[Cite as Shipman v. Shipman, 2015-Ohio-4419.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY
ROBBIN SHIPMAN, CASE NO. 11-14-10
PLAINTIFF-APPELLEE,
v. OPINION LINDA M. SHIPMAN,
DEFENDANT-APPELLANT.
Appeal from Paulding County Common Pleas Court Domestic Relations Division Trial Court No. DIV-12-008
Judgment Affirmed
Date of Decision: October 26, 2015
APPEARANCES:
Billy D. Harmon for Appellant
Ian A. Weber for Appellee Case No. 11-14-10
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Linda Shipman (“Linda”), brings this appeal
from the judgment of the Common Pleas Court of Paulding County, Ohio,
Domestic Relations Division, granting divorce upon complaint filed by Plaintiff-
appellee, Robbin Shipman (“Robbin”), allocating parental rights and
responsibilities over the parties’ minor children, awarding child support, dividing
the parties’ remaining marital property, and overruling Linda’s contempt motions.
For the reasons that follow, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} Linda and Robbin were married on December 3, 2005. On January
17, 2012, Robbin filed a complaint for divorce. (R. at 1.) At the time, the parties
had one minor child together, C.S., and Linda was pregnant with the second child.
According to the Complaint, Linda “informed [Robbin] that he is not the unborn
child’s biological father.” (Id.) Robbin requested an order designating him the
temporary and permanent residential parent of C.S. Similarly, Linda requested to
be named the residential parent of C.S. and asked to be awarded child support
from Robbin during the pendency of the proceedings. (Id.; R. at 22.) The trial
court ordered Robbin to move out of the marital residence and referred the matter
for mediation. (R. at 15.)
{¶3} In March 2012, the parties attended mediation and agreed to a shared
parenting plan. (See R. at 23, Ex.) Subsequently, the trial court designated
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parenting time for the parties and restricted the parties from allowing C.S. to be in
the presence of either party’s boyfriend or girlfriend. (R. at 24.) Additionally, the
trial court ordered Robbin to pay Linda the sum of $69.04 per month as and for
child support of C.S. (R. at 27.)
{¶4} Linda gave birth to her second child, A.S., in May 2012. The child
was given the last name of Linda’s boyfriend, Joe Wort, who was also listed on
the child’s birth certificate. Upon the trial court’s order, a DNA testing was
conducted in order to determine whether Robbin was the child’s biological father.
(See R. at 20.) The test results indicated that Robbin was the child’s father. (R. at
28.) Accordingly, Robbin requested an order for visitation with the infant child
and an order establishing child support. (R. at 29.) Further, Robbin requested an
order for a change of the child’s name and birth certificate, to reflect Robbin as the
child’s father. (Id.)
{¶5} In August 2012, Linda filed a motion requesting that Robbin not be
allowed to visit with A.S. because she claimed that the child had been conceived
as a result of a sexual assault by Robbin. (R. at 38.) In particular, Linda alleged
that she had not “engaged in sexual relations with [Robbin] since March of 2011”
and therefore, she “believe[d]” that Robbin sexually assaulted her, which resulted
in the pregnancy at issue. (Id., Aff.) In response, Robbin requested an order
requiring Linda to submit herself to a mental examination. (R. at 40.) Following a
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hearing1 on this matter the trial court granted Robbin visitations with the infant
son. (See R. at 39, 41, 46.) Later, the trial court also ordered A.S.’s name change
and correction of his birth certificate. (R. at 67.) No child support for A.S. was
ordered at this time.
{¶6} Also in August 2012, Linda filed a motion requesting “an order
appointing Dr. Stephen Ross of Fort Wayne, Indiana for purposes of a custody
evaluation for the minor children.” (R. at 32.) Despite Robbin’s opposition, the
trial court granted the motion and ordered Linda to pay Dr. Ross’s retainer. (R. at
30, 35.) After Linda paid a $4,000.00 retainer and Dr. Ross’s service agreement
was received by the parties, Robbin filed a motion requesting relief “from the
obligation of undergoing the evaluation, testing, interviewing, home visits,
document and questionnaire submission, and ‘other activities’ required by Dr.
Stephen Ross.” (R. at 58.) Robbin explained that Dr. Ross’s services, which were
estimated to exceed the initial $4,000.00 retainer, were very costly and created an
unnecessary inconvenience of traveling to Fort Wayne, Indiana, for appointments.
(Id.) Robbin suggested an alternative solution of appointing a guardian ad litem.
(Id.) The trial court scheduled this matter for a hearing, but prior to the hearing
Linda filed a motion to show cause against Robbin. (R. at 60.) In her motion,
Linda alleged that Robbin failed to comply with the trial court’s order from
August 20, 2012, by canceling an appointment with Dr. Ross. (Id.) Of note, the
1 The transcript of that hearing is not in the record on appeal.
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trial court’s August 20, 2012 judgment entry only ordered the appointment of Dr.
Ross and payment for his services. (See R. at 35.) After a hearing, the trial court
determined that Dr. Ross should continue his psychological evaluation and that
C.S. should attend counseling with Dr. Gilbert Butler (“Dr. Butler”). (R. at 75.)
{¶7} In May 2013, the trial court issued an order instructing the parties to
“file their tax returns in the most efficient manner” and “place the tax refund in
counsel for Defendant’s escrow account pending further court order.” (R. at 75.)
It appears, however, that the money from the tax refund was deposited into
Robbin’s attorney’s escrow account instead of Linda’s attorney’s escrow account.
(See R. at 80.) In September 2013, Robbin’s attorney withdrew from the case,
causing Linda to file a motion to transfer funds into her attorney’s escrow account.
(Id.) This matter was assigned for a hearing on February 20, 2014, but before that,
in January 2014, Linda filed a motion to show cause, alleging that Robbin violated
the court’s order by authorizing “his tax refunds be utilized towards his
outstanding statement.” (R. at 89.) The parties appeared at the hearing on
February 20, 2014,2 and the trial court ordered a mediation session with a family
specialist. (See R. at 90.)
Final Hearing
{¶8} The trial court conducted a final hearing in the case, which took place
on two days, May 14, 2014, and June 20, 2014. The trial court heard testimony of
2 No transcript of that hearing appears in the record on appeal.
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Robbin and Linda regarding their claims for permanent custody of the children.
Additionally, Robbin testified about the reasons why he canceled his first
appointment with Dr. Ross. Linda testified about her employment and earnings.
She testified about her treatment for depression and anxiety, as well as her history
with depression and anxiety. The parties also testified about the 2012 tax return.
{¶9} Additionally, the following witnesses testified on Robbin’s behalf:
Chuck Starry—Linda’s brother, Stephanie McCullough—Robbin’s sister, Brian
Rittenhouse—Robbin’s former neighbor and Linda’s current neighbor, who is also
the father of C.S.’s best friend, and Keith Shipman—Robbin’s brother. Robbin’s
witnesses testified about their positive opinion on Robbin’s parenting skills and
negative opinion on Linda’s parenting skills, including conflicts between Linda
and C.S. There was also testimony about Linda’s mental instability issues and her
relationships with other men. Additionally, Lynette Bail—C.S.’s teacher testified
about her positive relations with both parents and with C.S.
{¶10} Linda called Dr. Butler—C.S.’s treating therapist, Denise Coleman—
C.S.’s school secretary, Timothy Manz—elementary principal at C.S.’s school,
Whitney Snider—Linda’s daughter, and Arlene Hootman—Linda’s mother. Dr.
Butler gave his testimony about C.S.’s need for further treatment. Whitney and
Arlene expressed positive opinion on Linda’s parenting skills and criticism of
Robbin’s parenting skills. Ms. Coleman noted that in her interactions with Linda
“it wasn’t always pleasant,” but things have been better. (Tr. at 261.) Ms.
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Coleman also submitted C.S.’s school attendance records, which indicated that
C.S. was tardy or missed school while in the care of each of the parents. (See Ex.
3.) Neither school official noted particular problems in their interactions with
Robbin.
{¶11} In addition, the parties stipulated to the admission of Dr. Ross’s
report regarding his custody evaluation. Among the relevant things in Dr. Ross’s
report were concerns over Linda’s mental issues, which included hospitalization
for depression and suicidal thoughts. The psychological tests administered by Dr.
Ross indicated “a number of behavioral and emotional problems warranting
continued treatment.” (Joint Ex. 1 at 30-31.) No concerns were noted regarding
Robbin’s mental health functioning. Dr. Ross mentioned difficulties in the parent-
child relationship between Linda and C.S. He expressed concerns “about Linda’s
rationale for involving Joe Wort in the children’s lives before there being a more
definite resolution in this divorce case.” (Id. at 31.) Dr. Ross was further troubled
that Linda considered moving to North Carolina, where Joe Wort lives, without
regard to the boys’ relationship with Robbin. Dr. Ross was “concerned about
parental supervision on Linda’s part,” and mentioned a fire in her garage caused
by C.S. and his friend. (Joint Ex. 1 at 20.) During his home visits, Dr. Ross
noticed alcohol bottles in Linda’s house and concluded that she smoked in the
presence of the children. Dr. Ross also noted that “Linda’s home was in a state of
disarray” and had a recent flea infestation problem. (Id. at 20-21.)
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{¶12} No safety concerns were noted in Robbin’s household. There was no
evidence of drugs, alcohol, or cigarettes. Robbin’s “home appeared to be neat,
clean, and relatively organized.” (Id. at 20.) In spite of Linda’s allegations that
Robbin abused marijuana, a random drug test administered by Dr. Ross came back
negative for the presence of this substance. In conclusion, Dr. Ross recommended
that Robbin “be nominated as the parent more capable of making decisions that
are in the best interests of the children.” (Id. at 31.)
Judgment Entry
{¶13} On July 10, 2014, the trial court issued a partial judgment entry in
which the trial court granted Robbin a divorce from Linda and divided the parties’
marital property pursuant to their agreement. (R. at 94.) On October 8, 2014, the
trial court issued a twenty-page judgment entry, addressing all remaining matters
in the case. (R. at 96.) As relevant to this appeal, the trial court designated
Robbin as the residential parent of C.S. and A.S., and granted Linda parenting
time with the children. (Id. at 6.) The trial court ordered Robbin to pay back child
support for A.S. for the time period between October 1, 2012, and October 12,
2014. (Id. at 10.) Since this order resulted in “substantial child support
arrearage,” the trial court decided that this obligation would be satisfied from the
funds of the 2012 tax refund, as further discussed below. (Id.) The trial court
further ordered Linda to pay child support in the amount of $68.29 per month,
commencing on October 12, 2014. (Id. at 11.) The amount of child support
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deviated from the standard guideline amount “due to the additional time [Linda]
has with the children,” which the trial court determined to be “50% shared
parenting calculation.” (Id.) Linda was to claim C.S., and Robbin was to claim
A.S. for the tax dependency exemption each year, and when C.S. was no longer
capable of being claimed, the parties were to alternate the tax exemption for A.S.
only.
{¶14} With respect to the proceeds of the 2012 tax refund, the trial court
found that Robbin had received a total of $778.00, which he used “for his own
benefits to pay his former attorney.” (Id. at 15.) Linda had received a total of
$8,234.00, “all of which [she] retained for herself.” (Id. at 16.) The trial court
determined that the total amount of the 2012 income tax refund, $9,012.00, should
be divided equally between the parties. As a result, the trial court arrived at the
following calculation. Each party should have received $4,506.00 from the 2012
tax refund. Because Robbin had already retained $778.00 and Linda had already
retained $8,234.00, Robbin was entitled to $3,728.00 from Linda, to arrive at the
amount of $4,506.00 allocated to each party. Instead of ordering Linda to pay this
amount to Robbin, however, the trial court used this sum to satisfy Robbin’s past
child support obligation for the time period between October 1, 2012, and October
12, 2014.
{¶15} Lastly, the trial court overruled Linda’s motions for contempt,
finding that Robbin should not be held in contempt for canceling the December
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2012 appointment with Dr. Ross because he “was following the advice of his
defense attorney” and he was “ordered to pay the cost of the canceled
appointment.” (Id. at 18.) Furthermore, the trial court found that “there was
insufficient evidence presented” to support a finding of a violation of the court’s
order “for authorizing his tax refunds to be used to pay his outstanding statement
to his former attorney.” (Id. at 19.)
{¶16} On November 5, 2014, Linda filed this timely appeal, raising the
following assignments of error for our review.
Assignments of Error
I. The trial court abused its discretion in allocating parental rights and responsibilities.
II. The trial court abused its discretion in awarding child support.
III. The trial court abused its discretion in dividing marital property.
IV. The trial court abused its discretion in overruling Defendant’s Motions to Show Cause.
Standard of Review
{¶17} An appellate review of the trial court’s decision regarding the above
issues is under the abuse of discretion standard. August v. August, 3d Dist.
Hancock No. 5-13-26, 2014-Ohio-3986, ¶ 20 (child custody, award of child
support, and division of marital property); Schwarck v. Schwarck, 3d Dist.
Auglaize No. 2-11-24, 2012-Ohio-3902, ¶ 26 (allocation of marital assets); Walker
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v. Walker, 3d Dist. Marion No. 9-12-15, 2013-Ohio-1496, ¶ 38 (contempt). A trial
court will not be found to have abused its discretion unless its decision is contrary
to law, unreasonable, not supported by the evidence, or grossly unsound.
Muckensturm v. Muckensturm, 3d Dist. Hancock No. 5-11-38, 2012-Ohio-3062, ¶
16; Bruce v. Bruce, 3d Dist. Marion No. 9-10-57, 2012-Ohio-45, ¶ 13. With this
standard in mind, we proceed to review Linda’s assignments of error.
First Assignment of Error—Allocation of Parental Rights and Responsibilities
{¶18} Linda first challenges the trial court’s decision to designate Robbin
as the residential parent of the children, alleging that this decision was improperly
based on future possibilities. Revised Code 3109.04 governs the trial court’s
award of parental rights and responsibilities. King v. King, 3d Dist. Union No. 14-
11-23, 2012-Ohio-1586, ¶ 8. The statute requires that in allocating the parental
rights and responsibilities, the court “shall take into account that which would be
in the best interest of the children.” R.C. 3109.04(B)(1). It further provides for
options available to the trial court when allocating parental rights and
responsibilities: “primarily to one of the parents” or “to both parents.” R.C.
3109.04(A); see Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876
N.E.2d 546, ¶ 23-24.
{¶19} Here, neither party filed a shared parenting plan and each parent
wanted to be named the residential parent and legal custodian of the minor
children. R.C. 3109.04 instructs that in this situation, the trial court “shall take
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into account that which would be in the best interest of the children” and shall
designate one of the parents “as the residential parent and the legal custodian of
the child.” R.C. 3109.04(A)(1) and (B)(1). Further subsections of that statute
spell out ten factors that the court shall consider in order to determine the best
interest of the child. R.C. 3109.04(F)(1). Any additional relevant factors shall be
considered as well. Id.
In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent
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pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
R.C. 3109.04(F)(1). Linda contends that “the trial court relied heavily, if not
exclusively, on factors (e) and (j),” and on speculations about their future
implications, instead of focusing on present factors. (App’t Br. at 9.)
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{¶20} Although the statute does not include an express prohibition against
considering future possibilities in making the best interest determination, Linda
cites a 2:1 decision of the Twelfth District Court of Appeals for a proposition that
“[a] custody award based on such future possibilities is contrary to the purpose of
R.C. 3109.04 which is to award custody based on the present circumstances.”
Seibert v. Seibert, 66 Ohio App.3d 342, 347, 584 N.E.2d 41 (12th Dist.1990); see
also Reinhart v. Allen, 3d Dist. Seneca No. 13-08-42, 2009-Ohio-5277, ¶ 17.
Seibert and Reinhart stand for a proposition that speculations about future
possibilities, while ignoring present circumstances, are contrary to the purpose of
the statute. See Seibert at 347 (noting that a psychologist’s “recommendations
focused upon future possibilities rather than present factors” and reversing the
case because of “the trial court’s reliance upon possible future circumstances
coupled with its failure to consider the child’s tender years”) (emphasis added);
Reinhart at ¶ 14, 17 (affirming the trial court’s refusal to “ ‘speculate’ on where
[mother] may reside in the future,” because “the trial court’s final decision was
based on the totality of the evidence”).
{¶21} There is no indication that in the instant case, the trial court based its
decision on speculation about future possibilities, while ignoring other
circumstances. On the contrary, a review of the judgment entry discloses that the
trial court discussed in detail each of the factors of R.C. 3109.04(F)(1). (See R. at
96, at 3-6.) Out of the ten factors, the trial court found three to be most relevant.
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In particular, when discussing factor (d), the child’s adjustment to school, the trial
court expressed its concern “about [Linda] discussing the idea of homeschooling
with [C.S.] during the pendency of this matter.” (R. at 96, at 4.) With respect to
factor (e), the mental and physical health of persons involved, the trial court stated,
that Linda’s mental health “causes the Court concern.” (Id.) The trial court found
that conclusions reached by Dr. Ross in his report were consistent with evidence.
Therefore, relying on Dr. Ross’s report, the trial court noted Linda’s “ ‘behavioral
and emotional problems warranting continued treatment,’ ” “difficulties in the
parent-child relationship,” “concern about Linda’s choice to involve her new
boyfriend (Joe Wort) with the minor children during the pendency of the divorce,”
and “concern about Linda’s choice to discuss a move to North Carolina with
[C.S.].” (Id. at 4-5.) The trial court noted that there were no concerns about
Robbin’s mental health. When discussing factor (j), the trial court recognized that
there are no “immediate plans to move to North Carolina.” (Id. at 6.) It noted,
however, that it took into consideration “an ongoing relationship with Joe Wort,”
who is a resident of North Carolina, and the “discussions” that have “occurred
relating to Linda moving to North Carolina.” (Id.)
{¶22} A review of the trial court’s judgment entry shows that the concerns
expressed by the trial court related to the present circumstances or Linda’s past
actions. For example, Linda’s actions of discussing the idea of homeschooling
with C.S., involving her boyfriend in the situation in spite of the trial court’s
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orders to the contrary, and discussing a move to North Carolina were Linda’s past
choices, which Dr. Ross and the trial court considered to be concerning. Linda’s
“behavioral and emotional problems warranting continued treatment” and the
difficulties in her relationship with C.S. are present circumstances, which need to
be reviewed under the statute’s factor (e). Likewise, a parent’s plan to establish a
residence outside of the state, even though it relates to a future action, needs to be
considered under factor (j). While the trial court noted that no immediate plans
had been made, the present relationship with an out-of-state boyfriend could not
be ignored. Although the trial court quoted Dr. Ross’s statement that Linda’s
behavioral and emotional problems “ ‘may adversely affect her ability to parent
the children,’ ” there is no indication that this single statement about future
possibilities was the sole reason for the trial court’s decision. (Id. at 4.)
{¶23} Accordingly, Linda’s allegations that the trial court impermissibly
relied on future possibilities, instead of present factors, have no merit. Our review
of the entire record on appeal supports the trial court’s conclusions and its finding
that under the totality of the circumstances, designating Robbin as the residential
parent of C.S. and A.S. was in the best interest of the children. Based on the
foregoing, we overrule the first assignment of error.
Second Assignment of Error—Child Support
{¶24} Linda’s second assignment of error alleges two reasons for why the
trial court abused its discretion in awarding child support. First, Linda complains
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about the trial court’s failure to provide an explanation as to how it arrived at the
income figure in the child support computation worksheets. Linda’s second
complaint with respect to the award of child support concerns the tax dependency
exemption. We address each issue separately.
Calculation of Income
{¶25} Based on the lack of the explanation for the income figure used by
the trial court in the child support computation summary worksheet, Linda
suggests that the trial court utilized income figures from her prior employment and
failed to properly verify her current earnings. In her argument, Linda relies on
R.C. 3119.05(A), which requires verification of
[t]he parents’ current and past income and personal earnings * * * by electronic means or with suitable documents, including, but not limited to, paystubs, employer statements, receipts and expense vouchers related to self-generated income, tax returns, and all supporting documentation and schedules for the tax returns.
R.C. 3119.05(A). We have recently recognized an established rule in Ohio that
“parties must exactly adhere to R.C. 3119.05(A) when documenting income.”
(Emphasis added.) Montgomery v. Montgomery, 3d Dist. Union No. 14-14-22,
2015-Ohio-2976, ¶ 37, citing Brose v. Copeland, 3d Dist. No. 13-13-08, 2013-
Ohio-3399, ¶ 16, Reynolds–Cornett v. Reynolds, 12th Dist. Butler No. CA2013-
09-175, 2014-Ohio-2893, ¶ 20, and Benjelloun v. Benjelloun, 12th Dist. Butler No.
CA2012-01-004, 2012-Ohio-5353, ¶ 12 (“ ‘[A] parent must exactly adhere to [the
documentation] requirement and prove their current income by presenting those
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documents listed in R.C. 3119.05(A)’ ”), quoting Ornelas v. Ornelas, 2012-Ohio-
4106, 978 N.E.2d 946, ¶ 23 (12th Dist.).
{¶26} In the instant case, Linda provided documentation about her income
from 2012 and 2013, by submitting copies of her tax returns from these years.
(See Ex. 12-14.) The income listed on the most recent form was $29,568.00. (Ex.
12.) Linda testified that in 2013, she worked as a nurse at Van Wert County
Hospital, but she lost that job due to “an infraction.” (Tr. at 382.) She testified that
her RN license was current and there were no reasons for why she would not be
able to continue to work as a registered nurse. (Tr. at 383.) At the time of the
trial, Linda worked “for an individual person,” providing “in-home care.” (Tr. at
377.) She testified that as a result, her income in 2014 would change. (Tr. at 448.)
Linda testified that she would receive $300.00 for a 24-hour shift and $650.00 for
a 48-hour shift. (Tr. at 380-381.) She would get paid $14.50 an hour for “going
over the allotted hours.” (Tr. at 381.) In support of this testimony, Linda
submitted two “invoices that [she has] to write” and provide to her employer in
order to get paid. (Tr. at 380.) She testified:
I would give them like an invoice. It would be like I was self- employed, and I write an invoice. You know, they have an amount that they pay you for that 24-hour period of care, and they pay me weekly.
(Tr. at 379.) The “invoices” covered a period of March 30, 2014, through April
14, 2014, and showed five entries corresponding to the dates on which Linda
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provided care to the individual, with charges of $300.00, $300.00, $350.00 and
$21.75. (Tr. at 378-379; Ex. 7.) Of note, the copies of invoices before us do not
have Linda’s name on them. (See Ex. 7.) In the child support computation
summary worksheet, the trial court used a figure of $29,568.00 as Linda’s
income. (R. at 96, App. C.)
{¶27} Based on the statute and Ohio case law, we conclude that the trial
court did not err in using Linda’s 2013 income, which was verified by her tax
return, rather than her testimony about the two weeks of her 2014 income, which
was not supported by any verifiable documentation contemplated in R.C.
3119.05(A). We have recently addressed a similar issue in a Union County case,
in which we reversed the trial court’s judgment because the income was calculated
“entirely based upon Heather’s testimony.” (Emphasis sic.) Montgomery, 3d
Dist. Union No. 14-14-22, 2015-Ohio-2976, at ¶ 48. “The statute and the case law
interpreting it require more than testimony to satisfy the burden of proof.” Id. We
noted that mother’s “documentation for only three months out of the year” was
incomplete and did not contain information from “which the court could
accurately or properly extrapolate her expected income.” Id.
Our determination that this documentation is insufficient is consistent with this Court’s and other Courts’ precedents on this issue. In Basham v. Basham, 3d Dist. Allen No. 1-2-37, 2002-Ohio- 4694, we reversed a trial court’s determination of gross income where insufficient documentation was presented to support a trial court’s income determination. Basham at ¶¶ 7-8. In Brose v. Copeland, 3d Dist. Seneca No. 13-13-08, 2013-Ohio-3399, we
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affirmed a trial court’s finding that testimony could not substitute for a lack of documentary evidence under R.C. 3119.05(A). See Brose at ¶¶ 15-17. Similar to this Court’s precedent, the Twelfth District held in Ornelas v. Ornelas, 12th Dist. Warren No CA2011-08-094, 2012-Ohio-4106, ¶ 25, that, “Allowing a party in a divorce proceeding to reduce his gross income level, and therefore his child support obligation, by testimony alone, without proper verification as required under R.C. 3119.05(A), is an abuse of the trial court’s discretion.”
Id. at ¶ 51; see also Ostmann v. Ostmann, 168 Ohio App.3d 59, 2006-Ohio-3617,
858 N.E.2d 831, ¶ 53 (9th Dist.) (“Because in November 2003, Howard had not
yet filed his personal tax return, the trial court was required by statute to review
the tax returns from 2000, 2001, and 2002. * * * This court finds that per statute,
the trial court was restrained to review documents, not testimony, to establish
Howard’s income.”).
{¶28} Based on the above, we conclude that Linda’s contentions have no
merit. She failed to support her claims about her current income with
documentation required by R.C. 3119.05(A). The self-generated “invoices” can
hardly be told to resemble the required by statute “receipts and expense vouchers
related to self-generated income.” R.C. 3119.05(A). Therefore, the trial court was
required to use Linda’s tax returns to ascertain her income for the purpose of
determining child support. A review of the trial court’s judgment entry and
attached to it Child Support Computation Summary Worksheet confirms that the
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trial court used the number reflected in Linda’s 2013 tax return as her income
figure. That action was consistent with the statute.3
{¶29} Therefore, we reject Linda’s complaint that the trial court erred by
failing to provide an explanation as to how it arrived at the income figure. We
further affirm the trial court’s use of income figures from Linda’s prior
employment.
Tax Dependency Exemption
{¶30} Linda’s second complaint with respect to the award of child support
concerns the tax dependency exemption. Here, Linda relies on R.C. 3119.82,
which states:
In cases in which the parties do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
R.C. 3119.82. Linda asserts that “there is no indication that the trial court
considered R.C. 3119.82.” (App’t Br. at 12.) As a result, she demands reversal so
that the trial court can consider it and enter its findings in the judgment entry. Of
note, Linda does not state that she was harmed in any way or that the trial court
improperly allocated the tax dependency exemption. Furthermore, she
3 We note that this opinion does not preclude Linda from filing a motion to modify support pursuant to R.C. 3119.79, based on a change of income, if such change is properly documented.
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acknowledges that “a trial court is not required to state on the record its reasons
for awarding tax dependency exemptions.” Clark v. Clark, 3d Dist. Union No. 14-
06-56, 2007-Ohio-5771, ¶ 35.
{¶31} We held in Clark that the record only needs “ ‘to include financial
data in relation to the above factors to support the trial court’s decision.” Id.,
quoting Ankney v. Bonos, 9th Dist. Summit No. 23178, 2006-Ohio-6009, ¶ 40,
overruled on other grounds by Gunderman v. Gunderman, 9th Dist. Medina No.
08CA0067-M, 2009-Ohio-3787. The record in the instant case includes data
relating to the factors required by statute. (See, e.g., R. at 96, App. C. (including
local income tax and health insurance expense numbers in the child support
computation).)
{¶32} We note that both parties were allowed to share in tax savings
equally, as a result of the trial court’s express consideration of the amount of time
the children spend with each parent. (See R. at 96, at 11.) We further note that
“[p]ursuant to the statute, the custodial parent is presumed to be entitled to claim a
minor child for income tax purposes, and a trial court may only award the tax
exemption to a non-custodial parent if it finds that doing so serves the best
interests of the child.” Hall v. Hall, 3d Dist. Hardin No. 6-10-01, 2010-Ohio-
4818, ¶ 49. As a non-residential parent, Linda was not entitled to the exemption
unless the trial court determined that it would be in the best interest of the children
to grant the exemption to her. See id. It is thus startling that Linda complains
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about being granted this exemption. We recognize, however, that Robbin did not
appeal the trial court’s judgment4 and the trial court’s express consideration of the
equal parenting time between the parties justifies the equal tax exemption. See id.
Accordingly, the trial court did not abuse its discretion in allocating the tax
dependency exemption.
{¶33} Based upon the foregoing discussion, we overrule the second
assignment of error.
Third Assignment of Error—Division of 2012 Tax Refund
{¶34} While this assignment of error broadly challenges the trial court’s
division of marital property, the only matter at issue is allocation of the proceeds
of the 2012 tax refund. The trial court divided this asset equally between Linda
and Robbin. Linda alleges that such a division was improper. She asserts that
Robbin did not deserve half of the 2012 return because he had failed to contribute
to household and childcare expenses throughout that year.
{¶35} It is well established that
[i]n any divorce action, the starting point for a trial court’s analysis is an equal division of marital assets. However, R.C. 3105.171(C) clearly provides that where an equal division would be inequitable, a trial court may not divide the marital property equally but instead must divide it in the manner that the court determines to be equitable.
4 Even though Robbin did not file a notice of cross appeal, as required by App.R. 3(C), in his brief he discusses an error in the trial court’s calculation of child support and demands reversal on grounds other than the ones raised by Linda. We lack jurisdiction to consider his claim.
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Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434, ¶ 5, citing
R.C. 3105.171(C), and Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d
1293 (1981); accord Schwarck, 3d Dist. Auglaize No. 2-11-24, 2012-Ohio-3902, ¶
26.
{¶36} In the instant case there is no indication that equal division of
property was inequitable. While Robbin testified that he did not contribute to
household bills after he had moved out of the marital residence, Linda provides no
support for her suggestion that such failure to contribute, while the party does not
reside in the marital residence, requires deviation from the equal division of assets.
There was no testimony that the proceeds of the 2012 tax refund resulted from the
expenses Linda incurred with respect to the marital residence and a review of the
attached exhibits does not support such an inference. We further note that Linda
claimed both children as her 2012 exemption and received a child tax credit for
that year. (See Ex. 13, 14.) Furthermore, Linda fails to recognize that Robbin
paid child support for C.S. in 2012, and that the trial court ordered back child
support for A.S., which covered the period of time in 2012, when Robbin was
recognized as the father.
{¶37} Based on our review of the record and the attached exhibits, we
cannot conclude that the equal division of the 2012 tax refund was contrary to law,
unreasonable, unsupported by evidence, or grossly unsound. Accordingly, we
overrule the third assignment of error.
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Fourth Assignment of Error—Contempt
{¶38} In this assignment of error Linda alleges that the trial court abused its
discretion when it overruled her two motions to show cause and refused to find
Robbin guilty of contempt of court. The first motion asked the trial court to hold
Robbin in contempt for canceling his initial appointment with Dr. Ross. The
second motion related to the 2012 tax refund proceeds, which were used to pay his
former attorney, in violation of the trial court’s order.
{¶39} As we have recently recognized, “[a] trial court has inherent
authority to enforce its prior orders through contempt.” Tretola v. Tretola, 3d
Dist. Logan No. 8-14-12, 2014-Ohio-5484, ¶ 60, citing Dozer v. Dozer, 88 Ohio
App.3d 296, 302, 623 N.E.2d 1272 (4th Dist.1993), and R.C. 2705.02(A).
Contempt proceedings are classified as either civil or criminal. Denovchek v. Bd.
of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988). The
Ohio Supreme Court provided the following distinguishing features of each type
of contempt actions:
Because all contempt involves some type of sanction or punishment, the distinction between civil and criminal contempt is usually based on the purpose to be served by the sanction. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). If the sanction is remedial or coercive and for the benefit of the complainant rather than the court, the contempt proceeding is usually classified as civil. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980). Often, civil contempt is characterized by conditional sanctions, i.e., the contemnor is jailed until he or she complies with the court order. Id. On the other hand, criminal contempt is usually characterized by unconditional prison
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terms or fines. Id. at 253–254, 416 N.E.2d 610. The purposes behind the sanction in criminal contempt are primarily to punish the contemnor and to vindicate the authority of the court. Id. at 254, 416 N.E.2d 610. To determine the purpose of the sentencing court, the entire record must be reviewed. State v. Kilbane, 61 Ohio St.2d 201, 206, 400 N.E.2d 386 (1980) (the trial court’s sanction does not dispose of the issue whether contempt is civil or criminal in nature; rather, it is some evidence of what was sought to be accomplished).
Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 12.
{¶40} At the time when the trial court heard the allegations related to
Linda’s contempt motions (at the final hearing), Robbin had already attended the
sessions with Dr. Ross. Therefore, at this point, there was no coercive or remedial
purpose of the contempt sanctions to be served. The only conclusion thus is that
Linda complains about the trial court’s failure to hold Robbin in criminal
contempt, to punish him for canceling his initial appointments.
{¶41} The burden of proof in criminal contempt is proof beyond a
reasonable doubt. Id. at ¶ 11. Furthermore, “[a] party subject to criminal
contempt is afforded many of the same constitutional safeguards that a defendant
in a criminal trial enjoys.” Id. Our review of the record does not support a finding
of a willful violation of the trial court’s order beyond a reasonable doubt. As
noted above, the trial court’s August 20, 2012 order only ordered the appointment
of Dr. Ross and payment for his services. (See R. at 35.) The order was not
expressly directed to Robbin, as Linda was the party who was ordered to pay Dr.
Ross’s fees. While implied in the judgment entry appointing Dr. Ross might have
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been a requirement of following his recommendations, the filing of a motion with
the trial court requesting that a party be excused from compliance with what was
considered a burdensome, costly, or unreasonable demand by the doctor, is no
cause for criminal punishment. After the trial court’s order to undergo evaluation
with Dr. Ross, Robbin complied with no noted objections. Accordingly, the trial
court did not abuse its discretion in finding that Robbin should not be held in
criminal contempt for canceling a single appointment and requesting relief from
undergoing further evaluations.
{¶42} As it relates to the tax refund proceeds, irrespective of whether the
contempt was criminal or civil in nature, we affirm the trial court’s finding that
there was insufficient evidence to establish a violation by Robbin. As testified,
Robbin’s prior attorney sent him a letter saying that he was going to apply the
2012 tax refund toward Robbin’s bill. (Tr. at 82.) Linda offered no evidence that
Robbin approved of this decision or that he was responsible for it. Accordingly,
whether we use the civil contempt standard of clear and convincing evidence, see
Tretola, 3d Dist. Logan No. 8-14-12, 2014-Ohio-5484, at ¶ 61, or the criminal
contempt standard of proof beyond a reasonable doubt, Linda provided no
evidence that Robbin had failed to comply with the trial court’s order.
{¶43} The trial court did not abuse its discretion in overruling Linda’s
motions to show cause. Therefore, the fourth assignment of error is overruled.
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Conclusion
{¶44} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Common Pleas Court of Paulding County, Ohio,
Domestic Relations Division, is therefore affirmed.
SHAW and PRESTON, J.J., concur.
/hlo
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