EMILY B. RUMMELHOFF, Plaintiff-Appellee, vs. DAVID P. RUMMELHOFF, Defendant-Appellant.
APPEAL NOS. C-210112, C-210176
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 25, 2022
2022-Ohio-1224
CROUSE, Judge.
TRIAL NO. DR-1601871
O P I N I O N.
Appeals From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: February 25, 2022
Murray Law LLC and Elizabeth Murray, for Plaintiff-Appellee,
Kroener Hale LLC and Thomas E. Meade, for Defendant-Appellant.
{¶1} Defendant-appellant David P. Rummelhoff appeals the judgments of the Hamilton County Court of Common Pleas, Domestic Relations Division, raising eight assignments of error for our review. In sum, David argues the court erred by: denying his motion for relief from judgment; considering plaintiff-appellee‘s motion to have defendant declared vexatious; calculating child support incorrectly; awarding attorney fees to plaintiff-appellee; and refusing to assign a new magistrate. For the following reasons, we affirm the judgments of the domestic relations court in part, reverse them in part, and remand this cause for further proceedings consistent with the law and this opinion.
{¶2} In our analysis of David‘s first assignment of error in our opinion entered December 29, 2021, we stated that the record demonstrated “that Emily‘s mental-health records were released to, and reviewed by, the social worker who conducted the parenting investigation,” and that “[t]he records were also discussed in his report.” While we did not rely on this finding to reach our conclusion, we overruled David‘s first assignment of error and held that the trial court did not abuse its discretion in denying David‘s
{¶3} On January 10, 2022, David filed an application for reconsideration of our judgment as to his first assignment of error. In his application, he asserted that our opinion included two factual errors and failed to appropriately address the issues raised in the first assignment of error. We found most of David‘s grounds for reconsideration to be without merit, but we found his application to be well-taken, only insofar as to clear up the confusion that a letter summarizing Emily‘s mental-health records, rather than the actual mental-health records, was released to the social
Factual and Procedural Background
{¶4} This is the second appeal in the divorce case between plaintiff-appellee Emily B. Rummelhoff and defendant-appellant David P. Rummelhoff. In his first appeal to this court, David argued that the trial court abused its discretion by adopting Emily‘s shared-parenting plan, overruling his motion to compel Emily‘s mental-health records, and incorrectly calculating the child-support obligation. Rummelhoff v. Rummelhoff, 1st Dist. Hamilton No. C-190355, 2020-Ohio-2928 (hereinafter ”Rummelhoff I“). This court reversed the trial court‘s child-support award and remanded the cause for the trial court to “compute the [child-support] amount in accordance with the newly revised statutes and child-support worksheet.” Id. at ¶ 35. We affirmed the trial court‘s judgment in all other respects. Id.
{¶5} On remand, David filed a
{¶6} David‘s first assignment of error concerns his efforts to compel the release of Emily‘s mental-health records. He argues that the trial court erred in denying his
{¶7} A trial court‘s ruling on a
{¶8} A brief procedural history is necessary to understand the
{¶9} David argued that he was entitled to
{¶10} However, David‘s motion was properly denied because Friedenberg is not an intervening decision. An intervening decision “is one which states a rule of law in conflict with the earlier mandate.” Clements v. Ohio Hosp. Ins. Co., 5th Dist. Stark No. 2004CA00265, 2005-Ohio-1956, ¶ 32. In Friedenberg, the Ohio Supreme Court held that, “[a]lthough communications between a physician and patient are generally privileged under
{¶12} Friedenberg does not stand for the proposition that a party‘s mental-health records must be turned over to the opposing party in a divorce proceeding under all circumstances. Rather, it provides a process by which mental-health records can be obtained and reviewed in certain cases, despite physician-patient privilege. Because Friedenberg did not “create[] a change in the law that [is] inconsistent with the legal conclusion reached” in Rummelhoff I, it is not an intervening decision. See Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, ¶ 3; see also
{¶13} David‘s
2nd Assignment of Error: Motion to have Defendant Declared a Vexatious Litigant
{¶14} On January 8, 2021, Emily filed a motion to have the defendant declared a vexatious litigant under
{¶15} It is well-settled in Ohio that courts will not issue advisory opinions. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). To that end, courts must avoid “giving opinions on abstract propositions.” Id. Courts must also avoid ruling on an appeal that is moot. Paige v. Ohio High School Athletic Assn., 2013-Ohio-4713, 999 N.E.2d 1211, ¶ 7-8 (1st Dist.), citing Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910). A case is moot “if at any stage there ceases to be an actual controversy between the parties.” Id. at ¶ 8.
3d, 4th, 5th, and 6th Assignments of Error: Child Support Deviations
{¶17} In his third, fourth, fifth, and sixth assignments of error, David takes issue with the trial court‘s decision to deviate downward from the guideline child support by a total of $612.17 per month.
{¶18} “A trial court‘s decision regarding child-support obligations falls within the discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.” Rummelhoff I, 1st Dist. Hamilton No. C-190355, 2020-Ohio-2928, at ¶ 30, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
{¶19} When determining the child-support obligation, courts are directed to refer to the basic child-support schedule to find the guideline support amount using the combined income of the parties.
Because the domestic relations court did not make the required determination that the obligation was unjust and not in the best interest or factual findings to support such a deviation, we reverse that portion of the court‘s decision.
* * *
Upon remand, the trial court shall compute the amount in accordance with the newly revised statutes and child-support worksheet.
{¶21} On remand, the magistrate noted on the support worksheet that there was a downward deviation of $505.95 “[f]or 3119.23 factors (monthly amount)” and $106.22 “[f]or 3119.231 extended parenting time (monthly).” In the attached decision, the magistrate wrote:
The above amount deviates downward from guideline support in the amount of $505.95 for factors in O.R.C. §3119.23 and $106.22 for factors in O.R.C. §3119.231 because the amount calculated pursuant to the basic child support schedule and the applicable worksheet would be unjust or inappropriate and not in the best interest of the children. The total deviation amounts to $612.17. Specific factors in O.R.C. §3119.23 that the Magistrate reviewed were, (E) the relative financial resources
of the parties in that Mr. Rummelhoff has the ability to earn more than he currently was earning; (I) significant in kind contributions from Ms. Rummelhoff including health insurance costs.
{¶22} In the third assignment of error, David argues that the trial court erred as a matter of law and abused its discretion by adopting the magistrate‘s child-support order, which he claims exceeded the scope of the remand order. David raises several arguments in this assignment of error, which contend that the trial court either did not comply with or exceeded the scope of the remand order. We address each in turn.
The basic support schedule
{¶23} David argues there were values included on the child-support worksheet that “were supposed to come from the Basic Child Support Schedule (JFS 07767) but which do not actually appear anywhere in that document.” This argument is without merit.
{¶24}
If the combined annual income of both parents * * * is an amount that is between two amounts set forth in the first column of the schedule, the court or agency may use the basic child support obligation that corresponds to the higher of the two amounts in the first column of the schedule, use the basic child support obligation that corresponds to the lower of the two amounts in the first column of the schedule, or calculate a basic child support obligation that is between those two amounts and corresponds proportionally
to the parents’ actual combined annual income or the individual parent‘s annual income.
(Emphasis added.)
{¶25} Faced with a combined annual income that did not appear on the basic support schedule,2 the court used the underlying formulas found in
The trial court deviated for reasons not sought by Emily
{¶26} David argues the court erred because it deviated for reasons not sought by Emily.
The trial court did not exceed the scope of the remand order
{¶27} David argues that the court exceeded the scope of the remand order by deviating from the guideline amount for “entirely new reasons,” not addressed in the court‘s first child-support order, because “[c]omputation was the only action this Court ordered.” Essentially, he argues that because “equal parenting time” was the only reason given for deviation in Rummelhoff I, the court was limited to that reason on remand.
{¶28} The issue in Rummelhoff I was that the court did not make a finding that the obligation was unjust and not in the best interest of the children; and did not
{¶29} In the revised child-support order, the court noted a downward deviation for (1) “the relative financial resources of the parties in that Mr. Rummelhoff has the ability to earn more than he was currently earning;” (2) “significant in-kind contributions from Ms. Rummelhoff including health insurance costs,” and (3) a 10 percent deviation for shared parenting, pursuant to
{¶30} In Rummelhoff I we directed the trial court on remand to provide the required findings of fact to support the deviation. The court was well within the remand order to include new reasons to support the deviation amount. However, as discussed below, we find that the trial court abused its discretion in deviating for those reasons.
The propriety of the deviations at issue
{¶31} The rest of David‘s third assignment of error, and his fourth, fifth, and sixth assignments of error, challenge the grounds for the trial court‘s deviations.
{¶32} In his third assignment of error, David argues that the trial court has not set forth adequate reasons for why a deviation was in the best interest of the children. He argues it is not enough for the trial court to “merely include the ‘magic words‘” that the child-support amount is not in the best interest of the children. But
{¶33} In David‘s fourth assignment of error, he argues the trial court abused its discretion by deviating for the “relative financial resources of the parties” under
{¶34} While the record demonstrates that David has extensive education and training that would allow him to increase his income, particularly because he will no longer be the primary caretaker, the court already imputed $25,000 of income to David on this basis when it calculated the guideline support amount.
{¶35} A parent‘s underemployment is accounted for when the court imputes income. The Tenth District has directed trial courts to follow a two-step process in making this determination:
First, the trial court must determine that the parent is voluntarily unemployed or underemployed. Once the court makes such a finding, the court must then determine the amount of income to impute, based upon the factors in [
R.C. 3119.01(C)(17) ].
(Citations omitted.) Habtemariam v. Worku, 10th Dist. Franklin No. 19AP-47, 2020-Ohio-3044, ¶ 14. These factors include “prior employment,” “education,” “availability of employment,” “prevailing wages,” “special skills and training,” and “increased
{¶36} Thus, a deviation based on “relative financial resources” does not refer to a party‘s untapped income potential or underemployment. The deviation must be based on actual financial resources.
{¶37} While it is unclear if the magistrate meant to deviate due to the disparity in income between the parties, the trial court seemed to interpret the magistrate‘s decision in that way. In its entry on the objections, the trial court stated that “[w]hen comparing the parties’ relative financial resources, including the income disparity between parties, it is proper to use the imputed amount for a party‘s income if that party is voluntarily unemployed.” We agree with that statement. But if the deviation was based on the disparity in income between the parties, then that deviation would be unreasonable and an abuse of discretion because David‘s imputed income is less than half of Emily‘s income and Emily lives in a two-income household.3 See, e.g., Hilbert v. Hilbert, 2016-Ohio-8099, 74 N.E.3d 977, ¶ 31-32 (12th Dist.) (holding that the trial court did not abuse its discretion in refusing to deviate downward because the record showed that father‘s salary far exceeded mother‘s and father lived with someone who helped pay expenses, “thus making his financial capacity and ability to pay child support even greater“); Mayberry v. Mayberry, 10th Dist. Franklin No. 15AP-160, 2016-Ohio-1031, ¶ 54 (“Mayberry cannot escape the fact that his household
{¶38} It was an abuse of discretion to base a deviation under
{¶39} In his fifth assignment of error, David argues that the court erred by deviating under
{¶40} In its entry on the objections to the magistrate‘s order, the trial court stated that the deviation was proper because “Line 10 only factors in a fifteen dollar per month reduction in child support for providing health insurance for the children.” The court held that “[i]t is not improper for the magistrate to deviate an additional amount based on Plaintiff‘s payment of health insurance premiums for the children.” Thus, despite Emily‘s contention that the trial court‘s deviation was referring to
{¶41} Despite the trial court‘s significant discretion on these matters, we are not persuaded that “health insurance costs,” specifically health-insurance premiums, are the type of “in-kind contribution” intended to be accounted for under
{¶42} Because the health-insurance premiums are already accounted for in the worksheet and the trial court did not specify any other costs it was referring to, we find that the court abused its discretion in granting a deviation on this basis. David‘s fifth assignment of error is sustained.
{¶43} In David‘s sixth assignment of error, he argues “[t]he trial court erred * * * by deviating child support downward by fifty-eight percent.” David does not take issue with the court‘s 10 percent deviation for “equal parenting time,” because he agrees that it is required by statute.
{¶44} However, David does take issue with the remainder of the deviations ordered by the trial court. Because we sustained David‘s assignments of error with
7th Assignment of Error: Award of Attorney Fees
{¶45} David argues the trial court erred when it awarded $2,288 in attorney fees to Emily under
{¶46} A trial court‘s award of attorney fees is reviewed for an abuse of discretion. Burroughs v. Burroughs, 1st Dist. Hamilton Nos. C-990001 and C-990031, 2000 WL 262366 (Mar. 10, 2000); see Hoover Kacyon, LLC v. Martell, 2018-Ohio-4928, 125 N.E.3d 265, ¶ 63 (5th Dist.) (reviewing an award of attorney fees under
{¶47} Here, the statute provides that that a court may award attorney fees in “any post-decree motion or proceeding that arises out of an action for divorce” “if the court finds the award equitable * * * consider[ing] the parties’ income, the conduct of the parties, and any other relevant factors the court deems appropriate [not including the parties’ assets].” (Emphasis added.)
{¶48} In this case, while a hearing was held via Zoom, the parties were not present, and no testimony was taken on the reasonableness of the fees. Rather, itemized bills were submitted without an opportunity for appropriate cross-examination. For these reasons, we find the trial court abused its discretion in awarding fees under
{¶49} We do not, however, find that the separation agreement signed by the parties, and incorporated into the decree of divorce, precluded the court‘s fee award. Although the agreement provides that “[e]ach party shall be responsible for the payment of that party‘s own individual attorney fees,” the trial court held this provision applied only to fees incurred prior to the decree being entered. We agree. While the separation agreement limits the payment of attorney fees up to the point of the decree being filed, it is not reasonable to assume the separation agreement permanently precludes a court from awarding attorney fees for any postdecree proceedings. This is particularly true where the provision authorizing the award aims to curb frivolous conduct in postdecree proceedings, which the trial court found to be necessary here. See
8th Assignment of Error: Refusing to Assign a New Magistrate
{¶51} Finally, David argues that the trial court abused its discretion by refusing to assign a new magistrate after, he contends, the magistrate engaged in ex parte communications with Emily‘s attorney via email. David alleges that the assistant to Emily‘s attorney sent the magistrate multiple ex parte emails, including a Microsoft Word copy of a shared-parenting plan. He contends that this alleged ex parte communication somehow prejudiced him with regard to the shared-parenting plan.
{¶52} However, David‘s issues with the shared-parenting plan were already litigated in Rummelhoff I, and this court affirmed the trial court‘s adoption of the shared-parenting plan. Rummelhoff I, 1st Dist. Hamilton No. C-190355, 2020-Ohio-2928, at ¶ 21. Presumably understanding that he cannot relitigate issues pertaining to the shared-parenting plan, David requests that because the magistrate engaged in ex parte communications, this court should “order that the trial court disqualify the magistrate from hearing any matter pertaining to this case or either party, and to remand the matter to be heard by a different judge in the Hamilton County Court of Domestic Relations.”
{¶53} Pursuant to
{¶55} Emily argues, and the trial court agreed, that the emails were administrative and therefore covered by the ex parte communication exception in Jud.Cond.R. 2.9. Jud.Cond.R. 2.9(A)(1) permits judges to communicate ex parte, “[w]hen circumstances require it * * * for scheduling, administrative, or emergency purposes.” These communications must not address issues on the merits, and the judge must “reasonably believe[] that no party will gain a procedural, substantive, or tactical advantage.” Id.
{¶56} Because the emails are not included in the record and David has not demonstrated the emails were anything but administrative, we cannot say that the trial court abused its discretion in refusing to assign a new magistrate. This assignment of error is overruled.
Conclusion
{¶57} For the foregoing reasons, we overrule David‘s first, second, and eighth assignments of error. However, we sustain his third, fourth, fifth, and seventh assignments of error. We sustain his sixth assignment of error in part and overrule it in part. We remand this cause for the domestic relations court to hold an evidentiary hearing on the amount of attorney fees to be awarded under
BERGERON, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.