trial court
improperly credited Ms. Hoskins with marital equity as it related to the value of their
marital home. Ms. Hoskins called a surveyor and an appraiser to testify as to the
value of the property. They testified that, if the property were subdivided and sold
separately, it would be worth $370,000. But neither witness testified that the land
could be subdivided and the resulting two parcels successfully sold separately. There
was no evidence that building on the subdivided lot would be permitted by either
applicable zoning laws or the lienholders, or that there would be any other market
2
O HIO F IRST D ISTRICT C OURT OF A PPEALS
for the parcels. The only evidence before the court was that the property as a whole
was appraised at $275,000. Because the trial court’s $370,000 valuation of the
home was not based on competent, credible evidence, the decision of the trial court
regarding marital equity must be reversed. We sustain the first assignment of error.
{¶4} The improper property valuation also effects Mr. Hoskins’s second
assignment of error relating to the award of spousal and child support. When
calculating the lump sum spousal award, the marital equity was a factor. In light of
the above analysis, the trial court must also reconsider its award of spousal support
when it makes the adjustments outlined under the first assignment of error.
{¶5} The award of child support is another matter. Mr. Hoskins contends,
and it is not disputed, that he was not making nearly as much money as he was when
he was employed by the large firm. He challenges, in essence, the determination by
the trial court that he was voluntarily underemployed.
{¶6} Whether a parent is voluntarily underemployed, and the amount of
potential income to be imputed for child support are determinations that this court
will not disturb absent a demonstration that the trial court abused its discretion.
Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993), syllabus.
{¶7} In this case, the trial court concluded that Mr. Hoskins “was
terminated for cause (lack of performance and missing time from work) and
therefore he is voluntarily underemployed.” Testimony in the record from
supervisors indicated that Mr. Hoskins had failed to perform his work satisfactorily,
and that he had missed work without permission in order to litigate cases on which
he had been working with his former law firm.
3
O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶8} In light of the record before us, we cannot say that the trial court
abused its discretion. While it may well be true that Mr. Hoskins is not now in a
position to make the amount of money he had made while at the law firm, it was his
conduct that placed him in that position. Obviously, this does not foreclose the
possibility of his seeking to have the order modified at some future time when he can
establish that, through diligence, he is earning the most that can be expected.
{¶9} Having considered both issues, we sustain Mr. Hoskins’s assignment
of error as it relates to spousal support, but overrule it as it relates to child support.
{¶10} In his third assignment of error, Mr. Hoskins argues that the trial
court erred when it failed to adopt the parenting schedule submitted by the court’s
parenting investigator, and instead issued a standard visitation order. We disagree.
{¶11} The trial court has broad discretion when setting a parenting
schedule. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988). The schedule
proposed would have been very difficult to implement, requiring the shifting of
custody at awkward times. Even the investigator who proposed the plan conceded
that “it’s not ideal. I would be the first to say that. That’s a lot of back and forth. We
like to avoid back and forth.” As Ms. Hoskins notes, it was well within the trial
court’s discretion to determine that the logistical burden of transportation on the
parents, and more importantly, the disruption in the stability caused by daily change
in environment under the particular suggested provision, was not in the children’s
best interest. We overrule Mr. Hoskins’s third assignment of error.
{¶12} In his final assignment, Mr. Hoskins argues that the trial court erred
when it ordered him to pay half of Ms. Hoskins’s attorney fees. He argues that he
should not have to pay for attorney fees incurred by Ms. Hoskins in the unsuccessful
4
O HIO F IRST D ISTRICT C OURT OF A PPEALS
litigation of a related civil-protection-order case. But the trial court ordered Mr.
Hoskins to pay $30,000 of a $62,000 debt. Nothing in the record indicates that Mr.
Hoskins was ordered to pay for the collateral matter. If the trial court had actually
ordered Mr. Hoskins to pay “half” of the total bill, and that bill contained the related
matter, then there would be an issue. But as it stands, the record does not support
the claim of error that Mr. Hoskins makes.
{¶13} The trial court made the award because “the divorce [had] been
extensive and protracted,” Mr. Hoskins had filed “at least one” frivolous motion, and
he was a licensed attorney acting pro se who “contested almost every issue.” Ohio
courts have held that, regardless of ability to pay, the trial court may award attorney
fees if the other spouse used tactics that prolonged the litigation. Metz v. Metz, 1st
Dist. No. C-050463, 2007-Ohio-549, ¶ 45. We overrule Mr. Hoskins’s fourth
assignment of error.
{¶14} Having considered all four assignments of error, we conclude that the
trial court improperly valued the marital property. We reverse the trial court’s
judgment as to the valuation of the marital property, the award of marital equity, and
the lump sum spousal award, and we remand this cause with instructions to the trial
court to use the only valuation proven in the record, and to make such adjustments
to spousal support as this modification would require. We affirm the judgment of
the trial court in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
HILDEBRANDT, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
5