Snyder v. SnyderSnyder v. Snyder
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-266384
RELEASED AND JOURNALIZED: March 24, 2011
Richard D. Messerman
1940 Huntington Building
925 Euclid Avenue
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Elizabeth A. Goodwin
Bradric T. Bryan
22050 Mastick Road
Fairview Park, Ohio 44126
KENNETH A. ROCCO, J.:
{¶ 1} In this action to reduce his child support obligation, plaintiff-appellant Brad Snyder appeals from the decision of the Cuyahoga County Common Pleas Court, Domestic Relations Division. The trial court, although it sustained appellant‘s objections to the magistrate‘s report, adopted that report with modifications and increased appellant‘s child support obligation over the amount the magistrate recommended.
{¶ 2} Appellant presents three assignments of error. He asserts the trial court improperly “substituted” its judgment for that of the magistrate, in contravention of the manifest weight of the evidence presented at the hearing
{¶ 3} Upon a review of the record on appeal, however, this court cannot find the trial court abused its discretion in this matter. Its decision, therefore, is affirmed.
{¶ 4} According to the record, appellant and defendant-appellee Susan L. Snyder originally married in 1992. Thеy had two children, born in 1995 and 1997. Appellant filed a complaint for divorce in 1999.
{¶ 5} In October 2000, the parties entered into a settlement agreement. The trial court adopted the terms the parties agreed upon, and ordered appellant to pay child support in a monthly amount of $1,357.67.
{¶ 6} In November 2004, the parties agreed to a modification of appellant‘s child support obligation. As adopted by the trial court‘s judgment entry, appellant‘s obligation increased to $1,437.09 per month.
{¶ 7} In May 2009, appellant filed a motion to modify his child support obligation. According to his affidavit attached to the motion, appellant‘s employer, Forest City Enterprises, terminated him from his position as a vice-president, effective November 7, 2008. Appellant averred that, although his severance packagе from his former employer provided him a “salary
{¶ 8} On February 22, 2010, the matter proceeded to a hearing before a magistrate. The record reflects appellant testified about his income and current expenses, and introduced sеven exhibits into evidence that purported to support his testimony. None of the exhibits appears in the appellate record.
{¶ 9} Appellee testified in her own behalf and presented the testimony of the custodian of records for one of the banking institutions appellant utilized. Appellee, too, introduced many exhibits; similarly, none of these appears in the record on appeal. The magistrate accepted all the exhibits the parties offered.
{¶ 10} Two weeks after the hearing, the magistrate issued his decision. In pertinent part, the magistrate made the following findings:
{¶ 11} “In 2008, the Plaintiff/Husband had a * * * total income of $376,190.00. * * * [H]e was given * * * his base salary for thirty-two weeks ending on June 15th, 2009. At that date he began receiving * * * ($26,156.00 per year) in unemployment benefits.
{¶ 12} ” * * * .
{¶ 14} “INCOME CALCULATION:
{¶ 15} “Unemployment $26,156.00
{¶ 16} “Storage Units and portfolio X 3% 17,594.00
{¶ 17} “Cold Stone Creamery X 5% 10,875.00
{¶ 18} 54,625.00
{¶ 19} ” * * *.
{¶ 20} “The Defendant/Wife attempted to introduce the loan applications [for the Cold Stone stores] as evidence to his interest and dividend income, but his tax returns indicate that the amounts are negligible.
{¶ 22} Based upon these figures, the magistrate decided appellant‘s total monthly child support obligation should be reduced to $706.08.1 The attached child support computation worksheet, however, neglected to give appellant credit for his third child.
{¶ 23} Appellant filed objections to the magistrate‘s dеcision. He essentially presented challenges to the following portions of the report: 1) the imputation of income from assets that he claimed were both “underperforming” and encumbered by loans; 2) the interest rate of three percent applied to his investments; 3) the assumption his Cold Stone stores would produce a five percent gain; 4) the calculation of his income; and 5) the failure tо include his third child in the worksheet calculation. Appellant further argued
{¶ 25} In pertinent part, the trial court noted in its judgment entry that a deduction should be applied for appellant‘s third child. The trial court further noted that the “issue in this matter is the income for [appellant] after his termination from his previous employer * * * and the end of his severance package. * * * [H]e earned $119,088.36 from Forest City Enterprises according to his 2009 W-2. After that he received $503 per week in unemployment benefits, which annualizes to $25,156.
{¶ 26} “At the time of his termination * * *, [he] оwned four storage units in Avon Lake, Ohio on which he owed approximately $100,000, and a rental home in Cleveland, Ohio, for which there was no mortgage. He also held funds in a Fidelity investment account. * * *. As of July 31, 2009, the date closest to the change in support, the funds had a value of $236,494.43.
{¶ 27} “After the termination of his employment, but before the severance package terminated, obligor/father purchased a[n] * * * ice cream
the income is significant.”
{¶ 28} “On his financial statement in Defendant‘s Ex. D, he listed his income from * * * rental property as totaling $49,200 per year. On his franchise application in Defendant‘s Ex. F, he listed the [same rental income]. He has a [monthly] mortgage on the storage units * * * of approximately $1100 * * * . Therefore, by his own statements he earns approximately $36,000 in rental income. [His] testimony contradicted these figures. * * * Where there is a conflict in evidence that is sеlf-serving, the Court must resolve it against the favor of the person who has created the conflict. Therefore, in this matter the Court finds that business income of $36,000 should be included in the calculation of [appellant‘s] income.
{¶ 29} “The Court further notes that on Defendant‘s Ex. F, the storage units are valued at $350,000 and the rental home at $75,000, but that on
{¶ 30} “The Court further finds that [аppellant] testified he was working (Tr. 127) at the [franchise], but was not taking an income. He did testify that he had paid back some of the monies he had ‘lent’ to the business to purchase it (Tr. 36). He further was still receiving unemployment compensation which would have terminated had he paid himself a salary at the business.
{¶ 31} “The Court therefore finds that for purposes of this child support calculation, [appellant‘s] incomе is: Unemployment Compensation of $26,156.00 and Ordinary and Necessary Business Income of $36,000, less [5% of AGI], or $33,984.00, for a total adjusted gross income of $60,140.00 (Emphasis added.).”
{¶ 32} Based upon these calculations, the trial court put appellant‘s monthly child support obligation at $732.51, rather than the amount the magistrate recommended.3
{¶ 34} “I. The trial court erred and abused its discretion when it sustained all of the appellant‘s objections to the magistrate‘s decision and thereafter substituted its own determination of the appellant‘s earnings solely upon the transcript of the proceedings and without a hearing de novo.
{¶ 35} “II. The trial court erred and abused its discretion in finding that the appellant‘s income included ‘ordinary and necеssary business income of $36,000.00’ per year without any factual basis for the same and despite the evidence establishing that appellant‘s storage condos were unoccupied or leased for less than market rate and that the rental property was and had been vacant.
{¶ 36} “III. The trial court erred and abused its discretion when it sustained all of appellant‘s objections to the magistrate‘s decision and modified that decision contrary to the manifest weight of the evidence presented at the hearing before the magistrate.”
{¶ 37} Appellant‘s assignments of error present similar issues and will be addressed together. In them, appellant argues that the trial court‘s order
appellant‘s patent underemployment.
{¶ 38}
{¶ 39} Furthermore,
{¶ 40} Appellant did not assert in his objections to the magistrate‘s decision that he had additional еvidence to present. Rather, he complained that the magistrate did not give proper consideration to the evidence presented to it.
{¶ 41} In reviewing the trial court‘s order, this court presumes that the trial court conducted the proper independent analysis of the magistrate‘s decision. Bradach v. Bradach, Cuyahoga App. No. 88622, 2007-Ohio-3417, ¶19. It is appellant‘s duty to ensure the completeness of the record on appeal. Shannon v. Shannon (1997), 122 Ohio App.3d 346, 350, 701 N.E.2d 771. In the аbsence of the exhibits the trial court found to be relevant to its modification of the magistrate‘s decision, this court presumes the regularity of the proceedings below. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384.
{¶ 42} A trial court‘s decision regarding a child support obligation will not be reversed on appeal absent an abuse of discretion. Pauly v. Pauly, 80 Ohio St.3d 386, 390, 1997-Ohio-105, 686 N.E.2d 1108, citing Booth v. Booth
{¶ 43} Pursuant to
{¶ 44}
{¶ 45}
{¶ 46}
{¶ 47} Despite this presumption, the trial court may order child support in an amount that deviates from the calculation obtained from the schedule and worksheet.
{¶ 48}
{¶ 49} “(A) Special and unusual needs of the children;
{¶ 50} “(B) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination;
{¶ 51} “(C) Other court-ordered payments;
{¶ 52} “(D) Extended parenting time or extraordinary costs associated with parenting time, provided that
{¶ 54} “(F) The financial resources and the earning ability of the child;
{¶ 55} “(G) Disparity in income between parties or households;
{¶ 56} “(H) Benefits that either parent receives from remarriage or sharing living expenses with another person;
{¶ 57} “(I) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents;
{¶ 58} “(J) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing;
{¶ 59} “(K) The relative financial resources, other assets and resources, and needs of each parent;
{¶ 60} “(L) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married;
{¶ 61} “(M) The physical and emotional condition and needs of the child;
{¶ 62} “(N) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen;
{¶ 64} “(P) Any other relevant factor.”
{¶ 65}
{¶ 66} “[E]xtraordinary circumstances of the parents include * * *:
{¶ 67} “(1) The amount of time the children spend with each parent;
{¶ 68} “(2) The ability of each parent to maintain adequate housing for the children;
{¶ 69} “(3) Each parent‘s expenses, including child care expenses, school tuition, medical expenses, dental expenses, and any other expenses the court considers relevant;
{¶ 70} “(4) Any other circumstances the court considers relevant.”
{¶ 71} The evidence in the record is incomplete, but, such as it is, it supports the trial court‘s modification of the magistrate‘s decision. Dinu v. Dinu, Cuyahoga App. No. 89216, 2008-Ohio-223, ¶12; cf., Julian (Carr, P.J., dissenting). As the transcript of thе hearing demonstrates, appellant downplayed his income when it suited him to do so. For example, he continued to take unemployment benefits although he was self-employed.
{¶ 72} On the other hand, appellant displayed canny investment strategies, since the funds in his Fidelity account generally increased.
{¶ 73} Appellant‘s assignments of error, accordingly, are overruled.
{¶ 74} The trial court‘s order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
JAMES J. SWEENEY, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR