DARBY B. SCHWARTZ, PLAINTIFF-APPELLEE and CROSS-APPELLANT vs. ANTHONY A. O’BRIEN, DEFENDANT-APPELLANT and CROSS-APPELLEE
No. 100930
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 30, 2014
[Cite as Schwartz v. O‘Brien, 2014-Ohio-4813.]
BEFORE: Celebrezze, P.J., Jones, J., and McCormack, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. DR-03-291463
Madelon Sprague
10250 Orchard Hill Lane
Twinsburg, Ohio 44087
ATTORNEY FOR APPELLEE
Edward W. Rausch
6300 Rockside Road
Suite 204
Independence, Ohio 44131
{¶1} Appellant/cross-appellee, Anthony A. O’Brien, appeals the award of attorney fees and the increase of his child support obligation as a result of a motion to modify support filed by appellee/cross-appellant, Darby B. Schwartz.1 Appellant assigns the following errors:
- Whether or not the trial court abused its discretion and committed reversable [sic] error when it adopted the magistrate’s decision, over the objection of appellant’s counsel, that the proper foundation for admission of the Trinet payroll records and admission of same had been properly established, pursuant to Rule(s) of Evidence 803(6) and 901, which decision is contrary to law and against the manifest weight of the evidence.
- Whether or not the trial court abused its discretion and committed reversable [sic] error when it adopted the magistrate’s decision attributing the Anthony J. Smith Company, Inc.’s income from Trinet to defendant/appellant thereby drastically increasing his child support obligation, without the proper foundation for such increase in child support.
- Whether or not the trial court abused its discretion and committed reversable [sic] error when it adopted the magistrate’s decision increasing the child support obligation of the defendant/appellant without the supporting evidence to form the basis of said increase.
- Whether or not the trial court abused its discretion and committed reversable [sic] error when it adopted the magistrate’s decision which awarded the attorney fees of the plaintiff/appellee against the defendant/appellant in the sum of $9000.00 without establishing the proper foundation and law to support said award.
{¶3} We overrule appellant’s assigned errors and adopt, in pertinent part, the well-reasoned decision of the trial court, journalized December 23, 2013, as our own.2
{¶4} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Domestic Relations Division 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and
TIM McCORMACK, J., CONCUR
IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO
DARBY B. SCHWARTZ Plaintiff vs ANTHONY A. O’BRIEN Defendant
Case No.: DR03 291463
Judge: JANET RATH COLALUCA
JUDGMENT ENTRY
{¶5} This matter came on for hearing on November 15, 2012, February 19-20, 2013, March 20-21, 2013, and April 5, 2013, before Magistrate Cathleen J. Chaney, to whom this matter was referred by the Honorable JANET RATH COLALUCA, Judge of the Domestic Relations Division of the Court of Common Pleas, upon Plaintiff’s Motion to Modify Support (post-decree) #316314, Plaintiff’s Motion for Attorney Fees #323552, Plaintiff’s Motion to Strike #330569, 6th-Party Defendant’s Motion to Set Aside Magistrate’s Order #332975, 6th-Party Defendant’s Motion to Set for Trial/Hearing #332976, Plaintiff’s Motion to Compel #338246, and Plaintiff’s Motion for Attorney Fees #338247. Appearances were made by Darby B. Schwartz, Plaintiff; Madelon Sprague, Plaintiff’s Attorney; Anthony A. O’Brien, Defendant; Edward W. Rausch, Defendant’s Attorney; and Anthony J. Smith, Attorney for 6th-Party Defendant, Kelly O’Brien. The parties provided their written closing arguments on April 5, 2013, and no testimony was taken on that day. The Official Court Reporter was Kathleen Kuznik.
{¶6} The Court hereby adopts the Magistrate’s Decision filed July 3, 2013, in its entirety.
IT IS HEREBY ORDERED:
{¶7} The Court makes the following findings with respect to Plaintiff’s and Defendant’s Objections to the Magistrate’s Decision:
{¶8} Defendant asserts that the Magistrate erred in admitting certain payroll records, as the proper foundation for authenticating these records was not established. Specifically, Defendant claims that Mr. Jinks, the Glacial Energy employee called to authenticate these records, was not the “custodian of records” or other qualified witness under
{¶9}
{¶11} Mr. Jinks testified that he is the “senior vice-president of channel partners sales” at Glacial Energy and that he was familiar with the procedure Glacial Energy used to pay commissions and salary. He further testified that he executed all of Defendant’s employment agreements with Glacial. He further explained that Glacial Energy used a payroll company called Trinet to process and document the payment of salaries and commissions to Glacial employees, as well as other HR functions. Mr. Jinks clearly established that he was sufficiently familiar with the operation of the business and that he had personal knowledge of the record-keeping system Glacial used to pay commissions and salaries to its employees. As stated in Davis, supra, he need not have personal knowledge of the creation of the particular record in question, nor must he have been in the employ of the company when the record was made. Mr. Jinks’s testimony provided sufficient evidence to support a finding that the payroll records
{¶12} Defendant asserts in his second objection that the Magistrate erred in attributing to him as income commission income paid to the Anthony J. Smith Management Company by Glacial Energy. Defendant again asserted that the documentation of the commissions paid by Glacial Energy to the management company and to Mr. O’Brien were not properly authenticated, and thus the only verified income information available to the court for child support calculation purposes was his W-2 forms. As previously stated, however, Mr. Jinks’s testimony was credible and provided sufficient evidence to authenticate the payroll records. The payroll records outlining the commissions paid to Mr. O’Brien match the deposits made into the Anthony J. Smith Management Company bank account. Mr. Jinks further testified that Defendant’s commissions that he earned while employed at Glacial, as well as residual commissions he continues to receive after his resignation, were set up to be paid to the Anthony J. Smith Management Company on Defendant’s behalf. Though Defendant testified to the contrary, the Magistrate specifically found Defendant’s testimony not credible, and found Mr. Jinks to be the more credible witness. The trier of fact is in the best position to judge witness credibility, and the self-serving nature of Defendant’s testimony further supports the finding that Mr. Jinks is the more credible witness. There is sufficient evidence to support the Magistrate’s finding that these commissions should be attributed to Defendant as income. Defendant’s second objection is hereby overruled.
{¶13} Defendant asserts in his third objection that the Magistrate erred in increasing the child support obligation to the extent increased, as Plaintiff did not establish that the children
{¶14} In cases where the parties’ combined income exceeds $150,000,
{¶15} Defendant asserts in his fourth objection that the Magistrate erred in awarding the Plaintiff attorney fees in the amount of $9,000.
{¶16} Pursuant to
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/s/ JANET RATH COLALUCA