Geiger v. GeigerGeiger v. Geiger
Lead Opinion
Dеfendant-appellant, Steven M. Geiger, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and raises the following two assignments of error:
1. “The trial court erred in determining that funds derived from the liquidation of marital assets (personal property) already awarded to appellant pursuant to a divorce decree be deemed his ‘income’ for purposes of calculating child support.”
2. “The trial court erred in determining that the effective date of defendant’s Civil Rule 60(B) relief should be June 1, 1991 as opposed to February 1, 1990.”
Plaintiff filed a cross-appeal and raised the following issues, designated as “Propositions of Law” 1 :
1. “The trial court was correct in including income from all sources in its calculation of appellant’s income for child support purposes, including income from the sale of appellant’s personal and business property.”
2. “The trial court erred in granting appellant’s Civil Rule 60(B) motion.”
The parties were married and had one child but divorced in 1988. On March 27, 1991, defendant filed a motion requesting a modification of child support and alimony, relief from judgment pursuant to
The matter was referred to a referee. After several days of hearings, the referee recommended that the trial court (1) grant defendant’s
By the first assignment of error, defendant contends that the trial court erred in determining that funds derived from the liquidation of marital assets already awarded to defendant pursuant to a divorce decree be deemed his income for purposes of calculating child support. In the agreed judgment entry of divorce, defendant was awarded all of the parties’ businesses, which included The Olde Towne Inn, G & M Machine Products, Inc. (“G & M”), 3 Geiger Investments, and G & M Development Company, in addition to real estate relating to the businesses. Defendant was required to pay plaintiff $50,000 as nonmodifiable sustenance alimony, payable at the rate of $1,000 per month. The referee stated that:
“[T]he evidence clearly demonstrates that the payment to the Plaintiff of the $50,000.00 in nonmodifiable ‘sustenance alimony’ was in exchangе for Defendant receiving the parties’ business entities. The evidence is also clear that G & M was the primary source of income for the other businesses as well as the parties’
Plaintiff had worked at G & M during the marriage. Following the divorce, she worked in the other businesses and again at G & M. She stopped working for G & M in December 1989 or January 1990. In February 1990, plaintiff opened a new business, Thermal Fab, which produces parts “virtually identical to those produced by G & M.” Former employees of G & M were employed by Thermal Fab, and its sole customer was Art Lansky, who had previously been defendant’s customer at G & M. Defendant had to close G & M as a result of losing the Lansky business.
The defendant contends that the referee did not properly determine his income for child-support purposes. Defеndant contests the calculation arguing that the referee included items as income which should not have been included in such a determination. Defendant contends that the referee improperly included money received from the sale of personal assets as income.
Income for child-support purposes is defined in
“ * * * either of the following:
“(a) For a parent who is employed to full capacity, the gross income of the parent;
“(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent, and any potential income of the parent.”
“Gross income” is defined in
“ * * * except as excluded in this division, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes, but is not limited to income from salaries, wages [etc.] * * * and all other sources of income * * *.” (Emphasis added.)
The definition of “gross income” depends upon “income.” The sale of assets was merely a conversion of assets into cash, not income realized by the defendant. When a person sells assets other than in the ordinary course of business, the income includes only the profit received on the item, not the initial investment which may be recouped upon the sale. Therefore, the referee should have at most included only any profit defendant received when he sold the assets, 4 not the entire amount he received upon the sale.
“Defendant has also sold substantial business and personal assets totaling more than $42,000.00 to pay his debts and expenses. A substantial portion of his income was derived from these sales. In the last quarter of 1991, he deposited $6,826.00 from the proceeds of these sales.
U * * *
“For purposes of the guideline calculations, Plaintiff has income of $5,701.00 in 1991 and her anticipated income for 1992 is $8,000.00. In the first six months of 1991, Defendant had a draw averaging $925.00 per week or $24,050.00 for the six month period from G & M. His offsetting business expenses for that time period were not presented with any specificity nor are they identifiable on his 1991 tax return (Exhibit 4). In that year, Geiger Excavating showed a net loss. In 1991, Defendant also had income from the sale of his assets of approximately $42,000.00, identifiable unemployment benefits of $2,352.00 and $515.00 per month in interest payments. Accordingly, his 1991 income from all sources is $74,582.00. * * * ” (Emphasis added.)
The referee included the total amount received from the sale of assets, not merely any income received as profit. The trial court, in its decision adopting this conclusion, states that “[djefendant used the sale proceeds as if it were income to satisfy his debts and expenses.” This is not the test to determine “income” for purposes of child-support calculations. Converting a tangible or intangible asset into cash is not income except to the extent, if аny, that there is a profit or gain. Consequently, the referee did not properly determine defendant’s income for child-support purposes, and defendant’s first assignment of error is well taken.
By the second assignment of error, defendant contends that the trial court erred in determining that the effective date of defendant’s
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have
In
Griffey v. Rajan
(1987),
“To prevail on a motion brought under
The moving party must establish the three requirements separately.
Id.
at 151, 1 0.0.3d at 88,
The referee found that defendant was entitled to
Defendant contends that the trial court erred in determining that the effective date of the relief should be June 1,1991, as opposed to February 1,1990. June 1, 1991 was the date that G & M ceasеd its operations. Defendant argues that, since plaintiff opened Thermal Fab on February 1, 1990, and by that date “had performed all acts leading to the conversion of his business,” the date should be February 1, 1990. Additionally, defendant contends that time was necessary to wind up the business affairs and “since the damage had been done and all acts committed on or before February 1,1990, his obligation should not have extended past that date.” Defendant has not shown that this finding was erroneous or an abuse of discretion. G & M was operating until June 1, 1991, and G & M was
Plaintiff filed a notice of cross-appeal. However, she did not file a separate brief in this court as an “appellant.” Rather, she filed her appellee brief and raised her contention of error in the appellee brief. To request affirmative relief, plaintiff was required to file a brief as appellant within twenty days after the date on which the clerk mailed the notice that the record was filed”, unless extended by the court. See
By her assignment of error, plaintiff requests affirmative relief in that she raised the following issue: “The trial court erred in granting appellant’s Civil Rule 60(B) motion.” For this assignment of error, a transcript is neсessary as the issues involved are factual and evidentiary in nature. The trial court determined that neither party had complied with Loc.R. 9, finding that “[c]opies of the original transcript do not constitute the official record.” The trial court dismissed all objections to the referee’s report and adopted it since the volumes of the transcript which were filed were stamрed “Copy.” All but one partial transcript contained an original signature of the court reporter certifying that the transcript was a “true, correct, and complete transcript of the proceedings.” Since the transcripts were authenticated by certification, the fact that they were stamped “Copy” would not detract from their being considered as an appropriate record of the evidence adduced. 5
Additionally, plaintiff filed a motion to strike “portions of the record which were filed by appellant in contravention to the Appellate Rules and which were
Further, without the transcripts, there is nothing in the record to support plaintiffs assignment of error. Since no issue has been raised as to the trial court’s failure to consider the transcript, we confine our consideration to the finding of facts. 6 On the basis of the referee’s report, as adopted by the trial court, plaintiffs assignment of error is not well taken since, as stated above, there is a proper basis for granting relief from judgment.
For the foregoing reasons, defendant’s first assignment of error is sustained, and his second assignment of еrror is overruled; plaintiffs cross-assignment of error is overruled; the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations is reversed; and this cause is remanded to that court for further proceedings in accordance with law and consistent with this opinion.
Judgment reversed and cause remanded.
Notes
. The first issue raised by plaintiff is merely a response to defendant’s first assignment of error. Plaintiff's second proposition of law seeks affirmative relief and shall be deemed her assignment of error.
. Loc.R. 9 of the Franklin County Court of Common Pleas, Division of Domestic Relations, provides in pertinent part as follows:
“All original transcripts shall be filed by the Official Court Reporter with the Clerk of Courts and shall thereby become part of the official record of the case. A copy will be provided tо the ordering party, upon request, at one-half the cost of the original.
"Failure to file a transcript when one is required by this Rule is a basis for dismissal of the objection.”
Although the filing of a copy of the transcript containing a certificate signed by the court reporter is sufficient to comply with the requirement of
. G & M produced aluminum and other metal parts for businesses which used the parts in manufacturing.
. The dissent outlines one of several appropriate methods that may be utilized to determine “profit.” However, the proper method depends upon the facts of a given case. There are no findings of fact of the referee adopting or utilizing the dissent's analysis, and the underlying evidence is not before us because the transcript was stricken by the trial court. The only "findings” in the referee’s report are that "Defendant has also sold substantial business and
. See in. 2.
. See fn. 2.
Dissenting Opinion
concurring in part and dissenting in part.
Since I strongly disagree with the majority’s analysis and result in regard to the first assignment of error, I respectfully dissent.
The sale of personal property can generate income or not generate income, depending on the circumstances. The test for determining whether or not income is realized is not dependent upon “profit” or “gain.” Income is realized when an item is sold for a price which exceeds its depreciated basis. An individual may sell an item of personal property for precisely the same price as the item’s purchase price and still realize income because prior depreciation is generally recaptured at the time of sale.
The “profit” or “gain” criterion used in the majority opinion allows people who are more concerned about the size of their bank book than the welfare of their children to avoid paying the full amount contemplated by the child-support guidelines. The payor has merely to allocate personal property or even real
Having defined “income” in a way which is at odds with the Internal Revenue Code, and therefore at odds with
Interestingly enough, Mr. Geiger still was able to deposit $112,421.13 into his checking account in 1991 — over $70,000 more than can be detected by a review of his United States individual income tax return for 1991 аnd over $28,000 more than can be explained if the $42,000 from the sale of his business assets is included in the calculation. I believe that the trial court would have been well within its discretion to have included the unexplained $70,000 plus in Mr. Geiger’s income, not just the $42,000 he admitted was income at the hearing and which the trial court and referee included as income in accord with his admission.
In sum, I believe that the trial court was well within its discretion in reaching its result and that the first assignment of error should be overruled.