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Siferd v. Siferd

Court of Appeals of Ohio, Third District, Hancock

November 20, 2017


         Appeal from Hancock County Common Pleas Court Domestic Relations Division Trial Court No. 2015-DR-249.

          Howard A. Elliot and Jeffrey Whitman for Appellant.

          Garth W. Brown for Appellee.


          WILLAMOWKSI, J.

         {¶1} Defendant-appellant Ronald L. Siferd ("Ronald") appeals the judgment of the Domestic Relations Division of the Hancock County Court of Common Pleas. In this appeal, Ronald alleges that the trial court erred by (1) adopting a shared parenting plan without a specified parenting schedule; (2) imputing a level of personal income to him that did not accurately represent his potential income; (3) imputing a level of income to the plaintiff-appellee for the purposes of child support that does not reflect her most recent earnings; (4) allowing a deviation in child support from the statutory schedule for the plaintiff-appellee; (5) adopting an inequitable division of the marital debts and assets; (6) awarding the student loan debt of the plaintiff-appellee to Ronald; (7) awarding spousal support to the plaintiff-appellee of an excessive amount and duration; and (8) entering an interim order that automatically renewed in violation of Civ.R. 53(D)(4)(e)(ii). For the reasons set forth below, the judgment of the lower court is reversed in part and affirmed in part.

         Facts and Procedural History

         {¶2} Ronald and Heather M. Siferd ("Heather") were married on October 3, 1992, in Findlay, Ohio. Tr. 11, 178. In February of 1993, Ronald started a business called the Siferd Plumbing, Heating, Air Conditioning Service ("Siferd Plumbing"). Tr. 97. Doc. 63. Heather worked consistently at the company until 1996 or 1997, though she continued to perform various tasks for the business for the duration of the marriage. Tr. 97. Siferd Plumbing has been located on a property that is adjacent to Ronald and Heather's marital residence. Ex. PP. A portion of this property is rented to a trucking company for $1, 200.00 per month. Tr. 225-226. The rental proceeds go directly to Siferd Plumbing. Tr. 102. Both the residential and commercial sides of this property are mortgaged. Ex. 15, 16, 17, 18. In addition to Siferd Plumbing, Ron and Heather also own a 51% share of Impulse Headware, LLC but do not operate this entity and have not invested money in this enterprise in roughly three and a half years. Tr. 100, 107. Doc. 99. For a time, Ron also operated a business called Cozy Home Builders, but he has not operated under this name or derived any income through this operation since 2008. Tr. 102. Doc. 99.

         {¶3} In February of 2011, Heather moved to California with her two daughters to help them pursue opportunities in the fields of modeling and acting. Tr. 16. During this time, Ronald remained in Ohio but paid for all of the living expenses incurred by Heather and their daughters. Tr. 16. She returned to Ohio in April of 2013 with her two daughters and took up residence with Ronald in the marital home. Tr. 16. In May of 2015, Heather completed a one-year long massage therapy program at Blanchard Valley Academy. Tr. 27. Ex. CC. Following her completion of this program, she took the state certification test for massage therapy but did not pass the examination. Tr. 28. By the time of the divorce hearing, Heather had not retaken the state certification examination. Tr. 28. Aside from completing this program, Heather does not have any additional vocational training. Tr. 28. She currently has $10, 800.00 in student loans from this program and was three months behind on her payments on this loan at the time of the divorce hearing. Ex. CC. Tr. 32.

         {¶4} In the summer of 2015, an employee at Siferd died in a work related incident. Tr.98. As the result of this incident, the Occupational Safety and Health Administration ("OSHA") levied a fine of $15, 750.00 on Siferd Plumbing. Tr. 248. At the time of the divorce hearing, no wrongful death suit had been filed by the family of the deceased. Tr. 270. In addition to this fine, Ron and Heather jointly owe the Internal Revenue Service $28, 698.74 in personal income taxes. Tr. 62-63, 158, 248. Doc. 99. In 2015, Heather and Ronald filed for personal bankruptcy. Tr. 11-12. They were discharged in bankruptcy in September of 2015. Doc. 99. During this time period, Ronald gambled between $23, 000.00 and $24, 000.00 in various casinos. Ronald testified that this resulted in a net loss of $2, 000.00 in 2015. Tr. 192, 217, 284. In 2015, Heather won $5, 000.00 in a gambling pool. Tr. 47. She used this money to pay off the debt on her car, which is a 2003 Lexus. Tr. 125.

         {¶5} On August 3, 2015, Heather filed for a divorce in the Hancock County Court of Common Pleas. Doc. 1. The divorce complaint stated that one of Heather and Ronald's two children was a minor at the time that this action was filed. Doc. 1, 14. In October of 2015, Heather moved from the marital residence into a house that her parents purchased for her use. Doc. 63, 68. Her parents put a $23, 000.00 down payment on this house and rented this property to Heather for $900.00 a month, though Heather was behind on her rental payments at the time of the divorce proceeding. Her parents intended to transfer the house to her once she was able to obtain a loan from a financial institution. Tr. 175. At this point, Heather owes her parents over $30, 000.00[1] for various expenses that her parents have covered. Tr. 167, 170.

         {¶6} On November 25, 2015, the court issued a temporary order that required Ronald to pay for all of the expenses of the minor child and to pay Heather $750.00 per month in spousal support. Doc. 40. Heather had been accustomed to receiving $800.00 per week from Ronald to cover living expenses for the last fifteen years of her marriage. Tr. 130. This practice ended in May of 2015 as Ronald began to spend the money on expenses himself. Tr. 130. Heather reported to the magistrate that the conclusion of this practice combined with moving out of the marital residence has changed her lifestyle. Doc. 99. At the time of the divorce proceeding, Ronald was current on his temporary spousal support obligations. Tr. 81.

         {¶7} In between filing for a divorce and the divorce hearing, Heather had several jobs that she used to supplement the income she had from spousal support. From October of 2015 to December of 2015, she was employed as a cashier at Gordon Food Service, making $9.00 an hour. Tr. 30. She left Gordon Food Service to work a temporary job at Best Buy, which lasted for one month and paid $12.00 an hour. Tr. 30. On January 26, 2016, she began working for Roki America ("Roki") where she was a scheduler for the plant and earned $16.82 an hour. Tr. 28-29. Heather stopped working at this job on February 25, 2016, because she "decided it just wasn't working." Tr. 29. By the time of the divorce hearing, Heather had not found another job and did not have any job interviews scheduled. Tr. 31.

         {¶8} The divorce proceeding was held on April 19, 2016. Tr. 1. Heather testified that she would still need financial assistance from Ronald even if she had continued to work at Roki. Tr. 49-50. She also stated that she does not have credit cards or a savings account, leaving her with little cash on hand and struggling to pay her bills. Tr. 49. As part of her testimony, she also detailed her monthly expenses for the court from before and after her separation with Ronald. Doc. 99. When Ronald testified, he addressed the financial situation of Siferd Plumbing at length. He listed the various liabilities that currently burden his business. These business debts amount to $403, 223.58. Tr. 267. Doc. 99. On the basis of these numbers, Ronald estimated that his business had a negative equity of roughly $20, 000.00. Tr. 247. Doc. 99. He stated that he hoped his business could turn a profit in the future but was unsure of the potential his company had to be profitable in the future. Ronald also stated that he had personal debts of $361, 894.50. Tr. 267. According to his testimony, he is "$208, 000 upside down" when his assets are subtracted from his liabilities. Tr. 282.

         {¶9} On May 9, 2016, the magistrate issued her findings and recommendations. Doc. 99. On July 11, 2016, Ronald filed objections to the magistrate's findings and recommendations. Doc. 115. These objections were overruled by the trial court on December 21, 2016. Doc. 132. The divorce decree was entered on December 30, 2016. Doc. 134. Under the judgment entry, Ronald retained all of the residential and commercial real estate that the couple had owned together. Doc. 134. Ronald also retained all of his interests in Siferd Plumbing and Impulse Headware. Doc. 134. The trial court also made Ronald solely responsible for all of the debts of the parties, which amount to $735, 848.22. Doc. 134. This includes the $10, 800.00 in student loans that Heather borrowed for her education. Doc. 134.

         {¶10} The trial court then decided the issues of spousal support and child support. The magistrate found that Ronald's gross income was $96, 113.00 for child support purposes. Doc. 99. The magistrate then determined that Heather's potential income was $9.00 an hour or roughly $18, 720.00 a year. Doc. 99. On the basis of these figures, the magistrate determined that Heather should pay $300.00 per month for the support their minor child. Doc. 99. The magistrate deviated the amount of Heather's child support from the statutory schedule, which stated that Heather should pay $389.50 per month. Doc. 99. In so doing, the magistrate also found that spousal support was appropriate and ordered that Ronald pay Heather $2, 000.00 a month in spousal support. Doc. 99. To account for the $300.00 that Heather owed Ronald each month for child support, the amount of monthly spousal support was reduced to $1, 700.00 per month for the time in between the divorce decree and June of 2017, which is when their minor child turned the age of majority. Doc. 99. However, beginning in July of 2017 and continuing for the next sixty months, Heather was to receive $2, 000.00 per month from Ronald in spousal support. Doc. 99. The trial court adopted these findings and recommendations in its divorce decree. Doc. 134.

         {¶11} Ronald filed notice of appeal on January 27, 2016. Doc. 143. On appeal, Ronald raises eight assignments of error:

         First Assignment of Error

In the decision herein, the Trial Court abused its discretion by adopting the shared parenting plan submitted herein, where the shared parenting plan other than holidays, summer vacation, and days of special meaning does not specify the times for each parent to parent the child.

         Second Assignment of Error

The Trial Court abused its discretion in imputing income for child support purposes concerning the Defendant/Appellant in that income was attributed to the Defendant/Appellant not based upon the evidence before the Court, and the attribution of income which was not upon statutory guidelines for interpretation of a parent's income.

         Third Assignment of Error

The Trial Court abused its discretion in calculations for child support purposes regarding the Plaintiff/Appellee's income in that although correctly finding that the Plaintiff/Appellee was voluntarily unemployed because the Plaintiff/Appellee had employment that she quit because the workload increased, the Magistrate imputed income to her at a rate substantially less than the employment that the Plaintiff/Appellee voluntarily left.

         Fourth Assignment of Error

The Trial Court abused its discretion in computing the deviation in the child support calculation and obligation of the Defendant/Appellant, the same not being the best interest of the minor child.

         Fifth Assignment of Error

The Trial Court abused its discretion and failed to provide for an equitable distribution of the marital property and indebtedness, when she awarded all of the indebtedness of the parties to the Defendant/Appellant.

         Sixth Assignment of Error

The Trial Court abused its discretion and failed to provide for an equitable distribution of marital property and indebtedness, in ordering that the Defendant/Appellant would be responsible solely for the repayment of the student loan debt of Plaintiff/Appellee.

         Seventh Assignment of Error

The Trial Court abused its discretion in arriving at a spousal support obligation of the Defendant/Appellant to the Plaintiff/Appellee by improperly inputting and attributing income to the Defendant/Appellant and failure to consider the income to the Plaintiff/Appellant had she not become voluntarily unemployed in awarding spousal support of an excessive length and duration as well as an excessive amount.

         Eighth Assignment of Error

The Court abused its discretion when it made provisions for automatic extensions of the interim order, without the need for filing any motion or other request for relief, contrary to Civil Rule 53(D)(4)(e)(ii).

         We will start our analysis by evaluating Ronald's first and second assignments of error. We will then consider his fifth and sixth assignments of error together in one analysis before considering his seventh, third, fourth and eighth assignments of error.

         First Assignment of Error

         {¶12} In his first assignment of error, Ronald argues that the trial court's decision to adopt the shared parenting plan is not consistent with the requirements of Ohio law. In particular, Ronald alleges that the trial court failed to specify a parenting schedule, which he argues violates R.C. 3109.04(G). At the time of the divorce, one of Heather and Ronald's two children was a minor. Tr. 10. However, this minor child reached the age of majority during the pendency of this appeal and is now emancipated, making the issues raised in Ronald's first assignment of error moot. Tr. 10.

Mootness has been described as a "doctrine of standing in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Consequently, a case is moot where a judgment is sought on a matter that when rendered does not have any practical effect upon the issues raised by the pleadings.

(Citations omitted.) RLJ Management Co., Inc. v. Larry Baldwin, 3d Dist. Crawford No. 3-01-16, 2001 WL 1613014 (Dec. 18, 2001), quoting U.S. Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Pursuant to the doctrine of mootness, we decline to rule on the issues raised in Ronald's first assignment of error.

         Second Assignment of Error

         {¶13} In his second assignment of error, Ronald asserts that the trial court erred in determining his gross income for child support purposes. The trial court determined his income by multiplying his monthly personal expenses by twelve and then adding the total amount that he gambled in 2015 onto that figure. He raises two main arguments against this process. First, he argues that his income is subject to fluctuations and that the trial court should have calculated his potential income by averaging his income over several years. He contends that this method would provide a more accurate figure for his gross income. Second, he asserts that the trial court should not have added the $23, 000.00 he gambled in 2015 to the total of the personal expenses he reported. He argues that his gambling winnings offset some of his losses such that he only lost around $2, 000.00 gambling in 2015. Since his winnings were used to finance his habit of gambling, he did not spend $23, 000.00 of income from his business on gambling. Thus, he argues that adding this amount onto his personal expenses distorts his gross income. On the basis of this argument, Ronald asserts that the trial court abused its discretion in computing child support.

         Legal Standard

         {¶14} Parents have a duty to support their minor children. R.C. 3103.03(A); R.C. 3109.05(A)(1). Revised Code Chapter 3119 governs issues of child support in cases of divorce. See In re Adoption of K.A.H., 10th Dist. Franklin No. 14AP-831, 2015-Ohio-1971, ¶ 18. R.C. 3109.05(A)(1). Under R.C. 3119.01(C)(5),

"Income" means either of the following:
(a)For a parent who is employed to full capacity, the gross income of the parent;
(b)For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent.

R.C. 3119.01(C)(5). If the trial court finds that a parent is employed to full capacity, then the trial court must determine the gross income of that parent in accordance with R.C. 3119.01(C)(7), which, in its relevant part, broadly defines "gross income" as follows:

[T]he total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses * * *; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers' compensation benefits; unemployment insurance benefits; disability insurance benefits; ** *; spousal support actually received; and all other sources of income.

R.C. 3119.01(C)(5). See R.C. 3103.03.

{¶15} If the trial court determines that the parent is unemployed or underemployed, then the trial court must determine the potential income of that parent. "Potential income" is defined by R.C. 3119.01(C)(11), which reads, in its relevant part, as follows:

"Potential income" means both of the following for a parent who the court pursuant to a court support order, or a child support enforcement agency pursuant to an administrative child support order, determines is voluntarily unemployed or voluntarily underemployed:
(a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from ...

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