AMY MACDONALD v. JOHN K. MACDONALD, JR.
No. 96099
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 20, 2011
[Cite as MacDonald v. MacDonald, 2011-Ohio-5389.]
BEFORE: S. Gallagher, J., Stewart, P.J., and Cooney, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. D-319286
Joseph G. Stafford
Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Margaret E. Stanard
Cheryl Wiltshire
Stanard & Corsi Co., L.P.A.
1370 Ontario Street
748 Standard Building
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant John MacDonald, Jr., appeals the final decision of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, entered on November 10, 2010. For the following reasons, we affirm.
{¶ 2} Amy MacDonald (“Amy“) and John MacDonald, Jr. (“John“), were married on October 26, 1992, and had two children together. Amy filed a divorce action on December 27, 2007. The minor children, born on June 4, 1997, and August 12, 2001, were represented by a guardian ad litem, Adam Thurman (“GAL“).
{¶ 3} The divorce was contentious. The parties separated on March 31, 2008, when John was 44 years old and Amy was 45. John graduated from Bowling Green University in 1989 and was last employed outside the home in 1994. He consulted on
{¶ 4} Amy was employed, since 2006, as a sales manager for a paper company. Amy has an associate‘s degree and earns about $9,432.25 per month, including the monthly car allowance of $580. In 2010, 2009, and 2008, she received bonuses of $13,676, $9,924, and $34,883, respectively, received in violation of the trial court‘s temporary restraining order (“TRO“). Amy used the bonuses, at least in part, to take the children on vacations, which happened every year.
{¶ 5} Immediately before Amy filed for divorce, she liquidated her retirement account. After taxes and penalties, she received $58,593 and used $55,000 to pay off marital debt. She is paying the taxes and any associated penalties through her bankruptcy case, filed during the pendency of the divorce.
{¶ 6} Amy was the wage earner for the family, and John stayed home to raise the two minor children. The parties disagree as to whether this arrangement was planned or happened because of John‘s inability or lack of desire to find employment. The marital home was in foreclosure during the trial. Amy paid all the marital expenses during the marriage. During the divorce, she filed a motion to force John to vacate the marital residence. John opposed and refused to leave or pay anything toward the mortgage obligation. Amy vacated the marital home in August 2008 and ceased paying the mortgage. She rented another place near the marital home and within the same school district for the children. John lived in the marital home through the date of the trial. In September 2008, Amy notified John that she would no longer make the mortgage payments on the marital home. John took no action with respect to the mortgage, despite earning some income. In March 2009, he filed a motion for temporary spousal support.
{¶ 7} Amy filed two petitions for a domestic violence civil protection order against John for an altercation occurring on March 31, 2008. The first petition was dismissed, as noted in the magistrate‘s decision adopted by the trial court, because John‘s objection to the full hearing that occurred two days after the statutory deadline had technical merit. The second petition was identical to the original, essentially a “refiling” based on John‘s objection to the original filing. At the full hearing, the court found that Amy had not met her burden to show by a preponderance of the evidence that John committed acts of domestic violence as defined by
{¶ 8} The trial court entered the final judgment entry of divorce on November 10, 2010. The trial court made the following findings of fact and conclusions of law pertinent to John‘s assigned errors: (1) the parties lived beyond their economic means during their marriage; (2) both parties are guilty of financial misconduct; (3) Amy is to pay $300 per month in spousal support for five years for her improper handling of her bonuses in violation of the trial court‘s TRO;1 (4) Amy is to pay $700 per month for five years for spousal support based on the income inequality; (5) all personal property and remaining marital assets are to be divided equally; (6) the parties are individually responsible for their own personal debt created during the pendency of the divorce proceedings; (7) the parties are to have equal parenting time with the children, although Amy is designated as the residential parent for school purposes; and (8) Amy is to pay child support in the amount of $510.21 per month if health insurance is provided. John timely appealed, raising six assignments of error. We will address each in turn.
{¶ 10} John‘s first assignment of error provides as follows: “The trial court erred and/or abused its discretion by adopting [Amy‘s] amended shared parenting plan, by ordering equal parenting time, and by designating [Amy] as the residential parent for school purposes.” John argues that the court erred by deviating from the GAL‘s proposed shared parenting plan and additionally erred by not adopting John‘s proposed plan. His first assignment of error is without merit.
{¶ 11} “The allocation of parental rights and responsibilities are set forth in
{¶ 12}
{¶ 13} In the current case, the trial court found that neither parent‘s shared parenting plan was in the best interest of the children, in part based on the GAL‘s recommendation that neither party should be the residential parent because that party would exclude the other from the children‘s lives; continuing the parenting-time arrangement in place during the divorce proceeding would give consistency to the children and minimize the interaction of the parents, in consideration of their acrimonious relationship; and since Amy‘s salary cannot support two overspending households, John would have to seek “gainful employment,” thereby limiting his ability to care for the children full-time. The court also found that the GAL‘s plan promoted too much interaction between the parents and additionally disrupted the children‘s homework time.
{¶ 14} The trial court ordered the parties to submit revised plans pursuant to
{¶ 15} John argues that he should have the children a majority of the time because he was the primary caregiver for the children during the marriage, that Amy continuously interfered with his and the children‘s relationship; and that the trial court failed to articulate reasons in support of deviating from the GAL‘s recommendation.
{¶ 16} Contrary to John‘s specific arguments, the trial court indeed articulated a reason for deviating from the GAL‘s proposed shared parenting plan and in part based its final decision on the GAL‘s recommendation. We note that the GAL‘s recommendation is just one of many factors to consider pursuant to
{¶ 17} In light of the facts that the trial court agreed with John‘s position that Amy was not likely to facilitate parenting time and companionship rights, the trial court did
{¶ 18} John‘s second assignment of error provides as follows: “The trial court erred and/or abused its discretion by failing [to] issue temporary support orders and/or by failing to make its support orders retroactive to March 10, 2009; and/or by failing to issue appropriate effective dates for the payment of support.”
{¶ 19}
{¶ 20} John argues that the court was required to grant his motion for temporary support, and absent such action, the court was required to make the final spousal support retroactive to the March 10, 2009 filing of his motion for temporary support. John claims that he was prejudiced by the court‘s failure to grant temporary spousal support or make the final spousal award retroactive because Amy earned the only income and John was therefore unable to support himself or his children. Finally, he claims that since Amy made over $9,000 per month and took the children on vacation, she should have paid temporary support.
{¶ 21} The trial court found spousal support for John in the amount of $700 per month for five years from the date of the final entry was reasonable. The trial court also found that in light of Amy‘s action in receiving her bonuses in violation of the court‘s TRO, additional spousal support in the amount of $300 per month for five years was warranted.
{¶ 22} The trial court expressly considered all factors set forth in
{¶ 23} Accordingly, the trial court did not abuse its discretion based on the facts of the case in awarding spousal support in the total amount of $1,000 per month for five years from the date of final judgment. John has not raised any errors with the trial court‘s consideration of the other factors, and we cannot consider one factor in isolation. Dunagan, 2010-Ohio-5232, ¶ 15. John‘s second assignment of error is accordingly overruled.
{¶ 24} John‘s third assignment of error provides as follows: “The trial court erred and/or abused its discretion in its determination of the parties’ incomes and in its calculation and determination of child support; and in its calculation and determination of spousal support.” In this assignment of error, John challenges the trial court‘s decision to use the split-parental-rights worksheet rather than the shared-parenting worksheet, to exclude Amy‘s bonuses from the calculation for child and spousal support, and to
Worksheet
{¶ 25} John‘s first argument is that the trial court incorrectly used the split-parenting worksheet under
{¶ 26} If, however, the amount determined by the shared-parenting worksheet is determined to “be unjust or inappropriate to the children or either parent and would not be in the best interest of the child because of the extraordinary circumstances of the parents,” the court may deviate from standard guidelines.
{¶ 27} In the current case, the court adopted the shared-parenting order and therefore was required by the statute to use the shared-parenting worksheet before relying on
{¶ 28} The trial court specifically found that using the shared-parenting worksheet, in the context of the “standard child support guidelines,” was inequitable and not in the children‘s best interest in this case because each parent had the children half of the time. In other words, the court considered the amount of time the children spend with each parent pursuant to
Parties’ Income
{¶ 29} John advances two arguments with respect to the trial court‘s handling of the parties’ income for child and spousal support determinations. First, John claims that Amy‘s bonuses should have been included in the determination of support, and second, that the trial court erred by considering his income of $37,183 from 2009 as his income for support purposes.
{¶ 30} The trial court calculated Amy‘s gross income as $113,187, comprised of her monthly base salary and car allowance. The trial court penalized Amy for violating the court‘s TRO regarding her bonuses for 2008-2010, awarding John half of the net amount of the bonuses to be paid as spousal support for a period of five years. The trial court excluded the bonuses from its determination of the appropriate amount of child and spousal support because of this award.
{¶ 31} John first argues that the definition of gross income requires the trial court to include Amy‘s bonuses in her income calculation for both child and spousal support. Gross income for child support purposes is defined in part as “the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses * * *.”
{¶ 32} To the contrary, in determining the amount and duration of spousal support, the trial court need only consider the “[t]he income of the parties, from all sources,” as one of several factors. (Emphasis added.)
{¶ 33} We find, however, that the trial court technically erred by not including Amy‘s bonus — for the year immediately preceding when the child support obligation was being computed — in the calculation of Amy‘s gross income for the child support determination. The trial court must include the bonuses in such calculations prior to considering any deviations. Paulus, 95 Ohio App.3d at 616.
{¶ 34} Nevertheless, the court‘s omission constitutes harmless error pursuant to
{¶ 35} Finally, John argues, without citing any case law authority in support, that the trial court incorrectly relied on his 2009 income of $37,310 for the support calculations. He claims his contract was terminated and he was starting a new endeavor that yielded no income as of trial, although he expected to earn approximately
{¶ 36} John‘s fourth assignment of error provides as follows: “The trial court erred and/or abused its discretion in its division of property and/or by failing to find that the appellee committed economic misconduct.” John argues that the trial court erred in dividing the marital assets evenly between the parties in light of Amy‘s alleged economic misconduct, which includes Amy‘s liquidation of some retirement assets prior to the divorce, failure to pay the mortgage on the marital residence after she moved out of the home, violation of the TRO regarding the bonuses and personal property, and creation of additional debt during the pendency of the divorce proceedings. John claims he is entitled to $71,860 of the $87,107 remaining marital assets because of the alleged misconduct. His fourth assignment of error is without merit.
{¶ 37} “If a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property.”
{¶ 38} John primarily argues that based on his characterization of Amy‘s conduct, the court should have found Amy committed economic misconduct. This ignores the trial court‘s specific findings as follows: both parties committed economic misconduct;
{¶ 39} John has not addressed any of the trial court‘s findings and, therefore, failed to present reasons in support of his fourth assignment of error as required by
{¶ 40} John‘s fifth assignment of error provides as follows: “The trial court erred and/or abused its discretion by failing to find the appellee in contempt of its prior orders.” The trial court found Amy violated the trial court‘s orders and awarded John half of the net value of the bonuses Amy wrongly received. The trial court ordered the relief John now seeks. The court additionally noted that both parties “violated Court orders * * *” John‘s fifth assignment of error is overruled.
{¶ 41} John‘s sixth assignment of error provides as follows: “The trial court erred and/or abused its discretion by failing to award attorney fees to [John].” His sixth assignment of error is without merit.
{¶ 42}
{¶ 43} John ignores the trial court‘s decision that awarding attorney‘s fees would be inequitable because both parties violated orders and increased the other‘s attorney fees, and neither party was economically capable of paying the other‘s attorney fees. John‘s sole argument is that Amy‘s conduct increased John‘s expenses during the divorce proceeding. The trial court agreed. John failed to address the trial court‘s ruling that he acted to increase Amy‘s expenses for attorney‘s fees as well and therefore has not presented reasons in support of his sixth assignment of error as required by
{¶ 44} The decision of the trial court is affirmed.
It is ordered that appellee recover of appellant 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR