Graham v. HarrisonGraham v. Harrison
Rendered on September 8, 2009
Andrea R. Yagoda, for appellee/cross-appellant.
Tyack Blackmore & Liston Co., L.P.A., and Thomas M. Tyack, for appellant/cross-appellee.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
SADLER, J.
{¶1} Defendant-appellant, James W. Harrison (“Harrison“), appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
{¶2} The relevant factual and procedural history follows. The parties were married on August 17, 1997, and one child was born as issue of that marriage on November 19, 1997. The trial court found that the marriage lasted nearly 11 years until April 14, 2008. Graham was 56 years old at the time of trial and is an equestrian and horse trainer. After the marriage, she worked minimally as a horse trainer and consultant until the parties’ separation, whereupon she began to work more hours. Harrison was 65 years old at the time of trial and is a veterinarian specializing in small animal orthopedic surgery.
{¶3} After Graham initiated this action the trial court issued temporary orders providing for spousal support, child support, and parenting time with the child. In April 2008, the parties negotiated a shared parenting plan, which they both signed and which the court file-stamped on April 24, 2008. Several days later, however, Graham changed her mind and indicated she would seek sole legal custody of the child. Eventually, the trial of this matter was held over six days, ending on July 29, 2008. The contested issues included assets, debts, spousal and child support, and allocation of parental rights and responsibilities. Following submission of written closing arguments, the trial court journalized its judgment entry and decree of divorce on November 17, 2008. The court divided the parties’ assets and debts, named Graham the sole legal custodian and residential parent, established a parenting schedule, and ordered spousal and child support and attorney fees.
{¶4} Harrison timely appealed and advances the following assignments of error for our review:
- THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THE PARTIES’ ACKNOWLEDGED SETTLEMENT AS TO PARENTING ISSUES AS SET FORTH IN THE SHARED PARENTING PLAN SIGNED BY THE PARTIES AND ACKNOWLEDGED IN COURT IN APRIL OF 2008.
- THE TRIAL COURT ABUSED ITS DISCRETION IN ITS JUDGMENT ENTRY WITH REGARD TO THE ALLOCATION OF PARENTAL RIGHTS AND OBLIGATIONS INCLUDING THE IMPOSITION OF CERTAIN FINANCIAL OBLIGATIONS UPON FATHER.
- THE TRIAL COURT ERRED WITH REGARD TO THE DIVISION OF MARITAL PROPERTY BY FAILING TO MAKE FINDINGS AS TO THE VALUE OF CERTAIN MARITAL ASSETS AND DISREGARDING MARITAL DEBT AS TO THE REAL ESTATE LOCATED AT 7641 FENWAY DRIVE.
- THE TRIAL COURT ERRED IN ORDERING DEFENDANT TO PAY PLAINTIFF SPOUSAL SUPPORT FOR FIVE YEARS IN THE AMOUNT OF $1,375 PER MONTH ($16,500 PER YEAR) AND $20,000 IN ATTORNEY FEES.
- THE TRIAL COURT ERRED IN ORDERING DEFENDANT TO PAY $61,614 AS AN ARREARAGE OF TEMPORARY SPOUSAL SUPPORT WHEN THE MAGISTRATE‘S ORDER WAS PREMISED ON PLAINTIFF‘S INCOME BEING $8,000 PER YEAR WHEN IN REALITY HER INCOME WAS AT LEAST FOUR TIMES THAT AMOUNT.
{¶5} In her cross-appeal, Graham advances the following assignment of error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION IN ITS PARENTING TIME AWARD TO APPELLANT.
{¶6} We begin with Harrison‘s assignments of error. In his first assignment of error, he argues that the trial court should have accepted the parties’ April 2008 shared parenting agreement because, absent fraud or duress, a settlement agreement between parties in a divorce is enforceable. For support of this proposition he cites the case of Walther v. Walther (1995), 102 Ohio App.3d 378, and its progeny.
{¶7} It is true that in Walther the court explained, “There are different avenues for the parties to come to their own agreement about the division of their property, allocation of parental rights and responsibilities, and support. They can enter into a separation agreement pursuant to a dissolution of marriage, they can enter into a separation agreement pursuant to a divorce, or they can enter into an in-court settlement agreement. All are contracts and all are permissible [subject to]
{¶8} But the agreement at issue in the present case concerned shared parenting, which is governed by
{¶9} Pursuant to
{¶10} The procedure which the court must follow, after it receives requests for shared parenting and shared-parenting plans from the parties, is set forth at
{¶11} In determining whether shared parenting is in a child‘s best interest, the court must consider the factors enumerated in
{¶12} In the present case, the trial court discussed each of the factors enumerated above, and specifically found that any provisions in the April 24, 2008 shared-parenting plan that conflicted with the court‘s decision for allocation of parental rights and responsibilities were not in the child‘s best interest. “[U]nder
{¶13} Harrison does not challenge any of the trial court‘s findings or conclusions specifically; he simply argues that because he and Graham had at one time agreed upon the April 2008 plan, the court should have adopted it. In light of the fact that Harrison does not challenge the trial court‘s application of the statutory factors, and perceiving no abuse of discretion upon our review of the trial court‘s decision in this regard, Harrison‘s first assignment of error is overruled.
{¶14} We now consider Harrison‘s second assignment of error. “If the court does not adopt any shared parenting plan as being in the best interests of the children, the court may proceed as if no plan had been requested or submitted, and proceed to allocate the parental rights and responsibilities according to the children‘s best interests.” Sancho v. Sancho (July 15, 1994), 3d Dist. No. 14-94-3. Pursuant to
[s]hall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the parent who is not the residential parent to have continuing contact with the children.
{¶15} In his second assignment of error, Harrison challenges several of the child support aspects of the trial court‘s allocation of parental rights and responsibilities. Specifically, he argues that it was an abuse of discretion for the trial court to order, in addition to full guideline child support, that Harrison pay the majority of the child‘s medical expenses, 70 percent of the child‘s school-related extracurricular activity expenses, 50 percent of the child‘s non-school-related extracurricular activity expenses, 50 percent of
{¶16} In response, Graham argues that
{¶17} Private school tuition, extraordinary medical expenses, and extracurricular activities are not addressed in the child support guidelines. However,
{¶18} With respect to whether the private school tuition order was appropriate, an appellate court may reverse a child support order, including an order to pay private school tuition, if it finds an abuse of discretion. Hammel v. Klug, 12th Dist. No. CA2004-04-032, 2004-Ohio-6242, ¶11. In the present case, the shared-parenting plan that Harrison submitted provided that the child would attend his current private school until the fifth grade, and that he would attend a different private school thereafter. It is true that Harrison‘s plan proposed that Graham pay 100 percent of the tuition, but in light of the approximately $85,000 difference in the parties’ incomes, it was not an abuse of discretion to order that Harrison pay one-half of the private school tuition.2 We also find no abuse of discretion in the trial court‘s division of extracurricular activity expenses.
{¶19} For all of the foregoing reasons, Harrison‘s second assignment of error is overruled.
{¶20} In his third assignment of error, Harrison argues that the trial court erred in dividing the marital assets. Specifically, he argues that the court erred in valuing the equity in the marital residence at $123,229, and awarding one-half of that amount to
{¶21} ”
{¶22} Section
In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors:
(1) The duration of the marriage;
(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage;
(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an interest in an asset;
(6) The tax consequences of the property division upon the respective awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;
(8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;
(9) Any retirement benefits of the spouses, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension;
(10) Any other factor that the court expressly finds to be relevant and equitable.
{¶23} In addition,
{¶24} In his fourth assignment of error, Harrison argues that the trial court erred in ordering him to pay spousal support to Graham in the amount of $1,375 per month for five years, and in awarding Graham $20,000 in attorney fees.
{¶25} Harrison argues that spousal support of any amount is inappropriate because Graham works only three days per week, the parties were only married for 11 years (living together for only eight), and Graham received a $100,000 inheritance. He also argues that the trial court failed to take into account the parties’ large age difference and the fact that the court‘s award will require him to pay spousal support until he is 70 years old.
{¶26} A trial court enjoys wide latitude in determining the appropriateness and the amount of spousal support. Wilder v. Wilder, 10th Dist. No. 08AP-699, 2009-Ohio-755, ¶10. We will not reverse an award of spousal support absent an abuse of discretion. Rodehaver v. Rodehaver, 10th Dist. No. 08AP-590, 2009-Ohio-329, ¶11.
{¶27} A trial court may determine spousal support is appropriate and reasonable, and it may set the nature, amount, and terms of payment, as well as the duration of the support, only after considering:
(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.
{¶28} In support of his argument, Harrison refers to only two factors – the parties’ ages and Graham‘s work hours. But review of the trial court‘s decision reveals that it considered all of the required factors enumerated above in determining that its award of spousal support was reasonable. Harrison does not quarrel with the court‘s findings as to
{¶29} ”
{¶30} Harrison argues that the trial court erred in awarding attorney fees to Graham because the case was “essentially settled until the Plaintiff reversed herself with regard to the issue of shared parenting”3 and because “the balance sheets demonstrate that Dr. Harrison has no meaningful cash assets whatsoever.”4 Review of the trial court‘s decision reveals that it considered the factors enumerated in
{¶32} For all of the foregoing reasons, we overrule Harrison‘s fourth assignment of error.
{¶33} In his fifth assignment of error, Harrison argues that the trial court erred in ordering him to pay $61,614 as an arrearage of temporary spousal support that he had not paid during the pendency of the litigation. He argues that this was an error because the magistrate‘s temporary spousal support order was based upon Graham‘s income being $8,000 per year, whereas the evidence at trial revealed that her annual income was between $37,000 and $42,000.
{¶34} Review of the record reveals that on November 2, 2005, the magistrate issued temporary orders in which Harrison was ordered to pay Graham $1,639 per month in temporary spousal support. Following a hearing at which Harrison presented no expert testimony, but Graham did, the magistrate on September 11, 2006, increased the temporary spousal support order to $3,250 per month. This was based upon the testimony of Graham‘s expert witness, who had testified that Graham‘s income was $6,968 in 2003, $13,436 in 2004, $8,721.13 in 2005, and in the first half of 2006 she had
{¶35} Graham argues that Harrison is barred from using evidence adduced for the first time at the final hearing to support his argument that the temporary spousal support award was based on incorrect income information. She argues that our review of the trial court‘s final judgment is limited to the issues litigated at trial, on the evidence adduced at trial. She argues that the propriety of the temporary spousal support award is res judicata. In the alternative, she contends that we should overrule this assignment of error because the undisputed evidence at the hearing before the magistrate supports the increased temporary spousal support award.
{¶36} We agree with Graham that, even if we were to consider the propriety of the temporary spousal support order, we are limited to review of the income evidence presented at that time; income evidence adduced two years later at trial does nothing to demonstrate that the trial court erred in making the temporary spousal support order. Moreover, the standard of review when considering a trial court‘s decision with respect to support arrearage awards is whether the trial court abused its discretion. Doan v. Doan (Aug. 15, 1997), 1st Dist. No. C-960932. Because we perceive no abuse of discretion in the trial court‘s order with respect to the spousal support arrearage, we overrule Harrison‘s fifth assignment of error.
{¶37} We now turn to Graham‘s single assignment of error contained in her cross-appeal. Therein, she argues that we must reverse the trial court‘s order with respect to the parenting schedule because the court failed to engage in the required analysis of the
{¶38} We agree. Pursuant to
(1) The prior interaction and interrelationships of the child with the child‘s parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person‘s residence and the distance between that person‘s residence and the child‘s residence;
(3) The child‘s and parents’ available time, including, but not limited to, each parent‘s employment schedule, the child‘s school schedule, and the child‘s and the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child‘s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific
parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent‘s willingness to reschedule missed parenting time and to facilitate the other parent‘s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section
2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical
harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;
(13) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child‘s parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.
{¶39} In Dannaher v. Newbold, 10th Dist. No. 03AP-155, 2004-Ohio-1003, ¶114, we noted that
{¶40} The factors enumerated in
{¶41} In accordance with the foregoing authorities, we must reverse the trial court‘s judgment with respect to the parenting schedule, and remand this case for the trial court to issue a new judgment that includes the required discussion of the factors contained in
{¶42} In summary, Harrison‘s first, second, third, fourth, and fifth assignments of error are overruled, Graham‘s assignment of error is sustained, the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed in part and reversed in part, and this cause is remanded for further proceedings consistent with law and this decision.
Judgment affirmed in part, reversed in part; cause remanded with instructions.
KLATT and CONNOR, JJ., concur.