Akin v. Akin
2011 Ohio 2765
Ohio Ct. App.2011Background
- Akins divorced in Texas in 2000; two daughters; Ohio court registered Texas decree in 2007 and set a new shared parenting plan.
- Mr. Akin sought modification of parenting and contempt over Father’s Day visitation; Ms. Akin sought increased child support and health insurance.
- Magistrate heard motions; Mr. Akin moved to dismiss Ms. Akin’s motion for lack of financial affidavit; magistrate denied.
- Trial court adopted magistrate’s decision, incorporated Texas decree, and increased Mr. Akin’s child support; relief from judgment denied to Ms. Akin.
- Ms. Akin discovered 2008 income higher than reported; she moved for relief from judgment, later characterized as reconsideration on remand.
- This court affirmed in part, reversed in part, and remanded to treat Ms. Akin’s relief-from-judgment motion as a motion for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Properly characterized Ms. Akin’s Rule 60(B) motion | Akin: Ms. Akin sought relief from final judgment; Rule 60(B) applies. | Akin: Motion was improper under Rule 60(B) before final judgment. | Remand to treat as reconsideration; Rule 60(B) not applicable. |
| Correct basis for calculating child support income | Akin: three-year average appropriate due to income fluctuation. | Akin: should base on 2007 income only. | Court did not abuse discretion; three-year average appropriate. |
| Contempt finding for Ms. Akin | Akin: Ms. Akin’s actions violated orders; contempt warranted. | Akin: contempt denied as time was made up; no evasion. | Contempt denial affirmed; time was made up. |
| Tuition agreement unconscionability | Akin: agreement penalized; unconscionable. | Akin: agreement reasonable to ensure attendance. | Agreement not unconscionable; affirmed judgment on tuition. |
| Procedural completeness of income affidavit requirement | Akin: Ms. Akin failed to attach affidavit; dismissal proper. | Akin: lack of affidavit not fatal; trial court discretion. | Trial court did not abuse discretion; dismissal not required. |
Key Cases Cited
- GTE Automatic Elec. Inc. v. ARC Indus. Inc., 47 Ohio St. 2d 146 (Ohio 1976) (Civil Rule 60(B) standards; reconsideration context)
- In re Sullivan, 167 Ohio App. 3d 458 (Ohio 2006) (use of income averaging; discretion of trial court)
- Lake Ridge Acad. v. Carney, 66 Ohio St. 3d 376 (Ohio 1993) (unconscionability; meaningful bargain requirement)
- Saari v. Saari, 2009-Ohio-4940 (9th Dist. 2009) (unconscionability and contract interpretation on review)
- O’Neill v. Bowers, 2004-Ohio-6540 (9th Dist. 2004) (modification of child support; effective date of modification)