10th Dist. No. 08AP-27, 2008-Ohio-6121
The parties Amy Mullins Roberts and Warren Keith Roberts were married in May 1993.1 They had one child together, Warren K. Roberts, who was born on May 20, 1996.2 Another child, Mya Brooks, was born during the marriage on September 24, 2006, and paternity was established with Daryl Brooks as the father.3
On August 15, 2003, Amy filed a complaint for divorce in the Franklin County Court of Common Pleas, Division of Domestic Relations.4 Pursuant to temporary orders, Amy was named residential parent and legal custodian.5 Keith was granted standard visitation and ordered to pay $388.90 per month in child support, which was a downward deviation based on his obligation to pay $258.33 per month for the son's school tuition.6 The parties agreed to a shared parenting plan with Amy named the residential parent for school placement purposes.7
On November 19 and 20, 2007, a trial was held regarding child support, spousal support, and property division.8 On December 11, 2007, the trial court issued its judgment.9 Keith appealed from the judgment of the trial court to the Court of Appeals of Ohio, Tenth District, asserting three assignments of error.10
Keith exercised parenting time with the son approximately 40 percent of the time under an alternating schedule.11 The schedule provided parenting time from Wednesday at 6:00 p.m. until Sunday at 6:00 p.m. one week, and from Wednesday at 6:00 p.m. until Friday at 6:00 p.m. the next week.12 The parties were not following the agreed schedule, with the child spending weekdays with Amy and weekends and holidays with Keith.13 In addition to the guideline child support, the trial court ordered Keith to pay $150 per month in child support arrearages, $250 per month for non-taxable property settlement, $250 per month to equalize the property division, $1 per month for spousal support, and $5,000 in attorney fees.14
Amy testified that Keith had intentionally dragged out the case for four years by failing to follow discovery orders and never responded to her requests for documents.15 Attorney Jeff Fish testified that Amy was forced to file a subpoena to obtain retirement documents and tax returns and that Keith never submitted updated discovery after 2004.16
Amy presented a document at the hearing listing household goods and furnishings and how they were divided, believing the values to be equal.17 Keith testified that the total value of items he received was $5,000 and the value of items Amy received was $15,000, but neither party provided present values for the items.18 The trial court found that neither party presented credible testimony as to the value of the used household goods and furnishings.19
Whether the trial court abused its discretion in its order of child support?20
R.C. 3119.22 provides that a trial court may order an amount of child support that deviates from the amount of child support that would otherwise result from the use of the basic child support schedule and worksheet.21 After considering the factors and criteria set forth in R.C. 3119.23, the court determines that the amount calculated would be unjust or inappropriate and would not be in the best interest of the child.22 The amount of child support to be paid calculated according to the worksheet and guidelines is presumed to be the correct amount of child support. R.C. 3119.03.23 The decision to deviate from the actual obligation is discretionary and will not be reversed absent an abuse of discretion. The term abuse of discretion connotes that the court's decision is unreasonable, arbitrary or unconscionable.24
No. The trial court specifically indicated that it had considered all of the statutory deviation factors and found no reason for a deviation from the guidelines.25 The trial court also specifically acknowledged Keith's argument that he requested a deviation due to extraordinary time he spent with the child.26
Although Keith exercised parenting time with the son approximately 40 percent of the time under an alternating schedule, the parties were not following the agreed schedule. The child spent weekdays with Amy and weekends and holidays with Keith. Beyond the guideline child support amount, the trial court ordered Keith to make several additional payments including arrearages and property settlements.27 These payments were based upon Keith's own voluntary conduct during litigation as he incurred the child support arrearage due to his failure to pay the tuition payments as ordered in the temporary orders.28
Given that the standard of review is abuse of discretion, the trial court's decision not to deviate from the guidelines amount is not so arbitrary or capricious that it must be reversed.29
The trial court did not abuse its discretion in its order of child support.30
Whether the trial court abused its discretion in awarding attorney fees to the plaintiff-appellee?31
R.C. 3105.73(A) governs the award of attorney fees and litigation expenses in domestic relations cases and provides that, in an action for divorce, a court may award all or part of the reasonable attorney fees and litigation expenses to either party if the court finds the award equitable.32 The statute also provides that, in determining whether an award is equitable, the court may consider the parties' marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.33 The awarding of attorney fees is within the sound discretion of the trial court.34
No. Although one spouse's failure to voluntarily pay one-half of the marital estate to the other party, in and of itself, is not a reasonable ground for an award of attorney fees to the other spouse, the trial court relied upon several other findings to support its award of attorney fees.35 Amy stated that she believed Keith intentionally prolonged the proceedings for four years through discovery noncompliance. Attorney Jeff Fish testified that Amy was forced to file a subpoena to obtain retirement documents and tax returns and that Keith never submitted updated discovery after 2004.
The record contains evidence to support the trial court's finding that Amy incurred numerous expenses as a result of Keith's failure to fully comply or cooperate with discovery.36 Therefore, the trial court had a sufficient basis to order that Keith pay $5,000 toward Amy's attorney fees.37
The trial court did not abuse its discretion in awarding attorney fees to the plaintiff-appellee.38
Whether the trial court abused its discretion in its property settlement by failing to account for the household goods and furnishings divided by the parties?39
Pursuant to R.C. 3105.171(G), a trial court should first determine the value of marital assets to make an equitable division of property.40 A trial court has broad discretion in making divisions of property in domestic cases.41 A trial court's valuation of marital property will not be reversed absent an abuse of discretion.42 When a party fails to present evidence as to the value of an item, it is akin to an invited error and that party has waived the right to appeal in regard to that asset.43
No. The trial court found that neither party presented credible testimony as to the value of the used household goods and furnishings that are now in each party's respective possession.44 Amy presented a document at the hearing listing household goods and furnishings and how they were divided upon their separation, believing the values to be equal. Keith testified that the total value of items he received was $5,000 and the value of items Amy received was $15,000, but neither party provided present values for the items.
The trial court found the parties' deficient evidence and testimony constituted a waiver.45 The court made written findings of fact supporting its division of property by determining that the division of these assets is equitable, if not necessarily equal.46 Thus, the trial court did not err when it divided the parties' household goods and furnishings.47
The trial court did not abuse its discretion in its property settlement.48