Murphy v. Murphy

This matter is before us on defendant's appeal from a judgment of the Court of Common Pleas of Franklin County, Division of Domestic Relations, ordering an increase in defendant's child support obligation to plaintiff.

The trial court found a change in circumstances since the decree of divorce and ordered defendant, Roger A. Murphy, to pay approximately eighty-one percent of the support of the parties' two surviving children. The trial court's finding of change in circumstances is based upon the following facts: At the time of the decree, defendant had earned income of $11,600 per year, no house payment, no farm income, and lived with his wife who contributed to the expenses of their home. At the time of the hearing on the motion, defendant earned approximately $28,500 from a teaching position, paid mortgage payments of $2,000 per month which was advanced to him by his mother, earned $2,000 from farming operations, was owed $2,000 for hay sold from the farming operation, and had been given the down payment for a house by his mother. His monthly expenses were $1,805 and his disposable income after taxes was $54,498 per year, which includes the $24,000 he receives from his mother to make his mortgage payments.

At the time of the divorce, plaintiff, Sarah M. Murphy (now Lippott), received $600 per month from defendant and was unemployed. At the time of the hearing on the motion, she was earning approximately $6,370 per year, at the rate of $4.90 per hour. She was remarried and her husband and she shared the expenses of their home. The trial court found that the expenses attributable to the children were $709 per month and that amount is not disputed by defendant. The referee excluded certain items offered as children's expenses but not properly proven.

Defendant asserts the following two assignments of error in support of his appeal:

"I. It is an abuse of discretion of the trial court to order an increase in child support payments retroactive to the date of filing of the motion for modification of support.

"II. It is an abuse of discretion of the trial court to order an increase in child support resulting in the non-custodial parent paying eighty-one percent (81%) of the costs of the children when the custodial parent has a greater over-all ability to financially care for the children."

The trial court ordered that defendant's increased obligation for child support was to be effective from the date plaintiff filed her motion to increase child support. In Kuntz v. Kuntz (July 5, 1979), Franklin App. No. 78AP-831, unreported, we held that the trial court did not abuse its discretion when it made an order decreasing child support retroactive to the filing date of the motion for a change in support. Defendant argues that this case is distinguishable from Kuntz because here the trial court ordered an increase rather than a decrease in defendant's child support obligation. Defendant's argument is not well-taken because the same reasoning that produced our holding in Kuntz applies to a case in which the trial court orders an increase in child support. In both situations, the parties are entitled to have the order of the trial court relate back to the date upon which the motion for a modification of child support was filed. Any other holding could produce an inequitable result in view of the substantial time it frequently takes to dispose of motions to modify child support obligations. The first assignment of error is overruled.

In applying the holding in Cheek v. Cheek (1982), 2 Ohio App. 3d 86, the trial court has considerable discretion in determining whether a child support order should be modified. We conclude that the trial court did not abuse its discretion in determining that defendant should pay approximately eighty-one percent of the reasonable expenses of the parties' children.

Defendant's disposable income had increased substantially since the divorce decree in 1972 while plaintiff's income had increased only modestly. The trial court's order effectively requires plaintiff to pay approximately eighteen percent of the necessary expenses of the children, whereas she previously had been required to pay nothing. Because the trial court did not abuse its discretion, the second assignment of error is overruled.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

MCCORMAC, P.J., and REILLY, J., concur.