GARY JAY GOTTFRIEDATTORNEY AT LAW

Gary J. Gottfried Co. L.P.A

608 Office Parkway Suite BWesterville, Ohio 43082

614-297-1211614-297-6387

Gary@Gottfriedlaw.com

TWENTY FIFTH AAML OHIO CHAPTER HAROLD R. KEMP ANNUAL FAMILY LAW SYMPOSIUM

2012-2013 CASE LAW UPDATE

* Certified Family Law Specialist - Ohio State Bar Association A Fellow of The American Academy of Matrimonial Lawyers - Ohio Chapter

A Fellow of The International Academy of Matrimonial Lawyers - U.S.A. Chapter

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GARY J. GOTTFRIED608 Office Parkway, Suite B

Westerville, Ohio 43082(614) 297-1211

(614) 297-6387 (Fax)E-mail: Gary@Gottfriedlaw.com

2012-2013 DOMESTIC RELATIONS CASE LAW UPDATE

INDEX TO CASES

TOPIC PAGE NO.

A. Attorney Matters 1

1. Disciplinary Matters 1

2. Attorney Fees 1

3. Miscellaneous Matters 5

B. Bankruptcy 8

C. Child Support 13

D. Property Division

1. Cases ( other than retirement/pension) 25

E. Retirement Benefits 37

F. Parental Rights 42

G. Spousal Support 56

H. Miscellaneous 70

GARY JAY GOTTFRIED

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ATTORNEY AT LAW608 Office Parkway, Suite B

Westerville, Ohio 43082614-297-1211

614-297-6387 (FAX)E-mail: Gary@GaryGottfried.com

2012-2013 CASE LAW UPDATE

A. ATTORNEY MATTERS

1. DISCIPLINARY MATTERS:.

a. Board of Commissioners on Grievances and Discipline Opinion No. 2006-5 ( June 2006)

DR7-104(A) imposes a restraint on communication between represented persons and an attorney who is appointed to serve in the dual role of GAL and attorney for the child. It is improper for an attorney appointed to serve in a dual role of GAL and attorney for the child to communicate with represented persons on the subject of the representation unless there is a waiver by counsel or authorization by way of a court order or court rule. Communication that is administrative in nature such as scheduling appointments or meetings is not communication on the subject of the representation.

b. Disciplinary Counsel v. Curry, 112 Ohio St 3d 130 ( Sept. 2006)

FACTS: Attorney husband who was an Attorney had his law license suspended because he failed to pay 2 child support orders. Supreme Court in affirming the suspension for 1 year found that the husband/lawyer’s failure to pay child support violated DR 1-102 ( A)(6) ( conduct which adversely reflects on attorney’s fitness to practice law) See also Disciplinary Counsel vs Geer ( 112 Ohio St 3d 1177, 12/06) where an Attorney was suspended for 1 year for nonpayment of child support on the theory that the nonpayment of child support violates DR1-102(A)(6)

2. ATTORNEY FEES

a. Donaldson v Todd 10th Distr, Case No. 07AP-328 ( Dec. 2007)

FACTS: Plaintiff files for Civil Protection Order but does not show up for final hearing and case is dismissed. Defendant files for fees pursuant to r.c 2323.51 and Rule 11. Trial Court without a hearing dismisses the motion for fees. Defendant appeals. Reversed.

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DECISION: In reversing the trial court, the Court of Appeals held that a trial court may deny a motion for fees without a hearing if on the face of the motion the motion does not demonstrate an arguable basis for the motion for fees. However, in this case the motion on it’s face was meritorious and the affidavit raised claims which appeared to be meritorious and therefore the trial court should not have denied the motion without a hearing

b. Willamson ( Cooke) v Cooke 10th Distr Case No. 05AP-936 ( Febr 2007)

FACTS: Defendant was found in contempt for his failure to timely pay the Plaintiff for his share of educational expenses. Trial court then awarded fees to the Plaintiff upon a finding of contempt. Defendant appeals, reversed.

DECISION: In reversing the trial court’s decision, the Court of Appeals said that if a given matter has been resolved, even though untimely there is nothing to litigate. Since, the purpose of a civil contempt is to enforce an order to pay money, when such payment is made the issues become moot. Where a party who has filed to comply to a court order to pay money to another and motion for civil contempt is filed, but the offending party after such filing makes such payment and fully complies with the present requirement to pay there is no order for the trial court to make in a civil contempt proceeding since the offending party has purged himself of the contempt. Although sanctions would be moot, the court could award attorney fees incurred by the party pursuing the contempt up to the time of compliance

c. Padgett v Padgett 10th Distr, Case No. 08AP-269

FACTS: On a motion to reallocate parental rights the parties settle the issue of the parental rights but submit the issue of legal fees to the Court. Trial Court orders the wife to pay $ 35,000.00 of legal fees, travel costs and GAL fees. Wife appeals. Affirmed and Reversed in part.

DECISION: In affirming the trial court’s decision, the court of appeals acknowledged that 3105.73( b) allows the trial court to consider the income of the parties, their conduct and any other relevant factors ( excluding income) in post decree attorney fee awards. The court indicated that it would continue to rely on the factors set forth in the McCord v Hummer case to “ flesh out” the statutory requirements. Those facts include needs of the children, change in circumstance, ability./inability to pay fees, amount of the fees, amount of fees caused by undue delay or resistance by either party and effect of payment of fees upon the custodial parents ability to contribute a proportionate share of child support. The court affirmed the award because it found that the wife’s conduct was the “ overwhelming cause for delay in the case and increased the expenses of the case. Citing the Karales case from the 10th district the court of appeals also indicated that in fashioning an award of fees the court can consider non litigation conduct especially when the non-litigation conduct results in longer and more expensive litigation.

The court also rejected the wife’s argument that because the husband had discharged his legal fees by filing bankruptcy that she shouldn’t have to pay the award. The court found that the debt owed by the husband to his attorney was different than the debt which the wife owed to

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the husband. The fees owed to the husband were in the nature of child support and therefore were non dischargeable in bankruptcy.

d. Monda v Shore 11th Distr. Case No. 2008-0079( May 2009)

FACTS: Trial court ordered to husband and counsel pursuant to Rule 11 to pay Attorney fees and costs for not attending mediation conference. Husband appeals, appeal dismissed as not being a final appealable order.

DECISION: In dismissing the Husband’s appeal, the Court of Appeals stated that an award of legal fees in not a final appealable order but is interlocutory. R.C. 2505.02(b) defines a final appealable order and identifies 4 types of orders which are final appealable orders and may be reviewed.

The Court of Appeals said that the award of fees for failure to comply with mediation was a case of first impression. In arriving at it’s decision to sustain the award of fees at the trial court level, the Court of Appeals for the 11th District said that orders in mediation are like discovery orders and a “ pre trial procedure” which are designed to aide in the final disposition of a case. Citing the case of Stae vs. ex rel Steckman the Court of Appeals said that since discovery orders are not final appealable orders the same logic should apply to orders regarding mediation. That is orders related to mediation are interlocutory and not final appealable orders.

e. Raleigh v Hardy 5th Dist. Case No. 08CA-0140 ( Sept 2009)

FACTS: Parties agreed to shared parenting in a parentage action. 2 years later Plaintiff files to terminate shared parenting and seeks custody. Trial court terminates shared parenting and designates Plaintiff as residential parent. Trial court also orders that each party is to pay a percentage of the GAL fees based upon the percentages shown on line 16 of the child support worksheet. Trial court designates the GAL fees as child support, a domestic support order and non-dischargeable in bankruptcy. Defendant did not pay so the GAL filed contempt against the Defendant for nonpayment of child support. Defendant found guilty of nonpayment of GAL fees. Defendant appeals. Affirmed.

DECISION: Defendant argued that GAL fees are costs and can only be collected through a civil judgment. Defendant cited the Bailey case from Hamilton County ( C-060700 ) which held that contempt was not the proper way in which collect GAL fees since GAL fees in juvenile case are assessed pursuant to Juv .R. 4(G) as costs . Court distinguished the Bailey case because the case at bar was a parentage action.

Citing the Lever case ( ND Ohio 1991) the court of appeals found that the fees of the GAL were rendered to meet the needs of the child and therefore were in the nature of support.

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f. Dzina v Dzina 8th District, Case No. 94748 ( March 2011)

FACTS: Wife appeals the decision of the trial court awarding to her from her Husband $ 750,000.00 in legal fees for the Husband’s financial misconduct and breach of an indemnification agreement. Trial Court grants a credit against the fees ordered for an invalid indemnification agreement. After credits for the invalid payments and other monies due to the Defendant the court finds that the amount due to the Plaintiff was $ 70,347. 00 to be in 60 payments of $ 1m 172.45 per month. Wife appeals. Affirmed

DECISION: In affirming the trial court’s decision the Court of Appeals in commenting on the case stated: For over a decade the Dzina’s have engaged in a long and contentious divorce. This case, is the latest chapter in the epic sage of the Ohio Judiciary’s efforts to disentangle the Dzina’s and their several business interests is on the verge of breaking the record for interminable litigation set in Jarndyce.

g. Tibbetts v Tibbetts: 8th Distr Case No. 96746 ( Oct 13 2011)

FACTS: Post Decree each spouse filed a contempt against the other spouse for violations of their divorce decree. The trial court found that each party was guilty of contempt for the violations alleged by the other party. The trial court ordered the wife to pay the husband $ 750.00 in legal fees and the husband was ordered to pay the wife $ 1,000.00 in legal fees. Wife doesn’t pay her legal fees but argues that there should be set off and the husband should pay to the wife the difference or $ 250.00. Wife appeals, Affirmed.

DECISION: There is no legal right to set off one judgment for fees against the other judgment for fees even when both judgment arose from the same proceeding. The decision whether to set off fees or whether to order each party to pay the fees to the other party as ordered is solely within the discretion of the trial court.

h. Glatfelter v Commissioner of the Internal Revenue, United States Tax Court, Case no. 29405-08S ( January 2010)

FACTS: Husband is ordered per the terms of the divorce to pay attorney fees of $ 4,000.00 to the Wife’s Counsel. Husband then files his tax return in the year the payment of fees was made and deducts the $ 4,000.00 in legal fees paid to the Wife’s attorney as spousal support. The deduction is denied. Husband appeals, affirmed

DECISION: In denying the claim of spousal support, the Tax Court examined Section 71 of the Tax Code and California law. Under California Law an award of attorney fees in a divorce case survives the death of the wife. Therefore, since the payments don’t end at the wife’s death the payment of legal fees don’t meet the 4 criteria established by Section 71 of the Code for the payments to qualify as a deductible spousal support. The 4 criteria for a payment to be deductible as spousal support are as follows:

1. The payment is received by or on behalf of a spouse under a divorce or separation instrument

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2. The divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section and not allowable as a deduction under section 215

3. In the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

4. There is no liability to may any such payment for any period after the death of the payee spouse and there is no liability to make any such payment ( in cash or property) as a substitute for such payments after the death of the payee spouse.

3. MISCELLANEOUS

a. Board of Commissioners on Grievances and Discipline Opinion 2009 (June 2009)

On the conclusions of domestic relations mediation a lawyer mediator man not pursuant to Prof. Cond. Rule 1.1(c ) (2) prepare dissolution documents for filing on behalf of both parties. A lawyer mediator may prepare dissolution documents for one party in a domestic relations matter provided the following conditions are met:

1. During mediation a lawyer mediator must not negotiate and then subsequently represent one of the parties.

2. both parties must give informed consent in writing to a lawyer mediator representing one of the parties.

3. during employment or for one year after employment with a court a lawyer mediator who is a court employee must not undertake to represent a matter in which he/she personally participated.

4. if one party is unrepresented a lawyer mediator who subsequently represents the other party must property dealt with the unrepresented party.

5. a lawyer mediator who undertakes a subsequent legal representation must comport with any applicable standards of practice for mediation.

b. Devall v. Schooley 5th Distr, Case No. CT2009-0017 ( Nov 2009)

FACTS: Mother files for a reallocation of parental rights. Mother also files a motion requesting the appointment of a GAL and requests that an in camera interview of the children. Trial court interviews the child and then takes evidence on the issue of whether there has been a change of circumstances. Trial court finds that there has been no change of

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circumstances, and therefore denies the motion for the appointment of a GAL and then denies the motion. Mother appeals, Affirmed.

DECISION: Mother had argued at the trial court and court of appeals level that the trial court committed error when it did not appoint a GAL prior to determining whether there had been a change of circumstances. Court of Appeals disagrees and says that the because the trial court did not find a change of circumstances it was not required to appoint a GAL.

Court of Appeals said that the statutory scheme for modifying parental rights requires a determination of whether there has been a change of circumstances and if there is a finding of a change of circumstances is the modification in the child’s best interest. The court noted that the statutory mandate for the appointment of a GAL is set forth in the best interest portion of R. C. 3109.04 and not in the change of circumstances section of the statute.

c. Bowman v Tyack, 10th Distr, Case No. 08AP-815 ( March 2009)

FACTS: In 2000 the husband was represented by first counsel and reached an agreement to suspend the husband’s child support obligation. However, no entry was every filed. In 2004 husband appeared at hearing with new counsel and learned that the entry had not been filed an the arrearage had been accruing. In April 2005 Husband files a 60b and requests that the child support arrearage be cancelled and the money be repaid by the ex wife. Trial court grants the 60b and cancels the arrearage but does not order repayment. In 2006 Husband filed malpractice action against the first attorney. Malpractice was dismissed because it had been filed more than one year after the cause of action had accrued in November 2004. Husband appealed. Affirmed.

DECISION: The court of appeals said that the husband had filed to file his complaint for malpractice within 1 year from the date that a cognizable event rising to the level of malpractice had occurred. The court said that a cognizable event is defined as an event whereby the client discovers or should have discovered that his injury was related to his attorney’s act or non-act and the client is put on notice of the a need to pursue his possible remedies against his attorney or where the attorney client relationship for that particular transaction terminates whichever occurs later.

A cognizable event is an event sufficient to alert a reasonable person that his attorney has committed an improper act in the court of legal representation. The focus should be on what the client was aware of and not a judicial determination. The cognizable event puts the plaintiff on notice to investigate the facts and circumstances relevant to his or her claim.

d. In Re: T.H 2nd District, Case No. 24176 (January 2011)

FACTS: Trial Court in a custody case in Juvenile Court after several half days of trial issues an order which restricted the Husband on the last day of trial to one hour. Husband objects to the limitation of time. Objection denied. Husband appeals. Reversed.

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DECISION: In reversing the trial court’s decision the Court of Appeals recognized that great deference is given to the trial court in controlling their dockets citing Evidence Rule 611(A). However in this case by limiting the Father to one hour and 15 minutes the trial court unfairly restricted the Father’s ability to present his own testimony and the testimony of the remaining witnesses.

e. Ott v. Ott 6th District, Case No. H-10-007 ( January 2011)

FACTS: Wife files a divorce against her husband. The Attorney for the Wife had represented the Husband in a custody action against the Husband’s prior spouse while the Husband had been married to his current wife and the Plaintiff in the pending divorce. Husband files to disqualify the Attorney alleging that there is a conflict of interest. Trial Court denies the motion. Husband appeals. Affirmed.

DECISION: Ohio employs a 3 part test to determine whether an attorney should be disqualified due to a conflict of interest. The test is a) did a past attorney client relationship exist, b) was the subject matter of the past relationship substantially related to the present case, and c) the attorney must have acquired confidential information from the party seeking disqualification. The Court of Appeals found that although there was a prior relationship between client and attorney ( 1st prong) there was no information or evidence gathered in the first case ( custody) which was related to the pending divorce case. Finally, there was no evidence presented at trial which would indicate that the Attorney had obtained any confidential or privileged information.

f. Gisslen v Gisslen, 2nd District, Case No. 24414 ( June 2011)

FACTS: Husband is representing himself in a trial which lasts for several days. After the case has been pending for over 3 years and after several days of trial, the husband files a motion to disqualify the wife’s attorney. Husband alleges that that the wife’s attorney had been in an associate in a firm where the wife had a consultation prior to trial with the firm’s partner. Wife’s attorney leaves the firm and represents wife in the pending divorce action. Trial Court denies the motion to disqualify. After denying the motion, without a hearing, Husband leaves the court room saying he can’t continue with the hearing and is heard to remark “ have a nice hearing”., Husband appeals that decision ( and other issues). Affirmed.

DECISION: Court of Appeals recognizes that the a trial court has a duty to supervise the conduct of attorneys who appear before the court. A trial court has an inherent duty to disqualify an attorney where the attorney will not or cannot comply with the Code of Professional Responsibility. Disqualification is a “drastic measure” which should not be imposed unless a absolutely necessary. There is a 3 part test to determine whether an attorney should be disqualified. The 3 parts to the disqualification test are:

a. past attorney client relationship must have existed between the attorney and the party seeking to disqualify.

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b. the subject matter of the past relationship must have been substantially related to the present case.

c. the attorney must have acquired confidential information from the party seeking disqualification.

The Court also found that there is no requirement that the Court conduct a oral hearing on the motion to disqualify. The Court found that the only time according to the Supreme Court that a oral hearing has to be conducted is when a firm or member of the firm joins another firm which is representing the opposing party. The Court also found that although there is no fixed time to file a motion to disqualify the motion should be filed within a reasonable time once the facts surrounding disqualification are known. Finally, the Court found that a party can be subject to waiver of the right to seek disqualification where there is “ substantial proof” that the movant’s delay has resulted in serious prejudice to the opposing party or where the disqualification would create substantial hardship to the opposing party or where the moving party has knowingly delayed the filing of the motion in order to cause hardship or prejudice.

g. Amendments to Civil Rule 4 ( 4.1 and 4.5) effective July 2012

Civil Rule 4.1(b) Allows service of process by any commercial carrier which uses any form of delivery requiring a signed receipt.

Civil Rule 4.5 (A) Requires that service be made in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

h. Gupta v Gupta, 8th District, Case No. 99005 ( May 2013)

FACTS: Parties were married in India, and then move to Ohio. Husband returns after several years to India. While in India the husband files for a divorce against the Wife. The Indian Supreme Court also issues a stay against the Wife prohibiting her from filing a divorce in Ohio. Wife files an Ohio divorce action against Husband. Ohio Court elects to proceed with the divorce. Husband directs his counsel not participate in the trial ( cross exam, introduce evidence, objection to testimony). Divorce granted to Wife. Husband appeals. Affirmed.

DECISION: In affirming the trial court’s decision, the Court of Appeals found that the fact that the husband’s counsel did not make an opening statement, proffer any evidence, made no objections to the evidence, or participate in the trial is fatal to the assignments of error raised by the Husband. A party’s failure to object to a magistrate’s decision in the trial court waives his right to appeal the matter.

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i. Logan v Logan, 3rd District, Case No. 9-12-61 ( May 2013)

FACTS: Husband files to terminate shared parenting due to the wife’s conduct. Trial Court terminates the shared parenting plan and designates husband as residential parent. Wife appeals. Affirmed.

DECISION: R. C. 3109.04 ( E) (2) (c) merely requires that the party seeking a termination of a shared parenting plan prove that the termination of the plan is in the child’s best interest. Pursuant to R.C. 3109.04( E ) (2) ( c) does not require a trial court in a motion to terminate shared parenting to find that there is either a change in circumstances or the harm of a change in the residential parent was outweighed by it’s advantages.

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B. BANKRUPTCY

1. Caldwell v Caldwell 12th Distr Case No. CA2008-03-021/CA2008-02-019( May 2009)

FACTS: Husband was ordered in the divorce decree to pay a truck payment. Husband then files bankruptcy. Wife files for contempt against the husband for non payment of the truck loan. Husband found in contempt for non payment of the truck loan. Husband appeals. Reversed.

DECISION: Federal and State Courts have concurrent jurisdiction to determine the dischargability of a debt. Therefore it was proper for the court to determine whether the hold harmless agreement and debts were dischargeable or not. A court order for spousal support or child support is not dischargeable in bankruptcy while property settlements ( other than maintenance and support) are dischargeable. The court went on to say that an obligation to pay a debt and “ hold the wife harmless “ may fall into the category of maintenance and support and therefore non dischargeable or they may be dischargeable. To determine whether the debt was dischargeable the court looked to the case of In Re Calhoun ( C.A 6, 1983) 715 F.2nd 1103 and the 4 factors cited by the court. Those factors are:

a. did the state court or the parties intend to create a support obligation

b. the obligation must have the actual effect of providing necessary support

c. if the first 2 conditions ( a and b) are met the court must determine if the obligation is excessive as to unreasonable under the traditional concepts of support

d. if the obligation is unreasonable the obligation is dischargeable to the extent necessary to serve the purposes of federal bankruptcy law.

The court applying the factors in Calhoun to the facts of the case found that the court’s order for the husband to hold the wife harmless on the truck loan was a property settlement. Because the court of appeals found that the hold harmless agreement was a property settlement and thus dischargeable in bankruptcy it was error for the trial court to find the husband in contempt.

2. Wallace v. Marble, U.S. Bankruptcy Court, Eastern Div Missouri Case No. 09-6089 March 2010

FACTS: Wife prior to the divorce being filed entered into an indemnity agreement with an insurance company related to the husband’s business. Parties then get a divorce and the Husband agrees to hold the wife harmless on the indemnity agreement. Husband in 2006

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files for bankruptcy and lists the indemnity agreement as a debt in the divorce. In 2007 the Husband and Wife are sued in state court on the indemnity agreement. Husband is dismissed from the state court action due to his bankruptcy. Wife then files in the Bankruptcy court for a determination of whether the indemnity agreement was dischargeable in the Husband’s bankruptcy. Bankruptcy Court finds that the debt was non dischargeable in Bankruptcy. Husband appeals, Affirmed.

DECISION: At trial the husband argued that because the debt had been incurred prior to the parties divorce it is dischargeable. Court distinguishes the debt which the Wife had signed with the insurance company (indemnity agreement) from the hold harmless agreement which the husband entered into in the divorce proceedings and thus was a new debt separate and apart from the indemnity agreement with the insurance company. The hold harmless agreement was a debt which arose in or was in connection with a separation agreement and is non-dischargeable citing the Williams case ( 703 F.2d 1055, 1983) wherein the 8th Circuit held that an undertaking by one spouse to pay the other spouses debt can be “ support” for bankruptcy purposes.

3. Stocker v Stocker , 9th District, Case No. 12CA 0021 ( December 2012)

FACTS: Parties entered into a settlement agreement to resolve their divorce. The parties agreed as to their marital home to sell the home and that until such time as the hold sold, the Husband would pay the monthly obligation on the first mortgage and the Wife would pay the obligation on the line of credit. The parties also agreed that if the home sold for less then what was owed on the combined mortgage balances, the parties would share equally in the payment of any deficiency. Both parties advised each other that they were considering the filing of bankruptcy and thus the divorce decree recited that nothing in the divorce decree prevented either party from filing for bankruptcy or discharge of any of the debts set forth in the divorce decree. Prior to the sale of the home but post divorce, both parties file for bankruptcy and stop paying the mortgage payments. Husband filed for Chap7 and was discharged in November 2012. Wife filed for Chapter 13 and was discharged in March 2012. In December 2010 the home sold for $ 2,472.89 less than the combined mortgages. Wife pays the deficiency in full at the time of the closing. Wife filed for contempt against the husband for failure to make the payment on the first mortgage. Husband found in contempt and ordered to Wife $4,896.68. This is the amount which the Court determined was due. To arrive at this amount the Court determined that if both had paid their respective mortgages each would have netted $ 2,850.43. After adjusting for the payments that the Wife didn’t make on the line of credit, the wife would have received $ 4,896.68. Husband appeals. Affirmed.

DECISION:

In determining that the trial Court had acted appropriately the Court of Appeals analyzed the Court’s decision in light of the provisions of the BAPCPA ( the Bankruptcy Abuse Prevention and Consumer Act of 2005) and found:

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1. Federal law determines whether a debt is non dischargeable in bankruptcy. However, state and federal courts share concurrent jurisdiction to determine whether a debt should be characterized as non dischargeable.

2. Court of Appeals rejected the Husband’s argument that the mortgage payments had been discharged in bankruptcy. The husband filed with the Court his notice of discharge with the trial court. However, the notice of discharged did not indicate which debts were discharged. Therefore the trial court was not precluded from deciding if the debt fell with Section 523(A)(15) making it non dischargeable under federal law.

3. Court rejected the husband’s argument that the wife did not object to the husband’s discharge in the husband’s bankruptcy proceeding and therefore the trial court exceeded it’s jurisdiction in ordering the husband to pay the wife. The Court of Appeals noted that a non debtor spouse no longer has an affirmative duty to file an adversary proceeding when seeking to have a non dischargeablity determination made pursuant to 11 USC 523 (a)(15). Therefore, the trial court was within it’s jurisdiction to decide if the debt should be characterized as non dischargeable.

4. Husband argued that because there was no hold harmless language in the decree that the Section 523(a)(15) does not apply and the debt is dischargeable. The court rejected that argument and found that the absence of “ hold harmless language” by itself is not dispositive of whether a debt falls within Sec 523(a)(15), but it is a factor to consider when determining whether a debt even exists. The Court found that under the plain language of the divorce decree the wife had a right to seek enforcement of the husband’s obligation to pay the first mortgage. Thus, the husband in the divorce decree incurred a debt in favor of the wife and is non dischargeable under 523( a)(15). The husband’s bankruptcy only discharged his obligation to the bank. The husband “was not permitted to discharge the new debt he incurred in the divorce decree in favor of the wife because the husband became obligated under the separation agreement to pay a third party debt, a debt in favor of the other spouse arises which is non dischargeable under 523(a)(15).

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C. CHILD SUPPORT

1 Barone v Barone 6th Distr, Case No. L-07-1336

FACTS: Parties were divorced and had 3 children and Husband was ordered to pay $ 1,200.00 per month per child for support. Two of the three children emancipate so the wife files a motion to modify child support. Trial court modifies the husband’s child support and sets child support at above the guide line amount ( $ 1,800.00 per month). Husband appeals. Affirmed.

DECISION: The amount of the combined income as found by the court exceeded $ 150,000.00 so therefore R.C. 3109.04 (B) applied. In reviewing 3109.04 (B) the court determined that the 3109.04(B) does not contain any factors to guide the court in establishing the amount of child support. the only guideline is that child support in excess of $ 150,000.00 is to be determined on a case by case basis. However the court said that a court in setting child support where incomes are in excess of $ 150,000.00 may use the deviation factors found in 3119.23 to set child support. In this case, the court considered the following 3119.23 deviation factors in setting child support:

a. the disparity of income of the parties, b) the standard of living of the parents and the standard the children would have had if the parents had lived together, c) the amount which each parent spent on the children in addition to child support.

2 Kranz v Kranz 12 Distr, Case No. CA2008-04-2451( May 2009)

FACTS: Husband is ordered at trial to pay child support and spousal support based on his 2007 income rather than his average income or income averaged over 3 years. Husband appeals-Affirmed.

DECISION: The Court of Appeals affirmed the trial court actions which took the Husband’s 2007 income and did not average it over the past 3 years as requested by the husband. In affirming the trial court’s decision not to average the court of appeals said the that R.C. 3119. 05(h) allows income to averaged when it is appropriate over a reasonable number of years when the obligor’s income is unpredictable or inconsistent. The court said that although there may be some unpredictability in the husband’s income it was due to the husband’s own actions since he was the majority owner of the business and had control over the company’s distributions.

3 Beiers v Phillips 5th Distr Case No. 08CA0127 ( July 2009)

FACTS: The parties had one child. The CSEA Magistrate imputed to the Mother an annual income of $ 19,600.00 and did not include any costs for day care. Mother appealed-Reversed

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DECISION: Citing the Tonti case from the 10th Distr ( 03Ap 494) the Court of Appeals for the 5th Distr said that is was error for the trial court not to include day care when it imputed an income based upon the mother’s prior employment. In order for the mother to earn that imputed income she was required to incur the expense of day care.

4 In the Matter of DEW, JLW and POW 2nd Distr, Case No. 2009CA2 ( August 2009)

FACTS: Parties have shared parenting with equal time. The magistrate filed a motion to modify his child support obligation seeking a deviation in support. Trial court awards a 52% deviation from the calculated guideline amount due to the additional expenses which the Husband incurred by reason of the shared parenting plan. Husband appeal, Affirmed.

DECISION: The court of appeals rejected the Husband’s argument that the trial court committed error in calculating child support because the trial court did not use the “ off set “ method to calculate child support ( what each parent is to receive is offset by the amount he/she has to pay the other parent). Rejecting this argument the court of appeals relied on the Pauley case which says that method to follow in calculating child support is first calculate child support. The court may deviate from the calculated amount if it finds that the amount as calculated was unjust, inappropriate for the children or either parents and not in the children’s best interest.

5. Wolf v Wolf, 12th Distr, Case No. CA2008—3-045 ( April 2009)

FACTS: Husband had ownership interest in a subchapter S corporation. The husband’s salary from the corporation was $ 400,000.00 per year. In addition the corporation distributed to the Husband $ 200,000.00 to pay taxes. On a motion to modify child support the trial court determines that the husband’s income for child support purposes was $ 600,000.00 per year and sets child support accordingly. Based upon the Husband’s income the court sets child support at $ 4,000.00 per month which was a deviation upward from the calculated amount of $ 1071.00 ( amount with the cap) but not the full calculated amount of $ 5160.00 per month. In setting the upward deviation of $ 4,000.00 per month the court found that if the parties had lived together the children if the parties had remained together would have enjoyed a high standard of living. Husband appeals, Affirmed.

DECISION: Court of Appeals in looking at R.C 3119.01 ( c)) (7) found that the definition of gross income from all sources was broad enough to include tax payments. The court observed that although the tax payments were not characterized as income and do not appear on the husband’s tax return these payments may be considered as “ potential cash flow from any source” pursuant to R.C. 3119.01 ( c ) (7) because the contributions were used to satisfy the husband’s personal tax liability.

In affirming the trial court’s upward deviation in child support, the court of appeals recognized a trial court must ensure that the obligor parent is not so overburdened by the child support payments that it affects that parent’s ability to survive. Citing the Siebert case from Cuyahoga Cty ( 99310). However in this case there was no evidence to suggest that the

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amount of the child support award created a financial hardship for the husband or overburdened his in light of his additional monetary obligations.

6. Taub v Taub 10th Disr Case No. 08AP-750 ( June 2009)

FACTS: In establishing child support the trial court took into consideration as part of the husband’s income gifts of cash which the husband received yearly from his family ( gifts ranged from $ 23,000 - $ 40,000.00 per year). Husband appeals-Affirmed

DECISION: The trial court when it included the yearly gifts of case relied in part on the Santis case ( 11th Distr 98T00062) which was a spousal support case and where the court based it’s decision in part on monthly gifts of $ 500.00 received from the obligor’s father) In this case, the husband never testified that he did not say that the payments would cease ( i.e under the theory that the court can exclude non recurring income). Thus it was reasonable to conclude that the payments would continue and therefore could be included in the husband’s income.

The Husband also argued that since in the parties shared parenting plan he was the school placement parent and the wife only had modified rule 27 parenting time that he should not have to pay child support. Husband argued that child “ flowed from the non school placement parent to the school placement parent”. The court of appeals affirmed the trial court’s decision that the husband should pay the wife child support based upon the child support worksheet ( with deviation for time spent with the husband).

7. McMillen v McMillen, 5th District, Case No. 2009-COA-033 ( May 2010)

FACTS: Parties entered into a agreed decree of divorce which provided that the Husband and the Wife would each pay one half of the children’s college education. Subsequent to the divorce the Wife filed to modify the percentage which each parent would pay towards the children’s college education. Trial grants the motion and changes the percentage which each would pay from 50/50 to the Husband paying 88% and the Wife paying 12%. In granting the motion the trial court found that the children’s college education was in the nature of child support and therefore the trial court had jurisdiction to modify the support. Husband appeals, Reversed,

DECISION: In reversing the trial court’s decision the court of appeals found that the obligation to pay child support was separate and distinct from the payment of college education and was addressed separately in the divorce decree. The court of appeals in reversing the trial court found that it was the intent of the parties to provide their children with a gift of a college education. Such a gift was separate and apart from the husband’s obligation to support the minor children to their majority.

8. Hayman v Hayman, 5th District, Case No. 2008 CA 0071 ( September 2009)

FACTS: Parties were divorced in 1968. In the divorce decree the husband was ordered to pay $ 80.00 per week for child support. In 1971 the child support was reduced when the

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oldest child emancipated. October 1971 the daughter of the parties moves in with the husband. Husband moves to terminate child support. That motion is denied. In September 2004 the CSEA is asked to determine child support arrearages. Husband moves to dismiss on the basis of laches ( 28 year delay). The CSEA determines that the outstanding child support arrearage was 19,200.00. Husband appeals, Affirmed.

DECISION: The Court of Appeals found that the trial did not abuse it’s discretion in finding that the Husband was not prejudiced by the fact that the wife waited 28 years to file her motion for child support arrearages. Husband argued that the was financially prejudiced because he had assisted the children financially over the 28 years and has provided for them in his estate and that if the arrearage issue had been raised earlier that the money given to the children would have been applied to the child support obligation. The court rejected this argument because the husband testified at the hearing that he his standard of living was affected or that his ability to provide for the children was affected.

9. Trickey v Trickey, 6th District, Case No. L-09-1307 ( January 2011)

FACTS: Trial Court orders the Husband to maintain life insurance to secure the payment of child support. Husband appeals that decision. Affirmed.

DECISION: Court of Appeals affirms the trial court’s decision that a child support obligation may be guaranteed by ordering the payor to secure a life insurance policy with the child named as the beneficiary, citing the Admas case 6th District, WD-09-022

10. France v France: 1st District, Case No. C-100468,C-100489 ( June 2011)

FACTS: Father was named as the residential parent of the parties 5 children. Although the parties did not have shared parenting the wife had equal parenting time with the children. Pursuant to an agreed entry executed in 2005 the Father agreed to pay to the Wife the sum of $ 4,000.00 for the support of the children. In 2008 Husband files to terminate child support order. Trial Court grants the motion and Wife appeals. Affirmed.

DECISION: In affirming the trial court’s decision to terminate the support order the Court of Appeals recognized that pursuant to R.C. 3119.07(A) the father was the residential parent and the trial court did not have the authority to order the father to pay child support to the mother since she was the nonresidential parent. The Court finds that the Agreed Entry of 2005 ordering child support was void ab initio since the trial court did not have authority to order child support to the obligor. The Court of Appeals also rejected the wife’s argument that the parties can enter into an agreement whereby one does something that he/she is not required to do by law ( i.e pay college tuition post age 18). While the Court of Appeals did not disagree with the idea that the parties could agree to do something that required by law (i.e pay child support) the parties could not agree to do something that is prohibited by law and then expect a trial court to adopt their agreement as the order of the court.

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11. Banfield v Banfield 12th District, Case No. CA2010-09-066 ( July 2011)

FACTS: In 2006 the parties enter into a shared parenting plan wherein both parents had equal parenting time with their children. As a part of the shared parenting plan no child support is exchanged between the Husband and the Wife. In 2009 the Wife files to modify the shared parenting plan because the child during the husband’s midweek parenting time had to get up at 4:30 am. As an additional basis for the motion to modify the wife alleged that the fact that the parties were not sharing in the children’s expenses as required under the terms of the shared parenting plan. Trial court granted the motion and eliminated the Husband’s mid week parenting time. Also the court ordered that other than medical expenses each parent would pay the expenses for the children incurred during their respective parenting time. The trial court also ordered the husband to pay child support. Husband appeals. Affirmed.

DECISION: The Court found that in 2006 the trial court deviated the husband’s child support obligation from $ 6,000.00 per year to zero dollars. This deviation was reflected on the original child support worksheet. When the trial court in 2009 recalculated the husband’s child support obligation his annual child support obligation increase to $ 7,200.00 per year. The court of appeals found that more than a 10% difference existed between the recalculated and existing child support order.

When a court sets a zero child support order a change in circumstances can occur at any time and “ the parties agree to such an order at their peril” citing the Sapinsley case. In addition, a 10% difference is clearly met with the amount of child support provided by the non-custodial parent is zero but the child support guidelines clearly establish that the non-custodial parent owes support.

12. In Re T.S a minor 8th Distr. Case No. 96657 ( Dec 29, 2011)

FACTS: Mother files a motion to modify child support. Trial Court finds that the Father who is a CPA is voluntarily under employed and imputed income to Father based upon the median wage of CPA’s in Father’s geographic area as published by the U. S Dept of Labor. Father appeals the decision: Affirmed:

DECISION: In order for a trial court to find a parent to be voluntarily under employed and to impute potential income to the parent, the trial court pursuant to RC 3119.01( c) (ii)(a) must make a 2 fold determination:

a.) Is the parent voluntarily unemployed or underemployed, and b.) If trial court finds parent voluntarily under employed or

unemployed the trial court must determine what parent would have earned based on criteria set forth in RC 3119.01 ( c) (ii)(a)-(x)

Court of Appeals rejected the Father’s argument that the trial court committed error because the trial court did not consider the availability of jobs as a CPA in his geographical area. The

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Court of Appeals found that there was no abuse of discretion in the trial court failure to consider all of the statutory factors in RC 3119.01.

13. Lopez-Ruiz v Botta, 10th Distr, Case No. 10AP-2414

FACTS: Plaintiff and Defendant entered into a shared parenting for the care of their children. Although the child at the time of the execution of the shared parenting plan was attending private school, the parties agreed in the shared parenting plan that the matter/cost of private school tuition was not to be included or considered in calculating child support. The language of the shared parenting plan provided that “ …so long as mother wishes to pay tuition …. Mother is solely responsible for the ….costs and such costs shall not be part of any child support guideline calculation.

4 years after the termination of the parties marriage, the Mother (Plaintiff) filed a motion to increase her child support. At the time of the filing of the motion, the children were in private school and the Mother was paying$ 16,000.00 per year in tuition. The trial court considered the cost of private school tuition as a factor for a deviation and child support and increased the mother’s child support. Husband appeals, Reversed.

DECISION: After reviewing the language of the shared parenting plan, the Court of Appeals found that the trial court had committed error when it considered the costs of tuition and costs of private school. The consideration of private school tuition and costs “ in determining whether deviation was appropriate… constituted prejudicial error.

14. Hill v Hill, 5th District, Case No. 2011 CA 0016 ( April 2012)

FACTS: Parties obtain a dissolution of marriage. As a part of their agreement the wife is designated as the residential parent. Husband waives his right to parenting time and pays zero dollars in child support ( a deviation downward from $ 305.00 per month). One year later, the Wife files a motion requesting child support. Trial Court denies the motion on the basis that there was “ no change of circumstance”. Wife appeals, reversed.

DECISION: A zero child support is an “ existing child support order. Where a support exists the test to determine whether child support should be modified is the 10 per cent threshold set forth in R.C. 3113. 215(B)(4). The 10 per cent rule is applied to the amount of the current order citing the DePalmo case. Thus when the amount of child support is zero but the child lines establish that the parent owes support then the 10 per cent difference is clearly met. In the case the trial court committed error when it compared the pre deviation number ( $ 304.00) to the new guideline amount ( $ 323.00) for determining the 10 per cent threshold.

15. Gibson v Gibson, 5th Distr Case No. 2011-CA-00186 ( March 2012)

FACTS: Husband is ordered to pay child support. Husband fails to pay child support and as a result accumulates an arrearage in child support. Husband agrees to a lump sum judgment of $ 25,000.00 plus interest. The judgment did not have any repayment schedule. Husband

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makes no payment on the judgment. CSEA files contempt against the Husband for nonpayment of the back support. Trial Court finds the Husband in contempt and sentences Husband to 90 days in jail. Husband appeals the decision. Reversed.

DECISION: The Court of Appeals relying on the Sizemore case ( 12th District, Case no CA2009-04-045) distinguished a case where there is an on going obligation to pay a child support arrearage and cases where there is a lump sum judgment. The Court of Appeals said that in the case of an on going obligation to make payments on the arrearages, and is not a debt and can be enforced by contempt. However, a lump sum judgment for the payment of child support is a civil debt enforceable by means of a judgment lien but not contempt because it is a civil debt and imprisonment for a debt is precluded under Section 15, Article 1 of the Ohio Constitution. .

The Court found that it is the distinction between continuing orders and final judgments that demonstrates the reason why courts cannot use the contempt power to enforcement lump sum judgment. A true lump sum judgment does not order an obligor to do anything. A party can not be found in contempt premised upon a failure to obey an order of the court if the order is not clear, definite and unambiguous. If the order is subject to differing interpretations a party cannot be found in contempt.

16. Radford v Radford 8th Distr Case No. 96267, 96445 ( December 2011)

FACTS: Husband doesn’t pay the child support so the Wife files a contempt for non payment. Husband is found in contempt and ordered to repay the support. Trial court also reduces the husband’s child support obligation and terminates his spousal support obligation. Wife appeals, Reversed in part.

DECISION: Wife argued at the trial level and at the Court of Appeals that the trial court was precluded by the doctrine of res judicata from considering the husband’s motion to modify child and spousal support because the trial court had previously considered the husband’s arguments regarding his income during the course of the divorce trial and issued a decision on this issue. The Court of Appeals in affirming the trial court’s decision found that the trial court was not precluded by the doctrine of res judicata from considering the husband’s motion to modify because the husband presented new evidence of reduced earnings subsequent to the divorce decree.

17. Ohio Collateral Sanctions Act ( SB 337) Effective 9/24/12. Amends the Ohio Child Support Statute in the following manner:

R.C 3119.01 Adds new factor for trial court to consider in imputing income:

(x) parents decreased earning capacity because of a felony conviction

R.C 3119.05 Adds to the Definition of Gross Income subparagraph (k) which now provides that a court or agency can disregard a parents additional income from over time or additional employment when the court or agency finds that the additional income was generated

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primarily to support a new or additional family member or family members or under other appropriate circumstances.

R.C 3123.58 License Suspension for nonpayment of child support:

B(1) Trial Court can grant limited driving privileges where license is suspended for nonpayment of child support. Trial court can ask the CSEA their position on the request for limited driving privileges but recommendation of CSEA isn’t binding upon the trial court.

B(2) Trial Court which grants limited driving privileges has to issue a card which provides details of the limited driving privileges ( where person can drive, hours of operation, purpose of the diving).

18. Adams v Adams, 3rd District Case No. 14-12-03 ( November 2012)

FACTS: In the parties divorce they had agreed to a zero child support as a part of their shared parenting plan. Wife then files a motion post decree to terminate shared parenting and a motion to modify child support. The parties settle the motion to terminate shared parenting by agreed modification. The parties submit the matter of child support to the trial court. The trial court finds there is a change of circumstance and orders child support. Husband appeals, reversed.

DECISION: In reversing the trial court’s decision, the Court of Appeals relying on it’s decision in Bonner ( 2005 Ohio 6173) said that since the parties had entered into an agreement to deviate the child support obligation to zero rather than a court ordered child support order of zero dollars, the trial court was required to find more than a 10 per cent deviation under 3119.79(A) in order to modify child support. The trial court in addition to finding a 10 % deviation was required to also find in cases where the parties had agreed to a zero child support order to find that there also a substantial change of circumstances that was not contemplated at the time of the issuance of the prior child support under R.C 3119.79(C).

19. Benjelloun v Benjelloun 12 District, Case No. CA2012-01-004 ( November 2012)

FACTS: Parties were divorced in 2009. Trial Court designated Wife as residential parent and awarded Husband parenting time. Trial Court awarded wife child support based upon Husband’s gross income but did not include the husband’s bonus income because the Husband said that he did not believe that he would get a bonus and that his job was in jeopardy. Wife appeals that decision. Reversed.

DECISION: In reversing the decision of the Trial Court, the Court of Appeals found that pursuant to R.C 3119.05(A) the income of the obligor and the oblige has to be verified by pay stubs or other documents. The husband’s testimony that he wasn’t going to receive a bonus doesn’t comply with the provisions of R.C. 3119.05. The husband had to present evidence properly verifying that his bonuses are “ non recurring”. Testimony is not enough to indicate that a parent will or will not receive a bonus or that a bonus is “ non recurring”.

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20. Gray v Gray, 8th District Court of Appeals, Case No. 98257 ( November 2012)

FACTS: Parties have shared parenting wherein the parents have equal parenting time. The parties could not agree on child support so the matter was submitted to the trial court. The husband asked for a deviation in his child support order due to the fact that he had equal time with the children. Trial Court found that the deviation was not in the children’s best interest and denied the request for a deviation. Husband appealed. Affirmed.

DECISION: In affirming the trial court’s decision not to deviate from the child support guidelines, the Court of Appeals found that the trial court considered the factors for deviation set forth in 3119. 22 and found that a deviation was not in the children’s best interest even though the parties had equal parenting time with the children. The Court of Appeals also affirmed that there although there was a shared parenting there is no automatic credit or reduction in support simply because there is shared parenting.

21. R.C 3109.04(i) Effective July 2011 provides for certain protections for parents who are deployed military persons. R.C 3109.04(i) provides as follows:

a. When a parent receives an order directing that parent to report for active duty and the parent is subject to an existing parental rights order or there is pending an action for the allocation of parental rights the parent getting the deployment notice has to give notice of being called up for active duty within 3 days of receiving the deployment order.

b. Upon receiving the notice of deployment either parent can request a hearing on the allocation of parental rights and that is to occur within 30 days.

c. In determining the issue of the allocation of parental rights, the trial court shall not consider as a change of circumstance the past, present, or possible future active military service.

d. The trial court can issue a temporary order allocating or modifying parenting rights for the duration of a parent’s active military service.

e. The temporary order shall terminate within 10 days of receiving notice from the parent who was in the military that military service has terminated.

f. Parent who is in the military can participate in the parenting proceedings by way of a telephone, video or internet.

22. Boyles v Boyles 9th District, Case No. 12 CA 009 ( December 2012)

FACTS: Parties were divorce and husband was awarded custody of the children and wife ordered to pay child support. Wife also received the right to claim one of the children as a dependent for tax purposes. Wife subsequently moves to S. Carolina to find work. Wife files to modify custody. Husband files for contempt for nonpayment

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of child. Trial Court denies the motion to modify parental rights, finds the wife in contempt for nonpayment of child support and awards the dependency exemption for both children to the Husband. Wife appeals, Affirmed as to the dependency exemption.

DECISION: In affirming the trial court’s decision, the Court of Appeals, noted that pursuant to R.C. 3119.82 if the parties do not agree which parent should claim the children as dependency exemption the court may permit the non residential parent to claim the children if it determines that the exemption furthers the best interest of the children. The Court shall consider “ 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 an other relevant factor concerning the best interest of the children. The Court observed that the term “ net tax savings” occurs through the allocation to the non custodial parent only if the non custodial parent’s taxable income falls into a higher tax bracket than the tax bracket of the custodial parent.

Under Section 3119.82 there is a presumption that “ the residential parent receives the tax dependency exemption See Geschke 9th District citing Singer v Dickinson. The burden of proof is on the non residential parent to provide information to overcome the presumption. In this case, there was no tax records entered into evidence nor did the wife present any evidence to show that it would be in the children’s best interest for the wife to continue to receive one of the dependency exemptions.

23. Sable v Sable 5th District Case No. 2012CA00230 ( June 17, 2013)

FACTS: Parties could not agree on which parent would be able to claim the children as a dependent. After conducting a hearing, the trial court awards the dependency exemption to the Wife and Husband appeals. Affirmed.

DECISION: Trial Court must find that the “ interest of the child has furthered before it can allocate the tax exemption to the non custodial parent. The best interest of the child is furthered when the allocation of the tax exemption to the non custodial parent produces a tax savings for the parents. A net tax savings occurs when the non custodial parent’s taxable income falls into a higher bracket. When determining the net tax savings to the parties, the trial court should consider all pertinent facts including the parent’s gross income, the tax exemptions and deductions to which the parents are entitled and the relevant federal, state and local income tax rates.

In cases where the parents cannot agree as to which parent may claim the child/ren as dependents, the court shall consider 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

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income tax credit, any other tax credit ( federal, state, local) and any other relevant factor concerning the best interest of the child.

24. Pancake v Pancake 5th District Case No. 12-COA-038 ( June 2013)

FACTS: Husband is self employed. Trial Court establishes the husband’s income for child support purposes by including a shareholder loan found on the IRS form 1120S as income. Husband appeals, Affirmed.

DECISION: The Court found that the loan to the Husband was not a one time nun recurring or unsustainable income or cash flow item ( R.C. 3110.01(C ) (7)( e ). Rather the evidence indicated that the Husband had received cash payments in prior years ( 2010). Thus the court concluded that the payment was income includable in the Husband’s income for child support purposes.

25. Albers v Albers, Green County Court of Appeals, Case NO 2012CA41( June 2013)

FACTS: Husband, a doctor, was convicted on two counts of gross sexual imposition. Upon the conviction, the husband lost his medical license and was sentenced to 24 months in jail. Trial Court orders a lump sum judgment for child support of $ 81,000.00 and order the money put into a trust account administered by the GAL. The Trial Court also awards a lump sum judgment of spousal support of $ 234,000.00. Husband appeals, Affirmed.

DECISION: The trial court found that the Husband’s criminal act constituted voluntary underemployment and thus did not warrant a downward modification of a child support obligation. The Court of Appeals also found that the trust established by the Court was structured to assume to assure the availability of funds to pay the husband’s support obligations, but the court found that it did not constitute a “ windfall to the wife”. The trial court contrary to the husband’s obligation was not obligated to presume that the husband’s child support obligation would cease on the oldest child’s 18th birthday. The Court found that if there were funds which remained in the trust account when the husband’s support obligation is satisfied the trial court may in it’s discretion return the excess funds to the husband or may apply those funds to another child who is not yet emancipated.

26. YOUNG V YOUNG, 10th District, Case No. 12AP854 ( June 2012)

FACTS: During the pendency of the Parties divorce, neither the Plaintiff nor the Defendant seek temporary orders or the payment of temporary child support. AT trial, the Court orders the Husband to pay child support of $ 500.00 per month retroactive to the date that the divorce was filed. Husband appeals, Reversed.

DECISION: The Court of Appeals found that the order awarding retroactive child support was “ without solid legal foundation”. A court without an oral hearing may grant child support during the pendency of a divorce action but the opposing party

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must have an opportunity to contest the award Civ R. 75(N)(1). A ruling that a “ temporary order or order pendent lite should be entered in the decree of divorce and judgment granted for arrearages based upon the “ temporary order” is inconsistent with the applicable rules of civil procedure.

27. Melick v Melick 9th District, Case No. 26488 ( April 2013)

FACTS: Parties have an autistic child. Pursuant to the terms of the divorce wife is the residential parent and husband has alternate weekend parenting time. Husband exercises his alternate weekend parenting time for several years. Husband then after several years stops exercising his parenting time arguing that the child was to violent with his new family. Wife files for an increase in child support and argues that the increase in support is needed in part because the wife has increased day care expenses to cover the time when the husband is not exercising his regularly scheduled parenting time. Trial Court grants the increase in child support. Husband appeals. Affirmed.

DECISION: In affirming the trial court’s decision, the Court of Appeals found that the physical risks posed by the child’s behavior, and the less frequent visitation that necessitated additional child are all demonstrated a substantial change in the family’s situation. The trial court did not commit error when it found that there was a substantial change in circumstances not contemplated by the parties at the time of the divorce. The Court of Appeals affirmed the trial court’s finding that the fact that the Mother spends nearly 100% of the time with child as a result of the father’s decision to cease overnight visitation, the necessity of maintaining the child’s current home and the increased child care costs associated with the father’s decision as a basis to deviate from the child support guidelines.

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D. PROPERTY DIVISION CASES

1. Kondik v. Kondik 11th Distr, Case No. 2008 P -0042 ( May 2009)

FACTS: At trial, the husband testifies that he used part of his personal injury award to purchase a Mercedes. However, the husband had no records to support this claim of separate property because the wife wouldn’t let the husband has the records. Wife admitted to destroying the records. Trial court awards the Mercedes to the Husband as his separate property. Wife appeal, Affirmed.

DECISION: In affirming the trial court’s decision, the court of appeals found that the wife had engaged in financial misconduct because the wife had destroyed the records which allowed the husband to trace his separate property.

2. Robbins v Robbins 2nd Distr Case No. 2008 CA-39 ( May 2009)

FACTS: At trial the court awarded the wife 100 % of her PERS on the basis that the Husband had engaged in financial misconduct. Husband appealed. Affirmed

DECISION: The trial court found that the husband who was a self-employed contractor hadn’t filed a tax return for 20 years. As a result of not filing a tax return the husband would receive little or no social security benefits at retirement. Court of appeals affirmed that the husband’s action in not filing tax returns was financial misconduct

Husband also argued that regardless of whether he had filed a tax return or not that the trial court should have “equitably divided “ the wife’s PERS benefits and he should have received one half of the benefit. The court of appeals and the trial court rejected this argument finding that the reduced social security benefits was caused by the husband’s own financial misconduct. In affirming the award of 100 % of the PERS benefits to the wife, the Court of Appeal relied on the Leadingham case ( 120 Ohio App3d 496) which held that in awarding pension benefits a trial court may take into account lost pension benefits due to the misconduct of the non participant.

3. Schober v Schober Sixth Distr. Case No.OT-08-061 ( Aug 2009)

FACTS: The husband at the time of his marriage owned a home. After the marriage the husband obtained a line of credit ( $ 35,000.00) and used those funds as a down payment on a second home which the parties occupied as their primary residence. Subsequent to the purchase of the second home the husband sold the first home for $ 111,000.00 and put the net ( $ 65,000.00) in the parties joint account. These funds were then used to make improvements on the second home and make the monthly mortgage payments. Trial court awarded all of the equity in the second home ( $ 110,000) as the husband’s separate property. Wife appealed. Affirmed in part/reversed in part.

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DECISION: A party who is seeking to classify an asset as separate property has the burden of proof to establish the separate identity of the property. Ohio courts have held that oral testimony without documentary evidence may or may not satisfy this burden of proof. In this case the husband said that the $ 110,000 in equity in the second home was as a result of a down payment of $ 66,000.00 from the sale of a home owned prior to marriage and the $ 35,000.00 line of credit he took out on the first home. In finding that the husband had sustained his burden of proof the Court of Appeals noted that the Wife failed to contradict any of the husband’s testimony regarding the sale of the first home or the use of the proceeds from the sale of the home.

4. Neville v Neville, 3rd Distr, Case No. 9-08-37 ( August 2009)

FACTS: Husband during his marriage sold some of his pre marital property and used part of the money to purchase a cottage. The deed to the cottage was placed in joint names. At the trial on the complaint for divorce, the trial court found that the cottage was the husband’s separate property. Wife appeals. Affirmed.

DECISION: At trial and in the court of appeals, the wife argued that the fact that the deed was in joint names made the real estate marital property. The trial court found and the court of appeals affirmed the finding that there was no evidence of donative intent to create a joint gift. The court of appeals said that the fact that the wife’s name was on the deed is not dispositive of the issue of marital v separate property. R. C 3105. 171 (H) states that a joint deed is not in and of itself dispositive of whether the property is marital or separate.

5. Ingram v Ingram, 4th District, Case No. 09CA19 ( April 2010)

FACTS: At the parties divorce the trial court as a part of its judgment of divorce divided the marital estate evenly and directed that each party pay their own pre marital debts and then ordered the husband to pay the parties joint 2006 tax liability. Husband appealed, Reversed.

DECISION: At trial the Wife acknowledged that the taxes owed were marital in nature and had been incurred during the course of the marriage. The court of appeals found that the trial court abused it’s discretion when it ordered the husband to pay the entire joint tax liability where the wife did not dispute that the debt for the taxes was a marital debt.

6. Mann v Mann, 9th District, Case No. 09CA009685 ( April 2010)

FACTS: One before the parties wedding, the parties executed a pre-marital agreement. In the Pre-Marital Agreement the parties agree that if they are not married for more then 10 years there will be no spousal support ordered. The parties are married in May 2002. In September 2007 the Wife files for a divorce. The trial court finds that the pre marital agreement was valid and orders no spousal support since the parties had not been married for more than 10 years at the time of the divorce. Wife appeals, Affirmed.

DECISION: When a court reviews a provision in a pre-marital agreement which addresses the question of spousal support, the court must determine whether at the time of the divorce

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or separation whether the provisions regarding spousal support are conscionable citing Gross v Gross ( 1984) 11 Ohio St 3d 99. In determining whether a provision in a pre marital agreement which addresses spousal support is conscionable the trial court must look at the factors governing the allowance of spousal support found in R. C. 3105. 18

7. Maloof-Wolf v. Wolf 8th District, Case No. 94114 ( February 2011)

FACTS: Prior to the parties marriage the parties entered into a pre-marital agreement which awarded to the husband all of his property acquired before the marriage and also waived the payment of spousal support. Parties marry and then 14 years later the Wife files for divorce. The trial court finds that the pre-marital agreement was valid but awarded the Wife spousal support. The Husband appealed. Affirmed.

DECISION: In finding that the pre-marital agreement was valid in part the court of appeals found that in order to determine the validity of the proposed property division the trial court must look back to the time of the execution of the agreement and not the time of the divorce. Further the Court said that a trial court should not substitute it’s judgment and amend the contract/ pre-marital agreement.

As to the issue of spousal support the Court of Appeals found that pending a resolution of the case a trial court can award temporary spousal support even if the party’s pre-marital agreement indicates that the parties have waived support. Citing the Mulvey Case ( 8th). As to permanent spousal support the trial court must determine whether the provisions regarding the award of spousal support was conscionability at the time of the divorce or separation and not at the time of the execution. In determining the issue of conscionability as it relates to the provisions of the pre-marital agreement the trial court must review the factors set forth in 3105. 18.

8. Smith v Smith, 11th District, Case No. 2009-G-2941 ( October 2010)

FACTS: Wife’s mother gave the Wife a home which did not have a mortgage on the property. Subsequently the Wife married and then she and her husband obtained a mortgage and used the funds to pay off debts which the husband had inquired. At the time of the mortgage being obtained, the Husband’s name was placed on the deed and mortgage. Trial Court found that the real estate was marital in nature. Wife appeals, Reversed.

DECISION: The Court of Appeals recognized that under certain circumstances a party may convert separate property into marital property by way of an inter vivos gift. The elements of inter vivos gifts are: intent by the donor to make an immediate gift; delivery of the property to the done and acceptance of the gift by the done. The Court further observed that the done has the burden of proof of showing by clear and convincing evidence that the donor had made an inter vivos gift.

In the instant case the wife testified that she had never intended to create an inter vivos gift and the Husband never testified. In reversing the trial court’s decision that the home through the refinancing had become marital in nature, the Court of Appeals found that refinancing of

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a home after marriage does not in any way convert separate property into marital property where the mortgage was not

9. Hines v Hines, 9th Distr, Case No. 10CA 0059 (November 28, 2011)

FACTS: During the party’s marriage, the Wife purchased a business. In order to purchase the business the Wife takes a loan of $ 100,000.00. Subsequently, the Husband files for divorce. At the time of the divorce, the business has negative equity of $ 82,000.00. The trial court awards the business and debt associated with the business to the Wife (she ran the business) and awards to the Husband the marital residence which had equity. In order to equalize the property division (including debt allocation) the trial court ordered the Husband to pay to the Wife the sum of $ 32,000.00. Husband appeals, Affirmed.

DECISION: RC 3105.171 (C) (1) requires a trial court to divide marital property equally except to the extent that such a division would be inequitable. Although not specifically addressed by the statute marital debt is also subject to allocation as a part of the property division. Citing the Vaughn case 9th Distr Case No. 15016( 1991) an equitable division of marital property may also be accomplished through a distributive award. The trial court did not commit error when it awarded the business and debt to the wife which resulted in negative equity which then required the husband to pay a property distribution to equalize the assets and debts.

10. Birr v Birr, 6th Distr, Case No. F-10-021 ( January 2012)

FACTS: Husband and Wife enter into a separation agreement. In the separation agreement the wife gets the house, the furnishings and cash. The parties then file in 2008 and obtain a legal separation. After the legal separation is issued the parties continue to live together. During this period of time the parties the Court found that the parties “ continued to act as husband and wife by residing together, maintaining a physical relationship and commingling assets. During this period of time the majority of the bills were paid out of joint accounts and the also the Husband withdrew from his retirement $62,000.00 to pay of a line of credit on the home that the Wife’s had received in the legal separation.

In 2009 the Wife files for divorce. At the time of the filing of the divorce the husband was in prison for aggravated menacing. Trial Court grants the Wife a divorce and adopts and incorporates the terms of the separation agreement. Husband files a 60(b) to set aside the agreement alleging that the purpose of the separation agreement and the legal separation was to hide assets because the husband feared that he would be sued. The Wife responds and says that the purpose of the legal separation and separation agreement was to separate. Trial Court denies the motion for 60b relief. Husband appeals. Affirmed.

DECISION: The Court of Appeals rejected the husband’s argument that the party’s reconciliation after the issuance of their legal separation rescinded their separation agreement and the terms contained therein. Court of Appeals in rejecting the rescission argument found that once the parties obtained a legal separation the contract theory of rescission was no longer applicable because the separation agreement had been incorporated into the court

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order and the proper remedy was not contract law but rather whether the husband was entitled to relief pursuant to civil rule 60b

Court of Appeals found that it was proper for the trial court to deny the 60b motion on the Doctrine of Unclean Hands. The Court found that the separation agreement which conveyed the property to the wife was fraudulent and that fraud prevented the husband from pursuing successfully a claim for enforcement. The Court stated that “ the voluntary conveyance of property, particularly to one related by blood or marriage, and in anticipation of litigation has long been considered a badge of fraud. Therefore, husband’s unclean hands –in the form of his fraudulent conduct in creating the separation agreement- prevents him from claiming that enforcement of the agreement through the order of legal separation is inequitable. “

The Court also rejected the Husband’s argument that since he had not been sued that any fraud based motive to shelter his assets was removed. The court rejected this argument in saying that the fact that he had not been sued cannot “alter the historical fact that the appellant desired to shield assets for a fraudulent purpose when he entered into the agreement. “Also, the fact that the Wife also had unclean hands did not change the results of the decision. Equity denies relief when “both parties are guilty of injustice and a court of equity will leave them as they are”

11. Brys v. Brys, 11th Distr Case No. 2010-T- 0113

FACTS: Parties were married in 1984. Husband was a surgeon and Wife was a homemaker. In 2003 Husband was injured in a motorcycle accident that rendered him a quadriplegic. In 2008 the Parties were divorce. Pursuant to the divorce, the husband was ordered to pay spousal support of $ 2,000.00 per month to continue until death of either party, or wife’s remarriage or cohabitation. Trial court reserved jurisdiction to modify if there was substantial change in circumstances including a change in the social security benefits of either party. In July, 2009 Husband files to terminate spousal support. In August 2009 the Wife file to increase her spousal support. At the time of the Wife’s filing she was no longer receiving social security for the parties minor child. In addition, both parties were no longer receiving rental income from the rent on an office building. On September 24, 2010 the trial court increases the Wife’s spousal support to $3,000.00 per month. Husband appeals, Affirmed.

DECISION: In affirming the decision of the trial court, the Court of Appeals, said that in order to modify spousal support pursuant to Mandlebaum, a court must find that ( 1) that a substantial change in circumstance has occurred and (2) that the change was not contemplated at the time of the original decree. The Court found that the loss of the Wife’s social security benefits for the minor child can not constitute a change in circumstances sufficient to vest the court with jurisdiction to modify spousal support sine that change was contemplated at the time of original decree citing the Piliero case 10th Distr, 10AP-1142. The Court of Appeals however sustained the trial court’s modification by stating that since the trial court did not identify the termination of social security benefits as the sole change in circumstances, and since there had been a loss of rental income the Court of Appeals found that this decrease in income may constitute a significant change in circumstance to warrant an modification of the award.

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The Court of Appeals then found that an increase of support from $ 2,000.00 per month to $ 3,000.00 per month was not an abuse of discretion. The Court stated that equity requires that a party receive sufficient sustenance alimony to bring him or her to a reasonable standard of living one in reasonable relationship to the standard maintained during the marriage.

12. Renz v Renz, 12 Distr, Case No. CA2010-05-034 ( April 2011)

FACTS: Parties are divorced. As a part of the divorce decree, the Court orders that the business known as J&J Corp be sold and the net proceeds equally divided. Husband appeals that portion of the decree ( and others). Reversed.

DECISION: At trial both parties testified that they owned J&J Corp with a third party( Smith) and that Smith owned 49.87 % of the shares in J&J Corp. Absent evidence that the Husband had acquired the Smith’s shares of J&J Corp, the Trial Court committed error when it ordered the sale of J&J Corp. The Court of Appeals held that the trial court lacked grounds to find that Smith’s ownership interest was subject to distribution as marital property. “To the extent that the trial court adjudicated the rights of a nonparty and clearly misclassified a portion of J&J Corp as marital property, the trial court abused its discretion.”

13. Wise v Wise, 9th District, Case No. 25672 ( September 2011)

FACTS: At the time of the parties divorce, they had 4 rental properties. Wife was to pay the expenses related to the Ashley Road property and husband to pay expenses associated with the other 3 properties. This property was vacant and was being offered for sale. Husband was living in the property and refused to vacate until the police were called. The day after the husband vacates, the Husband shuts off gas, gas bill goes to husband. During the winter the pipes froze and caused a flood. Damage due to flooding is $ 44,000.00 Wife sues husband for $ 44,000.00. Trial Court awards Wife judgment for $ 44,000.00. Husband appeals. Affirmed.

DECISION: Court of Appeals found that a “ reasonable person” could foresee injury to a vacant property if he ordered the gas company to turn off the gas during the winter months. The court found that the husband owed a “ duty of care” to Mrs. Wise and the court rejected the argument of the husband that he did not have a duty of care because he did not have title to the property.

14. Franklin v Franklin 10th Distr, Case No. 11AP-713 ( April 2012)

FACTS: Wife files for divorce and has husband served. Husband doesn’t file an answer nor does he appear at the final hearing. At the time of the final hearing, the divorce decree recites that the Wife waived the Court making specific findings as the value of each item. Trial court then makes a division of the parties assets equitably but not equally. Husband appeals, Reversed.

DECISION: A trial court must make written findings of fact that support the determination that the marital estate has been equitably divided. The only time a trial court need not make

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written findings of fact is if the property is distributed pursuant to a separation agreement or the parties may waive their rights. In this case, the Wife waived her right to a valuation of the parties marital estate and her right to findings of fact. However, the Husband did not either impliedly or explicitly waive these rights. Nor did the Husband’s failure to attend the final hearing act as an implicit waiver of the right to findings or relieve the trial court of it’s duty to make findings as to value.

15. Jones v Jones, 6th Distr Case No. L-10-1044 (May 2012)

FACTS: Pursuant to the divorce decree the Husband was awarded the marital residence and lot worth $ 300,000.00. Wife receives property worth $ 100,000.00. To equalize the property division, the trial court ordered the Husband to execute a note secured by a mortgage on 3 properties. If the note was note paid in 120 days then the notes would accrue interest at 4% and would be payable upon the death of the husband, sale of the marital residence or the emancipation of the parties children. Wife appeals, Affirmed.

DECISION: A trial court

16. Bryan v Bryan, 8th District, Case No. 97817 ( August 2012)

FACTS: Parties began to live together in 1988. Wife testifies that both parties prior to marriage worked and contributed to their joint expenses. Husband says wife didn’t contribute to joint expenses. Prior to marriage, Husband purchases a home and puts down $ 50,000.00 as a down payment. Parties then get married and live in the home, have children; mother becomes stay at home mother. Wife files for divorce. Trial court finds that the duration of the marriage was from the date the parties got engaged (and not married). Since home was purchased after the parties got engaged, the Court finds that the home was a marital asset (including the down payment) and grants wife half of the equity. Husband appeals. Affirmed.

DECISION: Court of Appeals rejected the husband’s argument that the trial court is prohibited by R.C 3105. 171 ( A)(2)(b) from extending the marital date to any time prior to the date of the ceremonial marriage. Court of Appeals finds that 3105. 171 (A)(2)(5) provides a court with the authority to select a date other than the ceremonial wedding date to equitably divide the marital estate. R.C 3105. 171 ( A)(2)(b) provides that if the trial court finds that either the date of marriage or the date of the final hearing is not equitable then the Court may select dates that it considers to be equitable in determining the duration of the marriage. Thus according to the 8th District Court of Appeals, the language of R.C. 3015. 171 (A)(2) allows a trial court the discretion to apply an earlier date if the facts of the case require that an earlier date be selected in order to achieve an equitable division of the property.

17. Keene v Keene, Second District , Case No. 25070 November 2012

FACTS: Parties are the owner of a corporation which is involved in promoting motorcycle racing. The Husband owns 51% of the stock in the corporation and the Wife owns 49% of the

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corporation. During the divorce the corporation sponsored a race which because of bad weather lost money and incurred debts which remained at the time of the final hearing. Husband wanted wife to pay 49% of the debt. Trial Court ordered Husband to pay 100% of the debt. Husband appealed. Affirmed

DECISION: In affirming the trial court’s decision ordering the Husband to pay 100% of the debt the Court of Appeals relied on the fact that the parties were in the process of a divorce, that the wife told her husband not to hold the race because the wife thought it would lose money, and that the husband told the wife that he had another partner in the venture. The court also found that the trial court relied on the testimony of a witness who said that the husband had told her that the he did not want the wife involved in the race and didn’t trust her.

18. Rasey v Rasey, Case No. 0T-11-036, 6th District, ( January 2013 )

FACTS: Wife owns a home prior to marriage. Parties get married in 2002. In 2010 Husband files for divorce. The evidence presented at trial was that the real estate prior to marriage was worth $ 160,000.00 in 2002 and in 2002 there was a mortgage on the property with a balance of $ 40,000.00. Therefore there was equity determined to be equal to $ 120,000.00 in 2002. In 2006 the parties refinance to pay off repairs to the home, the balance on the Wife’s car lease and credit card debts. In 2011 the home was appraised and valued at $ 146,000.00 with a mortgage balance of $ 69,000.00 Thus in 2011 the equity in the home had declined to $ 77,000.00. The trial court awards the equity in the home based on the 2002 appraisal and mortgage balance ( $ 120,000.00). Court takes “ extra $ 43,000.00” from the husband’s pension ( $ 120,000.00 -$ 77,000.00 = $ 43,000.00). Husband appeals. Affirmed.

DECISION: In reversing the trial court, the Court of Appeals said that the Trial Court committed error when it used the 2002 appraisal and mortgage balance since the 2002 equity is no longer a valid measure of the amount of pre marital equity due to the decline in market value and the refinance. The Court of Appeals said that the trial court could determine a percentage ( 75% of the value was her per marital property in 2002) and then subtract that from the amount which the appellee benefited. Or the court could determine that it was equitable to award the appellant the $ 77,000.00 equity as appraised in 2011. However, the Court of Appeals said that the trial court could not use “ phantom equity” which existed in 2002 as the measure of the wife’s equity in 2011.

19. Vanderbilt v Vanderbilt, 9th District, Case NO. 11CA-01013 -M ( March 2013)

FACTS: Parties executed a pre marital agreement prior to their marriage. In 2009 the Wife files for divorce. The Trial Court finds that the pre marital agreement was valid with the exception of the provisions regarding spousal support. Both parties appeal. Reversed.

DECISION: In finding that the Trial Court committed error when it set aside the provisions regarding spousal support without conducting a hearing to determine whether the provisions regarding spousal support where unconscionable the Court of Appeals also addressed the law regarding the provisions for the division of property in a pre marital agreement.

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1. A pre marital agreement voluntarily entered into during the period of engagement is valid when the provisions for the wife is fair and reasonable under all of the surrounding facts and circumstances and will be upheld even when the distribution is wholly disproportionate if the spouse voluntarily entered into the contract after full disclosure or with full knowledge.

2. The requirement of full disclosure is satisfied by either by the exhibiting of the attachment to the pre marital agreement of a listing of the assets of the parties to the agreement or alternatively a showing that there had been a full disclosure by other means.

20. McFall v McFall; 9th District, Case No. 26418 ( June 2013)

FACTS: Parties are divorced in 2010. At the time of the divorce the Husband was in the receiving his military retirement benefits but there was no provision mentioned in the divorce decree for the wife to receive survivorship benefits in the husband’s military retirement. Parties enter into an agreement wherein the Husband agreed to award wife survivorship benefits. The Plan administrator denies the wife survivorship benefits because the agreement entry differs from the terms of the divorce decree. The Wife then files in May 2011 a 60b to set aside the divorce decree as it relates to survivorship benefits. Trial Court denies the motion. Wife Appeals. Affirmed.

DECISION: A moving party has no automatic right to a hearing on a motion for relief from judgment. It is an abuse of discretion for the trial court to overrule a 60b motion for relief from judgment without holding an evidentiary hearing only if the motion or supportive affidavits contain allegations of operative facts which would warrant relief under C.R. 60(B). In this case the Court of Appeals also addressed the issue of whether the wife was timely in the filing of her motion for relief. The issue what constitutes reasonable time for the filing of a motion depends upon the facts of the case. A moving party must offer some operative facts or evidential material demonstrating the timeliness of his or her motion.

21. Stapleton v Stapleton, 4th District, Case NO. 12CA 10 ( December 2012)

FACTS: At the time of the divorce, the Husband has a pending personal injury action. Wife in her answer admits that the personal injury action is the separate property of the Husband. Wife appears at the time of the final hearing and husband does not appear. The trial court awards the wife one half of the husband’s personal injury claim. Husband appeals. Reversed.

DECISION: In reversing the trial court’s award, the Court of Appeals found that the Husband did not have to present any evidence on the issue of marital versus separate property because the wife’s answer and counterclaim admitted that the partied did not have any marital property to divide. Because of the wife’s admission in her answer the husband did not have to prove his separate property claim in the personal injury lawsuit. The court further held Citing Civil R 15(B) that the admissions in the wife’s answer and counterclaim

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could not be changed to confirm to the evidence because the issue of marital property was raised in the pleadings.

22. Roberts v Roberts, 12th District, Case no. CA2012-07-015, and 016 ( April 2013)

FACTS: Parties separated in April 2010 when the wife moved out of the home. Wife files for divorce in July 2010 and there is a final hearing in June 2011. Husband files a motion requesting that the court set April 2010 as the date of the de facto termination of marriage. Trial Court uses July 2012 as the defacto date. Husband appeals. Reversed.

DECISION: A spouses unilateral decision to leave the marital home “ does not in and of itself constitute a defacto termination of marriage. By contrast, the act of filing a divorce complaint formally and clearly shows the spouses intent regarding the marriage

23. Zaccardelli v Zaccardelli 9th District, Case No. 26262 ( May 2013)

FACTS: Parties prior to marriage executed a pre marital agreement. The agreement recognized that the husband had a separate interest in the family business and a home on carter road. Parties marry in 2000. In 2007 the parties execute a deed transferring title to the marital residence to the parties in joint survivorship. 2010 Wife files for divorce. Trial court finds the pre marital agreement to be valid and enforceable. Trial Court awards the wife 50% of the retained earning of the corporation and finds the Carter Road home to be marital in nature and awards wife one half of the value of Carter Road. Husband Appeals.

DECISION: Trial Court did not commit error when it awarded to the Wife one half of the retained earnings of the company because the retained earnings were not asset of the company but rather were a marital asset. The Court found that the determinative factor in deciding whether retained earnings of a corporation was income to the husband ( and thus a marital asset) or property of the corporation was whether the retained earnings were accessible by the husband. In this case, the husband testified that the funds in the retained earnings account although intended to be a “ rainy day “ fund to pay unexpected business expenses had been used to purchase vehicles for the husband, pay the parties property taxes and contributions to the parties HSA account

As to the real estate the Court found that the husband had transmuted the property from his separate property to marital property by reason of deed and gift of the property. In deciding whether property has been transmuted the court employed the 6 factors found in the Kuehn case as restricted by the provisions of R.C. 3105.171(A)(6)(b) which pertains to the commingling of assets. The 6 factors are:

1. expressed intent of the parties 2. source of funds used to acquire the asset3. circumstances surrounding the acquisition of the asset4. beginning and ending date of the marriage5. the inducement /purpose of the transaction

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6. the value of the property and the significance of the property to the parties

In affirming the trial court’s decision the Court of Appeals said that the key element in determining whether the property has transmuted was the intent of the parties. In this case, the court found that there was an intent to create a marital interest due to the fact that the husband had told the wife the house “ was her house”, the husband had consulted an attorney to prepare the deed to transfer the interest to the wife.

24. Sears v Sears, 5th District, Case No. 12-CA-09 ( December 2012)

FACTS: Trial Court as a part of it’s decision finds that the Husband committed financial misconduct where the husband withdrew $ 30,000.00 from his 401(k). At trial husband testified that he withdrew the $ 30,000.00 as a reaction to the wife transferring title to a horse to the wife’s mother. Trial Court makes a distributive award to the wife of $ 30,000.00. Then in the division of the marital estate credits the Husband with the $ 30,0000.00 he took from the 401(k) in the division of the marital estate. Husband appeals. Reversed.

DECISION: R.C. 3105.171(E) (4) allows a trial court to “ compensate the offended spouse with a distributive award or with a greater award of marital property.” However, the trial count not only compensated the Wife with a distributive award but also attributed the $ 30,000.00 to the husband as a part of his assets. By ascribing the funds husband removed from his 401(K) as a part of the marital assets, the trial court effectively penalized the Husband twice for his misconduct. The trial court is not authorized to assess such a penalty under the statute.

25. Rasey v Rasey, 6th District, Case No. OT-11-036 ( January 2013)

FACTS: Prior to marriage the wife owns a home. Parties marry in 2002. In 2010 the Husband files for divorce. At the trial it is established that at the time of the parties marriage, the home was worth $ 160,000.00 and there was a mortgage on the property with a balance of $ 40,000.00. Therefore at the time of marriage the wife’s equity in the home was equal to $ 120,000.00. In 2011 at the time of the divorce the home was appraised at $ 146,000.00 and there was a balance on the mortgage of $ 69,000.00 . In 2006 the parties refinanced the home to pay off repairs to the home, pay off the lease on the wife’s car ( $ 11,500.00), and pay off $ 9,700.00 in joint credit card debt. Trial Court awards all of the equity in the home to the wife based on the 2002 appraised value with equity established at $ 120,000.00. Husband appeals, Reversed.

DECISION: The trial court committed error when it used the equity based upon the 2002 appraisal. Since the property value had declined due to market prices and the appellee did receive some benefit from the refinance the 2002 equity is no longer a valid measure of the amount of the premarital value. Rather, the trial court may determine a percentage( 75% of the value was her pre marital value in 2002) and then subtract from that an amount which wife benefited. The court may also determine that it is equitable to simply award the wife the $ 77,000.00 determined using the 2011 appraisal. The court may however use the phantom equity amount which existed in 2002.

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26. Budd v Budd 9th District Case No. 26132 ( May 29, 2013)

FACTS: At trial the court awards the husband spousal support of $ 1,500.00 per month for 120 months ( $ 180,000.00). Trial Court also finds that the husband owes the wife for a property division $ 138,390.00. The trial court then offset what the wife owed the husband in spousal support ( $180,000.00) from the amount which the husband owed the wife for a property settlement ( $138,390.00) and ordered the wife to pay the difference ( $ 41,610.00) as spousal support at $ 347.00 per month for 120 months. Wife appeals. Reversed.

DECISION: A set off of spousal support against a property award is prohibited by R.C. 3105.171. R.C 3105.171(C ) (3) provides that the trial court is to make an equitable division of the marital estate prior to making any award of spousal support. R.C. 3105. 171 also requires that a trial court not consider spousal support in determining the division of marital property. The trial court committed error in awarding a setoff against spousal support to compensate the husband for a cash award that he is entitled to receive from the wife. The Court of Appeals further indicated that the “ better approach” to enforcing the award would have to allow the wife to have a distributive award pursuant to R. C. 3105.171( C )1) and (2).

27. Keckler v Keckler, 6th District, Case No. OT-11-027 ( August 2012)

FACTS: Prior to marriage the wife had credit cards but there was no evidence as to the balance on these cards prior to the marriage. During the marriage both parties used the credit cards. The Court determined that $ 18,000.00 of the total debt ( $ 24,000.00) was marital debt and ordered each party to pay one half. Husband appeals. Affirmed.

DECISION: Marital debt has been defined as any debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose. Debts incurred during the marriage are presumed to be marital unless it can be proved that are not. The party seeking to establish that a debt is separate rather than marital bears the burden of proving this to the court.

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E. RETIREMENT BENEFITS

1. Robbins v Robbins , 2nd Dist Case NO. 2008CA-39 ( May 2009)

FACTS: At trial the court awarded the wife 100 % of her PERS on the basis that the Husband had engaged in financial misconduct. Husband appealed. Affirmed

DECISION: The trial court found that the husband who was a self-employed contractor hadn’t filed a tax return for 20 years. As a result of not filing a tax return the husband would receive little or no social security benefits at retirement. Court of appeals affirmed that the husband’s action in not filing tax returns was financial misconduct

Husband also argued that regardless of whether he had filed a tax return or not that the trial court should have “equitably divided “the wife’s PERS benefits and he should have received one half of the benefit. The court of appeals and the trial court rejected this argument finding that the reduced social security benefits were caused by the husband’s own financial misconduct. In affirming the award of 100 % of the PERS benefits to the wife, the Court of Appeal relied on the Leadingham case ( 120 Ohio App3d 496) which held that in awarding pension benefits a trial court may take into account lost pension benefits due to the misconduct of the non participant.

2. Bagley v. Bagley 2nd Distr, Case No. 08-CA-57 ( February 2009)

FACTS: The Parties in 1996 obtained a dissolution of marriage. Pursuant to the terms of the parties dissolution of marriage the wife was to receive one half of the husband’s military retirement benefits. The QDRO which both parties signed stated that if the wife were to remarry she would forfeit her benefits. In March 2007 the wife files a 60(B) motion to set aside the QDRO claiming that she never intended to waive her retirement benefits. The trial court grants the motion for 60(B) relief. Husband appeals. Affirmed.

DECISION: Where a QDRO differs from the terms of the party’s separation agreement the QDRO is void ab initio and can be vacated by the court. The court also addressed the issue of the timeliness of the 60(B) motion saying that because the QDRO was void ab iniitio the husband’s motion to vacate the QDRO did not have to comply with the time requirements for motions seeking relief from judgment and the trial court could vacate the QDRO based upon court’s inherent authority .

3. Schuster v Schuster 3rd Distr, Case No. 16-08-22 ( April 2009)

FACTS: The parties were divorced and the husband pursuant to the terms of the divorce decree was ordered to designate that the wife was to receive $ 52,000.00 form the Husband’s STRS account. After several DOPO’s were rejected a DOPO was signed by the parties and counsel and was accepted by STRS. In the DOPO accepted by STRS no payment method for the benefit was selected ( i.e lump sum or monthly). Husband subsequently retires and selects a monthly benefit to receive his STRS benefits. As a result of the Husband’s election the wife began to receive $ 175.00 per month rather than a lump sum ( $ 52,000.00). Wife

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files contempt for the failure to pay her a lump sum payment of $ 52,000.00. Trial court finds the husband in contempt and orders him to either pay the $ 52,000.00 in a lump or make monthly payments to the wife equal to one half of the husband’s monthly benefit. Husband appeals. Reversed.

DECISION: The court of appeals found that the divorce decree required the Husband to designate that the wife was to receive $ 52,000.00 and the Husband did designate that the wife was to receive $ 52,000.00. However, since there was no language in the divorce specifying the method of payment. Therefore, when the Husband upon his retirement elected a monthly payout in stead of a lump sum he did not violate the terms of the divorce decree since no method of payment was specified.

4. Brown v Brown, 5th Distr, Case No. 08-CA-64 ( July 2009)

FACTS: In the underlying divorce, the Husband was ordered to pay spousal support of $ 2,500.00 for an indefinite period of time. Husband was also ordered to pay a property settlement of $ 130,655 from his retirement accounts. Husband appeals raising on appeal the award of support (amount and duration) and also the division of property. Affirmed.

DECISION: Husband on appeal argues that the trial court should have taken into consideration gains and losses on his retirement account. However, in rejecting this argument the Court of Appeals observed that the Husband had not requested at trial the court take into consideration gains and losses when it was called upon to divide the party’s retirement account. In calling the Husband’s argument disingenuous the court noted that “ perhaps had appellant paid Appellee immediately as ordered by the court the funds would not have diminished in value quite so much and his personal loss would not have been as significant.

5. Blaine v Blaine 4th District, Case No. 10CA 15 ( April 2011)

FACTS: Parties obtained a dissolution of marriage. In their separation agreement the husband stated that he had a 401(k) which had a market value of $ 170,000.00. Therefore the parties as a part of their separation agreement agree that the wife to receive $85,000.00 which the separation agreement acknowledges is one half of the value of the QDRO. The QDRO is prepared and $ 85,000.00 is transferred to the Wife. Husband files a 60 b to set aside the QDRO. Trial Court denies the motion. Husband appeals. Affirmed

DECISION: Subsequent to the execution of the party’s agreement the market value of the husband’s 401(k) had declined from $ 170,000 to 130,000.00. Husband argued that the wife was only entitled to one half of the market value $ 65,000.00 and not $ 85,000.00. In affirming the trial court’s decision the Court of Appeals found that the separation agreement valued the husband’s 401(k) at $ 170,000.00. It does not provide that the 401 k is to be valued at a later date and does not award to the wife one half of a future value to be determined at a later date. If husband had intended the wife’s one half to be diminished by future events then the husband should have ensured that the agreement reflected his intent to have the wife’s interest be subject to market losses or gains. Any subsequent decline in value

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of the husband’s 401k was a post marital decline in value for which the husband bears the loss. Citing the Veidt v Brown case ( Butler Cty) the Court found that the husband’s lack of foresight that his 401k may decline in value between the date of the decree and the date of the QDRO does not render the QDRO inconsistent with the divorce decree.

6. Thompson v Thompson 11th Distr, Case No. 2010-P-0058 (December 2011)

FACTS: At the time of the parties divorce the husband and wife had been married for 17 years. Husband was a teacher and contributed to PERS. The wife was employed and contributed to social security. At trial, the court found that the valuation of the wife’s social security was “ too speculative” and choose not to offset the wife’s social security against the Husband’s STRS. Husband appeals, Reversed.

DECISION: In reversing the decision of the trial court, the Court of Appeals said that the issue wasn’t whether there should be an offset of the STRS against Social Security. Rather pursuant to Cornbulth, and DeCristefereo, the trial court should have deducted from the husband’s STRS the amount he would have received had he contributed to social security from the present value of the husband’s STRS. The present value of the hypothetical contribution to social security would then be deducted from the present value of the Husband’s STRS and the remaining balance of the STRS would then be considered as a marital asset subject to division.

7. Skeels v Skeels 6th District Case No. L-09-1190 ( July 2010)

FACTS: Husband is a police officer. During ( 2/2003) the marriage he elects to participate in the DROP Program. In December 2003 the parties are divorced. Wife’s attorney in the which he prepared proposed that the husband’s pension and drop program be divided by using the coverature formula method. Husband’s attorney objects to the use of the coverature method to allocate the husband’s benefits under DROP. Trial Court adopts the DOPO prepared by the Wife. Husband appeals that decision. Reversed.

DECISION: Court of Appeals says that a trial court can’t use the coverature formula to value a spouses contribution to the DROP program in preparing the DOPO. The proper method in completing the DOPO and valuing the Wife’s interest in the Husband’s DROP program benefits was to enter the actual dollar amount which the wife would receive from the DROP Program rather than use the coverature formula method.

8. Ross v Ross, 9th District, Case No. 11CA010091 ( December 2012)

FACTS: Parties were divorce 25 years ago. At the time of the divorce, the trial court approved a QDRO which gave the wife one half of husband’s interest in his pension plan as of “ January 16, 1990”. Husband then retires and the Plan Administrator rejects the proposed QDRO. Wife files with the Court a motion with the court to approve a new QDRO. Trial Court recommended that it determine the Wife’s interest based upon the formula in Hoyt v Hoyt. H appeals the decision, Reversed on other grounds.

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DECISION: In reversing the trial court’s decision, the Court of Appeals found that although the divorce decree awarded to the Wife a one half interest in the Husband’s pension the divorce decree did not specify whether the wife should receive a fixed sum based on the “then present cash value or the theoretical liquidation value of the Husband’s interest, a proportionate share of his benefits after his interest vested and matured. Because the decree did not explain how the Wife was to receive her interest in the pension plan the Court found that the Trial Court in granting the Wife’s motion to approve a new QDRO was merely clarifying how the Wife’s interest in the plan should be awarded and was not modifying it’s decree. The Court of Appeals reversed the trial court’s decision because in calculating the Wife’s interest in the Husband’s pension plan the trial court included the Husband’s pre marital interest.

9. Matthews v Matthews, 2nd District, Case No. 2012-CA-79 ( June 2013)

FACTS: Husband is a fireman and his injured while on duty and begins to receive disability payments from Ohio Police and Fire Pension Fund. Divorce is filed and at the time of the divorce filing the husband is 48 years old and become eligible to retire benefits. Trial Court finds that the disability payments were transmuted into retirement benefits and awards the wife one half of the monthly benefit. Husband appeals. Affirmed.

DECISION: In affirming the trial court’s decision, the court of appeals recognized that the general rule is that pension or retirement benefits are marital assets but that disability payments are not considered as marital property unless “they are accepted in lieu of retirement pay”. Citing the Young case, the Court of Appeals found that on a date that a spouse becomes eligible for retirement the disability benefits being received though not marital property per se begin to represent retirement benefits to the extent that they equal retirement benefit that the spouse would receive but for his disability.

10. Cameron v Cameron, 10th District, Case No. 12 AP 349 ( December 2012)

FACTS: At the time of the parties divorce ( 7/2005) husband was a police officer. Wife was awarded 50% interest in the husband’s pension with Ohio Police and Fire and which husband earned from the date of the marriage until the date of the divorce . Husband was awarded any interest which he earned in his pension subsequent to the divorce. Wife files a contempt against the husband alleging that the husband wasn’t cooperating in the preparation of the DOPO. Husband in response to the contempt prepares and submits his own DOPO with uses the “ frozen coverature “ method to determine the wife’s interest. Trial Court signs the husband’s DOPO. Wife appeals the trial court’s use of the frozen coverature formula arguing that the court should have used the traditional or percentage method. Affirmed.

DECISION: Under the “ frozen coverature “ method, the trial court “ freezes” the pension benefit at the amount in the account as of the divorce decree. It calculates the value of the participant spouse’s retirement account had she or he retired on the same day the parties divorce. The court can then apply a coverature fraction to determine the marital portion of the “ frozen “ amount. Under this approach the non participant spouse receives none of the interest in the account after the date of the divorce. Under the traditional or percentage

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method a court determines the amount of money due the non participant spouse by using the value of the pension at retirement to determine the accrued monthly benefit. The court the applies the traditional coverature fraction to arrives at the marital portion of the pension benefit. This method awards the non participant spouse any post decree increase in the value that is attributable to the non participant’s share.

In this case the Court found that the divorce decree was clear and not ambiguous. It awarded to the husband any interest which was earned in the pension after the date of the divorce. The court interpreted the word “ any” to mean “ every” and “ all”. In such circumstances courts have held that if there is a date certain or language suggesting that the traditional coverature method is not appropriate then benefits should be calculated according to the benefits as they existed at the time of the divorce and to do otherwise constitutes a modification of the divorce decree itself. If the wife did not agree with the trial court’s use of the frozen coverature method she should have appealed the decision of the trial court and not as a challenge to the filing of the DOPO.

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F. PARENTAL RIGHTS

1. Abbott v Abbott, US Supreme Court , Case No 08 645 ( May 2010)

FACTS: Parties move to Chile then they separate. Wife is granted custody and the Husband is awarded visitation by the Chilean Court. Husband is also awarded “ ne exeat right” ( right to consent before the wife removes the child form the country). Wife removes the child from Chile without obtaining the consent of the Husband to remove the child. Wife relocates to Texas. Husband then files a petition for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the implementing statute in the United States (International Child Abduction Remedies Act). Both the District Court and the Court of Appeals found that the ne exeat right was not a right of custody and therefore was not a breach of custody rights as required by the terms of the Treaty for the return of the child. Husband appeals, Reversed.

DECISION: The Supreme Court in reversing both the District Court and the Court of Appeals found that a “ ne exeat right” was a right of custody as that term is defined by the terms of the Hague Convention. In reversing the decision of both the District Court and the Court of Appeals, the Supreme Court said that to find that the ne exeat right was not a right of custody would be to render the terms of the Hague Convention meaningless in cases where it is most needed. While a parent possessing a “ ne exeat right “ has a right of custody and may seek a return remedy, return will not automatically be ordered if the abducting parent can establish the applicability of a Convention exception such as “ grave risk that… return would expose the child to …harm or otherwise … intolerable situation , or the objection to removal by a child who has reached a sufficient “ age and decree of maturity “ to state a preference.

2. In the matter of the adoption of AJB, 12 Distr, Case No. CA2008-12 308 (May 2009)

FACTS: Father during the child’s minority visits sporadically with the last visit with the child during April 200. Subsequent to the visit the father attempts to call the child but there is no answer at the mother’s home. In April 2008 the Father then files a motion to reallocate parental rights. Mother then remarries in June 2008. September Step father files a petition to adopt. Step father in his petition alleges that consent was not necessary because the father had no communication for over one year. The probate court finds that consent was needed because the motion to reallocate was “a significant attempt to communicate with the child. “Step father appeals. Affirmed.

DECISION: In affirming the trial court’s decision the Court of Appeals noted that the statute on consent ( R.C 3107.07 ( A)) had been changed effective April 2009. Effective April 2009 rather than the old standard of failure to communicate with justifiable cause with the minor, the new standard provides that consent is unnecessary if the parent has failed

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without justifiable cause to provide more than de minimus contact with the minor child for at least one year.

3. Gunderman v Gunderman, 9th Distr, Case No. CA08CA0067M ( Aug 2009)

FACTS: Party’s had shared parenting. Husband moved to modify shared parenting to obtain more parenting time with his children. Trial court increased the husband’s parenting time from 19% to 30%. Wife appeals-Reversed.

DECISION: The court of appeals found that a change in parenting is a requirement to alter the physical control of the child and thus constitutes a request to modify the allocation of parental rights. Relying on Fisher v Hasenjaer 116 Ohio St 3d 63 the court found that a request to modify parenting time requires not only a best interest test but also a change in circumstances.

4. McCarty v Hayner 4th Distr, Case NO. 08CA8 ( August 2009)

FACTS: The parties who had not married had one child who lived with the Mother. Mother did not allow visitation, Father files to determine parentage and also seeks custody of the child. Despite allegations that the Mother was the child’s primary care taker the trial court awards the allocation of parental rights to the Father. Mother appeals, Affirmed.

DECISION: Mother had alleged that she had been the child’s primary care giver during the child’s life and that the trial court had failed to consider this fact. In affirming the trial court’s decision, the Court of Appeals for the 4th District recognized that the although the primary care giver status is not a enumerated statutory factor it is a factor for the court to consider in the allocation of parental rights. However, the Court of Appeals observed that while a court can consider the role of the primary care giver, it is not a substitute for a factual determination of the relative parental capabilities of the parties and it does not have presumptive weight over the other relevant factors.

5. Dewitt v Myers, 2nd Distr, Case No. 08-CA-86 ( Feb 2009)

FACTS: Mother files for custody of the parties minor children, While the parties had lived together the Mother had obtained a child support order requiring the Father to pay child support. Thereafter, the files for custody and alleges that alleges that the father of the children has abused the children. The trial court pursuant to R. C. 3109.04 ( E)(1)(a) awards custody to the Mother. Father appeals, Reversed.

DECISION: The Court of Appeals found that the trial court had used the wrong standard in determining custody of the children. The Court of Appeals said that although there was a prior child support order the trial court incorrectly recognized the Mother as the presumptive parent under R.C 3109.042. However, in reversing the trial court’s decision, the Court of Appeals held that a child support determination of which parent is to receive child support is not a prior decree allocating parental rights

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6. Hensley v Vassailo 6th Distr, Case No. E-08-026 ( April 2009)

FACTS: Wife denies the Husband visitation with the children for a period of approximately 4 months due to the Husband’s accident and poor driving caused a danger to the children. Husband files contempt and Wife is found in contempt and sentenced to 10 days in jail. Wife appeals, Affirmed.

DECISION On appeal, the Wife argued that the trial court had abused it’s discretion when it refused to consider the wife’s “good faith justification defense” In affirming the trial court’s decision, the Court of Appeals recognized that several appellate districts allow for a custodial parent to raise the “good faith defense” to the denial of visitation. The essence of the “good faith defense” is that the custodial parent has a good faith belief that they must deny visitation in order to protect the child’s safety.

Court of Appeals for the 6th District adopts the good faith justification defense” and states that a trial court consider the defense in determining a parents willful violation of the order. However a trial court is take into consideration all of the facts and circumstances surrounding in determining whether a parent is in contempt. One factor that a trial court may consider in determining whether to apply the “good faith justification defense” is what subsequent attempts a custodial parent has attempted to access remedies when “weighing whether the parent has a reasonable good faith belief that imminent harm faces the child during visitation. The custodial parent’s subsequent actions taken to protect the child from the perceived threat are to be weighed in determining whether the belief is reasonable and whether the parent violated the order in a good faith attempt to protect the child.

7. Cuvar v Cuvar 2nd Distr, Case No 08CA0056 ( August 2009)

FACTS: Both parents file for divorce and asked to be named as the children’s residential parent. Neither parent files either a motion requesting shared parenting and a shared parenting plan. Despite the absence of a request for shared parenting or a shared parenting plan, the trial court designates the Husband as the residential parent during the school year and the wife as the residential parent during the summer. Husband appeals. Reversed.

DECISION: When the trial court designates a parent as the “residential parent” it is allocating parental rights. If neither parent requests shared parenting then pursuant to R.C. 3109.04(E) the trial court is required to allocate parental rights to one parent. When a trial court designates both parents as the residential parent and there is no request for shared parenting the trial court fails to comply with the provisions of R.C. 3109.04(A)

8. Vanbremen v Geer, 5th Distr, Case No 09 COA- 037 ( April 2010)

FACTS: The Plaintiff files for adoption alleging that the Defendant (biological mother) failed to communicate for a period in excess of one year. Biological mother introduces letters and text messages to establish contact/communication. Trial court finds that under R.C. 3107.07(A) that there had been only “diminimis contact” between mother and child and grants the adoption. Biological mother appeals. Reversed.

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DECISION: Trial court committed error where it applied the provisions of R.C. 3107.17 retroactively for the entire 12 months even the statute setting the standard as being “ diminimis ” had only been in existence for 3 months. Court of Appeals said that 3107.07 is not remedial in nature and therefore can not be applied retroactively and the trial court should have applied the old statute and standard for determining whether to grant an adoption.

9. Barzilay v Barzliay Court of Appeals ( U.S) 8th Distr, Case no 09-2358 (April 2010)

FACTS: Father files an action for the return of his children from Missouri to Israel pursuant to the Hague Convention. Parents were Israel citizens but had lived and worked in Missouri for 8 years. During the residency in Missouri the children were born. As a part of their divorce the parties entered into a shared parenting plan which provided that if either parent left Missouri with the children and relocated to Israel the other parent would take steps to relocate to Israel. Husband relocates to Israel. Wife goes on vacation with the children Israel While in Israel, Husband obtains custody order from Israeli Court. Wife consents to Israel court having jurisdiction over the children. Wife returns to Missouri. Husband files a petition for the return of the children. Denied. Husband appeals. Affirmed.

DECISION: Husband argued that the Wife had consented to the Israeli court having jurisdiction over the children and that Israel was their country of Habitual residence as that term is defined by the Hague Convention. Court of Appeals said that parents cannot choose or stipulate a child’s habitual residence is not compatible with the provisions of the Hague Convention. The determination of Habitual residence is a factual consideration to be determined by the Court and not the parties.

10. In Re Change of Name of J.W.B 5th District, Case No. CT10-0038 ( March 2011)

FACTS: Husband and Wife obtain a divorce; Wife is awarded custody of the party’s child. Subsequent to the divorce Husband is arrested and convicted of police corruption and drug dealing and is sentenced to 20 years in prison. Wife files to change the child’s last name to the wife’s last name. Husband files objection. Trial Court grants name change. Husband appeals, Affirmed.

DECISION: Name changes for a minor are controlled by R. C 2717.01. The standard for deciding whether to permit a name change is “proof that the facts set forth in the application show reasonable and proper cause for changing the name of the applicant. Citing in re Willhite. In the case of a child the court must consider whether the name change is in the child’s best interest. Trial court in determining best interest should consider the following factors:

1.) the effect of the change on the preservation and development of the child’s relationship with the parent;2) the identification of the child as part of the family unit, 3) the length of time that the child has been using a surname, 4) the preference of the child if the child is of sufficient maturity to express a

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meaningful preference, 5) whether the child’s surname is different from the surname of the child’s residential parent, 6) the embarrassment, discomfort or inconvenience that may result when a child bears a surname different from the residential parent’s 7) parental failure to maintain contact with and support of the child, 8) any other factor relevant to the child’s best interest citing Bobo v Jewell.

In affirming the decision of the Probate Court, the Court cited the fact that the father did not have a close relationship with the Paternal Grandparents, that there had been no contact between the father and child, and the child has negative reaction when the child speaks with the father via phone.

11. Rice v Rice 5th District, Case No. 10CA F 11 0091 ( June 2011)

FACTS: Husband files to terminate shared parenting. At the conclusion of the father’s case and without interviewing the children or the GAL testifying the Trial Court dismisses the Husband’s motion finding that there is no change of circumstance. Husband appeals. Affirmed.

DECISION: The Court of Appeals in affirming the trial court’s dismissal of the Husband’s motion found that the “ best interest “ language found in R.C. 3109.04( E)((2)( c) is subordinate to the general “ change of circumstance” provisions of R.C 3109.04(E)( 1) (a). Citing the Brocklehurst case, the Court affirmed that the “threshold question” in deciding share parenting termination cases is whether there has been a change of circumstances. A trial court should first determination whether there has been a change of circumstances prior to weighing the child’s best interest.

The Court of Appeals also found that the trial court did not commit error when it dismissed the father’s motion for shared parenting without first interviewing the child or hearing from the GAL. The Court of Appeals found that the modification of parental rights requires a two part determination a) whether there has been a change of circumstance and b) whether a modification is in the child’s best interest. Because the trial court found that there was no change of circumstance the court did not find that it was reversible error for the trial court did not allow the GAL’s participation in the case.

Husband also argued that the Trial Court committed error when the trial court did not take steps on behalf of the children when the recommendation of the GAL conflicted with the children’s wishes. The Court of Appeals rejected the husband’s argument that the trial court should have taken steps pursuant to Rules of Superintendence 48 which address the issue of a conflict between the GAL and the children’s wishes. The Court of Appeals found that Sup R. 48 was a general guideline and does not have the force of statutory law and father does not have substantive right to enforce it. In addition since the father did not call the GAL to the stand in his case ( although the GAL report was filed) the record before the court did not reflect that the father or the GAL reported the alleged conflict to the court. According to the Court a complaining party must timely object to the error he feels is being committed and must show that he has been prejudiced by its commission.

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12. Vice v Sexton 4th District Case No. 10CA 3371 ( March 2011)

FACTS: Father files motion to declare parent child relationship and to change the child’s last name to the father’s last name. Trial Court sustains the motion and finds that there is a parent child relationship. Trial Court also grants motion to change the child’s last name to the last name of the Father. Mother Appeals. Affirmed.

DECISION: Decision to change a child’s name should only be granted upon a finding by the Trial Court that it is in the child’s best interest. Citing Bobo v Jewel, Court of Appeals also recognized that best interest of the child does not mean that the trial court should give greater weight to the father’s interest in having the child bear the father’s parental surname. While it may be custom to name a child after the father giving greater weight to the father’s interest fails to consider that where the parents have never been married the mother has at least an equal interest in having the child bear the maternal surname.

13. In Re LaPiana 8th District Court of Appeals. Case No 93691,92 ( Aug 2010)

FACTS: Parties lived together for 10 years. During that period of time 2 children were born to LaPiana. 6 years after the birth of the last child the parties separated and the non-biological parent filed a petition in the Juvenile Court pursuant to R.C 2151. 23 to determine the custody and companionship rights of the parties. In its decision the trial court awarded custody to the biological parent and awarded visitation to the non-biological parent. Biological parent appeals. Affirmed

DECISION: Juvenile Court pursuant to R. C 215.23 has jurisdiction to determine parenting issues between non parents including the issue of shared custody. Pursuant to R. C 2151. 23 the juvenile court had jurisdiction to determine whether the biological mother had contractually relinquished custody to the non-biological parent, if the court found contractually relinquishment whether it was in the children’s best interest to award companionship to the non-biological parent and what that schedule would be.

The Court of Appeals in addressing the issue of contractual relinquishment of custody found that there can be a contractual relinquishment of custody by way of a written agreement (citing Bonfield) or by way of conduct (citing the Mullins case). In finding that there had been a contractual relinquishment of custody other than by a written agreement (and by way of conduct) the Court of Appeals identified several factors for a court to consider:

a. whether the parties had planned and paid for the pregnancyb. was the partner present at the birth

c. does the partner’s name appear on a “ ceremonial” birth certificated. did the 2 women jointly care for the childe. did the women hold themselves out as a familyf. did the parent and child or others refer to the non-biological partner as motherg. Did the biological parent name the partner as the child’s guardian

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h. did the biological parent execute a power of attorney giving the partner the ability to make health care decisions for the child.

14. In re Mullen , 129 Ohio State 3d 417 (July 2011)

FACTS: Hobbs and Mullen agree to artificial insemination. Mullen becomes pregnant and a child is born in July 2005. The two women live together until 2007 and in some fashion raise the child jointly. In December 2007 Hobbs files an action in the juvenile court seeking shared custody. She also files a motion for visitation. In her complaint for shared custody Hobbs alleges that Mullen by her conduct created a contract to permanently share custody of the child. Magistrate finds that the conduct of Mullen created a shared custody agreement. Mullen objects and the trial court rejects the recommendation of the Magistrate and finds no shared custody agreement. Hobbs appeals to the Court of Appeals which affirms the trial court’s decision. Hobbs appeals to the Supreme Court which affirms the trial court’s decision.

DECISION: In affirming the trial court’s decision the Supreme Court of Ohio acknowledged that pursuant to Troxel that parents have a constitutionally protected due process right to make decisions regarding the care, custody and control of their children. However, a parent may voluntarily share with a non-parent the care, custody and control of their child through a valid shared custody agreement.

The essence of a shared custody agreement is the purposeful relinquishment of some portion of custody through a shared custody agreement. Whether a parent has voluntarily relinquished the right to the custody of their child is a factual question to be proven by a preponderance of the evidence. There is a 3 prong test to determine whether a parent has agreed to share custody with a non-parent. The 3 prongs of the test are:

a. Voluntary and purposeful relinquishment of custody b. Whether the non-parent is a suitable person to have custody c. Is it in the child’s best interest for the non-parent to share custody

The Supreme Court also stated that although it is preferable for there to be a written shared custody agreement the Court held that a person can prove shared custody by a parent’s conduct with the non-parent. The Court also found that the use of the words” co –parent” in a parties statements or documents is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. Co-parenting can have different meanings and can refer to many different arrangements and degrees of permanency. The parties use of the term co-parenting together with other evidence may indicate that the parties share the same understanding of its meaning and can be considered by the court in determining whether the parties had a shared custody agreement.

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15. Rowell v Smith, 10th District, 10 AP-675 ( June 2011) Reversed Ohio Supreme Court Case No. 2012 Ohio 4313 ( September 2012)

FACTS: Rowell and Smith are in a gay relationship. Smith gives birth to a child. Rowell files a complaint for shared custody alleging that she and Smith had a verbal co custody agreement. While the case is pending, Rowell files for interim parenting time. Juvenile Court grants interim parenting time. Smith refuses to allow Rowell to exercise her interim parenting time. Rowell files a motion asking Smith to found in contempt for not allowing visitation. Trial Court finds Smith in contempt for not allowing visitation and sentences Smith to 3 days in jail. Smith appeals. Reversed.

DECISION: The 10th District Court of Appeals found that the Juvenile court possesses only that authority which the legislature has conferred statutorily upon the court. Pursuant to R.C 2151.23, the Trial Court can only award visitation to a non-relative in a divorce, dissolution, legal separation, annulment or child support action. Since the action between Smith and Rowell was not a divorce, dissolution, legal separation, annulment or child support action a trial court could not award visitation to a 3rd party non relative. Court of Appeals found that since the trial court had exceeded its jurisdiction conferred upon it by RC. 2151. 23 by awarding visitation in an action which was not a divorce, dissolution etc. the finding of contempt for noncompliance with the temporary order was invalid and not enforceable.

SUPREME COURT DECISION: In reversing the decision of the 10th District Court of Appeals, the Ohio Supreme Court held that a juvenile court pursuant to R.C. 2151. 23(A) has jurisdiction to issue a temporary visitation order allowing a 3rd party ( non relative) to have visitation with a minor child while the case is pending when the trial court finds that a visitation order is in the child’s best interest.

16. In Re K.P.R. 12th Dist, Case No. CA2011-03-023 ( November 2011)

FACTS: Mother dies and her current husband who is the child’s step father seeks either custody and or visitation. Trial Court grants Step Father visitation per local rule. Biological Father appeals. Affirmed.

DECISION: Biological Father argued that the Step Father was not a relative as that term is defined by R.C 3109.11 citing Groller v Lorenze. Court of Appeals found that the legislature in enacting R.C 3109.11 did not differentiate between a relationship established by consanguity (blood) or affinity (marriage). The Court of Appeals found that the step father is related to the child by affinity having been married to the child’s mother. Step father is a relative who can request visitation pursuant to R.C 3109.11 and the trial court had jurisdiction to consider the motion

17. Geygan v Geygan 10th Distr Case No. 11AP-626 ( May 2012)

FACTS: Parties are divorce. At divorce they have one child who has developmental disabilities. At the final hearing the child is 35 years old. Trial Court finds that the child

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falls within the purview of the Castle case and orders father to pay child support. Father appeals that decision. Reversed.

DECISION: The Court of Appeals found that in enacting 3119.86 the Ohio Legislature determined that a domestic relations court’s jurisdiction to impose support ends when the child attains the age of 18. Therefore, the Court of Appeals concluded that because the legislature in not including language which would extend the domestic relations court’s jurisdiction past age 18 the legislature recognized that for purposes of child support a child is normally considered to be of “ full age” when he/she turns 18 and therefore is beyond the domestic relations court’s jurisdiction. Thus a domestic relations court lacks jurisdiction to enter a child support order for the child because at the time of the final judgment he was over the age of 18.

BUT SEE:

Donohoo v Donohoo 12TH Distr, Case No. CA2011-11-080, 081 ( September 2012)

FACTS: Trial Court awards child support for a disabled child who had turned 18 at the time of the divorce. Husband appeals the decision of the trial court. Affirmed.

DECISION: In affirming the trial court’s decision to award child support to a person who had attained the age of 18 at the time of the order, the Court of Appeals for the 12th District said that the 10th District Decision issued in Geygan and it’s interpretation of R.C. 3119. 86 was incorrect. The 12th District said that nothing in R.C. 3119.86 prohibits a domestic relations court from ordering child support for a disabled child who turns 18 at the time of the divorce. According to the 12th District Court of Appeals, R.C. 3119.86 simply codifies the Ohio Supreme Court decisions that a parent has a moral and legal obligation to support a disabled child and that obligation doesn’t terminate/end simply because the child attains the age of 18.

18. In the Matter of D.J.M and H.A.M 11th Distr, Case No. 2011-L-022 ( December 2011)

FACTS: Husband was incarcerated post decree for 20 years upon his conviction for rape and kidnapping. While in prison Husband files a motion seeking visitation with his children at the prison. Trial Court denies the motion. Husband appeals. Affirmed.

DECISION: A nonresidential parent’s visitation should not be suspended absent extraordinary circumstances. The incarceration of a parent is an extraordinary circumstance and it is presumed that that visitation by a child with an incarcerated nonresidential parent is not in the child’s best interest. The nonresidential incarcerated parent has the burden of proof to show that visitation between the parent and the child at the place of incarceration is in the child’s best interest.

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19. Moffet v Moffet 9th Distr, Case No. 26036 ( May 2012)

FACTS: Parties were divorce and the Wife was awarded custody of the children. Two years later, the Husband files and requests shared parenting alleging a change of circumstances. The change of circumstance is the wife has used marijuana and changed residences. Trial Court finds no change of circumstance and denies the motion. Husband appeals, Affirmed.

DECISION: The Court of Appeals found that at the during the parties marriage and at trial the Wife admitted that she had used marijuana on occasion. Despite this knowledge, the Court found that the Husband entered into a separation agreement. Therefore, the Husband know of the wife’s drug use before the divorce and the continuation of the use of marijuana post decree was not a change of circumstance.

The Court also found that although both the husband and the wife had moved several times from the date of the divorce there was no evidence that the wife’s moves had a measurable effect on the children and therefore did not constitute a change of circumstance as required pursuant to R.C. 3109.04 ( E)(1)(a).

20. Dohn v Dixon, Franklin County Court of Common Pleas, Case No. 10JU-09-12367 ( Dec 2011)

FACTS: Trial Court awards shared custody to the boyfriend of the biological mother. Boyfriend is not the biological father, nor was there any written agreement between the parties regarding the care of the children. Mother opposes the granting of shared custody.

DECISION : The Court found that based upon the case of In Re Mullen the court found that a party can acquire parenting rights to a non-parent. To acquire parenting rights, the non-parent must prove by a preponderance of the evidence that the parent’s conduct with the non-parent created an agreement for permanent shared legal custody. If the trial court finds such an agreement then the court must engage in a “ suitability and best interest analysis.

21 Carr v Carr, 3rd District, Case No. 4-11-11 ( June 2012)

FACTS: Parties had 4 children and pursuant to their divorce decree they entered into a shared parenting plan. The parties had equal time with the children and alternated parenting time on a 2 week schedule. In 2004 Wife filed a motion to terminate the shared parenting plan and be designated as the children’s residential parent. After hearing the testimony the court terminated the shared parenting plan and awarded the husband custody of the 2 oldest children. The wife was awarded custody of the 2 youngest children. The Wife appealed the decision. Affirmed.

DECISION: Wife argued that there had been no change of circumstances which would warrant the termination of a shared parenting plan. The magistrate and the trial court found that not only had several years passed since the original order, but also the 2 oldest children had reached an age of sufficient reasoning ability , and that this constituted a change of circumstance. In affirming found that the the trial court’s decision, the Court of Appeals

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observed that a “ child crossing a developmental age in his or her life has been found to be enough, along with the passage of time, to constitute a change in circumstance.

Citing the Perz case out of the 6th District which found that the passage of time in a child’s life from infancy to adolescence is sufficient to warrant determining whether a change of was in the best interest of a child. The court in Perz noted that the Supreme Court in the case of Dailey v Dailey 146 Ohio State 93 held that there is an adequate change of circumstance when a child reaches the age where under the law in effect at that time the child could choose a custodial parent.

22. Sypherd v Sypherd 9th Distr, Case No. 25815 ( June 2012)

FACTS: Parties were granted a divorce in December 2008. The Court adopted the parties shared parenting agreement. Generally the shared parenting plan provided for an equal sharing of time. In 2009 Mother filed to terminate the shared parenting plan. At the hearing, the Mother offered the testimony and report of the GAL. The Gal testified about the children, their teachers, and their school counselor had told the GAL about the twins stress and difficulties with the transitions between the households. After hearing the evidence the Magistrate did not terminate the shared parenting plan but changed the schedule and ordered that the children would reside with Mother during the week and Father on alternate weekend. Father appealed, Affirmed.

DECISION: The purpose of the GAL gathering information is not offer evidence to the court of the facts that the GAL had gathered but to explain the basis for the GAL’s recommendation. When a GAL relays what a person told the GAL it is not for the purpose of establishing the truth of the matters relayed. Rather, it is for the purpose of describing the investigatory process of the GAL and the matters which may have influenced the GAL’s opinion as to the best interest of the child.

Thus, the GAL’s report may necessarily include information about what other people have told the GAL. These out of court statements do not become inadmissible hearing however, unless they are “offered in evidence to prove the truth of the matter asserted” Evid R. 801( C). However, there is no legal authority that permits the GAL to offer evidence of facts about which the GAL has no first-hand knowledge. Moreover, unlike R. C. 2151.414(D)(1)(b) which authorizes the GAL in a juvenile permanent custody hearing to give hearsay testimony about the child’s wishes, R.C. 3109.04(F) does not similarly authorize the GAL in domestic cases to testify about the child’s wishes. Instead, R.C. 3109.04 (F)(1)(b) provides that the court will ascertain the children’s wishes by questioning them directly in camera.

23. Weinstock v Weinstock 5th District, Case No. 12-CA-20 ( November 2012)

FACTS: In 2004 the Husband and Wife are granted dissolution of marriage by the Franklin County Court of Common Pleas, 174 days after the dissolution the wife gives birth to a child. Husband is not the father of the child. However, the dissolution did not reflect that the wife was pregnant or that the Husband was not the father of the child. Since R.C. 3113.03 (A)(1)

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establishes that the Husband was the child’s father, the Father files a complaint in Fairfield County to establish the parent child relationship. Wife files to dismiss alleging no jurisdiction. Trial Court denies the motion and awards custody of the child to the Father. Wife appeals. Reversed.

DECISION: In reversing the decision of the trial court, the Court of Appeals found that the trial court didn’t have jurisdiction because the Father failed to join the Husband as a party to the parentage action as required by R.C. 3111.04(A) as well as failing to join the child as a party to the action.

24. R.C 3109.04(i) Effective July 2011 provides for certain protections for parents who are deployed military persons. R.C 3109.04(i) provides as follows:

a. When a parent receives an order directing that parent to report for active duty and the parent is subject to an existing parental rights order or there is pending an action for the allocation of parental rights the parent getting the deployment notice has to give notice of being called up for active duty within 3 days of receiving the deployment order.

b. Upon receiving the notice of deployment either parent can request a hearing on the allocation of parental rights and that is to occur within 30 days.

c. In determining the issue of the allocation of parental rights, the trial court shall not consider as a change of circumstance the past, present, or possible future active military service.

d. The trial court can issue a temporary order allocating or modifying parenting rights for the duration of a parent’s active military service.

e. The temporary order shall terminate within 10 days of receiving notice from the parent who was in the military that military service has terminated.

f. Parent who is in the military can participate in the parenting proceedings by way of a telephone, video or internet.

25. Haskett v Haskett, 11th District, Case No. 2011-L-155 (February 2013)

FACTS: At the time of the divorce the parties agreed to shared parenting. Subsequent to the award of shared parenting ( approximately 2 months) the Husband files to terminate shared parenting alleging that the wife was cohabitating with another man. 14 days before trial the Husband files to appoint a GAL. Trial Court appoints a GAL. Trial Court interviews the children, finds no change of circumstance and dismisses the motion. Husband appeals, Affirmed.

DECISION: Husband argued that the trial court impermissibly limited the GAL’s participation in the case in that the trial court limited the role of the GAL to attending the in camera interview portion of the proceedings. Husband according to the Court of Appeals

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“ seemed to suggest that the GAL was appointed as counsel for the minor children. “ However, the Court of Appeals said that there was no evidence in the record to suggest this dual appointment. The Court of Appeals concluded that absent an express dual appointment, courts should not presume that a dual appointment when the appointed GAL is also an attorney.

26. Syverson v Syverson: 9th District Case No. 12 CA 010205 ( December 2012)

FACTS: Parties were divorced in 2008. Parties agreed to shared parenting for their 2 children. Wife was named the school placement parent and both parents were named as residential parent and legal custodian of the children. The shared parenting plan also required that if either parent intended to relocate ( change residences) that they had to file a notice of intent to relocate. In May 2011 the Wife files a notice of intent to relocate with the children to North Dakota. Wife alleged that the move was due possibility of losing her current job, both parties were originally from North Dakota and the wife had a job in North Dakota. Husband objects to the move and files a motion to reallocate parental rights. At trial the Court interviews the children who indicate that they want to move to North Dakota. Trial Court denies motion to relocate. Wife appeals, Reversed.

DECISION: In order to sustain a motion to modify parental rights, the parenting requesting the change must demonstrate both that a change of circumstances has occurred and that the modification is in the best interest of the child. The trial court abused it’s discretion when it concluded that no change of circumstance had occurred simply because the mother was still employed in Ohio.

In this case, the Court of Appeals determined that the Trial Court failed to consider the totality of the circumstances and committed error when it found that the mother had not established that a change of circumstances had occurred. The record according to the Court of Appeals does not support a conclusion that the Mother sought to relocate simply because she desired to leave the state. The Mother had presented evidence that a change of circumstance had occurred since the original allocation of parental rights. The evidence presented was that there had been a break down in the relationship of the parties and that the daughter and son were suffering as a result of the current relationship between the parties. In addition, the evidence was that both children strongly wanted to move to North Dakota.

27. Chafin v Chafin, U.S Supreme Court, Case NO. 11-1347 ( February 2013

FACTS: Father was living in Alabama with the minor child. The Mother then filed an action for the return of the child pursuant to the Hague convention. After a trial on the matter, the District Court concluded that Scotland was the child's country of habitual residence and ordered the Father to return the minor child to the child's country of habitual residence ( Scotland). Father then filed an appeal of the District Court's decision ordering the return of the child. The 11th Circuit Court of Appeal dismissed the appeal finding that because the child had been returned an appeal of the decision order the return of the child was moot. Father, then appealed the dismissal of his appeal to the United States Supreme Court. Reversed.

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DECISION: In reversing the decision of the 11th Circuit court of Appeals, the United States Supreme Court held that although a child had been returned to the child's country of habitual residence that the return of the child did not render an appeal of the return order as moot.

28. In the Matter of XL and GL, 5th District, Case No. 13CA6 ( June 10, 2013)

FACTS: Juvenile Court awards custody the Father finding that the children were dependent. Mother thereafter files to modify parenting time. Motion to modify parenting time is denied without a hearing by the trial court on the grounds that there had been no change of circumstance since the court’s finding of dependency. Mother appeals, Reversed.

DECISION: The Court of Appeals found that “ generally there is no need to make a showing that there has been a change of circumstances in order for a court to modify visitation rights Citing the Braatz case a divorce case, the Court of Appeals for the 5th District found numerous ohio court of appeals have applied the decision in the Braatz case in juvenile cases.

39. Barrett v Barrett, 9th District, Case No. 26381 ( December 2012)

FACTS: Husband arrested for the second time for DUI. Wife files for relocation based on husband’s conviction for DUI( son was in car at time of arrest). Trial Court finds that there was no change of circumstance and denies motion. Wife appeals, Reversed.

DECISION: In reversing the trial court’s decision, the Court of Appeals found that a criminal conviction can constitute a change in circumstance under R. C. 3019.04 (E)(1)(a)if the offense has a direct or probable effect on the child. The Court found that the Husband’s conviction was a change of circumstance but the conduct which led to the Husband’s conviction placed the child’s safety directly at risk.

40. Welch v Welch, 4th District Case No. 12CA12 ( December 2012)

FACTS: Magistrate awards custody to the Husband over the recommendation of the GAL. In his decision the Magistrate said that the distance between the homes of the parents made 50/50 parenting time impractical. Wife then relocates to be closer to the husband. Wife files a motion with the court supported by her affidavit asking the court to reconsider its decision. Husband files a motion to strike the affidavit pursuant to Civil Rule 53. Trial Court decides not to consider the wife’s relocation affidavit because it contained matters which had arisen subsequent to the hearing. Wife appeals, Reversed.

DECISION: Court found that it serves the child’s best interest to permit a party to introduce evidence discovered subsequent to a magistrate’s hearing but before the trial court’s final judgment. If there is new evidence which affects the child’s best interest and if the court has not finalized a judgment, to further delay the consideration of that new evidence and to require a party to file a motion to modify will further delay what might be in the child’s best interest. In general, a court that considers a child custody or visitation issue should be guided by the child’s best interest and not a technical requirement that has the potential of actually negatively impacting a child’s best interest.

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G. SPOUSAL SUPPORT

1. Johns v Johns, 9th Distr, Case No. CA 24704 ( November 2009)

FACTS: Husband files a motion to modify or terminate his spousal support obligation. Husband had retired and was receiving distributions from his IRA and had reduced his monthly spousal support payments due to his retirement and receipt of IRA distributions. Wife files a motion seeking a finding of contempt against the Husband for non payment of spousal support. The Trial Court denies the Husband’s motion to modify and or terminate and also finds the Husband in contempt of court for non payment of his spousal support obligation. Husband appeals. Reversed in part

DECISION: In reversing the trial court’s decision the court of appeals found that the trial court had failed in its decision as required by Mandlebaum to find that there had been a substantial change of circumstances and that the change was not contemplated at the time of the original order.

The court of appeals also find that the distributions which the husband had been taking from his IRA can be considered as income for determining spousal support citing as authority the Duval case, out of the 7th Distr , Case no 04 BE 42. In finding that a distribution from a retirement account can be considered as income for determining spousal support the Court of Appeals distinguished those cases wherein a rollover of funds from one retirement account to another account were not conspired as income for spousal support purposes.

2. Brown v Brown, 5th Distr, Case No. 08-CA-64 ( July 2009)

FACTS: In the underlying divorce, the Husband was ordered to pay spousal support of $ 2,500.00 for an indefinite period of time. Husband was also ordered to pay a property settlement of $ 130,655 from his retirement accounts. Husband appeals raising on appeal the award of support (amount and duration) and also the division of property. Affirmed.

DECISION: In affirming the trial court’s decision regarding the award of spousal support the Court of Appeals citing the Hutta case stated that the purpose of spousal support is not to solely meet the needs of the receiving spouse. Spousal support is property set aside to for the specific purpose of supporting and maintaining the former spouse. Awards of spousal support are not limited to the needs of the requestor. Rather current Ohio law direct the trial court determine whether support is reasonable and appropriate taking into consideration the 14 factors set forth in R. C. 3105. 18. Trial court decision regarding the award of spousal support was appropriate and reasonable.

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4. Harris v Harris, 6th Distr, Case No. L-08-1152

FACTS: The parties were married for 36 years. Husband at the time of the divorce was 77 years old and was a retired barber. Wife was 58 years old and was working at GM. After hearing the evidence, the trial court awarded husband spousal support. Husband appeals, Affirmed.

DECISION: In awarding the husband spousal support the trial court refused to take into consideration the wife’s expected over time. In this case the wife had argued that although in the past she had earned over time, due to the state of the economy there was no over time available at her employment. In approving the trial court’s decision not to include in the wife’s income projected over time, the court of appeals said that spousal support should be based upon over time which is expected to be earned and not on over time earned over the past years.

5. Schroeder v Schroeder 6th Distr, Case No. F-08-010 ( Sept 2009)

FACTS: The husband and wife were divorced in 2006. In the divorce the husband was ordered to pay spousal support to the wife. The support order was subject to termination upon the wife’s death, remarriage or cohabitation with an unrelated adult male. In 2008, the Husband files a motion to modify his spousal support obligation. In his motion the husband alleges that there has been a change of circumstances in that a) his income had declined, and b) the wife was cohabitating with another man. Trial court denies the motion and the Husband appeals. Affirmed

DECISION: The court found that although in certain circumstances living together with an unrelated adult person could be cohabitation and thus the functional equivalent of marriage the determination of cohabitation must be done on a case by case basis. In this particular case the facts were that the wife and her children were living with her boyfriend. The boy friend paid the rent, but the wife paid 2/3 s of the phone bill, groceries, insurance and transportation expenses. Wife also admitted that she shared a bedroom with her boyfriend and was sexually intimate. Despite this testimony/evidence the court of appeals affirmed the trial court’s finding that there was no showing of cohabitation. In affirming the trial court the court of appeals found that cohabitation is more than simply living together and having a sexual relationship. There must be a showing of financial support of a sustained duration during the relationship.

6. Mann v Mann, 9th District, Case No. 09CA009685 ( April 2010)

FACTS: One before the parties wedding, the parties executed a pre marital agreement. In the Pre Marital Agreement the parties agree that if they are not married for more then 10 years there will be no spousal support ordered. The parties are married in May 2002. In September 2007 the Wife files for a divorce. The trial court finds that the pre marital agreement was valid and orders no spousal support since the parties had not been married for more than 10 years at the time of the divorce. Wife appeals, Affirmed.

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DECISION: When a court reviews a provision in a pre marital agreement which addresses the question of spousal support, the court must determine whether at the time of the divorce or separation whether the provisions regarding spousal support are conscionable citing Gross v Gross ( 1984) 11 Ohio St 3d 99. In determining whether a provision in a pre marital agreement which addresses spousal support is conscionable the trial court must look at the factors governing the allowance of spousal support found in R. C. 3105. 18

7. Mencini v Mencini 11th Distr, Case No. 2009-G-2930 ( May 2010)

FACTS: Per the parties divorce decree the wife was to receive spousal support for 11 years. There was a provision that provided that the wife would also receive a property settlement which was payable over 10 years. When the property settlement payments ended the wife files to modify her spousal support. After a hearing at which the wife also testified that her investment income had declined due to the decline in the stock market the trial court denied the motion. . Wife appeals, Affirmed.

DECISION: Wife had argued that there had been a change of circumstance in that the husband’s income had increased while the wife’s income had declined due in part to the decline in the stock market. In rejecting this argument the trial court and the court of appeals the court of appeals found that the parties had contemplated that the property settlement would be paid out prior to the termination of spousal support payments and thus this was not a change of circumstances which was contemplated by the parties at the time of their divorce.

As to the decline in the wife’s investment income due to the decline in the stock market, the court of appeals found that the fluctuation in the stock market was a reality of our economy. When one is going to rely on investment income risk is anticipated. The recent downturn of the equities market although dramatic does not qualify as an unforeseen change of circumstances for purposes of spousal support modification. The poor state of the economy affected both the husband and the wife equally and there fore is not the type of change of circumstances that would warrant a court’s reconsideration of spousal support.

8. Watchowski v Watchoswski, 3rd Distr, Case No. 7-0—07 ( April 2010)

FACTS: At trial the Wife testified that she had various medical issues (Type 2 diabetes, restless leg syndrome) and found the wife to be disabled. Trial court awards the Wife $ 500.00 in spousal support. Husband appeals, Affirmed.

DECISION: Court of Appeals found that expert medical testimony is not necessary in to prove the cause of the spouse’s disability as long as the ailing spouse testifies concerning the disability and is subject to cross examination. Although the Wife did not offer any medical evidence to support a finding that she was disabled the wife testified and subject to cross examination about her disability citing Quigley v Quigley 6th Distr L-03-115 ( 1994).

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9. Batten v Batten, 5th Distr, Case No. 09-CA-33 ( April 2010)

FACTS: At the time of the divorce, the parties had been married for 23 years. The trial court awards the wife spousal support for 5 years. Wife appeals that decision. Reversed.

DECISION: Court of Appeals found that the trial court had abused it’s discretion when it only ordered spousal support for a marriage of 23 years. Citing the Hutta case, and the Kunkle case the Court of Appeals found that a marriage in that case of 21 years was a marriage of long duration. Therefore not to award spousal support of an indefinite period of time was an abuse of discretion

10. Timberlake v Timberlake, 3rd District, Case No. 9-10-38 ( Jan. 2011)

FACTS: The parties at trial agreed among other things that the Husband would pay spousal support of $ 50,000.00 per year for a term of 11 years. Reservation of jurisdiction was reserved. One year later, the Husband files to modify his spousal support due to the fact the wife inherited 1.2 million dollars. Trial Court denies the motion. Husband appeals, Affirmed.

DECISION: Court of Appeals found that although there had been no substantial change of circumstances ( i.e the inheritance) it was an event which had been contemplated at the time of the divorce and therefore did not meet the test imposed under Mandlebaum. Husband argued that although there was discussion at trial regarding the fact that the wife’s parents were older and not in good health that this was simply speculation as to when the wife would inherit. Court of Appeals held that although there can be circumstances where a party’s inheritance would be a change of circumstance in this instance there was considerable evidence to indicate that the parties in negotiating the terms of the spousal support award took were aware of the wife’s possible inheritance.

11. Wood v Wood, 10th Distr, Case No. 10AP-513 (February 2011)

FACTS: Trial Court awards the Wife $ 700.00 per month in spousal support. The Wife had requested $ 1,200.00 per month in support. In making the award of spousal support the trial court took into consideration that although the Husband was working 100 hours per week that the evidence presented by the Husband supported a finding that the Husband’s health would not allow the Husband to continue to work 100 hours per week. Wife appeals, Affirmed.

DECISION: In affirming the trial court’s decision the Court of Appeals for the 10th District found that an award of spousal support is based upon what is appropriate and reasonable and not an amount based solely on need. If spousal support were based solely on need then the trial court would simply have to award an amount which is equal to the difference between her expenses and her income. Thus the Trial Court has to balance what is appropriate and reasonable against what the payor (husband) has the ability to pay. In this case, the trial court accepted the testimony of the Husband’s doctor who stated that the Husband could not continue to work 100 hours per week (husband was a truck driver) and could only work 40-60 hours per week. This would reduce the Husband’s income from 119,000.00 which was his income at the time of the hearing.

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The Wife also argued that the trial court committed error because the trial court did not equalize the party’s income. The parties at the time of the final hearing had been married 20 years, the wife was a mail carrier and earned $ 35,000.00 per year. In affirming the trial court’s decision the court of appeals concluded that there was nothing in R.C. 3105.18 which requires that a trial court equalize the party’s income through an award of spousal support.

12. Guggenbiller v Guggenbiller 9th District, Case No.10CA009871 ( July 2011)

FACTS: Husband was ordered to pay spousal support to the wife until such time as the wife dies, remarries or cohabits. Post decree the husband files to terminate his spousal support obligation on the basis that the wife was cohabitating. Wife responds by saying that there was no change of circumstance to warrant a termination of spousal support because she been in a relationship with her boyfriend at the time of the divorce and that daily schedule with the boyfriend had not changed significantly since the divorce and the husband was aware of these facts when he agreed to the support order. Trial Court terminates the husband’s spousal support obligation. Wife appeals, Affirmed.

DECISION: Court of Appeals finds that there is a distinction between a motion to modify spousal support because of a change of circumstances under 3105.18( e ) and a motion to terminate spousal support based on the occurrence of a condition subsequent and specifically identified in the divorce case. Citing the Hibbard case from the 12th District, the Court said that there is a” distinction between modification of spousal support and termination upon the occurrence of a condition subsequent. Modification is an increase or decrease in the amount of alimony payable, or a change in the terms or conditions of the payment. A condition subsequent us a future occurrence such as remarriage, death or cohabitation which upon happening accelerates the termination of the alimony award.

The Court also considered whether the Supreme Court decision in Mandlebaum. The Court distinguished the Mandlebaum decision on the basis that in Mandlebaum there was no condition subsequent ( i.e death, remarriage, cohabitation) to accelerate the termination of spousal support. The Court of Appeals therefore concluded that the Mandlebaum decision did not eliminate the distinction between a termination of support based upon the occurrence of a condition subsequent and a modification of support which would require a change of circumstance.

13. Piliero v Piliero, 10th District, Case No. 10AP-1142 ( August 30, 2011) REVERSED ON RECONSIDERATION BY THE COURT OF APPEALS

FACTS: October 2003 the parties reach an agreement as to the terms of the divorce. Husband agrees to pay spousal support of $ 2,750 per month. Parties further agree that spousal support shall be modified from “time to time” to equalize the parties after tax income. The parties further agreed that spousal support can be modified when “child support payments made by the Plaintiff to the Defendant are terminated. If child support is terminated the spousal support “shall increase by that sum which equalizes the after tax income between plaintiff and defendant.” In June 2008 the parties only remaining child is emancipated. Wife files to modify spousal support. Magistrate denies motion, the Wife

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objects and trail court finds there was a change of circumstances and increases support to $ 4,772.00 per month. Husband appeals, Reversed.

DECISION: In reversing the decision of the trial court, the Court of Appeals found that a) the court had reserve jurisdiction, b) there had been a change of circumstance but found that the change in circumstances was contemplated and therefore the trial court lacked subject matter jurisdiction to modify spousal support.

The Court found that at trial the Husband testified that he had been employed at the same job throughout the marriage and he had received cost of living increases during the marriage. The court found that the plain language of the divorce decree suggests that the parties contemplated at the time of the divorce that from “time to time” there would be a need to equalize the parties after tax income and that could reasonably include cost of living increases that the Husband was receiving during the marriage.

The Court also found that the decree clearly stated that the termination of child support payments was a triggering event for a modification of child support. The Court found that the record did not indicate that the Wife had offered any evidence to indicate that the parties did not contemplate the termination of child support at the time of the divorce.

PILIERO#2

Upon request for reconsideration, the Court of Appeals reverses itself and issues a new decision on March 3, 2012. In that decision the Court of Appeals defined the term “ contemplated” to mean that the parties more that thought about a fact or event. Rather, the term contemplated means that the parties or the court took into consideration some fact or circumstance into account in resolving an issue. The Court of Appeals also said in it’s decision on reconsideration that it was appropriate for the parties in a divorce decree to include what the Court of Appeals labeled as “ triggering events” which can form the basis for modification of spousal support.

14. Sutmoller v Sutmoller,12th District, Case No. CA2011-03-020 (Oct.2011)

FACTS: In February 2011 the parties were granted a divorce. Husband was ordered to pay $ 1, 500.00 per month for spousal support. The court further ordered the Husband to maintain a $ 100,000.00 life insurance policy payable to the Wife through the Husband’s employment. Husband appealed, Reversed.

DECISION: The Court of Appeals found that the trial court had pursuant to R.C. 3105.18 (B) stated that the spousal support would terminate upon the death of either party. The Court found that based upon the language of 3105.18(B) it was unreasonable and inappropriate for the trial court to order the Husband to maintain his spousal support obligation when his spousal support obligation terminated upon the death of either party.

15. Heller v Heller 10th Distr, Case No. 11AP-66 ( October 2011)

FACTS: Husband and Wife are divorced. At the time of the divorce the husband is a 39.5 % shareholder in a subchapter S Corporation. At trial both parties had experts who valued

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the husband’s interest in the corporation using the capitalized earnings method. At the time of the trial the Husband’s annual salary was $ 300,000.00 and he had bonus income of $ 700,000.00. Both experts after “normalizing the income of the Husband” concluded that the husband’s wages from the business was $ 300,000.00 and the Husband’s interest in the business was worth $ 700,000.00. The trial court awarded the business to the husband and ordered him to pay to the wife $ 350,000.00 for her interest in the business. The trial court then awarded to the wife $ 8,000.00 per month in indefinite spousal support plus 20% of the bonus income which the Husband receives from the business.

Husband appeals that decision ( Heller 1). The Court of Appeals reverses and says pursuant to R.C. 310518(A) and 3105.171(C)(3) a trial court in making it’s orders has to keep separate a property division from a spousal support award. Therefore, the trial court could treat the husband’s future business profits as either a marital asset subject to division or steam of income but not both. The Court of Appeals in Heller 1 found that the trial court “ double dipped” by awarding to the wife one half of the interest in the business ( $ 350,000.00) and then also awarding to the wife 20% of the future profits from the business. The case was reversed and remanded.

On remand the trial court “declined the opportunity to revisit its property division in the initial decree and found that the its original order regarding spousal support and division of property were fair and equitable. Husband appealed that decision ( Heller II). In Heller II the case was reversed and remanded to the trial court because the Court of Appeals found that the trial court had failed to implement the court of appeal’s decision.

On remand the trial court ordered that the Husband was to pay $ 18,000.00 per month in spousal support plus the cost of health insurance. The trial court did not award to the Wife and interest in the future profits of the business. The Husband appealed that decision ( Heller III). Reversed.

DECISION: On appeal, the Wife argued that the trial court in setting an $ 18,000.00 per month spousal support could consider not only the Husband’s base annual income of $ 300,000.00 but pursuant to R.C. 3105.18 the trial court could consider income from all sources including the husband’s bonus income and shareholder distributions as reflected on his W-2. The Court of Appeals rejected that argument and said that the trial court could not distribute both the Husband’s interest in the business as a marital asset and at the same time consider as the Husband’s earnings his bonus income to determine spousal support. In determining spousal support and to avoid the “double dip” the trial court could only consider the Husband’s annual income of $ 300,000.00 in setting the amount of spousal support.

The Court of Appeals then found that in this case the award of $ 18,000.00 per month plus the cost of health insurance was an abuse of discretion because it gave to the Wife 75% of the husband’s annual income. The Court of Appeals recognized that .R.C 3105.18 does not require a court in awarding spousal support to provide the parties with an equal standard of living. Nor does R.C. 3105.18 prevent a trial court from ordering spousal support in excess of 50% of a person’s earnings. However in this case when the Court of Appeals added the Plaintiff’s spousal support to the agreed upon which the Wife could earn (vocational evaluation) the Court found that the Wife would have $ 245, 396.00 per year and the

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Husband after deducting his support costs would have $ 75,000.00 per year. The Court of Appeals found that this award was not reasonable.

16. Preseren v Preseren, 8th Distr, Case No. 96431 (October 2011)

FACTS: Husband is ordered to pay spousal support of $ 1,223.00 per month. Post-divorce the husband remarries. 16 years after the divorce the husband is laid off from his job. Shortly thereafter he diagnosed with health issues. As result of his health issues, the husband is only receiving social security. Husband’s 2nd wife is retired school teacher. 2nd wife uses her income and retirement to pay off parties joint credit cards, and make house payments. Husband files to modify and reduce spousal support. Trial court denies motion finding that the husband had lived beyond his means and that the new wife was assisting the husband in the payment of his living expenses. Husband appeals, reversed.

DECISION: The new spouse’s income cannot be considered in determining the obligor’s ability to pay spousal support. However, the trial court may consider the fact that the obligor directly benefits from shared living expenses with the 2nd wife. In this case, the trial court committed error when it didn’t modify the husband’s spousal support.

17. Keith v Keith, 12th Distr, Case No. CA2010-12-335 (December 2011)

FACTS: Trial Court orders the Husband to pay the Wife the sum of $ 2,000.00 per month even though the Husband claimed that there was evidence that the Wife was cohabiting with another person at the time of trial. Husband appeals that decision. Affirmed.

DECISION: In affirming the decision of the trial court, the Court of Appeals, stated that a finding of cohabitation during the pendency of a divorce should “logically” be a factor to bar an original order of support. However, although a finding of cohabitation may have a direct impact upon a trial court’s original spousal support order such a finding does not operate as an “ out right bar’ to an award of spousal support post decree.

Cohabitation, according to the 12th District Court of Appeals in the context of a divorce, contemplates a relationship that approximates or is the functional equivalent of a marriage. In determining whether cohabitation exists a court should look at 3 principal factors:

a. an actual living together

b. of sustained duration

c. with shared expenses with respect to financing and day to day incidental expenses.

Cohabitation requires not only a relationship, sexual or otherwise, of a permanent, continuing nature, but also some sort of monetary support between the spouse and the paramour so as to be the functional equivalent of a marriage.

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18. Harper v Harper, 8th Distr Case No. 96454 ( October 2011)

FACTS: Husband and Wife after 4 days of trial enter into an agreement whereby the Husband agrees to pay the wife spousal support. The Parties further agree that the spousal support shall not be subject to modification. 10 months later the husband files a 60 b(4) motion to modify the spousal support alleging that it is no longer equitable for the husband prospectively to pay spousal support. . Husband in his motion alleges that due to problems in his business he can no longer afford to pay spousal support. Trial Court denies the motion. Husband appeals, affirmed.

DECISION: In affirming the denial of the husband’s 60b motion the Court of Appeals found that a spouse cannot use the provisions of Civil Rule 60(b) as a substitute for the reservation of jurisdiction to a Court to modify spousal support. Citing the Knapp case, 24 Ohio State 3d 141, the Court found that the language of Civil Rule 60(b)(4) ( i.e. no longer equitable) will not relieve a litigant from the consequences of his voluntary and deliberate choice to enter into a separation agreement in a dissolution of marriage, also citing the Lefeure case 8th Distr Case No 56470 which extends the Knapp decision to cases involving a divorce.

19. Laughner v Laughner, 11th Distr, Case No. 2010-T-0068 ( February 2011)

FACTS: In 2000 the trial court orders the husband to pay to the wife the sum of $ 1,100.00 per month for spousal support for a term of 10 years or wife dies or remarries. The decree of divorce also provided that the spousal support would terminate on the husband’s retirement from General Motors when the Court will “ adjust the parties “ interest in the husband’s pension plan “so as to equalize the retirement benefits of both”. The Court retained jurisdiction over the issue of spousal support. The decree also provided that at 10 years the support would terminate. A QDRO was issued to General Motors to divide the husband’s pension pursuant to the terms of the divorce decree

Subsequent to the divorce the wife began to receive a pension benefit from General Motors. The amount of the benefit was $ 700.00 per month. The husband upon learning that the wife had begun to receive a 700.00 benefit reduced his support to $ 400.00. In July 2006 the husband retired from General Motors. In 2007 Wife files contempt against the husband for nonpayment of the full amount of the support. Husband responds by saying that his obligation terminated with his retirement. The trial court in April 2010 finds that the husband owed the wife spousal support of $ 400.00 per month for the full 10 years. Husband appeals, Reversed.

DECISION: The Trial Court committed error when it modified the Husband’s support obligation after the husband had retired and pursuant to the terms of the divorce decree the husband’s support obligation had terminated. If the trial court had intended to equalize the parties income after the husband’s retirement the court should have acted to do so within the 10 year time period reserved in the divorce decree and which started on September 28, 1999 . After the 10 year period of time the court had no jurisdiction to modify spousal support.

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The Court found that the Wife had not filed a motion to “ equalize the parties income” until March 2009. The court found that because the wife had not filed to equalize the parties income until March 2009.

20. Thomas v Thomas, 5th District, Case No. 11CAF090079 ( June 2012)

FACTS: Parties were married for 27 years at the time of the divorce. The husband was the son of Dave Thomas and earned over $ 300,000.00 in 2008 and 2009 as president of a family corporation. In 2010 husband resigns or instead of being fired sue to husband’s drug abuse. Trial Court sets spousal support based upon a vocational evaluation which set husband’s income at $ 65,000.00 at $ 1,000.00 per month for 60 months. Wife appeals, Reversed in part.

DECISION: In determining the husband’s income the trial court averaged the husband’s income over the past 7 years. However, the Court of Appeals found that the trial court committed error when it used the 7 year average and 2 of the years were “ uncharacteristically low”. The Court of Appeals remanded the case to the trial court and directed the trial court to use the average of the last 3 years to determine the husband’s income for the establishment of support.

The Court of Appeals also found that the duration of spousal support was unreasonable. The parties were married for 27 years and had not been in the work force for 25 years. Although the wife was in good health she was over 50 years of age at the time of the divorce.

21. Brendamour v Brendamour, 1st Distr, Case No. C-110391 ( April 2012)

FACTS: Parties were divorced in November 2009. In the divorce action, the Husband was ordered to pay the wife spousal support. 63 days after the divorce is final, the Husband’s files to modify and or reduce spousal support. Trial Court finds that there is no change circumstance and denies the motion. Husband appeals, Affirmed.

DECISION: In affirming the decision the court noted that in the hearing on the motion to modify the husband had presented evidence that there had been a significant and steady decline in the husband’s income. However, the husband did not present any evidence to show that in the 63 days between the divorce and the filing of the motion that there were any uncontemplated changes in the husband’s financial circumstances. According to the Court of Appeals the only evidence was that there was a consistent decline in the months preceding the divorce and not subsequent to the granting of the divorce.

22. Kent v Kent, 9th Distr, Case no. 26702 ( June 2012)

FACTS: Husband files for divorce after 26 years of marriage. At the time of the divorce, the wife was unemployed and the Husband was employed earning $ 85,000.00 Trial Court after hearing the evidence awards the Wife $ 1,200.00 per month for 101 months. Wife appeals, Reversed.

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DECISION: A trial court is not required to award spousal support of an indefinite duration. However, a trial court must set forth a sufficient basis to support the award that it selects. In this case the Court of Appeals found that the majority of the factors which the Court used to establish the support order supported a lengthy if not indefinite support award. Absent any explanation on the part of the trial court why it selected a support order of limited duration ( 8.4 years) the Court of Appeals could not conclude that the trial court property exercised it’s discretion in only awarding the Wife 8.4 years of support.

23. Bickham v Bickham, 5th District Case No. 11-CA-9 ( August 2011)

FACTS: In 2006 the Husband ordered to pay spousal support of $ 1,750.00 per month. In 2009 the Husband files a motion to terminate spousal support alleging that the wife was cohabitating with an adult male person. Trial court denies the motion saying that the Husband did not produce evidence that the former wife and 3rd person were sharing expenses. Husband appeals, Reversed

DECISION: In reversing the decision of the trial court, the Court of Appeals said that in order to establish cohabitation the party seeking to establish cohabitation must prove:

a. the parties were actually living together

b. for a sustained duration of time

c. there was a sharing of expenses.

The Court of Appeals in reviewing the transcript found that although the parties had separate residences they spent every night together and thus the Husband met the first prong of cohabitation. The Court of Appeals also found that the parties had lived together for 3 years and thus met the 2nd prong of sustained duration.

The Court of Appeals then examined whether there was sufficient evidence to establish that there had been a sharing of expenses. The Wife at trial testified that she and her friend didn’t share expenses and there was no direct evidence of shared living expenses. Court of Appeals said that in order to show a sharing of living expenses it doesn’t have to be shown by direct evidence. Proof of shared living expenses can be shown by “ circumstantial evidence”. In this case the “ circumstantial evidence “ was the presence of unexplained funds in the wife’s checking account. The Court of Appeals found that the presence of these unexplained funds leads to the logical conclusion that the wife is receiving funds from her friend.

24. Ohio House Bill 461 ( Collaborative Family Act and Amendments to the Ohio Spousal Support Statute

3105.18 (F)(1) For purposes of divisions (D) and (E) of this section and subject to division (F)(2) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as both of the following apply:

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(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.

(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was forseeable.

(2) In determining whether to modify an existing order for spousal support, the court shall consider any purpose expressed in the initial order or award and enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court shall not modify the continuing jurisdiction of the court as contained in the original decree.

(G) If any person required to pay alimony under an order made or modified by a court on or after December 1, 1986, and before January 1, 1991, or any person required to pay spousal support under an order made or modified by a court on or after January 1, 1991, is found in contempt of court for failure to make alimony or spousal support payments under the order, the court that makes the finding, in addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and shall require the person to pay any reasonable attorney's fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.

25. House Bill 461 ( Collaborative Family Act and Amendments to the Ohio Spousal Support Statute (B)(1) SECTION 3:

The General Assembly hereby respectfully requests the Ohio Supreme Court to amend the Rules of Professional Responsibility to require a collaborative family lawyer to disclose to clients in writing as part of a collaborative family law participation agreement both of the following:

(a) Information regarding the withdrawal and disqualification of the attorneys pursuant to section 3105.45 of the Revised Code should a settlement not be possible;

(b) Information about other available options for resolution or determination of family law matters.

(2) The goal of the disclosures under division (B)(1) of this section should be to ensure that clients make fully informed decisions about all available options.

(C) As used in this section, "collaborative family law participation agreement" has the same meaning as in section 3105.41 of the Revised Code.

SECTION 4. The proposed changes made by this act to section 3105.18 of the Revised Code are intended to abrogate Mandelbaum v. Mandelbaum (2009), 121 Ohio St.3d 433. Specifically, the proposed changes clarify (1) that "a change in circumstances" must be "substantial" so as to make the existing award no longer reasonable or appropriate; and (2) that the "change in circumstances" must be circumstances that were not taken into account by the parties or the court when the award was set or last modified, whether or not such circumstances were otherwise contemplated or foreseeable. The proposed changes are also

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intended to specify that other events may constitute a change in circumstances and to give courts guidance so that courts must consider any purpose expressed in the initial order or award, enforce any voluntary agreement of the parties, and only modify the continuing jurisdiction of the court as contained in the original decree if the parties agree.

26. Mlakar v Mlakar 8th District, Case No. 98194 ( January 2013)

FACTS: Parties were divorced in 2006. Husband was ordered to pay spousal support of $ 3750.00 per month. In 2010 Husband files to modify his spousal support obligation alleging that he was unemployed. Trial Court finds that through July 2011 the Husband was voluntarily unemployed and to that time denies the motion to modify. However, effective July 2011 the Husband began to receive social security. Court finds that the Husband in July 2011 was entitled to retire and terminates the husband’s support obligation. Wife appeals, Affirmed.

DECISION: Trial Court terminated the Husband’s spousal support obligation because he was “entitled to retire”. A spousal support award that requires an obligor who wants to retire to continue to work or seek employment beyond the customary retirement age for an indefinite period of time imposes a burden on the obligor spouse that must be carefully weighed in reaching a fair balance. The Court should also consider that absent exceptional circumstances, spousal support awards should not be indefinite, but should terminate upon a date certain ( citing Kunkle 51 Ohio State 3rd 64( 1990). The divorce decree was silent on a termination date, but rather provided for an indefinite term of support. However the Court of Appeals determined that indefinite does not mean perpetual. A voluntary retirement does not necessarily preclude a finding that an obligor spouse is voluntarily unemployed

27. Vanderbilt v Vanderbilt, 9th District, Case NO. 11CA-01013 -M ( March 2013)

FACTS: Parties executed a pre marital agreement prior to their marriage. In 2009 the Wife files for divorce. The Trial Court finds that the pre marital agreement was valid with the exception of the provisions regarding spousal support. Both parties appeal. Reversed.

DECISION: In finding that the Trial Court committed error when it set aside the provisions regarding spousal support without conducting a hearing to determine whether the provisions regarding spousal support where unconscionable. The Court of Appeals recognized ( as did the Ohio Supreme Court) that unfair and inequitable results are often the outcome of prenuptial agreements. Citing Fletcher v Fletcher wherein the Supreme Court recognized that in pre marital agreements property distributions can often result in distributions which are disproportionately less than the party challenging the premarital agreement would have received under an equitable distribution. The question for the trial court is not whether the spousal support terms of a pre marital agreement are fair but whether they are unconscionable when viewed at the time of the divorce and the burden of this demonstration is on the party alleging the unconscionability.

28. Budd v Budd 9th District Case No. 26132 ( May 29, 2013)

FACTS: At trial the court awards the husband spousal support of $ 1,500.00 per month for 120 months ( $ 180,000.00). Trial Court also finds that the husband owes the wife for a

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property division $ 138,390.00. The trial court then offset what the wife owed the husband in spousal support ( $180,000.00) from the amount which the husband owed the wife for a property settlement ( $138,390.00) and ordered the wife to pay the difference ( $ 41,610.00) as spousal support at $ 347.00 per month for 120 months. Wife appeals. Reversed.

DECISION: A set off of spousal support against a property award is prohibited by R.C. 3105.171. R.C 3105.171(C ) (3) provides that the trial court is to make an equitable division of the marital estate prior to making any award of spousal support. R.C. 3105. 171 also requires that a trial court not consider spousal support in determining the division of marital property. The trial court committed error in awarding a setoff against spousal support to compensate the husband for a cash award that he is entitled to receive from the wife. The Court of Appeals further indicated that the “ better approach” to enforcing the award would have to allow the wife to have a distributive award pursuant to R. C. 3105.171( C )1) and (2).

29. Papp v Papp, 2nd District, Case No. 25333 ( February 2013)

FACTS: Parties are divorced in 1994. Pursuant to the terms of the divorce decree the husband was ordered to pay $ 500.00 per month in support which was to terminate upon the death or remarriage of the wife. In 2011 Husband moves to terminate spousal support because he had retired. In 2011 the trial court denied the motion saying that there had been no change of circumstance. Husband appeals, affirmed on other grounds.

DECISION: Trial Court according to the Court of Appeals improperly focused on the language of the divorce decree which said that spousal support would terminate on death or remarriage. Court of Appeals observed that the divorce decree also said that spousal support would continue until “ further order of the Court”. Court of Appeals for the 2nd District concluded that the proper construction of the divorce decree was that the trial court may terminate or modify spousal support upon a change of circumstance but spousal support would not in any event survive the wife’s death or her remarriage.

30. Cornelius v Cornelius 4th District, Case No. 12CA19 ( December 2012)

FACTS: Parties were in 1987. In 2006 Husband obtains employment in Virginia and then commutes to Ohio. From 2008 through 2010 the parties discuss the issue of divorce and or separation. In January 2011 the Wife files for divorce. Trial Court awards the wife spousal support of $ 3,000.00 per month for an indefinite term. The spousal support award to be secured by life insurance “ to the extent of his support obligation provided for the in the entry”. Husband appeals, affirmed

DECISION: Trial Court rejects the husband’s argument that the provision which requires him to maintain life insurance violates 3105. 18(B) which says that spousal support terminates upon the death of either party and thus he is being ordered to pay spousal support after his death. .Court of Appeals finds that since the entry explicitly states that the spousal support obligation is terminate upon the death of the wife the “ most logical interpretation of the life insurance provision” is that it is an order to secure payment of any arrearage that exists at the time of the husband’s death. According to the Court of Appeals, the provision

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then does not extend payment beyond the death of the husband but rather ensures that the wife will receive any money owed to her at the time of the husband’s death.

31. Schenk v Schenk 12th District, Case No. CA2012-08-150 ( March 18, 2013)

FACTS: Trial Court awards the wife spousal support of $ 740.00 per month for 4 years. In making this award the trial court found that the wife was voluntarily underemployed and imputed income to her to arrive a spousal support. Husband appeals arguing that a finding that the wife was voluntarily underemployed was a bar to the award of spousal support. Affirmed

DECISION: In affirming the trial court’s decision, the Court of Appeals found that in determining earning ability it does not only include the amount of money one is capable of earning by his/her qualifications, but it also includes his or her ability to obtain such employment. When considering the relative earning abilities of the parties in connection with an award of spousal support the court is not restricted in their inquiry to the amount of money actually earned, but may also hold a person accountable for the amount of money the person could have earned if he or she had made the effort. Thus, a court may impute income to a party who is voluntarily underemployed or otherwise not working up to his or her full earning potential.

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H. MISCELLANEOUS

1. Zawahiri v Alwattar 10th Dist, Case No. 07AP-925 ( July 2008)

FACTS: Parties were married in an Islamic marriage. As a part of the marriage, the Husband agrees in the Mahr to the Wife in the event of a divorce the sum of $ 25,000.00. Husband files for divorce and wife seeks enforcement of the Mahr. Trial Court declined to enforce the terms of the Mahr. Wife appeals. Affirmed.

DECISION: The Court of Appeals affirmed the trial court’s decision that the Mahr was not a pre marital contract. The wife had argued that the Mahr was an enforceable contract under the Gross case and the Fletcher case. The court of appeals agreed with the trial court that the Mahr was not a valid pre nup because it was the result of coercion and was over reaching. In support of this finding the Court found that the Mahr provision of the martial contract was not discussed until the 2 hours before the wedding was to commence. Also, at the time the Mahr was discussed and negotiated, the evidence indicated that guests were arriving the terms of the Mahr were discussed and agreed upon. As a result the husband did not have an opportunity to consult with an attorney .

2. Muter v Muter 9th Distr, Case No. 24323 ( December 2008)

FACTS: Wife files for divorce in Ohio. Husband files and obtains a divorce in North Carolina. The North Carolina divorce terminates the marriage but leaves open all pending claims for a later determination. Husband then files to dismiss the Ohio divorce on the basis that Ohio does not have subject matter jurisdiction since the parties were divorced in North Carolina. Trial court grants motion on the basis of granting to the North Carolina Divorce full faith and credit Wife appeals, Reversed.,

DECISION: The court of appeals reasoned that the North Carolina divorce decree which did not address the issues of custody and property division was not a final divorce decree but rather interlocutory. Therefore, the trial court committed error when it granted accorded the North Carolina divorce decree full faith and credit and dismissed the wife’s complaint for divorce.

3. Collins v Collins 8th Distr, Case No. 91761 ( October 2009)

FACTS: The Plaintiff filed a complaint for a legal separation alleging that the parties had lived separate and apart for a period in excess of one year. The Defendant /husband had actually moved into a nursing home and it was during this period that the Defendant was in aa nursing home that the Plaintiff alleged that the parties had lived separate and apart for a period in excess of one year. Trial court denied the complaint for a legal separation on the basis that the separation was not voluntary. The Plaintiff appeals, Reversed

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DECISION: In order for a separation to be used as a grounds for a legal separation the separation must be voluntary. In this case the Court of Appeals found that the Plaintiff could have moved into the nursing home with her husband, but choose not to move into the nursing home and this decision was a voluntary act on her part.

4. Hoffman v Hoffman 9th Distr, Case No. CA No 24633 ( September 2009)

FACTS: In April 2000 the parties executed a pre marital agreement. On May 20, 2000 the parties were married. On September 17, 2003 the parties executed an amendment to the pre marital agreement. In December 2007 the Husband dies. Wife files a declaratory judgment to declare the pre marital agreement and the amendment valid instruments. Trial court finds in favor of the husband’s estate and finds the amendment to the pre marital agreement invalid. Wife appeals, Affirmed.

DECISION: In affirming the lower court decision, the court of appeals recited the basic principle that a pre marital agreement is a contract between a man and a women in contemplation of marriage. The court of appeals then went on to say that post marital ( nuptial) agreement with specific limited exceptions are not valid in Ohio. An example of the exception cited by the court was the provision in r. c 3103.06 which allows a husband and wife by contract can agree to an immediate separation and make provisions for their support and the support of their children during a marriage. Also, the court of appeals recognized that there was some authority that a husband and wife can revoke a pre marital agreement during their marriage. The court of appeals then turned to the wife’s argument that a post marital amendment to a pre marital agreement is enforceable. In finding that a post marital amendment to a pre marital agreement is not valid the court of appeals held that post marital amendments to a pre marital agreement violates the legislative prescriptions of r. c. 3103. 06

5. Huffer v Huffer, 10th Distr, Case No. 09Ap 574 ( March 2010)

FACTS: Husband was found in contempt of court for his non payment of spousal support under the temporary orders issued by the Court. Parties then settle the case and husband pays the amount owed. Subsequent to the settlement the Wife seeks to impose the sentence of the court from the finding of contempt. Trial Court denies the request of the wife to impose the terms of the contempt and vacates the finding of contempt. Wife appeals, Affirmed.

DECISION: The settlement of a case that gave rise to a civil contempt sanction renders the contempt proceeding moot because the case has come to an end. Additionally when the compliance with the court’s order becomes moot a contempt proceeding based on non compliance with that order is likewise moot. Because the purpose of civil contempt is to urge or compel the offending party to make a court ordered payment the issue regarding the contempt becomes moot when the payment is made.

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6. Glatfelter v Commissioner of the Internal Revenue, United States Tax Court, Case no. 29405-08S ( January 2010)

FACTS: Husband is ordered per the terms of the divorce to pay attorney fees of $ 4,000.00 to the Wife’s Counsel. Husband then files his tax return in the year the payment of fees was made and deducts the $ 4,000.00 in legal fees paid to the Wife’s attorney as spousal support. The deduction is denied. Husband appeals, affirmed

DECISION: In denying the claim of spousal support, the Tax Court examined Section 71 of the Tax Code and California law on the issue of attorney fees and spousal support. Under California Law an award of attorney fees is differentiated from an award of spousal support in a divorce case. Under California Law an award of attorney fees survives the death of the wife while the award of spousal support terminates upon the death of the payee spouse. Therefore, since the payments don’t end at the wife’s death the payment of legal fees don’t meet the 4 criteria established by Section 71 of the Code for the payments to qualify as a deductible spousal support. The 4 criteria for a payment to be deductible as spousal support are as follows:

1. The payment is received by or on behalf of a spouse under a divorce or separation instrument

2. The divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section and not allowable as a deduction under section 215

3. In the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

4. There is no liability to may any such payment for any period after the death of the payee spouse and there is no liability to make any such payment ( in cash or property) as a substitute for such payments after the death of the payee spouse.

7. Birr v Birr, 6th Distr, Case No. F-10-021 ( January 2012)

FACTS: Husband and Wife enter into a separation agreement. In the separation agreement the wife gets the house, the furnishings and cash. The parties then file in 2008 and obtain a legal separation. After the legal separation is issued the parties continue to live together. During this period of time the parties the Court found that the parties “ continued to act as husband and wife by residing together, maintaining a physical relationship and commingling assets. During this period of time the majority of the bills were paid out of joint accounts and the also the Husband withdrew from his retirement $62,000.00 to pay of a line of credit on the home that the Wife’s had received in the legal separation.

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In 2009 the Wife files for divorce. At the time of the filing of the divorce the husband was in prison for aggravated menacing. Trial Court grants the Wife a divorce and adopts and incorporates the terms of the separation agreement. Husband files a 60(b) to set aside the agreement alleging that the purpose of the separation agreement and the legal separation was to hide assets because the husband feared that he would be sued. The Wife responds and says that the purpose of the legal separation and separation agreement was to separate. Trial Court denies the motion for 60b relief. Husband appeals. Affirmed.

DECISION: The Court of Appeals rejected the husband’s argument that the parties reconciliation after the issuance of their legal separation rescinded their separation agreement and the terms contained therein. Court of Appeals in rejecting the rescission argument found that once the parties obtained a legal separation the contract theory of rescission was no longer applicable because the separation agreement had been incorporated into the court order and the proper remedy was not contract law but rather whether the husband was entitled to relief pursuant to civil rule 60b

Court of Appeals found that it was proper for the trial court to deny the 60b motion on the Doctrine of Unclean Hands. The Court found that the separation agreement which conveyed the property to the wife was fraudulent and that fraud prevented the husband from pursuing successfully a claim for enforcement. The Court stated that “ the voluntary conveyance of property, particularly to one related by blood or marriage, and in anticipation of litigation has long been considered a badge of fraud. Therefore, husband’s unclean hands –in the form of his fraudulent conduct in creating the separation agreement- prevents him from claiming that enforcement of the agreement through the order of legal separation is inequitable. “

The Court also rejected the Husband’s argument that since he had not been sued that any fraud based motive to shelter his assets was removed. The court rejected this argument in saying that the fact that he had not been sued cannot “alter the historical fact that the appellant desired to shield assets for a fraudulent purpose when he entered into the agreement. “Also, the fact that the Wife also had unclean hands did not change the results of the decision. Equity denies relief when “ both parties are guilty of injustice and a court of equity will leave them as they are”

8. Brown v Brown, 5th District Case No. 2012CA0010 ( June 25, 2013)

FACTS: Wife files for legal separation. Husband files counterclaim for divorce. Both parties had significant medical issues. Trial Court grants the Wife her legal separation and denies the Husband’s complaint for divorce. In granting the wife a legal separation, the trial court found that a legal separation would allow the Wife to remain on her husband’s health insurance. The Court further found that by granting the husband’s request for a divorce, it would place the Wife in jeopardy because health insurance coverage is not likely. Husband appeals. Affirmed.

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DECISION: In this case the Court of Appeals relying on the Harcourt Case a decision from the 11th District Court of Appeals found that pursuant to 3105.17(A) the clear language of the statute gave the trial court the discretion to decide whether a legal separation or a divorce is the most appropriate in each circumstance even where the grounds for the legal separation and divorce are identical. The statute ( r. c 3105. 17(A) according to the court of appeals contemplates the situation in which there is evidence presented which would satisfy similar or dissimilar grounds for either divorce or legal separation. In such a situation, the court is given discretion to choose between the two based on the overall circumstances beyond the grounds alleged and proven.

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