JEFFREY MORROW v. SHERRI BECKER
C.A. No. 11CA0066-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 27, 2012
2012-Ohio-3875
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 04 PA 0199
CARR, Judge.
{1} Appellant Jeffrey Morrow appeals the judgment of the Medina County Court of Common Pleas, Domestic Relations Division. This Court affirms in part and reverses in part.
I.
{2} Jeffrey Morrow (“Father“) and Sherri Becker (“Mother“) are the parents of two children (“Mo” and “Mac“). Mac, who is two years younger than Mo, has special needs arising out of Down Syndrome. Mother was designated as the residential parent and Father was awarded parenting time with the children as follows: every other Wednesday from 6 p.m. until 9 a.m. the following morning with both children; alternate weekends from 6 p.m. Thursday until 9 p.m. Sunday with Mo; and the same alternate weekends on Sunday from 11 a.m. until 9 p.m. with Mac. The court order allowed for alternative parenting time arrangements as the parties may agree. Father was also ordered to pay child support in the amount of $2,198.05 per month.
{4} In August 2009, Father filed a motion to modify and reduce his child support obligation. A couple weeks later, Mother filed a motion to modify parenting time. Four months later, she filed a motion for contempt, alleging that Father had failed to pay child support as ordered. The magistrate scheduled and continued hearings on the motions multiple times at the parties’ request. The magistrate heard Mother‘s motion to modify parenting time on July 27, 2010, and scheduled a hearing on the issues of the modification of child support and contempt for August 10, 2010. On July 29, 2010, Father‘s attorney moved to withdraw. His subsequent attorney moved on August 2, 2010, to continue the August 10 hearing. Given the numerous prior continuances coupled with Father‘s assertion that his new counsel would be prepared for hearing, the magistrate denied the motion for a continuance. She heard Father‘s motion to modify child support and Mother‘s motion for contempt on August 10, 2010. The magistrate issued separate decisions arising out of the two hearings. Father filed objections to both decisions.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY (1) ELIMINATING MR. MORROW‘S WEDNESDAY, THANKSGIVING, SPRING AND CHRISTMAS BREAK PARENTING TIME, AND (2) RESTRICTING MR. MORROW‘S VISITATION WITH HIS CHILDREN TO ALTERNATING DAYS OF SPECIAL MEANING/HOLIDAYS AND EVERY OTHER WEEKEND UNLESS MS. BECKER AGREES TO ADDITIONAL VISITATION, THEREBY COMMITTING REVERSIBLE ERROR AND VIOLATING MR. MORROW‘S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
THE TRIAL COURT ERRED BY MISINTERPRETING THE MAGISTRATE‘S DECISION, THEREBY COMMITTING REVERSIBLE ERROR AND VIOLATING MR. MORROW‘S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{6} Father argues that the trial court abused its discretion by modifying his parenting time with the children. Specifically, Father argues that the trial court erred by misinterpreting the magistrate‘s decision, reducing his parenting time, and leaving the issue of additional visitation to Mother‘s sole discretion. This Court disagrees.
{7} In cases where the matter was initially heard by a magistrate who issued a decision to which objections were filed and disposed, “[a]ny claim of trial court error must be based on the actions of the trial court, not on the magistrate‘s findings or proposed decision. In other words, the standards for appellate review do not apply to the court‘s acceptance or rejection of the magistrate‘s findings or proposed decision.” Mealey v. Mealey, 9th Dist. No. 95CA0093, 1996 WL 233491 (May 8, 1996), *2.
{8} As we recognized in Father‘s first appeal, “A trial court‘s decision regarding visitation rights will not be reversed on appeal except upon a finding of an abuse of discretion.”
{9} First, Father argues that the trial court abused its discretion by reducing his parenting time by eliminating Wednesday evening visitation, as well as spring, Thanksgiving, and Christmas break parenting time.
{10} As an initial matter, the record indicates that, rather than reducing his parenting time, the trial court in fact increased Father‘s parenting time. Although the trial court eliminated the three-hour Wednesday evening visitation, it increased his bi-weekly weekend visitation to include an additional evening and overnight, which necessarily also gave him additional time on Monday morning with the children. Mother testified that both children suffer when faced with inconsistency and that Father‘s tardiness, failure to appear for some visits, and frequent absences due to international travel have disrupted their routines to their detriment. The evidence presented at the hearing demonstrated that Father made frequent trips to China which caused him to miss many scheduled visits with the children. In addition, Father missed some scheduled parenting time due to jet lag and his decision to attend Ohio State University football games instead of exercising visitation. Father admitted that his international travel would continue into the foreseeable future and that he could not commit to being available to spend every Wednesday evening with the children. In ordering the modification of parenting time, the trial court reasoned that eliminating the mid-week three-hour parenting time, while extending Father‘s
{11} Moreover, Father is incorrect in his assertion that the trial court eliminated his parenting time during spring, Thanksgiving, and Christmas breaks. The trial court ordered that “holidays and days of special meaning are to be divided as the parties agree or, if no agreement can be reached, pursuant to the Court‘s Standard Parenting Time Order.” The Medina County Domestic Relations Court Standard Parenting Time Schedule, attached to the trial court‘s judgment, sets out a “Holiday Parenting Time” schedule in section II. That section identifies “Holiday[s]” including “Spring Break,” “Thanksgiving,” and “Winter break.” Because these times are expressly designated as “holidays,” the trial court‘s order entitles Father to visitation as delineated pursuant to the schedule, unless the parties agree to modify that parenting time. The trial court‘s standard order sets forth two options for visitation during each of the above-referenced holidays and states that “in the event an option is not specified and the parties do not agree, then Option 1 shall be in effect.” Therefore, pursuant to the plain language of the trial court‘s order and standard parenting time schedule, Father‘s parenting time during spring, Thanksgiving, and Christmas breaks has not been eliminated. Accordingly, his argument in that regard is not well taken.
{12} Second, Father argues that the trial court abused its discretion by leaving the issue of extended parenting time in the sole discretion of Mother. In support, Father relies on Barker v. Barker, 6th Dist. No. L-00-1346, 2001 WL 477267 (May 4, 2001), in which the appellate court concluded that the trial court abused its discretion by leaving the decision to reinstate the father‘s visitation in the sole discretion of the child‘s psychologist. The Barker court concluded
{13} Here, the trial court ordered that “[Father] should receive no extended parenting time unless agreed to by [Mother].” (Emphasis added.) In contrast to Barker, the trial court did not empower Mother to determine whether Father could exercise parenting time at all. He clearly had the right to certain visitation with the children. Instead, the trial court merely acknowledged that Mother could allow Father to have additional time with the children beyond that which had been ordered. This Court concludes that the trial court did not abuse its discretion.
{14} Finally, Father complains that the trial court‘s parenting time order is biased against him because it penalizes him with forfeiture of parenting time if he is more than 30 minutes late when picking up the children for visitation. He argues that Mother, on the other hand, may disregard the times determined for exchange of the children with impunity.
{15} The trial court‘s order merely reiterates the court‘s local rule subsumed in the standard parenting time schedule under Section VI., captioned “Promptness.” Loc.R. 6.05, Form 6.04A. The rule states in pertinent part: “The residential parent has no duty to wait for the nonresidential parent to pick up the children longer than thirty (30) minutes, unless the nonresidential parent notifies the residential parent that she/he will be late, and the residential parent agrees to remain available after the thirty (30) minute waiting period. A parent who is more than thirty (30) minutes late loses the parenting time period.”
{17} In addition, Father is incorrect in his assertion that Mother is free to delay his access to the children by disregarding the times designated for exchange. Mother is bound to comply with the court‘s orders regarding parenting time. If she refuses or otherwise fails to do so, Father may file a motion for contempt and Mother would be subject to contempt sanctions. Accordingly, Father‘s argument that the trial court‘s order is biased in favor of Mother is not well taken. The first assignment of error is overruled.
{18} For the above reasons, Father‘s first and second assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT A CONTINUANCE AFTER MR. MORROW‘S FORMER COUNSEL ABANDONED HIM ON THE EVE OF TRIAL, THEREBY COMMITTING REVERSIBLE ERROR AND VIOLATING MR. MORROW‘S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
{19} Father argues that the trial court erred by denying his motion to continue the hearing on his motion to modify child support. Additionally, he argues that the denial of his request for a continuance violated his right to due process of law. This Court disagrees.
{20} It is well settled that the decision to grant or deny a continuance lies in the sound discretion of the trial judge. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The United States Supreme Court emphasized that “not every denial of a request for more time [] violates due process even if the party fails to offer evidences or is compelled to defend without counsel.” Ungar, 376 U.S. at 589. Whether a denial of a request for a continuance is so arbitrary as to violate due process depends on the circumstances of the case, particularly the reasons articulated to the trial court in support of the request. Id. “In determining whether the trial court abused its discretion by denying a motion for a continuance, this court must ‘apply a balancing test, weighing the trial court‘s interest in controlling its own docket, including facilitating the efficient dispensation of justice, versus the potential prejudice to the moving party.‘” Kocinski v. Kocinski, 9th Dist. No. 03CA008388, 2004-Ohio-4445, ¶ 10, quoting Burton v. Burton, 132 Ohio App.3d 473, 476 (3d Dist.1999).
{21} Father filed his motion to modify/reduce child support on August 4, 2009. The trial court scheduled a hearing on the motion on October 23, 2009. The hearing on Mother‘s motion to modify parenting time was subsequently scheduled for the same date and time. Father moved to extend the time in which he must respond to Mother‘s discovery requests until October 19, 2009, merely four days before the scheduled hearing. The hearing date was converted to a pretrial and the hearing was rescheduled for February 24 and 25, 2010. Father filed his witness and exhibit lists on February 11, 2010. Thirty-six minutes before the hearing was scheduled to
{22} On July 29, 2010, Father‘s attorney moved to withdraw from further representation. The trial court granted the motion. The record contains a signed letter from Father to the magistrate in which Father asserted that he did not challenge his attorney‘s withdrawal, that he had secured alternate counsel, and that his new attorney would be prepared for the hearing on August 10, 2010. On August 2, 2010, Father‘s new attorney filed a notice of appearance, a supplemental witness and exhibit list, and a motion to continue the hearing. In support of a continuance, Father‘s attorney asserted that he needed additional time to review documents and provide Mother‘s counsel with a supplemental witness and exhibit list. He further asserted that Father would be unfairly prejudiced by the inability to call any additional witnesses he might disclose in a supplemental witness list. Father did not suggest a new date for the hearing. The magistrate denied the motion to continue on August 4, 2010. The same day, Father‘s attorney filed a second supplemental witness and exhibit list. Father‘s attorney orally renewed his motion to continue immediately prior to the hearing. The magistrate again denied the motion.
{23} Based on a review of the circumstances of this case, this Court cannot say that the domestic relations court abused its discretion by denying Father‘s August 2, 2010 motion to continue the hearing on his motion to modify child support. Father filed his motion nearly a year
{24} Given the indefinite nature of the requested continuance, Father‘s role in creating the circumstances giving rise to the latest request, the inconvenience of repeated delays and uncertainty for Mother, the trial court‘s right to control its docket coupled with the efficient dispensation of justice outweighs any potential prejudice to Father. See Kocinski at ¶ 10. In fact, because Father was not precluded from presenting all evidence and testimony he desired, he has not demonstrated that he was prejudiced at all, let alone unfairly. Although he argues that he had no time “to investigate the approximately $25,000 of unknown funds deposited into [Mother‘s] bank account in 2009[,]” he presented copies of Mother‘s bank statements evidencing such activity on her account and was able to cross-examine Mother extensively on the issue. Accordingly, the denial of a continuance did not violate Father‘s right to due process, and the trial court did not abuse its discretion by denying Father‘s third motion for a continuance. Father‘s third assignment of error is overruled.
THE TRIAL COURT ABUSED ITS DISCRETION BY (1) IMPUTING AN ADDITIONAL $16,756 OF INCOME FOR CORPORATE BENEFITS WHEN CALCULATING MR. MORROW‘S CHILD SUPPORT OBLIGATION (2) AVERAGING MR. MORROW‘S AND MS. BECKER‘S INCOME OVER THE PRIOR THREE YEARS THEREBY IMPUTING A GROSS INCOME THAT DOES NOT ACCURATELY REFLECT CURRENT EARNINGS OR EITHER PARTY AND (3) IGNORING THE BASIC CHILD SUPPORT SCHEDULE AND TREATING THE INSTANT ACTION ON A CASE-BY-CASE BASIS. THUS, THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED MR. MORROW‘S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{25} Father argues that the domestic relations court abused its discretion in its calculation of child support. Specifically, Father argues that the trial court erred by (1) including corporate benefits in his gross income, (2) averaging the parties’ incomes and imputing income to Father, and (3) establishing child support outside the basic child support schedule. This Court disagrees.
{26} As an initial matter, a trial court‘s decision regarding child support obligations will not be overturned absent a showing of an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989).
Corporate benefits as income
{27} Father argues that the trial court erred by including $16,756 as company benefits as part of his gross income for purposes of determining his child support obligation. That amount consisted of the annual values of a company car ($9,600), insurance ($4,356), a cell phone ($1,200), and Ohio State University football tickets ($1,600). The trial court did not include the value of the laptop computer provided to Father by his business.
{29} Father is the president of Ohio College of Massotherapy (OCM) and OCM Online. OCM is a non-profit corporation, while OCM Online is a for-profit corporation. Father receives a salary from both businesses. While those salaries are not distinguished clearly on his 2007 tax return, his 2008 tax return indicates he was paid a salary of $121,897 by OCM and $110,316 by OCM Online. He testified that he received certain non-monetary benefits from his employment, including a Lexus automobile, car insurance, a cell phone, and a laptop computer. He also admitted that the company buys four-seat season tickets for Ohio State University football games, but claimed those were a perk for “my” employees but a necessary business expense for himself when he attended games. It is not entirely clear whether OCM provided these benefits to Father or whether he received them from employment with both OCM and OCM Online.
{31} This Court does not agree that reimbursements and in-kind payments such as company cars may only be included as gross income if a parent is self-employed or has an ownership interest in the business merely because
{32} On the other hand, if Father received those benefits from his employment with OCM Online, a for-profit corporation in which he had an ownership interest, the value of most of those benefits would necessarily be included in his gross income as self-generated income because the benefits “are significant and reduce personal living expenses.” See
{33} In either event, Father testified that he had no other car or cell phone for personal use. He admitted that he had no land line telephone at home. He testified that the company paid for his car insurance. He admitted in his appellate brief that he would lose the benefit of these items if he lost his job. He would, therefore, have to pay for such items out of pocket. Accordingly, the trial court did not abuse its discretion by including the value of these benefits as part of Father‘s gross income.
{34} On the other hand, in regard to the Ohio State tickets, Father testified that he provided the dates of the football games to his employees and asked them to let him know which games they were interested in attending. He further testified that he sometimes gives some tickets away to non-employees who have business with the companies. While Father attends some football games every season, he reasonably does not derive a personal benefit from all four seats of every game. Therefore, while he derives some personal economic benefit, he does not derive the full $1,600 value of the tickets as a benefit. He did not, however, testify regarding how many tickets he used for himself and his personal guests, such as his child Mo. Accordingly, the trial court erred by including that entire amount in his gross income. However, based on our resolution of the remaining issues in this assignment of error and the negligible
Imputation of income and income averaging
{35} Father argues that the trial court erred because it averaged his income from the prior three years and imputed the averaged income to him without making an express finding that he was underemployed. He further argues that the trial court erred by averaging Mother‘s income to calculate her gross income.
{36}
{37}
{39} Father further argues that the trial court erred by averaging Mother‘s income because her income has steadily increased rather than fluctuated. His argument is not supported by the record. Mother‘s tax returns submitted into evidence indicated that Mother‘s adjusted gross income was $58,588 in 2007, $42,212 in 2008, and $51,716 in 2009. She testified that she received a one-time $500 employee of the month bonus and a one-time $5000 employee of the year bonus in 2009. By averaging Mother‘s income over the past three years, properly not including the bonuses as nonrecurring or unsustainable income pursuant to
Basic child support schedule
{40} Father argues that the trial court erred by failing to apply the basic child support schedule because the parents’ combined gross income was not more than $150,000.
{42} Father argues that the trial court was precluded from determining his child support obligation on a case-by-case basis because the combination of the parents’ actual income is less than $150,000. He argues that, because
{43} Father further argues that his child support obligation is more than 50% of his current take home pay. In support, he cites Siebert v. Tavarez, 8th Dist. No. 88310, 2007-Ohio-2643, ¶ 36, for the proposition that the trial court must “ensure that the obligor parent is not so overburdened by child support payments that it affects that parent‘s ability to survive.” Father fails, however, to explain how his current obligation impacts his ability to survive.
{44} On the other hand, the evidence adduced at trial demonstrated that Father continued to live well. He recently bought a $405,000 home with a pool on which he was able to
{45} Moreover, Father cites no law to show that withholding of “over 50%” is not permissible under these circumstances. In fact, in a garnishment context,
ASSIGNMENT OF ERROR V
THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING MR. MORROW IN CONTEMPT, THEREBY COMMITTING REVERSIBLE ERROR AND VIOLATING MR. MORROW‘S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{46} Father argues that the trial court erred by finding him in contempt for failing to pay his child support obligation through wage withholding. This Court agrees.
{47} This Court reviews contempt proceedings for an abuse of discretion. Akin at ¶ 44, citing Thomarios v. Thomarios, 9th Dist. No. 14232, 1990 WL 1777 (Jan. 10, 1990). An abuse of discretion connotes that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.
While both types of contempt contain an element of punishment, courts distinguish criminal and civil contempt not on the basis of punishment, but rather, by the character and purpose of the punishment. Punishment is remedial or coercive and for the benefit of the complainant in civil contempt. Prison sentences are conditional. The contemnor is said to carry the keys of his prison in his own pocket, since he will be freed if he agrees to do as ordered. Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence. Such imprisonment operates not as a remedy coercive in its nature but as punishment for the completed act of disobedience, and to vindicate the authority of the law and the court. Therefore, to determine if the sanctions in the instant cause were criminal or civil in nature, it is necessary to determine the purpose behind each sanction: was it to coerce [Father] to obey the [child support order], or was it to punish [him] for past violations?
(Internal citations omitted.) Id. at 253-254.
{49} In this case, the trial court fined Father after finding that he had failed to pay his child support through wage withholding. However, the court gave him the opportunity to purge his contempt and avoid paying the fine by establishing wage withholding within thirty days of the court‘s judgment. Because the trial court‘s punishment was remedial and coercive in nature, and Father had the opportunity to purge the contempt, it was civil in nature. In civil contempt proceedings, a finding of contempt must be premised on clear and convincing evidence. Romans
{50} Mother alleged in her contempt motion that Father had failed to pay child support and that he had failed to effect the mandatory wage withholding. The trial court found Father in contempt solely on the basis that he had failed to pay his child support obligation by wage withholding “as ordered by this Court and pursuant to the Ohio Revised Code.” The domestic relations court cited to the parties’ March 30, 2005 agreed judgment entry which addressed interim issues of parenting time and child support pending trial to ultimately resolve those issues. The March 30, 2005 entry ordered Father to pay child support by wage withholding through the Ohio Child Support Payment Central, in Columbus. That entry included the following order in bold font: ”All child support and spousal support under this order shall be withheld or deducted from the income or assets of the Obligor pursuant to a withholding or deduction notice or appropriate court order issued in accordance with Section 3121.03 of the Ohio Revised Code.” Mother cited neither the March 30, 2005 order nor
{51} On March 1, 2006, the domestic relations court issued a final judgment in which it designated Mother as the residential parent, ordered parenting time for Father, and ordered Father to pay child support. The child support order stated: “Effective October 1, 2005, Mr. Morrow shall pay child support through the Medina County Child Support Enforcement Agency in the amount of $2,198.05 per month, which includes 2% processing fee.” There was no order that the support be paid through wage withholding. Moreover, the March 1, 2006 order did not
{52} Mother relied on the March 1, 2006 order for her allegation that Father was required to pay child support by wage withholding. However, at the hearing, Mother admitted that the current order for child support ordered Father to pay CSEA directly, not by wage withholding.
{53} Mother failed to present clear and convincing evidence that Father violated the current child support order. Before a party may be held in contempt for disobeying a court order, the prior order “‘must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.‘” Collette v. Collette, 9th Dist. No. 20423, 2001 WL 986209 (Aug. 22, 2001). The interim child support order issued on March 30, 2005, was superseded by the final judgment issued on March 1, 2006. While the interim order ordered Father to pay child support by wage withholding to the central agency in Columbus, the final judgment ordered Father to pay child support directly to Medina County CSEA. Moreover, the final judgment made no reference to
III.
{54} Father‘s first, second, third, and fourth assignments of error are overruled. Father‘s fifth assignment of error is sustained. The judgment of the Medina County Court of
Judgment affirmed in part, Reversed in part, And cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
BELFANCE, J.
CONCUR.
JOHN C. RAGNER, Attorney at Law, for Appellant.
LINDA HOFFMAN, Attorney at Law, for Appellee.