Fischer v. Fischer
2012 Ohio 2102
Ohio Ct. App.2012Background
- Married in 1994; two children born 1996 and 2000; divorce 2004; Carrie Custodian; Bryan ordered to pay $1,788/month plus processing fee.
- 2007 modification reduced Bryan’s support to $1,100/month retroactive to June 6, 2007, with overpayment credited.
- 2009 Bryan lost Eagle Beverage job, started a self-employed photography business paying $24,000 salary but no net profit.
- Dec 2009–July 2010: Bryan paid less than $1,100; Carrie sought contempt and Bryan sought further modification.
- 2011 magistrate reduced Bryan’s obligation to $422.44/month; Carrie appealed challenging contempt denial and modification.
- Court affirmed the contempt denial and upheld the imputed income and modification determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contempt for nonpayment of support | Fischer: Bryan disobeyed the 2008 order by not paying $1,100. | Fischer: no arrears; overpayment credit allowed; no duty to maintain balance. | Contempt not proven; no clear and convincing evidence of disobedience. |
| Imputation of income and voluntary underemployment | Carrie: Bryan voluntarily underemployed; income should be imputed higher. | Bryan’s job loss due to economy; no suitable higher-paying job available; no clear underemployment. | Court did not abuse discretion; income credit of about $24,933.33 sustained. |
| Downward modification of child support | Carrie: court should not reduce despite underemployment. | Bryan’s involuntary loss of income warranted reduction; imputation insufficient to require higher income. | Second and third assignments overruled; modification upheld. |
Key Cases Cited
- Sandro v. Sandro, 114 Ohio App.3d 636 (3d Dist. 1996) (clear and convincing standard for contempt evidence)
- Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55 (1971) (contempt requires disobedience of a court order)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (1990) (abuse of discretion defined; sound reasoning required)
- Woloch v. Foster, 98 Ohio App.3d 806 (1994) (factors for imputing income and voluntary underemployment test)
- Moser v. Moser, 2006-Ohio-5381 (Warren App. 2006) (burden on obligee to prove voluntary underemployment)