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Clifford v. Skaggs

Court of Appeals of Ohio, Fourth District, Gallia

November 3, 2017

HEATHER CLIFFORD, Plaintiff-Appellee,
v.
JOSHUA SKAGGS, Defendant-Appellant.

          Lorene G. Johnston, Jackson, Ohio for appellant.

          Adam R. Salisbury, Pomeroy, Ohio for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE

         {¶1} Joshua W. Skaggs appeals from a judgment entry granting a divorce. Skaggs contends that the trial court erred in ordering him to reimburse his former spouse Heather Clifford for certain childcare expenses and to pay her spousal support. Skaggs also contends that the trial court failed to follow statutory requirements governing child support and the shared parenting plan.

         {¶2} The trial court did not abuse its discretion in ordering Skaggs to reimburse Clifford for childcare expense. There is competent, credible evidence in the record that Skaggs stopped paying the childcare provider when his summer parenting time commenced. The trial court was not unreasonable, arbitrary, or unconscionable when it determined that Skaggs owed eight weeks of childcare expenses at $200 per week. Nor did the trial court did abuse its discretion in awarding spousal and child support. The record shows that the court considered the relevant statutory factors and found that the parties' relative disparity in incomes and overall high standard of living warranted the amount and duration of spousal and child support. However, the trial court failed to enter the statutorily required findings of fact and conclusions of law when approving Clifford's revised shared parenting plan. Therefore, we reverse the trial court's judgment and remand so that the court can enter proper factual findings and conclusions of law addressing the reasons for approving the shared parenting plan.

         I. FACTS

         {¶3} Skaggs and Clifford were married in 2008 and have one child born in 2010. They filed for divorce in 2014. Skaggs filed a shared parenting plan; Clifford opposed it and filed her own shared parenting plan. Clifford also filed a motion seeking contempt findings against Skaggs for failing to pay childcare expenses in July 2016 in violation of the court's temporary order. Clifford subsequently withdrew the motion.[1]Prior to trial the parties agreed to the division of certain marital assets and debts and the trial court entered a judgment entry reflecting that agreement.

         {¶4} At trial the parties presented evidence on the remaining disputed issues: (1) the unpaid childcare expenses; (2) allocation of certain medical expenses for the child; (3) federal tax exemption; (4) allocation of psychological evaluation costs; (5) spousal support; and (6) parental rights, child custody and support. The trial court issued a decision that: (1) ordered Skaggs to reimburse Clifford $1, 600.00 for childcare expenses that Skaggs owed under the temporary order; (2) split equally the child's medical expenses at issue and ordered Skaggs to reimburse Clifford for his half in the sum of $2, 546.45; (3) allocated the federal tax exemption; (4) allocated all of the psychological evaluation costs to Skaggs; (5) awarded Clifford spousal support of $600 per month for one year; and (6) decided that the child would reside with Clifford and that Skaggs would have parenting time according to a modified version of the Gallia County standard order of visitation/parenting time, determined that it would be in the child's best interest to attend Green Elementary School, required Skaggs to maintain medical insurance for the child, ordered all non-insured medical expenses be split equally between them, and ordered the parties to submit child support calculations without deviations.

         {¶5} As to the parties' shared parenting plans, the trial court instructed Clifford to submit a revised version of her shared parenting plan that addressed the objections or criticisms in the decision. Skaggs was given an opportunity to respond.

         {¶6} Skaggs requested separate findings of fact and conclusions of law pursuant to Civ.R. 52. The trial court declined to do so because it concluded the decision it issued included facts and reasoning. The trial court issued a judgment entry decree of divorce that included the determinations made in its prior decision, adopted Clifford's revised shared parenting plan, and ordered Skaggs to pay child support of $1, 326.14 per month.

         {¶7} Skaggs appealed, challenging the awards of $1, 600.00 in childcare expenses, spousal and child support, and the shared parenting plan.

         II. ASSIGNMENTS OF ERROR

         {¶8} Skaggs assigns the following errors for our review:

1. THE TRIAL COURT ERRED IN ORDERING DEFENDANT-APPELLANT TO REIMBURSE PLAINTIFF-APPELLEE ONE THOUSAND SIX HUNDRED DOLLARS ($1, 600) FOR CHILD CARE EXPENSES SHE INCURRED IN THE SUMMER OF 2016 AS IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
2. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SET AN INAPPROPRIATE AND UNREASONABLE AMOUNT AND DURATION FOR SPOUSAL SUPPORT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
3. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO FOLLOW THE MANDATES OF OHIO REVISED CODE §3119.04(B) AS THE PARTIES' COMBINED INCOME EXCEEDED ONE HUNDRED FIFTY THOUSAND DOLLARS ($150, 000).
4. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADOPTED A SHARED PARENTING PLAN THAT WAS NOT PROPOSED BY EITHER PARTY IN ACCORDANCE WITH OHIO REVISED CODE SECTION 3109.04 AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

         III. STANDARD OF REVIEW

         {¶9} Appellate courts generally review "the propriety of a trial court's determination in a domestic relations case" under the "abuse of discretion" standard. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989) (abuse of discretion standard applies to child support, custody, visitation, spousal support, and division of marital property). Under the abuse of discretion standard of review, a reviewing court must affirm the decision of the trial court unless it is unreasonable, arbitrary, or unconscionable. Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 2008-Ohio-4887, ¶ 9 citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 140 (1983). " '[A]buse of discretion' [is] * * * a view or action that no conscientious judge could honestly have taken.' " State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. "Indeed, to show an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias." White v. White, 4th Dist. Gallia No. 03CA11, 2003-Ohio-6316, ¶ 25, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996). Under this highly deferential standard of review, appellate courts may not freely substitute their judgment for that of the trial court. In re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). The application of this standard in custody and support cases is warranted because trial courts have wide latitude in considering the evidence, and assessing the parties' demeanor, attitude, and credibility. See Massie v. Simmons, 4th Dist. Scioto No. 14CA3630, 2014-Ohio-5835, ¶ 18, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674 N.E.2d 1159 (1997).

         IV. LAW AND ANALYSIS

         A. Childcare Expenses

         {¶10} In his first assignment of error Skaggs asserts that the trial court erred when it ordered him to reimburse Clifford $1, 600 in childcare expenses. As a preliminary argument Skaggs contends that he made a timely request for findings of fact and conclusions of law under Civ.R. 52 and the trial court's alleged refusal to make them is a reversible error. Clifford contends that Skaggs waived this argument by failing to raise it as a separate assignment of error.

         {¶11} "Ordinarily, upon a proper request for findings of fact and conclusions of law, no final appealable order exists until the court complies with Civ.R. 52, i.e., it issues its findings of fact and conclusions of law." First Natl. Bank v. Netherton, 4th Dist. Pike No. 04CA731, 2004-Ohio-7284, ¶ 8, citing Walker v. Doup, 36 Ohio St.3d 229, 522 N.E.2d 1072 (1988) syllabus; Caudill v. Caudill, 71 Ohio App.3d 564, 565, 594 N.E.2d 1096 (4th Dist. 1991). Because the failure to issue findings of fact and conclusions of law pursuant to Civ.R. 52 raises a threshold jurisdictional issue, we address it even though Skaggs did not raise it as a separate assignment of error. "We must sua sponte dismiss an appeal that is not from a final appealable order." First Natl. Bank at ¶ 7.

         {¶12} Civ.R. 52 provides:

When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to Civ. R. 58, or not later than seven days after the party filing the request has been given notice of the court's announcement of its decision, whichever is later, in which case, the court shall state in writing the findings of fact found separately from the conclusions of law.
An opinion or memorandum of decision filed in the action prior to judgment entry and containing findings of fact and conclusions of law stated separately shall be sufficient to satisfy the requirements of this rule and Civ.R. 41(B)(2).

         {¶13} "A trial court substantially complies with Civ.R. 52 if 'the contents of the opinion, when considered together with other parts of the record, form an adequate basis upon which to decide the narrow legal issues presented.' " Graves v. Graves, 4th Dist. Vinton No. 14CA694, 2014-Ohio-5812, ¶ 36 quoting State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, 928 N.E.2d 706, ¶ 38; accord Nolan v. Nolan, 4th Dist. Scioto No. 11CA3444, 2012-Ohio-3736, ¶ 40. Findings and conclusions " 'must articulate an adequate basis upon which a party can mount a challenge to, and the appellate court can make a determination as to the propriety of, resolved disputed issues of fact and the trial court's application of the law.' " Truex v. Truex, 179 Ohio App.3d 188, 195, 2008-Ohio-5690, 901 N.E.2d 259, ¶ 27 (5th Dist.) quoting Kroeger v. Ryder, 86 Ohio App.3d 438, 442, 621 N.E.2d 534 (6th Dist. 1993). "A trial court's decision reciting various facts and a legal conclusion satisfies the requirements of Civ.R. 52 when, together with other parts of the trial court's record, the decision forms an adequate basis upon which to decide the legal issue presented upon appeal." Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, ¶ 22 (4th Dist.).

         {¶14} Here the trial court denied Skaggs's request for findings of fact and conclusions of law because it had issued a decision prior to the judgment entry that contained factual findings and legal conclusions. The trial court's prior decision was sufficient to satisfy the Civ.R. 52 requirement. That decision, together with its divorce decree and other parts of the record, form an adequate basis for us to decide the legal issues presented in the appeal.

         {¶15} Although the trial court's decision together with the judgment entry satisfies Civ.R. 52 and we have jurisdiction over the appeal, whether the trial court complied with the statutory requirement for findings of fact and conclusions of law addressing the reasons for approving the shared parenting plan presents a separate, nonjurisdictional issue. See R.C. 3109.04(D)(1)(a)(ii) ("If the court approves a plan * * * the court shall enter in the record of the case findings of fact and conclusions of law as to the reasons for the approval * * *.") We discuss this issue more fully when we address Skaggs's fourth assignment of error, but raise it here to clarify that such a failure would not raise jurisdictional concerns.

         {¶16} Next Skaggs argues that the trial court lacked jurisdiction to determine whether Skaggs owed childcare expenses because Clifford withdrew her contempt motion. Skaggs's obligation to pay childcare expenses was part of the trial court's temporary orders that the court had jurisdiction to enforce or modify. In the Matter of J.L.R. and M.M.R., 4th Dist. Washington No. 08CA17, 2009-Ohio-5812, ¶ 29 (temporary orders concerning custody and support are interlocutory orders). At trial Clifford's counsel stated that the unpaid childcare expense was a disputed issue that would be tried, witnesses gave testimony about childcare expenses, Skaggs's counsel did not object, and the trial court clarified during trial that although the contempt motion had been withdrawn, Clifford was still seeking reimbursement of the underlying unpaid childcare expense. [2] We find that the allocation and amount of childcare expenses were soundly within the trial court's jurisdiction, even if Clifford was no longer seeking to hold Skaggs in contempt for his failure to pay it.

         {¶17} Skaggs also contends that there was no competent, credible evidence supporting a $1, 600 childcare expense award. He argues that the testimony supported a $1, 000 award.

         {¶18} The childcare provider, Patty Beach, testified that she received $200 a week salary from Skaggs and that sometime in July 2016 Skaggs stopped paying her and Clifford took over the payments. Beach testified that the second half of the summer Skaggs had the child full time but that she worked one day each week during that time and was still entitled to receive her weekly salary. Beach testified that it had been approximately five to six weeks since Skaggs had paid her, but that she was uncertain the precise date Skaggs stopped paying. Beach's testimony about the amount Skaggs owed was unclear. Beach first said "yes" when asked if the amount owed was $1, 600 and then "I don't know." In response to questions from the trial court, Beach testified that during the second half of the summer when the child was with Skaggs full time, Skaggs stopped paying her and Clifford started paying her salary. Skaggs testified that as of the time of trial August 25, 2016, he had not paid Beach for approximately five weeks. Clifford's affidavit stated that Skaggs stopped paying Beach when he started exercising his summer parenting time and that as of the date of her affidavit, July 22, 2016, she had paid three weeks ($600) of childcare that Skaggs owed.[3] After the trial the court modified the temporary order and terminated Skaggs's obligation to pay for childcare as of August 25, 2016.

         {¶19} The trial court did not abuse its discretion in awarding Clifford $1, 600 in childcare expenses. The record contained competent, credible evidence that Skaggs stopped paying Beach when his summer parenting time commenced. Beach testified that Skaggs did not pay her during his summer parenting time. Clifford testified that she paid the first three weeks of July 2016 (as of July 22, 2016) and Skaggs admitted he had not paid Beach for the last five weeks (as of August 25, 2016). Based upon these dates Skaggs had not paid childcare for a total of eight weeks. The trial court was not unreasonable, arbitrary, or unconscionable when it determined that Skaggs owed eight weeks of childcare expenses at $200 per week. The trial court did not abuse its discretion in awarding Clifford $1, 600 in childcare expenses.

         {¶20} We overrule Skaggs's first assignment of error.

         B. Spousal Support

         {¶21} In his second assignment of error Skaggs contends that the trial court's spousal support award in the sum of $600 per month for one year was an abuse of discretion and against the manifest weight of the evidence. Again, we review spousal support matters under an abuse of discretion standard. Boggs v. Boggs, 4th Dist. Lawrence No. 14CA20, 2015-Ohio-2634, ¶ 21 citing Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 2008-Ohio-4887, ¶9.

         {¶22} When a party requests it, the court may make an appropriate and reasonable spousal support award. R.C. 3105.18(B). In determining whether spousal support is "appropriate and reasonable, " the court must consider the following factors:

(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under ...

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