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Murphy v. Murphy

Court of Appeals of Ohio, Fifth District, Stark

August 26, 2019

JOAN M. MURPHY Plaintiff-Appellee
v.
JOHN A. MURPHY, JR. Defendant-Appellant

          Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2016DR00112

         JUDGMENT: Affirmed

          For Plaintiff-Appellee LORRIE FUCHS

          For Defendant-Appellant DOUGLAS BOND

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

          OPINION

          GWIN, P.J.

         {¶1} Husband appeals the October 9, 2018 judgment entry of the Stark County Court of Common Pleas, Domestic Relations Division, granting in part and denying in part his motion for modification and/or termination of spousal support.

         Facts & Procedural History

         {¶2} Husband John Murphy and Wife Joan Murphy were married on October 13, 1990. Wife filed a complaint for divorce on February 11, 2016. After a two-day trial in January of 2017, the trial court issued a judgment entry and decree of divorce on February 6, 2017. After considering the statutory factors in R.C. 3105.18, the trial court ordered Husband to pay spousal support to Wife for a period of ninety-six months, effective February 1, 2017, in the amount of $4, 000 per month. The trial court retained jurisdiction on matters related to spousal support.

         {¶3} Husband filed a motion to modify and/or terminate spousal support on January 31, 2018, seeking a modification and/or termination of spousal support based upon a substantial change in circumstances as it relates to the parties' income. Attached to Husband's motion is his affidavit, which states he now has a complete record of his income for 2016 and 2017 which was not available at the divorce trial and that the updated information demonstrates his income is approximately twenty-five percent less than the amount set forth in the court's final decree and Wife's income is ten percent higher than the amount set forth in the court's final decree.

         {¶4} On February 20, 2018, the trial court scheduled Husband's motion for trial on April 11, 2018. On April 5, 2018, Wife filed a motion to continue the trial and motion to compel. On April 9, 2018, the trial court issued a judgment entry continuing the trial and stating the trial would be rescheduled once Husband complied with the order to compel. Also on April 9, 2018, the trial court issued a judgment entry granting Wife's motion to compel and stating assignment should not reschedule the case for trial until Husband provided Wife with his 2017 tax return. Husband filed a notice of service of response to Wife's request for production of documents on April 13, 2018. On June 6, 2018, the trial court issued a notice scheduling Husband's motion for trial on August 13, 2018.

         {¶5} The trial court conducted a trial on August 13, 2018 and August 20, 2018. At the trial, the following individuals testified: Husband, Wife, Vance Adams ("Adams") who works at a CPA firm and who completed the parties' tax returns for approximately ten years until 2016, and Richard Arnold ("Arnold"), the chair of the firm's finance committee at Husband's employer.

         {¶6} Arnold testified the monthly draw for each partner is a tier system based upon partner activity. The firm calculates how many points each partner receives each year and places each partner in a slot. How many points each partner has and thus which slot the partner is in determines the amount of each partner's draw and also determines how much distribution the partner receives at the end of the month if there are additional profits. The points are based upon a number of factors, including working receipts, attorney billings, seniority, and hours billed. Arnold stated Husband's draw for 2018 is $64, 000 and the additional profit portion of Husband's 2018 salary is anticipated to be $50, 440. Arnold testified Husband's points have gone down, which is common for someone in his age group. Husband had 200 points in 2016, had 175 points in 2017, and has 150 points in 2018. On cross-examination, Arnold confirmed Husband made $187, 000 in 2012, $191, 000 in 2013, $221, 000 in 2014, $163, 000 in 2016, and $135, 000 in 2017.

         {¶7} Husband testified his only income is from the law firm where he works. When the trial court inquired of Husband about his decline in billable hours, Husband testified he goes to the office every day, he likes to work, he wants to work, he has a fiduciary obligation to his partners and his clients, he works as much as he can, and bills as much as he can. As to 2017, Husband stated it was rough because he moved twice, which took its toll on him. Husband contends his billable hours for his age are average to above average and he is doing well for his age. His emotional condition leading up to the first trial was pretty bad, but has gotten better over time. The divorce and the moving process took its toll on him and Husband testified, "[i]it sets the focus in the office some days. You get more slippage in your bills when you're looking out the window."

         {¶8} On cross-examination, Husband confirmed in 2016 he was tied for second lowest billing partner in the firm and in 2017 he was the third lowest billing partner in his firm. Husband agreed his billable hours have declined in the last four or five years, but testified this is normal for his age as his clients have declined because he is getting older. Husband stated he is in good health. Husband agreed his compensation is largely based upon productivity, but denied his reduced production is voluntary or intentional. Husband stated many of his clients are small corporations and he does not do corporate work, so he farms it out to other people and, "under the current system the way it's written that's to help the young pups that need the money I go down. Am I going down…yes. I'm billing down. But $350, 000 [in total yearly billing of clients] is not chump change. I am responsible for, as a lawyer, to clients and I'm giving them advice and I'm not not billing my time to not share the money with her. That's just false accusations."

         {¶9} Wife testified that around the time she asked Husband for a divorce, he started working significantly less than he previously did. Wife did not notice any health problems or anything prohibiting him from going to work. Wife stated it appears as if Husband has decreased his income to avoid paying spousal support. It is Wife's position that Husband's income for 2017 is between $173, 000 and $177, 000 and Husband's three-year average of wages plus rental income is $188, 000, while her three-year average is $78, 000. On cross-examination, Wife stated her testimony at the first trial regarding the amount of ...


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