Clifford v. SkaggsClifford v. Skaggs
APPEARANCES:
Lorene G. Johnston, Jackson, Ohio for appellant.
Adam R. Salisbury, Pomeroy, Ohio for appellee.
Harsha, J.
{¶1} Joshua W. Skaggs appeals from a judgment entry granting a divorce. Skaggs contends that the trial court erred in ordering him to reimburse his former spouse Heather Clifford for certain childcare expenses and to pay her spousal support. Skaggs also contends that the trial court failed to follow statutory requirements governing child support and the shared parenting plan.
{¶2} The trial court did not abuse its discretion in ordering Skaggs to reimburse Clifford for childcare expense. There is competent, credible evidence in the record that Skaggs stopped paying the childcare provider when his summer parenting time commenced. The trial court was not unreasonable, arbitrary, or unconscionable when it determined that Skaggs owed eight weeks of childcare expenses at $200 per week. Nor did the trial court did abuse its discretion in awarding spousal and child support. The record shows that the court considered the relevant statutory factors and found that the parties’ relative disparity in incomes and overall high standard of living warranted
I. FACTS
{¶3} Skaggs and Clifford were married in 2008 and have one child born in 2010. They filed for divorce in 2014. Skaggs filed a shared parenting plan; Clifford opposed it and filed her own shared parenting plan. Clifford also filed a motion seeking contempt findings against Skaggs for failing to pay childcare expenses in July 2016 in violation of the court‘s temporary order. Clifford subsequently withdrew the motion.1 Prior to trial the parties agreed to the division of certain marital assets and debts and the trial court entered a judgment entry reflecting that agreement.
{¶4} At trial the parties presented evidence on the remaining disputed issues: (1) the unpaid childcare expenses; (2) allocation of certain medical expenses for the child; (3) federal tax exemption; (4) allocation of psychological evaluation costs; (5) spousal support; and (6) parental rights, child custody and support. The trial court issued a decision that: (1) ordered Skaggs to reimburse Clifford $1,600.00 for childcare expenses that Skaggs owed under the temporary order; (2) split equally the child‘s medical expenses at issue and ordered Skaggs to reimburse Clifford for his half in the sum of $2,546.45; (3) allocated the federal tax exemption; (4) allocated all of the
{¶5} As to the parties’ shared parenting plans, the trial court instructed Clifford to submit a revised version of her shared parenting plan that addressed the objections or criticisms in the decision. Skaggs was given an opportunity to respond.
{¶6} Skaggs requested separate findings of fact and conclusions of law pursuant to
{¶7} Skaggs appealed, challenging the awards of $1,600.00 in childcare expenses, spousal and child support, and the shared parenting plan.
II. ASSIGNMENTS OF ERROR
{¶8} Skaggs assigns the following errors for our review:
- THE TRIAL COURT ERRED IN ORDERING DEFENDANT-APPELLANT TO REIMBURSE PLAINTIFF-APPELLEE ONE THOUSAND SIX HUNDRED DOLLARS ($1,600) FOR CHILD CARE
EXPENSES SHE INCURRED IN THE SUMMER OF 2016 AS IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SET AN INAPPROPRIATE AND UNREASONABLE AMOUNT AND DURATION FOR SPOUSAL SUPPORT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
- THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO FOLLOW THE MANDATES OF
OHIO REVISED CODE §3119.04(B) AS THE PARTIES’ COMBINED INCOME EXCEEDED ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000). - THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADOPTED A SHARED PARENTING PLAN THAT WAS NOT PROPOSED BY EITHER PARTY IN ACCORDANCE WITH
OHIO REVISED CODE SECTION 3109.04 AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
III. STANDARD OF REVIEW
{¶9} Appellate courts generally review “the propriety of a trial court‘s determination in a domestic relations case” under the “abuse of discretion” standard. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989) (abuse of discretion standard applies to child support, custody, visitation, spousal support, and division of marital property). Under the abuse of discretion standard of review, a reviewing court must affirm the decision of the trial court unless it is unreasonable, arbitrary, or unconscionable. Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 2008-Ohio-4887, ¶ 9 citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 140 (1983). ” ‘[A]buse of discretion’ [is] *** a view or action that no conscientious judge could honestly have taken.” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “Indeed, to show an abuse of discretion, the result must be so
IV. LAW AND ANALYSIS
A. Childcare Expenses
{¶10} In his first assignment of error Skaggs asserts that the trial court erred when it ordered him to reimburse Clifford $1,600 in childcare expenses. As a preliminary argument Skaggs contends that he made a timely request for findings of fact and conclusions of law under
{¶11} “Ordinarily, upon a proper request for findings of fact and conclusions of law, no final appealable order exists until the court complies with
{¶12}
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to
Civ. R. 58 , or not later than seven days after the party filing the request has been given notice of the court‘s announcement of its decision, whichever is later, in which case, the court shall state in writing the findings of fact found separately from the conclusions of law.*
*
*
An opinion or memorandum of decision filed in the action prior to judgment entry and containing findings of fact and conclusions of law stated separately shall be sufficient to satisfy the requirements of this rule and
Civ.R. 41(B)(2) .
{¶13} “A trial court substantially complies with
{¶14} Here the trial court denied Skaggs‘s request for findings of fact and conclusions of law because it had issued a decision prior to the judgment entry that contained factual findings and legal conclusions. The trial court‘s prior decision was sufficient to satisfy the
{¶15} Although the trial court‘s decision together with the judgment entry satisfies
{¶16} Next Skaggs argues that the trial court lacked jurisdiction to determine whether Skaggs owed childcare expenses because Clifford withdrew her contempt
{¶17} Skaggs also contends that there was no competent, credible evidence supporting a $1,600 childcare expense award. He argues that the testimony supported a $1,000 award.
{¶18} The childcare provider, Patty Beach, testified that she received $200 a week salary from Skaggs and that sometime in July 2016 Skaggs stopped paying her and Clifford took over the payments. Beach testified that the second half of the summer Skaggs had the child full time but that she worked one day each week during that time and was still entitled to receive her weekly salary. Beach testified that it had been approximately five to six weeks since Skaggs had paid her, but that she was uncertain
{¶19} The trial court did not abuse its discretion in awarding Clifford $1,600 in childcare expenses. The record contained competent, credible evidence that Skaggs stopped paying Beach when his summer parenting time commenced. Beach testified that Skaggs did not pay her during his summer parenting time. Clifford testified that she paid the first three weeks of July 2016 (as of July 22, 2016) and Skaggs admitted he had not paid Beach for the last five weeks (as of August 25, 2016). Based upon these dates Skaggs had not paid childcare for a total of eight weeks. The trial court was not unreasonable, arbitrary, or unconscionable when it determined that Skaggs owed eight weeks of childcare expenses at $200 per week. The trial court did not abuse its discretion in awarding Clifford $1,600 in childcare expenses.
{¶20} We overrule Skaggs‘s first assignment of error.
{¶21} In his second assignment of error Skaggs contends that the trial court‘s spousal support award in the sum of $600 per month for one year was an abuse of discretion and against the manifest weight of the evidence. Again, we review spousal support matters under an abuse of discretion standard. Boggs v. Boggs, 4th Dist. Lawrence No. 14CA20, 2015-Ohio-2634, ¶ 21 citing Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 2008-Ohio-4887, ¶ 9.
{¶22} When a party requests it, the court may make an appropriate and reasonable spousal support award.
(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party‘s contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal support;
(m) The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and equitable.
{¶23} When making a spousal support award, a trial court must consider all statutory factors, rather than basing its determination upon any one of those factors taken in isolation. Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988), paragraph one of the syllabus. Although the trial court has broad discretion to determine the appropriateness and reasonableness of an award of spousal support, it must consider the statutory factors enumerated above and must indicate the basis for a spousal support award in sufficient detail to enable a reviewing court to determine that the award complies with the law. Id. at paragraph two of the syllabus. Kaechele does not require the trial court to articulate the rationale or basis of its spousal support decision in the decree as long as the record contains adequate support and detail to permit an appellate court to establish whether the award is fair and in accordance with the law. Carman v. Carman, 109 Ohio App.3d 698, 704, 672 N.E.2d 1093 (12th Dist. 1996). Kaechele and
{¶24} Here the trial court expressly considered the statutory factors listed in
Both parties are employed outside the home. Defendant earns at least 3-4 times as much as plaintiff.
Because of the nature of his employment, defendant has a greater earning ability than does plaintiff.
The parties are about the same age and are in good physical, mental and emotional condition.
Plaintiff has a B.A. and defendant has an M.B.Α.
The parties have agreed upon the division of the retirement benefits.
R.C. 3105.18(C)(1)(m) is not applicable [lost income production capacity].The parties were married on June 7, 2008, and separated on September 1, 2014. They lived together 6 years and have not lived together since their separation.
The parties have a high standard of living. The marital home is large and has a swimming pool. They bought expensive personal property and took nice vacations.
The parties agreed upon the division of property and the payment of debts.
The parties were responsible for the payment of their own college degrees.
If defendant paid spousal support, his tax liability would decrease and plaintiff‘s [tax liability] would increase.
Plaintiff did not have to pay rent, auto insurance and day care expenses during most of the separation. The Court finds that spousal support is warranted because of the following factors:
(1) With the addition of his yearly bonus, defendant will continue to earn 3-4 times more than plaintiff.
(2) Because of the nature of his employment, defendant will continue to earn 3-4 times as much as plaintiff each year.
(3) During the time the parties lived together, they enjoyed a high standard of living.
However, the Court finds that the marriage was of a short duration and the defendant paid plaintiff‘s expenses enumerated in the previous paragraph for two years, more or less.
Accordingly, the Court shall order defendant to pay spousal support in the sum of $600 per month for 12 months and shall retain jurisdiction of this issue.
{¶25} Skaggs contends that the trial court‘s findings are insufficient to support the spousal support award of $600 for one year. He argues that the trial court confused their respective education and that it is Clifford who has the M.B.A and he the B.A. He also argues that he had to borrow against his 401(K) to live and that he paid more than $40,000 towards Clifford‘s living expenses during the two years they were separated.
{¶26} However, our review of the record shows that the trial court specifically listed and commented on the relevant statutory factors and its decision and entry sufficiently revealed the basis for its award. See Kaechele, 35 Ohio St.3d at paragraph two of the syllabus. A review of the trial court‘s decision and judgment entry shows that the trial court considered the income of the parties, the ages and the physical, mental, and emotional conditions of the parties; the retirement benefits of the parties; the duration of the marriage; the tax consequences; the parties’ high standard of living; the contribution or lack thereof of each party to the other‘s education; the relative assets
{¶27} Moreover, we reject Skaggs‘s contention that the trial court should have considered that Clifford was “under-employed.”
{¶29} Other than the error attributing the M.B.A. to him, Skaggs cites to no other error by the trial court in its factual findings supporting spousal support.5 Skaggs does not contest the trial court‘s other factual findings. The evidence presented at trial in the form of tax and wage records along with the parties’ testimony supports the trial court‘s determination of the high standard of living and that Skaggs earned 3 to 4 times Clifford‘s salary and will likely continue to do so.
{¶30} The findings made by the trial court are supported by competent, credible evidence in the trial exhibits and transcripts. The trial court did not abuse its discretion in making the spousal support award in the sum of $600 per month for 12 months.
{¶31} We overrule Skaggs‘s second assignment of error.
C. Child Support Award Where Joint Income Exceeds $150,000
{¶32} Skaggs contends that the trial court failed to follow the mandatory provisions of
{¶33}
(B) If the combined gross income of both parents is greater than one hundred fifty thousand dollars per year, the court, with respect to a court child support order, or the child support enforcement agency, with respect to an administrative child support order, shall determine the amount of the obligor‘s child support obligation on a case-by-case basis and shall consider the needs and the standard of living of the children who are the subject of the child support order and of the parents. The court or agency shall compute a basic combined child support obligation that is no less than the obligation that would have been computed under the basic child support schedule and applicable worksheet for a combined gross income of one hundred fifty thousand dollars, unless the court or agency determines that it would be unjust or inappropriate and would not be in the best interest of the child, obligor, or obligee to order that amount. If the court or agency makes such a determination, it shall enter in the journal the figure, determination, and findings.
{¶34} For parties with combined incomes exceeding $150,000.00, as is the case here, the trial court must determine the amount of child support to be paid on a case-by-case basis, taking into consideration the needs and standard of living of the children. “A plain reading of the statute reveals that the only time a trial court is required to make special findings is when it sets support in an amount less than the obligation that would have been computed under the basic child support schedule and applicable worksheet for a combined gross income of $150,000.00.” (Emphasis added.) Cummin v. Cummin,
{¶35} Here the trial court used the actual income of the parties, which was $224,006.70, to compute Skaggs‘s monthly child support obligation. The trial court awarded $1,300.14 plus a 2% processing fee, for a total monthly award of $1326.14. Because the amount was not less than the obligation that would have been computed using a combined income of $150,000, the trial court was not required to make special findings. Id.; Brown v. Brown, 2014-Ohio-2402, 14 N.E.3d 404, ¶ 55 (8th Dist.) (“when the parents’ income exceeds $150,000,
{¶36} Skaggs argues that there is no competent, credible evidence in the record to support the trial court‘s award based on the parties’ standard of living or the child‘s needs. However, as we found in reviewing the spousal support award, the record contained evidence of the parties’ high standard of living. Additionally, both parents, the childcare provider, and the guardian ad litem testified concerning the child‘s activities and school needs, physical condition, and medical conditions. Skaggs cites nothing in the record that supports his claim that the trial court should have capped income at $150,000 or that the trial court otherwise acted unreasonable, arbitrary, or unconscionable in calculating its child support award.
{¶37} We overrule Skaggs‘s third assignment of error.
{¶38} In his fourth assignment of error Skaggs contends that the trial court erred when it adopted a shared parenting plan that was not proposed by either party, was not in accordance with
{¶39} Although we review the amount of custody awarded using the abuse of discretion standard, we give Skaggs‘s assertion that the trial court failed to follow statutory requirements de novo review. “The resolution of this assertion requires the interpretation of the statute, which presents a question of law, and accordingly, we review the matter de novo.” Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 12 (4th Dist.) citing State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6; State v. Seal, 2014-Ohio-4167, 20 N.E.3d 292, ¶ 19 (4th Dist.), quoting State v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139, ¶ 46 (4th Dist.) (” ‘The interpretation of a statute is a question of law that we review de novo’ “).
{¶40}
{¶41}
(D)(1)(a) Upon the filing of a pleading or motion by either parent or both parents, in accordance with division (G) of this section, requesting shared parenting and the filing of a shared parenting plan in accordance with that division, the court shall comply with division (D)(1)(a)(i), (ii), or (iii) of this section, whichever is applicable: * * *
(ii) If each parent makes a request in the parent‘s pleadings or files a motion and each also files a separate plan, the court shall review each plan filed to determine if either is in the best interest of the children. If the court determines that one of the filed plans is in the best interest of the children, the court may approve the plan. If the court determines that neither filed plan is in the best interest of the children, the court may order each parent to submit appropriate changes to the parent‘s plan or both of the filed plans to meet the court‘s objections, or may select one of the filed plans and order each parent to submit appropriate changes to the selected plan to meet the court‘s objections. If changes to the plan or plans are submitted to meet the court‘s objections, and if any of the filed plans with the changes is in the best interest of the children, the court may approve the plan with the changes. If changes to the plan or plans are not submitted to meet the court‘s objections, or if the parents submit changes to the plan or plans to meet the court‘s objections but the court determines that none of the filed plans with the submitted changes is in the best interest of the children, the court may reject the portion of the parents’ pleadings or deny their motions requesting shared parenting of the children and proceed as if the requests in the pleadings or the motions had not been made. If the court approves a plan under this division, either as originally filed or with submitted changes, or if the court rejects the portion of the parents’ pleadings or denies their motions requesting shared parenting under this division and proceeds as if the requests in the pleadings or the motions had not been made, the court shall enter in the record of the case findings of fact and conclusions of law as to the reasons for the approval or the rejection or denial. Division (D)(1)(b) of this
section applies in relation to the approval or disapproval of a plan under this division. (Emphasis added.)
{¶42} After reviewing the shared parenting plans and the evidence at trial, the trial court stated objections to the shared parenting plans in its decision. Specifically, the trial court objected to the midweek visitation schedules proposed by the parties and determined that Skaggs would have one day of midweek visitation. The trial court also found that it would be in the child‘s best interest to attend Green Elementary because he would be with his mother most of the time and it would minimize the time the child spends in transportation. The trial court objected to both parties’ right of first refusal on the grounds that it is a cumbersome procedure and because the evidence showed that grandparents and other responsible adults were available to provide childcare if a parent could not. The trial court ordered Clifford to submit her previously prepared shared parenting plan to the court with modifications that addressed these objections and gave Skaggs seven days to respond.
{¶43} Clifford contends that she followed the court‘s instruction and submitted a revised shared parenting plan, and that the final divorce decree adopts the revised shared parenting plan she submitted. Although the record does not contain Clifford‘s revised shared parenting plan, Clifford appears to have served it on Skaggs because the record contains his objections to the proposed shared parenting plan.
{¶44} A comparison of Clifford‘s original shared parenting plan and the one adopted by the trial court shows that Clifford complied with the trial court‘s orders. The final shared parenting plan is identical to Clifford‘s original plan, except where it addresses the trial court‘s objections concerning midweek visitation (modifying Section 3.1.1), it addresses the trial court‘s objection to the right of first refusal (deleting the
{¶45} But the trial court only partially complied with
{¶46} Although we find that the trial court correctly followed the statutory procedures governing shared parenting plan review, objections and changes, the trial
{¶47} We are unable to discern the reason underlying the court‘s decision to adopt Clifford‘s revised shared parenting plan from the divorce decree:
In consideration of the testimony and evidence produced and admitted, the Court found in its January 13, 2017 Decision on Remaining Issues at Final Hearing, attached hereto and incorporated herein, that the Plaintiff [Clifford] should be designated as the residential parent of the parties’ minor child and the Defendant [Skaggs] should receive parenting time pursuant to this Court‘s standard order, with modifications as detailed in the attached Shared Parenting Plan. The same is hereby incorporated fully herein as the Order of the Court. * * * 2. The Shared Parenting Plan attached hereto is hereby approved and incorporated herein in its entirety with regards to the allocation of parental rights and responsibilities for the parties’ minor child, that all of its terms and provisions are made the order of the Court, and that each party is hereby ordered and directed to comply with all the terms and provisions thereof; * * *.
*
And, although the court‘s earlier decision was incorporated into the final divorce decree, it contains only the court‘s criticisms and objections to the parties’ plans. The decision has no findings or conclusions as to: (1) whether a shared parenting plan is in the child‘s best interest; (2) whether the court considered the best interest factors in
SHARED PARENTING
The child shall reside with plaintiff. Defendant shall have parenting time according to the Gallia County Common Pleas Standard Order of Visitation/Parenting Time which shall be modified as follows:
I. Weekends: Alternate weekends from Friday after school until Monday when school begins.
II. Weekdays: One weekday from end of school to 8[:]00 pm.
The Court finds that it is in the child‘s best interest that he attend Green Elementary school. He will be living most of the time with his mother. Attending Green will minimize the time that he spends in transportation.
The Court shall not order a right of first refusal because the Court finds the procedure cumbersome. If a party cannot be with the child for parenting time because of work or other valid reason, that party shall have a reasonable party be with the child.
For example, plaintiff has testified that she and plaintiff‘s parents have a strained relationship. However, she has not presented evidence that the paternal grandparents do not provide good child care. The Court also assumes that plaintiff has responsible persons who can provide child care if she cannot.
Defendant shall provide medical insurance for the child through his employer. The parties shall each pay one half of the child‘s medical, dental, optical, prescription drug, and hospital expenses not covered by insurance.
*
*
*
Plaintiff shall submit his [sic] previously proposed decree and shared parenting plan to be consistent with this decision on or before January 30, 2017 *** Plaintiff does not have to repeat the language of the decision but merely refer to it. * * * Defendant may respond within seven days.
We are unable to determine the court‘s reasons for approving Clifford‘s revised shared parenting plan from these findings. In Swain, supra, we held that language stating, “Upon review of the evidence and the record, the Court finds that it would be in the best interest of the minor children to adopt [appellee]‘s Shared Parenting Plan previously filed herein” was a mere conclusory statement and was insufficient to comply with
{¶48} We sustain Skaggs‘s fourth assignment of error. Because our resolution of this argument renders Skaggs‘s argument regarding the manifest weight of the evidence moot, we will not address it. See
V. CONCLUSION
{¶49} The trial court did not abuse its discretion in ordering Skaggs to reimburse Clifford for childcare expenses or in awarding spousal and child support in the amounts it determined appropriate. However, the trial court did not enter
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY:
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.