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Adams v. Adams

Court of Appeals of Ohio, Third District

July 8, 2013

MARISSA D. ADAMS, PLAINTIFF-APPELLEE,
v.
MICHAEL J. ADAMS, DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Domestic Relations Division Trial Court No. 04-DR-0168

Anthony W. Greco for Appellant.

Rebecca J. Stumler for Appellee.

OPINION

ROGERS, J.

{¶1} Defendant-Appellant, Michael Jason Adams ("Jason"), appeals the judgment of the Court of Common Pleas of Union County modifying his child support obligation and awarding Plaintiff-Appellee, Marissa Adams ("Marissa"), her attorney fees and litigation costs. On appeal, Jason argues that the trial court erred by: (1) finding that a substantial change of circumstances occurred; (2) finding that the parties agreed to remove Jason's obligation to reimburse Marissa for the cost of their minor child's health insurance; (3) failing to make findings regarding Jason's designation as obligor for child support purposes; (4) improperly calculating the parties' incomes; and (5) awarding Marissa her attorney fees and costs. For the reasons that follow, we reverse the trial court's judgment.

{¶2} Jason and Marissa were married in June 2003. The couple has one minor child, A.A., who is approximately 12 years old. In August 2004, divorce proceedings commenced and were concluded on January 13, 2005 when the parties entered into an agreed judgment entry and divorce decree.

{¶3} The divorce decree incorporated a shared parenting plan (the "Original Plan"). The Original Plan stated relevantly that "[t]he parties have agreed to a deviation in their child support obligation so that neither party shall pay the other child support." (Docket No. 48). It also required that Jason reimburse Marisa for A.A.'s health insurance premium up to a maximum of $200.00 per month.

{¶4} On October 19, 2010, Marissa filed a post-decree motion to terminate the Original Plan in which she requested to be designated A.A.'s residential parent and to receive approximately $600.00 in monthly child support. Her motion did not request an award of attorney fees or litigation expenses.

{¶5} The parties resolved many of the issues raised in Marissa's motion by filing an amended shared parenting plan (the "Amended Plan") on June 20, 2011. The Amended Plan, which was adopted by the trial court on July 12, 2011, left several issues unresolved, however, including child support, dependency tax exemptions, and health insurance. As to health insurance, the Amended Plan provided that "[t]he cost of health insurance coverage for [A.A.] shall be included in the child support calculation." (Docket No. 108, p. 12).

{¶6} After the filing of Marissa's motion, the parties experienced a variety of discovery disputes that were highlighted by several competing motions to compel and for Civ.R. 11 sanctions. Although the parties dismissed their discovery-related motions by agreement on August 2, 2011, Marissa filed a continuance motion on August 23, 2011 due to Jason's alleged failure to provide discovery. The trial court orally denied the motion on August 24, 2011, which was the date of the hearing on Marissa's motion for child support.

{¶7} At the hearing, the following relevant evidence was adduced. First, Jason was called by Marissa as though on cross-examination. He testified at length regarding the payment of his monthly expenses and the relationship between his trucking business, MLA Trucking, and Adams Brother Farms, which is partly owned by his father, Michael Adams. Outside of this testimony, Jason did not discuss anything relating to a change in his financial circumstances since the Original Plan.

{¶8} Marissa then called Chrissy A. Powers, a forensic accountant, as an expert witness. Based on her review of the financial records disclosed by Jason, she found that several of the items he labeled as business expenses were questionable. Powers also found that Jason was using MLA funds to cover personal expenses. She estimated that from 2007 to 2011, Jason's income had an approximate range of $45, 000.00 to $105, 000.00. On cross-examination, Powers acknowledged that the items she labeled as questionable business expenses were properly claimed as business expenses for tax deduction purposes. She also admitted that her estimate of $105, 000.00 for Jason's 2011 income was merely an estimate. Since Powers' testimony simply related to Jason's income from 2007 to 2011, it did not cover any changes in Jason's financial position since the 2005 filing of the Original Plan.

{¶9} Marissa then testified. According to her testimony, she had to cash in the proceeds from two retirement plans in 2008 and 2009 and that at various points she had to work two jobs to make ends meet. Despite her actions, Marissa said that she was still running a $1, 600.00 monthly deficit. Further, Marissa indicated that while Jason had repaid her for A.A.'s health insurance premium every month as required by the Original Plan, he did not reimburse her for the previous two months. Marissa also discussed the payment of her housing expenses. She owned her house with a roommate, who contributed $1, 000.00 to the monthly payment of the mortgage. Additionally, Marissa rented part of the house out to another person, who paid anywhere from $400.00 to $700.00 per month. Despite covering her current financial situation, Marissa did not testify to her current position in relation to her position at the time of the Original Plan's filing.

{¶10} On October 19, 2011, the magistrate issued a decision with the following relevant findings: (1) Marissa's income for child support purposes was approximately $46, 000.00 per year; (2) Jason's income for child support purposes was approximately $78, 000.00 per year; and (3) there was a substantial change of circumstances meriting a modification of the original child support order. Based on these findings, the trial court awarded Marissa approximately $700.00 per month in child support. The trial court also ordered Jason to pay $2, 036.67 in attorney fees and $8, 427.90 in litigation expenses to Marissa.

{¶11} Jason appealed the trial court's judgment to this court. On appeal, we found as follows:

Since the parties entered into an agreement to deviate the child support obligation to zero, * * * the trial court was required to find more than a ten-percent deviation under R.C. 3119.79(A); the trial court was also required to find a substantial change in circumstances that was not contemplated at the time of the issuance of the child support order under R.C. 3119.79(C). The trial court failed to make this additional finding prior to modifying the child support order here, and therefore, ...

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