Reese v. Reese

[Cite as Reese v. Reese, 2019-Ohio-2810.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JEFFREY A. REESE, : APPEAL NO. C-180077
TRIAL NO. DR1600595
Plaintiff-Appellant, :
O P I N I O N.
vs. :
JULIE A. REESE, :
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded; Appeal Dismissed in Part
Date of Judgment Entry on Appeal: July 10, 2019
Cordell Law, LLP, and Dorothy Walsh Ripka, for Plaintiff-Appellant,
Tibbs Law Office, LLC, and Daryle C. Tibbs, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
C ROUSE , Judge.
{¶1} Plaintiff-appellant Jeffrey Reese (“Jeff”) appeals the Hamilton County
Domestic Relations Court’s final entry issued on December 14, 2017, and the entry
granting plaintiff’s “Motion for Relief with Findings of Fact and Conclusion of Law”
entered on May 4, 2018.
{¶2} In three assignments of error, Jeff argues that the trial court erred in
granting his motion for relief from judgment based on mistake instead of fraud; the
trial court improperly ordered him to pay a “distributive award” in the form of a lump-
sum spousal-support payment; and the trial court erred when it found that defendant-
appellee Julie Reese (“Julie”) was not voluntarily underemployed and ordered Jeff to
pay monthly child support.
I. Facts and Procedure
{¶3} The parties were married on August 24, 2002. Three children were born
of the marriage. The parties separated on March 23, 2016, and Jeff filed for divorce on
April 6, 2016. In August 2017, the Hamilton County Domestic Relations Court ordered
shared parenting of the three children. On November 28, 2017, the court held a
property trial to determine the issues of equitable property distribution, spousal
support, and child support. The court issued a final entry on December 14, 2017. As
relevant to this appeal, the court ordered Jeff to pay Julie a lump-sum spousal-support
payment in the amount of $75,000, and monthly child-support payments in the amount
of $1,014.50. The court also ordered that the parties’ marital home be sold and the first
$118,223.13 in proceeds to be paid to Julie’s parents as repayment on a loan.
{¶4} Jeff filed this appeal on February 8, 2018. The following day, Jeff filed a
postdecree motion for relief from judgment pursuant to Civ.R. 60(B) in the trial court,
contesting the grant of marital-home proceeds to Julie’s parents. On March 2, 2018, Jeff
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OHIO FIRST DISTRICT COURT OF APPEALS
filed with this court a “Motion to Remand to Trial Court Pursuant to Civ.R. 60(B).” On
March 21, 2018, this court granted Jeff’s motion and remanded the matter for the
limited purpose of permitting the trial court to consider Jeff’s postdecree motion for
relief.
{¶5} On April 23, 2018, the trial court heard argument on the postdecree
motion for relief from judgment pursuant to Civ.R. 60(B). The trial court issued an
entry granting plaintiff’s “Motion for Relief from Judgment Pursuant to Rule 60(B)” on
April 24, 2018. Upon Jeff’s request, the trial court subsequently issued an entry
granting plaintiff’s motion for relief from judgment pursuant to Civ.R. 60(B) with
findings of fact and conclusion of law on May 4, 2018. Jeff now appeals both the
final entry issued on December 14, 2017, and the entry granting his motion for relief
entered on May 4, 2018.
II. Motion for Relief from Judgment
{¶6} In his first assignment of error, Jeff argues that the trial court erred in
granting his Civ.R. 60(B) motion for relief from judgment based on mistake instead of
fraud.
{¶7} During the April 23 hearing on his motion, Jeff asked the trial court to
find he was entitled to relief from judgment under Civ.R. 60(B)(3) based on fraud,
misrepresentation, or misconduct, or, in the alternative, under Civ.R. 60(B)(1) based on
mistake. By its May 4 entry, the court concluded that Jeff was entitled to relief under
Civ.R. 60(B)(1) based on the mistaken testimony of Julie and her mother. The court also
granted Jeff attorney fees incurred in pursuit of the motion for relief.
{¶8} “[A]n appeal lies only on behalf of a party aggrieved by the final order
appealed from.” Ohio Contract Carriers Assn. v. Pub. Utilities Comm., 140 Ohio St.
160, 42 N.E.2d 758 (1942), paragraph one of the syllabus; see Young v. Durrani, 2016-
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Ohio-5526, 61 N.E.3d 34, ¶ 17 (1st Dist.). Accordingly, a party who is not aggrieved or
prejudiced by a judgment does not have standing to appeal. See Young at ¶ 17. Without
standing, a party’s appeal must be dismissed. See State v. Sweeting, 1st Dist. Hamilton
Nos. C-170512 and C-170513, 2019-Ohio-1970, ¶ 9.
{¶9} Because Jeff is not an aggrieved party, his appeal from the trial court’s
entry granting relief from judgment must be dismissed.
III. “Distributive Award” in the Form of Lump-Sum Spousal Support
{¶10} In his second assignment of error, Jeff argues that the trial court
improperly ordered him to pay a “distributive award” in the form of a lump-sum
spousal-support payment.
{¶11} A trial court has broad discretion in determining whether an award of
spousal support is appropriate and the proper amount of the award. Doan v. Doan, 1st
Dist. Hamilton No. C-960932, 1997 WL 602881, *6 (Oct. 2, 1997). A decision regarding
spousal support will not be reversed on appeal absent an abuse of discretion. Id.
{¶12} The trial court is required to equitably divide marital property prior to
making any award of spousal support “without regard to any spousal support so
awarded.” R.C. 3105.171(C)(3). Only after the court divides the parties’ marital property
may it determine whether to award spousal support. R.C. 3105.18(B). The record here
indicates that the trial court divided the marital property equally between the parties
before making an award of spousal support. However, the court improperly stated that
the expenses incurred by Jeff, while insufficient to justify an unequal division of
property and/or a distributive award, would be considered relevant to the manner in
which the court addressed spousal support. The court subsequently issued spousal
support, in the form of a $75,000 lump-sum payment, to be deducted from the
equalization of marital assets and debts.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Although the trial court may consider a party’s financial irresponsibility
in deciding to award spousal support as a lump-sum judgment, an award of spousal
support is not a tool to punish financial irresponsibility. Our sister districts have made it
clear that whether a party “deserves” spousal support is not a basis for awarding or
denying support. Rather, the only relevant inquiry under R.C. 3105.18 is whether
spousal support is appropriate and reasonable under the circumstances. See Jordan v.
Jordan, 3d Dist. Hancock No. 5-03-07, 2003-Ohio-7116, citing Schindler v. Schindler,
9th Dist. Summit No. 18243, 1998 WL 46764 (Jan. 28, 1998) (“It is not significant
whether the spouse ‘deserves’ the support; the only relevant question is what is
appropriate and reasonable under the circumstances.”); Forbis v. Forbis, 6th Dist.
Wood Nos. WD-04-056 and WD-04-063, 2005-Ohio-5881 (“An award of spousal
support, temporary or otherwise, should not be punitive or be based upon the conduct of
a party. * * * Whether a party ‘deserves’ spousal support based on marital conduct is
not a basis for awarding or denying support. The only relevant question is what is
appropriate and reasonable under the circumstances of each case.”) (Internal citations
omitted.); Utt v. Utt, 7th Dist. Columbiana No. 02 CO 47, 2003-Ohio-6720 (“Under R.C.
3105.18, a trial court must base its decision to award or deny spousal support on
whether it is appropriate and reasonable under the circumstances, not whether a spouse
needs or deserves it. And whether a party deserves spousal support is not a basis for
awarding or failing to award spousal support.”) (Internal citations omitted.).
{¶14} In this case, it is clear from the record that the $75,000 lump-sum
spousal-support payment was in essence a distributive award under the guise of a
spousal-support award. During the divorce proceedings, Julie requested spousal
support in the amount of $800 per month for four years, totaling $38,400. Under R.C.
3105.18(C)(1), the court found that Jeff withdrew a total of $22,677 from ATM
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OHIO FIRST DISTRICT COURT OF APPEALS
machines and spent $15,671 at Hooters. By seemingly adding the expenses incurred
by Jeff during the marriage to Julie’s request, the court ordered Jeff to pay Julie a
$75,000 lump-sum payment. The payment was to be deducted from the total due from
the equalization of marital assets and debts. Based on these facts, we cannot find that
the spousal support was based solely on appropriateness and reasonableness. Rather,
the record indicates that the spousal-support award was based on the need to punish
Jeff’s financial irresponsibility—a job best left to a distributive award. Accordingly, the
trial court abused its discretion in awarding Julie a lump-sum spousal-support payment
in the amount of $75,000. Jeff’s second assignment of error is sustained.
IV. Determination of Child Support and Voluntary Underemployment
{¶15} In his third assignment of error, Jeff argues that the trial court erred
when it found that Julie was not voluntarily underemployed and ordered him to pay
monthly child support.
{¶16} Whether a parent is voluntarily underemployed is a factual determination
to be made by the trial court based on the facts and circumstances of the case. Rock v.
Cabral, 67 Ohio St. 3d 108, 112, 616 N.E.2d 218 (1993). A reviewing court will not
disturb the trial court’s determination on appeal absent an abuse of discretion. Id.
{¶17} Where shared parenting is ordered, the court must calculate child
support in accordance with the child-support schedule and worksheet set forth in R.C.
3119.021. R.C. 3119.24. The amount of child support payable, as calculated pursuant to
the child-support schedule and the appropriate worksheet, “is rebuttably presumed to be
the correct amount of child support due.” R.C. 3119.03. In calculating child support, the
trial court must first determine the annual gross income of each parent. Cwik v. Cwik,
1st Dist. Hamilton No. C-090843, 2011-Ohio-463, ¶ 89. If the court finds that one
parent is voluntarily underemployed, the court may compute the annual gross income of
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OHIO FIRST DISTRICT COURT OF APPEALS
that parent by adding any potential income he or she would have earned if fully
employed to his or her annual gross income. R.C. 3119.01(B)(9)(b) and (17).
{¶18} “A voluntary reduction in income is not sufficient in and of itself to
establish that potential income should be imputed to the parent.” Sweeney v. Sweeney,
1st Dist. Hamilton No. C-180076, 2019-Ohio-1750, ¶ 27. Rather, the trial court’s inquiry
is two-fold. Id. First, the court must determine whether the reduction was voluntary.
Id. Second, the court must determine whether the reduction was made with due regard
to the parent’s income-producing abilities and his or her duty to provide for the
continuing needs of the children. Id. If the record demonstrates an objectively
reasonable basis for reducing income, where reasonableness is measured by examining
the effect of the parent’s decision as it relates to the interests of the child, then the parent
is not voluntarily underemployed for the purpose of calculating child support. Id.
{¶19} The parties do not seriously dispute that Julie’s second leave of absence
was taken voluntarily. However, the record amply supports a finding that the reduction
was made with due regard for the continuing needs of the children. Julie has been
employed as a financial risk consultant at Protiviti since February 2006. Prior to the
birth of the parties’ three children, Julie worked full-time. When the children were born
in 2010, Julie took maternity leave for nine to ten months. In 2011, Julie returned to
work part-time while also taking care of the children.
{¶20} In 2014, Protiviti asked Julie to work full-time due to a shortage of
employees. Because the children attended preschool two days a week, and the parties
had a nanny the other days of the week, Julie agreed. By May 2015, Julie “was starting
to be completely burnt out. The client demands on top of the children, on top of
everything else was just getting to be too much.” A few months later, the children
started kindergarten and the parties no longer had a nanny. Therefore, in addition to
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working full-time, Julie also assumed responsibility for the house and children. Jeff
worked long hours, and was often gone from 7:00 a.m. to 7:30 p.m.
{¶21} In January 2016, Julie took a second leave of absence after discussing it
with Jeff and calculating a workable budget. When Julie returned to work later that
year, Protiviti no longer needed her full-time. Instead, Julie returned to work part-time.
Based on the foregoing, it is clear that Julie took the second leave of absence to properly
care for the parties’ three minor children. Therefore, the record supports an objectively
reasonable basis for Julie reducing her income. Accordingly, the trial court did not err
when it declined to find that Julie was voluntarily underemployed and ordered Jeff to
pay $1,014.50 per month in child support. Jeff’s third assignment of error is overruled.
V. Conclusion
{¶22} Jeff’s appeal from the trial court’s entry granting relief from judgment is
dismissed. The judgment of the trial court granting the divorce is affirmed in part and
reversed in part, and the cause is remanded to the trial court for recalculation of spousal
support in accordance with this opinion.
Judgment accordingly.
Z AYAS , P.J., and W INKLER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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