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Abrams v. Abrams

Court of Appeals of Ohio, Second District, Montgomery

June 16, 2017

LAVONNE ABRAMS Plaintiff-Appellee
v.
RODNEY C. ABRAMS Defendant-Appellant

         Appeal from Domestic Relations Court Trial Court Case No. 2002-DR-1901

          CAROL J. HOLM, Atty. Attorney for Plaintiff-Appellee

          JEFFREY D. SLYMAN, Atty. Attorney for Defendant-Appellant

          OPINION

          WELBAUM, J.

         {¶ 1} Defendant-appellant, Rodney C. Abrams, appeals from the judgment of the Montgomery County Court of Common Pleas, Domestic Relations Division, overruling in part and sustaining in part his objections to the magistrate's decision that denied his motion to show cause and motion to modify child support. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} Rodney and Lavonne Abrams (hereinafter "Rodney" and "Lavonne") were married on April 1, 1995. One daughter, D.J.A., was born as issue of their marriage in 1997. After almost ten years of marriage, the parties were granted a Final Judgment and Decree of Divorce on December 30, 2004.

         {¶ 3} Article IV of the divorce decree ordered Rodney to pay $666 per month in child support for D.J.A. The decree noted that D.J.A. "may be a Castle child and the parties agree that child support shall continue until such time as [D.J.A.] is able to live independently, if ever."[1] Judgment Entry and Decree of Divorce (Dec. 30, 2004), Montgomery County Domestic Relations Court Case No. 2002-DR-1901, Docket No. 49, Article IV, p. 5.

         {¶ 4} Article XIII of the divorce decree further ordered Rodney to quitclaim the parties' marital residence located in Moraine, Ohio, to Lavonne within seven days of the decree being filed. Under the same article, the decree ordered Lavonne to refinance the residence in her own name within one year from the date of the decree, or the residence would immediately be listed for sale with Lavonne to receive the proceeds or costs of said sale. Lavonne has resided at the marital residence with D.J.A. at all times since the divorce.

         {¶ 5} Eleven years after the divorce, on March 15, 2016, Rodney filed a motion to modify the child support payment ordered by the divorce decree for the reason that D.J.A. had begun receiving social security disability benefits in the amount of $488.67 per month as of December 2015. On May 2, 2016, Rodney also filed a motion to show cause, in which he moved the trial court for an order requiring Lavonne to appear and show cause as to why she should not be held in contempt of court for failing to refinance the marital residence in her name as required by the divorce decree.

         {¶ 6} A hearing on both of Rodney's motions was held before a magistrate on June 22, 2016. At the hearing, the magistrate heard testimony and received exhibits from Rodney and Lavonne, both of whom were represented by counsel. Rodney's exhibits included his and Lavonne's tax returns from 2013, 2014, and 2015. Lavonne's exhibits included: (1) the promissory note for the marital residence; (2) a quitclaim deed signed by Rodney transferring the marital residence to Lavonne on November 4, 2015; (3) an October 16, 2015 correspondence from Evolve Bank & Trust regarding an application for a home loan; (4) a June 2, 2016 Housing Source application for foreclosure intervention assistance; and (5) three of Lavonne's pay stubs from March and April 2016.

         {¶ 7} During the hearing, Rodney objected to the magistrate allowing Lavonne to testify regarding the correspondence from Evolve Bank & Trust and the Housing Source application (marked as Plaintiffs Exhibit Nos. 3 and 4) on grounds that the documents constituted inadmissible hearsay. Specifically, Rodney claimed that the documents were business records that required authentication by a records custodian, which Lavonne failed to provide.

         {¶ 8} The magistrate overruled Rodney's objections to Plaintiffs Exhibit Nos. 3 and 4, indicating that the exhibits would be admitted "for what they are worth." Hearing Trans. (June 22, 2016), p. 18, 42. The magistrate allowed Lavonne to reference her credit report in the correspondence from Evolve Bank & Trust (Plaintiffs Exhibit No. 3) and permitted her to read into the record a hardship statement that she drafted and signed on the Housing Source application (Plaintiffs Exhibit 4). However, Lavonne did not otherwise testify regarding the contents of Plaintiffs Exhibit Nos. 3 and 4, and the magistrate did not permit Lavonne to explain what the exhibits showed. See id. at 17-18.

         {¶ 9} Following the hearing, on July 22, 2016, the magistrate issued a written decision overruling both Rodney's motion to show cause and his motion to modify child support. With respect to the motion to show cause, the magistrate found that Rodney failed to establish by clear and convincing evidence that Lavonne was in contempt for failing to abide by the refinance provision in the divorce decree. The magistrate came to this conclusion because Rodney failed to quitclaim the marital real estate to Lavonne in a timely manner, and because Lavonne proved her inability to comply with the refinancing order.

         {¶ 10} With respect to the motion to modify child support, the magistrate found no substantial change in circumstances warranting a modification given that the magistrate calculated less than a ten percent deviation between the original child support order and the new child support computation using the income information provided by the parties at the hearing. The magistrate did not include D.J.A.'s social security disability benefits in the new computation based on the Supreme Court of Ohio's holding in Paton v. Paton, 91 Ohio St.3d 94, 742 N.E.2d 619 (2001) (holding that "[supplemental security income benefits received by a disabled child do not constitute a financial resource of the child pursuant to R.C. 3113.215(B)(3)(f)[2] for purposes of justifying a trial court's deviation from the basic child support schedule"). Accordingly, based on the magistrate's calculation of the parties' current gross incomes, the magistrate recommended the child support order of $666 remain unchanged.

         {¶ 11} Rodney filed timely objections to the magistrate's decision on August 2, 2016, and supplemental objections on August 24, 2016. Lavonne filed a reply to Rodney's objections on September 6, 2016.

         {¶ 12} In objecting to the magistrate's decision overruling his motion to show cause, Rodney argued that the magistrate's failure to find Lavonne in contempt of court was against the manifest weight of the evidence since the evidence established that Lavonne violated the divorce decree by failing to refinance the marital residence in her name within one year of the decree being filed. Rodney also argued that the magistrate incorrectly determined that the defense of inability to comply with the divorce decree applied to Lavonne given that said defense was based on information elicited from hearsay statements, i.e., Plaintiff's Exhibit Nos. 3 and 4.

         {¶ 13} In objecting to the magistrate's decision overruling his motion to modify child support, Rodney challenged the magistrate's computation of child support. Specifically, Rodney contended that the magistrate's child support computation used Lavonne's incorrect gross income, claiming the figure used did not include Lavonne's overtime pay, 401K withdrawal, and rental income. Rodney also contended that the magistrate should have granted him a deviation from the basic child support worksheet computation due to D.J.A. receiving social security disability benefits.

         {¶ 14} After conducting an independent review as required by Civ.R. 53, the trial court overruled Rodney's objections in part and sustained them in part. As for the motion to show cause, the trial court determined the magistrate correctly found that Lavonne had established the inability to comply with the refinance order in the divorce decree, and that the magistrate did not err in considering Plaintiff's Exhibit Nos. 3 and 4 given that the exhibits were not used for the truth of the matter asserted. However, the trial court sustained Rodney's objection in part given that the divorce decree required Lavonne to list the marital residence for sale if she had not refinanced within a year from the decree being filed. Since Lavonne had not yet refinanced the marital residence in her name, the trial court ordered the property to be immediately listed for sale pursuant to the terms of the divorce decree.

         {¶ 15} With respect to the motion to modify child support, the trial court found that, based on the testimony and evidence in the record, the magistrate's child support computation was correct. Specifically, the trial court held that the magistrate did not use Lavonne's incorrect gross income or err in failing to grant Rodney a deviation from the basic child support worksheet computation as a result of D.J.A.'s social security disability benefits. Accordingly, the trial court ordered the child support to remain at $666.

          {¶ 16} Rodney now appeals from the judgment of the trial court, raising two assignments of error for review.

         First Assignment of Error

         {¶ 17} Rodney's First Assignment of Error is as follows: THE TRIAL COURTS FAILURE TO FIND PLAINTIFF-APPELLEE IN CONTEMPT OF COURT FOR A CLEAR VIOLATION OF THE PARTIES' DIVORCE DECREE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶ 18} Under his First Assignment of Error, Rodney contends that the trial court erred in failing to find Lavonne in contempt of court for violating the parties' divorce decree. Rodney claims that this decision was an abuse of discretion and against the manifest weight of the evidence because Lavonne specifically testified that she had failed to refinance the marital real estate in her name as required by Article XIII of the divorce decree. Rodney also claims ...


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