600 N.E.2d 839 | Ohio Ct. App. | 1992
Defendant-appellant, Robert J. Hockenberry, appeals the judgment of the Court of Common Pleas of Henry County, which granted plaintiff-appellee, Faith A. Hockenberry, a divorce.
The record reveals that the parties were married on March 14, 1980. Four children were born during the marriage. On August 17, 1990, Faith filed for divorce. The parties reached an agreement concerning all matters, except child support, sustenance alimony and payment of Faith's attorney fees. These issues were heard on March 12, 1991 by a referee. On July 31, 1991, the referee issued his report. The referee recommended that: (1) no sustenance alimony be paid by either party; (2) Robert would pay $225 per week, plus poundage and $20 for arrearages, for support of the minor children; and (3) Robert would pay $1,000 of Faith's attorney fees.
On August 8, 1991, Robert filed objections to the referee's report. The trial court overruled Robert's objections on October 18, 1991. On November 19, 1991, the trial court adopted the referee's findings and recommendations concerning sustenance alimony, child support and Faith's attorney fees. On December 4, 1991, Robert filed the instant appeal, asserting six assignments of error:
"1. The trial court erred when it set a child support order at a level where it exceeded the maximum garnishment amount allowed by law (60%) when the obligor was not underemployed and had no income other than his wages. *808
"2. The trial court erred when it set a support order for arrearage in addition to the regular support which exceeded the statutory maximum garnishment amount (65%) when the obligor was not underemployed and had no income other than his wages.
"3. The trial court erred when it issued a final order that "all issues were resolved" when there had been a specific reservation of the issues raised by the defendant concerning the joinder of Campbell Soup and whether Campbells or plaintiff was responsible to repay the $846.00 that was overwithheld [sic] without a hearing on the matter. The courts [sic] decision denied defendant due process and equal protection of the law by failing to give him a hearing on these issues.
"4. The trial court erred in not providing for automatic adjustments to the maximum statutory level if the defendant remarried.
"5. The trial court erred when it set support at $225.00 per week and awarded the child care portion of support without proof of payment of the child care expenses.
"6. The trial court erred when it ordered the defendant to pay $1,000.00 of plaintiff's attorney fees, when defendant couldn't possibly pay that amount."
Faith has not filed a brief in this appeal. App.R. 18(C) states, in pertinent part, that:
"* * * If an appellee fails to file his brief within the time provided by this rule, * * * the [appellate] court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action."
"(D) If a court is required * * *, the court shall issue one or more of the following types of orders to pay the support required under the support order *809 and also, if required by either of those divisions, any other section of the Revised Code, or the court, to pay any arrearages:
"(1)(a) If the court or the child support enforcement agency determines that the obligor is employed, the court shall issue an order requiring the obligor's employer to withhold from the obligor's personal earnings, a specified amount for support in satisfaction of the support order * * *. To the extent possible, the amount specified in the order to be withheld shall satisfy the amount ordered for support in the support order plus any arrearages that may be owed by the obligor under any prior support order that pertained to the same child or spouse * * *.However, in no case shall the sum of the amount specified in theorder to be withheld and any fee withheld by the employer as acharge for its services exceed the maximum amount permittedunder section 303(b) of the `Consumer Credit Protection Act,'
Section 303(B) of the Consumer Credit Protection Act, Section 1673(b), Title 15, U.S. Code, states in pertinent part, that:
"(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed —
"(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week; and
"(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual's disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek."
The record shows that Robert is not supporting any other spouse or child and that arrearages are owed by Robert. Thus, up to sixty-five percent of Robert's disposable earnings is available for child support and arrearages. However, our calculations, based upon the record before us, show that the trial court's child support order exceeds sixty-five percent of Robert's disposable earnings. Accordingly, we sustain the first and second assignments of error. *810
"Q. I'll show you what's been marked as, this is Plaintiff's Exhibit 3 and ask you in [sic] you can identify this exhibit.
"A. Yes, these are the hours totalled for the work that Mr. Fisher has done for me, what they total.
"Q. Okay, do you find those to be fair and reasonable?
"A. Yes, I do."
The exhibit stated: "07/09/90-03/11/91: 29.85 hours legal services rendered @ $80.00/hr. TOTAL: $2,388.00." Based upon the foregoing, the trial court ordered Robert to pay $1,000 of Faith's attorney fees.
In Swanson v. Swanson (1976),
The trial court stated in its entry that it found that "[t]he only issues left to decide upon are the issues of child support, sustenance alimony and attorney fees" and then proceeded to decide them. However, the record does not reflect that the trial court ever addressed Robert's motion for joinder or reimbursement prior to its judgment entry which granted Faith the divorce.
With respect to the joinder issue, Civ.R. 75(B)(3) states that the trial court may join the obligor's employer when child support is ordered. See, also, R.C.
"Pursuant to Civil Rule 75(B)(3), as the employer/income withholder of Robert J. Hockenberry (hereinafter referred to as the obligor) you are hereby joined as a party to this action."
There is nothing in the record which indicates that Campbell Soup Co. was ever dismissed from the lawsuit. Based upon the foregoing, we find that the fact that the trial court did not rule on Robert's motion to join Campbell Soup Co., prior to granting the divorce, was neither prejudicial to Robert nor erroneous.
With regard to the reimbursement issue, the record reveals that this portion of Robert's motion was still pending when the trial court granted the divorce. Nothing in the record indicates that the issue was ever resolved. Thus, on remand, it would appear that the trial court must also address the matter. Accordingly, the third assignment of error is sustained in part and overruled in part.
The record reveals that there was apparently some evidence as to Faith's child care expenses. Specifically, the referee's report recites that Faith testified that her family cared for the children and that she paid them $15 per night and $10 per day or $140 to $160 per week, depending upon the amount of time she worked. Nevertheless, the trial court, in adopting the referee's report, specifically found that "[t]his evidence did not add up and no other evidence, such as 1099 forms, checks or receipts, were offered in evidence." It, therefore, appears that the trial court did not find that the evidence *812 concerning child care expenses was credible. Yet, the trial court further found that:
"* * * [T]he plaintiff's work could cause defendant more child support than if the plaintiff was not employed, because he must pay a percentage of the child care under the child support guidelines. If Defendant earned $30,000 per year and Plaintiff stayed home with the children, his child support obligation would be $9,996 or a little less than $200 a week. If Plaintiff's child care expenses are correct, her working caused Defendant to pay approximately $250.00 per week under the guidelines."
Then, the trial court awarded an amount of child support ($225, plus poundage and arrearages) which was greater than the amount which would be required (less than $200) if no child care expenses were included, based upon the relative incomes of Faith and Robert as set forth in Robert's brief and confirmed in the record.
While nothing in the support award or the record specifically states that the award includes child care expenses, the amount of the child support award suggests that it includes some child care expenses, despite the fact that the trial court appears to have found the evidence unreliable. A deviation from the Child Support Guidelines is permissible, but it must be substantiated in the trial court's decision. See Hurdelbrink v. Hurdelbrink
(1989),
For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part. We remand this matter to the trial court for hearing and further clarification consistent with this opinion.
Judgment affirmed in partand reversed in part.
HADLEY, P.J., SHAW and EVANS, JJ., concur.