713 N.E.2d 1066 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *20
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *21
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *22 The domestic relations court granted plaintiff-wife Kimberly Badovick and defendant-husband Gregory Badovick a divorce. The primary issues in this appeal from that judgment concern the amount of income imputed to husband for purposes of determining child support and the division of marital property.
The parties divorced after a seven-year marriage. At the time of divorce, they had a four-year-old child. During the marriage, they had a combined income of slightly more than $100,000. However, in January 1995, husband lost his job when his employer went bankrupt, and he remained unemployed throughout the divorce proceedings. The court imputed to him income of $80,000, a figure equal to his income for the last year that he remained employed. With that determination, the court ordered husband to pay $712.47 per month in child support. The court made wife the custodial parent and primary caretaker of the child and granted husband visitation privileges. It also ordered husband to take out a *23 $100,000 life insurance policy "naming [wife] as irrevocable beneficiary during the child's minority."
In cases where the court is asked to impute income, it must follow a two-step process. First, the lower court must find that a party is voluntarily unemployed or underemployed before it can impute any income to that party. Second, once a party is found to be voluntarily unemployed or underemployed, the potential income to be imputed to that party must be determined in accordance with the considerations listed in R.C.
The court abused its discretion by ordering child support based on income imputed to husband. That portion of the court's judgment entry relating to support stated in its entirety: *24
"The Court further finds that Plaintiff's taxable wages for 1996 were in excess of $47,000.00 and Defendant's last earnings were received in 1994 in an amount in excess of $80,000.000 and that said Defendant has not been employed since said date. The Court, however, for purposes of calculating child support will impute to the Defendant the latter amount."
This order did not consider husband's employment potential and probable earnings based on his recent work history, his job qualifications, and the prevailing job opportunities and salary levels in the Cleveland metropolitan area.
We find that the court also abused its discretion by imputing to husband $80,000 as income. The evidence tended to show that husband actively sought employment, sending out fifty or sixty resumes and utilizing the services of job headhunters, but could not find comparable work at his income level. He testified that he would have accepted a lesser salary, but employers were reluctant to hire him because they feared he would leave as soon as a more lucrative position became available elsewhere. Referring to one specific employer who told husband that it would not hire him for $50,000 per year only to have him leave after one year for a better-paying job, the court asked husband whether he would have been willing to tell them that he would sign an employment contract stating, "you won't go to work for any other company as long as they will hire you for ten years?" Husband resisted that idea, saying he would not want to "lock myself up for ten years." The court then concluded, "So, you are admitting you blew a good opportunity?"
In light of husband's difficulties finding comparable work, the court appeared to concede that husband could not expect to earn the same salary he previously earned:
"According to your testimony there doesn't seem to be any jobs — I am wondering what you could do to support yourself and your child. That's all. People do all kind of things that they don't like to do. I would say 90 percent of all the people at work today don't enjoy or do what they are doing, but they do it out of necessity. Very few of us get to do what they like to do or even are trained to do. That's how our society works. It's a matter of meeting the necessity of existence. I am questioning what you could do other than wait for a miracle to happen for somebody to hire you for $80,000 a year."
The court's remark that husband would have to "wait for a miracle" to happen before he might find a comparable salary indicated that the court knew that it would be highly unlikely for husband to earn $80,000 in a year. Despite this, the court mistakenly believed that it had no choice but to impute $80,000 in income to husband: *25
"I have to charge you with $80,000 a year. * * * That's what I have to charge you with. You claim you are worth that. You are capable of doing that, the law says if that's the fact, then we have to say that that's what you should be earning, and we have to charge you with that, and I don't like the idea of imputation, but that seems to be what the law implies."
We do not say that the court erred by imputing income to husband in the first instance. Pursuant to R.C.
Wife argues that the court could reasonably impute husband's income based solely on the amount he last earned while employed. We argument. Husband put forth evidence that he made the effort to find new employment. At that point, wife should have come forward with evidence of her own to contradict husband's assertion, instead of relying on past salary performance from another metropolitan area that apparently had no relevance in the Cleveland metropolitan market. We therefore sustain the first and second assignments of error and remand for a redetermination of the amount of income to be imputed to husband.
R.C.
The court did not state its reasons for deviating from the visitation guidelines of the three grounds for complaint in this assignment of error, two of those grounds, the court's failure to order visitation on both husband's and child's birthdays, appear to be oversights by the court. There is nothing in the record that compels the conclusion that the court intentionally decided to omit visitation on these days, and wife does not suggest that visitation on these days would be against the child's best interests. Given the directory nature of Loc.R. 18 (C) and the absence of any evidence to suggest a deviation from husband's birthday and child's birthday, we remand to the court so that it may amend its order to incorporate visitation for those days.
As for the court's decision to deviate from the six-week summer visitation, the court's reasons for doing so were obvious enough under the circumstances that we believe that the court's failure to state its reference to the factors contained in R.C.
The visitation issue arose prior to trial when a social worker with the Family Conciliation Services prepared a report for the court in which she recommended that husband have "primary residency during the summer months," with wife having three weekends per month. Wife, however, retained the services of a clinical psychologist, who disagreed with that recommendation. The psychologist gave a psychology trainee total responsibility for the child's session and later collaborated with the trainee to write a letter to wife's attorney. In that letter (written primarily by the trainee), the psychologist and trainee recounted instances of the child's separation anxiety, demonstrated by regressive behavior (speaking in "baby talk," refusing to sleep in her own bed), and stated:
"I have concerns about the proposed summer schedule. I believe that [the child] is experiencing a good deal of stress associated with the current visitation plan and as a result is not able to cope effectively and age-appropriately with the press of her current situations. As a result, she has manifested the symptoms described above. I believe that it is in this child's psychological best interest that the visitation schedule be altered to provide consistency throughout the year and *27 that primary residency not be transferred to [husband] during the summer months. I believe it is likely that as a result of this change, [the child] may regress developmentally and will continue to experience her current level of fear and anxiety." (Emphasis in original.)
At trial, the psychologist rendered her opinion that the child should have a stable home environment at all limes and that extended visitation during the summer would be excessive because it would remove the child from her mother for too long a period of time. The trainee likewise testified that he conducted all the sessions with the child and concluded that her separation anxiety would be lessened if the court were to modify the visitation schedule and create a more stable home environment. The court relied on these opinions and deviated from Loc.R. 18(C) accordingly.
Husband complains that the court should not have placed stock in either opinion. There is some justification for this complaint. The psychologist testified at trial as the child's treating psychologist (not as an expert) and admitted that, while the child and mother had eleven different sessions at she did not personally participate in any of the sessions, instead deferring direct counseling to the trainee. The psychologist admitted that she did not meet husband and, when asked whether she knew whether husband and wife "got along," she replied that she received her information about husband from wife and "the fact that he has made no effort to become involved." Upon further questioning, the psychologist admitted that she did not directly invite husband to participate in the counseling sessions and relied entirely on wife's representations that husband had been asked to join those sessions, a contention husband firmly denied. The trainee also conceded that he was not testifying as an expert. He told the court that he was in no position to make a recommendation about a visitation schedule. He further conceded that he could not testify to the recommendations made in letters sent to the social worker or to wife's attorney, although he wrote the initial draft of the letter and signed that letter along with the psychologist.
Despite our misgivings about the quality of either "opinion," husband did not raise a specific objection to the witnesses' qualifications, so he waived the right to raise any argument in this context. See State v. Biros (1997),
We review the court's decision to award custody of the child for an abuse of discretion. Masters v. Masters (1994),
R.C.
Husband argues under R.C.
Wife testified that she currently sees a physician every eight weeks but has not taken medication for the ITP for six months and has not taken time off from work due to treatments for two years. She stated that the disease does not substantially affect her day-to-day activities, although she tends to tire easily. Because her job affords some flexibility in making appointments, wife has the ability to rest during the day, so her fatigue does not appear to affect her ability to care for the child.
As to her mental health, husband alleged that wife made several suicide attempts before beginning divorce proceedings. Wife completely denied these allegations. We defer to the court's superior opportunity to assess the credibility of the witnesses.Seasons Coal Co. v. Cleveland (1984),
Finally, husband cites the court social worker's report that expressed the following concerns about wife's family:
"In all fairness to [husband], he maintains that the atmosphere at the maternal grandmother's home is questionable citing that there are individuals, [wife's] brother who is alleged to be an alcohol and drug abuser, and that there is another brother who is mentally retarded who may be aggressive toward [the child]. It is the belief of this writer that access of the maternal grandparents to [the child] be promoted at all costs but that [the child] never be left alone with any other family member without the supervision of the maternal grandmother."
The social worker testified that wife said that there had been limited contact with her family and that wife would not put the child in any situation where she might be harmed. The social worker characterized one brother as "developmentally delayed" but did not believe that he posed any immediate threat to the child. She told the court that she had concerns about husband's strict style of discipline but would not change anything contained in her report. Wife's assurances that her brother would have no contact with child must have persuaded the court.
The evidence suggested that, despite their different approaches to childrearing, either spouse would have been able to fulfill the role of primary caregiver. Wife's physical problems and past conduct, while a genuine concern, nevertheless are not the primary consideration. The consideration is whether those conditions would adversely affect the child's best interests. The court found under the circumstances that child's emotional development would be better served if she remained with wife. This conclusion properly centers on the child's best interests and is supported by competent, credible evidence in the record.
R.C.
R.C.
Unlike R.C.
The court's order is imprecise. From a technical standpoint, child should be named the irrevocable beneficiary of husband's life insurance policy, since the court order is clearly intended to secure payment of husband's child support obligation. Because child is the only person entitled to the child support payments, her name should appear as sole beneficiary.
It may ultimately be a moot point whether wife is named the beneficiary of the policy because the law is clear that all proceeds, if any, of the life insurance policy would be held in constructive trust for child, regardless whose name appeared on the policy. See Kelly v. Med. Life Ins. Co. (1987),
The division of marital property is governed by R.C.
Husband's first complaint goes to wife's 1992 automobile, which the court found had a net equity of $1,400. At trial, wife testified that the car had a value of $10,000, with one $320 payment remaining. She testified that in January 1996, she handed title to the automobile over to her credit union in exchange for an $8,000 loan. of that amount, she paid $6,000 to her attorney and bought furniture with the remaining amount.
In divorce cases, we presume that the date of the final hearing is the appropriate termination date of the marriage unless the court, in its discretion, uses a de facto termination. See R.C.
In his brief, husband claims that the court determined August 25, 1995 to be the de facto termination of the marriage. This may overstate the case. In its judgment entry, the court ordered husband to pay wife "one-half the debt accumulated through the de facto termination of the marriage." It cannot be said from this single line alone that a de facto termination date had been established.
Nonetheless, we find under the circumstances that the court's intent must have been to find that the de facto termination of the marriage occurred on August 25, 1995. Both wife and husband testified that wife moved out of the marital residence on that date, and there is no indication in the record to show that the parties cohabitated after that date. See Gullia v. Gullia (1994),
Using that date as the termination of the marriage, we find that the court abused its discretion by listing the $8,000 lien on wife's car as a marital debt. Wife used the remaining $2,000 to buy furniture for her and the child. At the very least, the monies used for attorney fees were paid for debts that arose after the de facto termination date of the marriage. The attorney fees should have been separated from other pre-existing marital debts.
We also agree with husband that the court abused its discretion by awarding jewelry to wife without first setting a value on that jewelry. At trial, husband testified that wife accumulated jewelry worth $6,000 to $7,000 during the marriage. Wife did not contradict this valuation. The court's judgment entry merely awards wife "all of her jewelry," without regard to its value. The court fails to fulfill its duty to divide equitably marital property if it fails to determine the value of a marital asset.Eisler v. Eisler (1985),
The court's failure to consider wife's loan and the value of her jewelry necessarily skewed its calculation of the value of marital property. We sustain this assignment of error.
Judgment affirmed in part, reversed in part and cause remanded.
BLACKMON, A.J., and KARPINSKI, J., concur.
