Morrow v. Becker

[Cite as Morrow v. Becker, 2012-Ohio-3875.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )

JEFFREY MORROW C.A. No. 11CA0066-M

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
SHERRI BECKER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 04 PA 0199

DECISION AND JOURNAL ENTRY

Dated: August 27, 2012

CARR, Judge.

{¶1} Appellant Jeffrey Morrow appeals the judgment of the Medina County Court of

Common Pleas, Domestic Relations Division. This Court affirms in part and reverses in part.

I.

{¶2} Jeffrey Morrow (“Father”) and Sherri Becker (“Mother”) are the parents of two

children (“Mo” and “Mac”). Mac, who is two years younger than Mo, has special needs arising

out of Down Syndrome. Mother was designated as the residential parent and Father was

awarded parenting time with the children as follows: every other Wednesday from 6 p.m. until 9

a.m. the following morning with both children; alternate weekends from 6 p.m. Thursday until 9

p.m. Sunday with Mo; and the same alternate weekends on Sunday from 11 a.m. until 9 p.m.

with Mac. The court order allowed for alternative parenting time arrangements as the parties may

agree. Father was also ordered to pay child support in the amount of $2,198.05 per month.
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{¶3} A little over a year later, the trial court issued a judgment entry after a hearing on

motions to modify parenting time. The trial court awarded Father parenting time pursuant to the

court’s standard visitation schedule, with the following modifications: the parties must exchange

the children in public places; the parties would share time with the children equally during

Thanksgiving and winter breaks; and Father would not have summer vacation parenting time.

The standard order of visitation provided for alternate weekend visits from 6 p.m. Friday until 6

p.m. Sunday, plus one weekday evening, consisting of three hours on Wednesdays if the parties

could not otherwise agree. Father appealed the trial court’s reduction of his parenting time. This

Court affirmed the trial court’s judgment. Morrow v. Becker, 9th Dist. No. 07CA0054-M, 2008-

Ohio-155.

{¶4} In August 2009, Father filed a motion to modify and reduce his child support

obligation. A couple weeks later, Mother filed a motion to modify parenting time. Four months

later, she filed a motion for contempt, alleging that Father had failed to pay child support as

ordered. The magistrate scheduled and continued hearings on the motions multiple times at the

parties’ request. The magistrate heard Mother’s motion to modify parenting time on July 27,

2010, and scheduled a hearing on the issues of the modification of child support and contempt

for August 10, 2010. On July 29, 2010, Father’s attorney moved to withdraw. His subsequent

attorney moved on August 2, 2010, to continue the August 10 hearing. Given the numerous

prior continuances coupled with Father’s assertion that his new counsel would be prepared for

hearing, the magistrate denied the motion for a continuance. She heard Father’s motion to

modify child support and Mother’s motion for contempt on August 10, 2010. The magistrate

issued separate decisions arising out of the two hearings. Father filed objections to both

decisions.
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{¶5} The trial court overruled the objections, although it corrected one typographical

error. In sum, the trial court ordered the following. Father would have parenting time with the

children on alternating weekends from Friday at 6:00 p.m. until Monday when he delivered the

children to school or child care. He was no longer granted mid-week visitations, although the

parties were free to consider overnight Wednesday visitations for Mo if Father’s international

travel schedule abated in the future. The parties were required to follow the court’s standard

parenting time schedule for holidays and days of special meaning if they could not otherwise

agree regarding such days. Father would not have extended parenting time, including Christmas

break, spring break, and summer, unless Mother agreed to such extended time. The trial court

ordered Father to pay child support in the amount of $2,154.95 per month, plus a 2% processing

charge. The trial court found Father in contempt solely for failing to pay his child support

obligation through wage withholding, imposed a $250.00 fine, and ordered Father to pay Mother

$575.00 for attorney fees and costs expended to prosecute the contempt motion. Father

appealed, raising five assignments of error for review. Some assignments of error are

consolidated to facilitate review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION BY (1) ELIMINATING MR.
MORROW’S WEDNESDAY, THANKSGIVING, SPRING AND CHRISTMAS
BREAK PARENTING TIME, AND (2) RESTRICTING MR. MORROW’S
VISITATION WITH HIS CHILDREN TO ALTERNATING DAYS OF
SPECIAL MEANING/HOLIDAYS AND EVERY OTHER WEEKEND
UNLESS MS. BECKER AGREES TO ADDITIONAL VISITATION,
THEREBY COMMITTING REVERSIBLE ERROR AND VIOLATING MR.
MORROW’S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
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ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY MISINTERPRETING THE MAGISTRATE’S
DECISION, THEREBY COMMITTING REVERSIBLE ERROR AND
VIOLATING MR. MORROW’S RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.

{¶6} Father argues that the trial court abused its discretion by modifying his parenting

time with the children. Specifically, Father argues that the trial court erred by misinterpreting

the magistrate’s decision, reducing his parenting time, and leaving the issue of additional

visitation to Mother’s sole discretion. This Court disagrees.

{¶7} In cases where the matter was initially heard by a magistrate who issued a

decision to which objections were filed and disposed, “[a]ny claim of trial court error must be

based on the actions of the trial court, not on the magistrate’s findings or proposed decision. In

other words, the standards for appellate review do not apply to the court’s acceptance or rejection

of the magistrate’s findings or proposed decision.” Mealey v. Mealey, 9th Dist. No. 95CA0093,

1996 WL 233491 (May 8, 1996), *2. Civ.R. 53(D)(4)(d) requires the trial court to conduct an

independent review of the record when ruling on objections. Civ.R. 53(D)(4)(b) allows the trial

court to adopt or reject the magistrate’s decision, in whole or in part, with or without

modification. In this case, the trial court conducted the required independent review and issued

its judgment based on that review. Because we are constrained to consider the issues on appeal

as they arise out of the trial court’s determinations and orders, Father’s argument that the trial

court misinterpreted the magistrate’s decision is not well taken. The second assignment of error

is overruled.

{¶8} As we recognized in Father’s first appeal, “‘A trial court’s decision regarding

visitation rights will not be reversed on appeal except upon a finding of an abuse of discretion.’”
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Morrow at ¶ 8, quoting Harrold v. Collier, 9th Dist. No. 06CA0010, 2006-Ohio-5634, ¶ 6. An

abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute

its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

{¶9} First, Father argues that the trial court abused its discretion by reducing his

parenting time by eliminating Wednesday evening visitation, as well as spring, Thanksgiving,

and Christmas break parenting time.

{¶10} As an initial matter, the record indicates that, rather than reducing his parenting

time, the trial court in fact increased Father’s parenting time. Although the trial court eliminated

the three-hour Wednesday evening visitation, it increased his bi-weekly weekend visitation to

include an additional evening and overnight, which necessarily also gave him additional time on

Monday morning with the children. Mother testified that both children suffer when faced with

inconsistency and that Father’s tardiness, failure to appear for some visits, and frequent absences

due to international travel have disrupted their routines to their detriment. The evidence

presented at the hearing demonstrated that Father made frequent trips to China which caused him

to miss many scheduled visits with the children. In addition, Father missed some scheduled

parenting time due to jet lag and his decision to attend Ohio State University football games

instead of exercising visitation. Father admitted that his international travel would continue into

the foreseeable future and that he could not commit to being available to spend every Wednesday

evening with the children. In ordering the modification of parenting time, the trial court

reasoned that eliminating the mid-week three-hour parenting time, while extending Father’s
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parenting time on alternate weekends was in the best interest of the children as it promoted

consistency, stability, and structure for the children. Under the circumstances, this Court cannot

say that the trial court abused its discretion when it so modified the parenting time order.

{¶11} Moreover, Father is incorrect in his assertion that the trial court eliminated his

parenting time during spring, Thanksgiving, and Christmas breaks. The trial court ordered that

“holidays and days of special meaning are to be divided as the parties agree or, if no agreement

can be reached, pursuant to the Court’s Standard Parenting Time Order.” The Medina County

Domestic Relations Court Standard Parenting Time Schedule, attached to the trial court’s

judgment, sets out a “Holiday Parenting Time” schedule in section II. That section identifies

“Holiday[s]” including “Spring Break,” “Thanksgiving,” and “Winter break.” Because these

times are expressly designated as “holidays,” the trial court’s order entitles Father to visitation as

delineated pursuant to the schedule, unless the parties agree to modify that parenting time. The

trial court’s standard order sets forth two options for visitation during each of the above-

referenced holidays and states that “in the event an option is not specified and the parties do not

agree, then Option 1 shall be in effect.” Therefore, pursuant to the plain language of the trial

court’s order and standard parenting time schedule, Father’s parenting time during spring,

Thanksgiving, and Christmas breaks has not been eliminated. Accordingly, his argument in that

regard is not well taken.

{¶12} Second, Father argues that the trial court abused its discretion by leaving the issue

of extended parenting time in the sole discretion of Mother. In support, Father relies on Barker

v. Barker, 6th Dist. No. L-00-1346, 2001 WL 477267 (May 4, 2001), in which the appellate

court concluded that the trial court abused its discretion by leaving the decision to reinstate the

father’s visitation in the sole discretion of the child’s psychologist. The Barker court concluded
 7

such an order was unreasonable, however, because the child’s psychologist could withhold her

consent for visitation based on matters beyond the father’s control and because the psychologist

had previously exhibited bias in favor of the mother. Id. at *5. That is not the situation in this

case.

{¶13} Here, the trial court ordered that “[Father] should receive no extended parenting

time unless agreed to by [Mother].” (Emphasis added.) In contrast to Barker, the trial court did

not empower Mother to determine whether Father could exercise parenting time at all. He

clearly had the right to certain visitation with the children. Instead, the trial court merely

acknowledged that Mother could allow Father to have additional time with the children beyond

that which had been ordered. This Court concludes that the trial court did not abuse its

discretion.

{¶14} Finally, Father complains that the trial court’s parenting time order is biased

against him because it penalizes him with forfeiture of parenting time if he is more than 30

minutes late when picking up the children for visitation. He argues that Mother, on the other

hand, may disregard the times determined for exchange of the children with impunity.

{¶15} The trial court’s order merely reiterates the court’s local rule subsumed in the

standard parenting time schedule under Section VI., captioned “Promptness.” Loc.R. 6.05, Form

6.04A. The rule states in pertinent part: “The residential parent has no duty to wait for the

nonresidential parent to pick up the children longer than thirty (30) minutes, unless the

nonresidential parent notifies the residential parent that she/he will be late, and the residential

parent agrees to remain available after the thirty (30) minute waiting period. A parent who is

more than thirty (30) minutes late loses the parenting time period.”
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{¶16} The Ohio Supreme Court has held that state courts may adopt rules of local

practice and that such local rules are enforceable as long as they are not inconsistent with the

Ohio Rules of Civil Procedure. Vance v. Roedersheimer, 64 Ohio St.3d 552, 554 (1992); see,

also, Ohio Constitution, Article IV, Section 5(B); Civ.R. 83; Sup.R. 5. Loc. R. 1.01 of the Local

Rules of the Court of Common Pleas of Medina County, Domestic Relations Division, states that

these rules “were promulgated by the Medina County Court of Common Pleas, Domestic

Relations Division, pursuant to Article IV, Section 5(B) of the Ohio Constitution and Rule 5 of

the Ohio Supreme Court Rules of Superintendence for the Courts of Common Pleas.” Father has

not argued that Loc.R. 6.05, which incorporates the standard parenting time schedule, is

inconsistent with the Ohio Rules of Civil Procedure. Moreover, he has not demonstrated how

such a local rule would be unenforceable.

{¶17} In addition, Father is incorrect in his assertion that Mother is free to delay his

access to the children by disregarding the times designated for exchange. Mother is bound to

comply with the court’s orders regarding parenting time. If she refuses or otherwise fails to do

so, Father may file a motion for contempt and Mother would be subject to contempt sanctions.

Accordingly, Father’s argument that the trial court’s order is biased in favor of Mother is not

well taken. The first assignment of error is overruled.

{¶18} For the above reasons, Father’s first and second assignments of error are

overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO
GRANT A CONTINUANCE AFTER MR. MORROW’S FORMER COUNSEL
ABANDONED HIM ON THE EVE OF TRIAL, THEREBY COMMITTING
REVERSIBLE ERROR AND VIOLATING MR. MORROW’S RIGHTS
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
 9

AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION.

{¶19} Father argues that the trial court erred by denying his motion to continue the

hearing on his motion to modify child support. Additionally, he argues that the denial of his

request for a continuance violated his right to due process of law. This Court disagrees.

{¶20} It is well settled that the decision to grant or deny a continuance lies in the sound

discretion of the trial judge. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The United States

Supreme Court emphasized that “not every denial of a request for more time [] violates due

process even if the party fails to offer evidences or is compelled to defend without counsel.”

Ungar, 376 U.S. at 589. Whether a denial of a request for a continuance is so arbitrary as to

violate due process depends on the circumstances of the case, particularly the reasons articulated

to the trial court in support of the request. Id. “In determining whether the trial court abused its

discretion by denying a motion for a continuance, this court must ‘apply a balancing test,

weighing the trial court’s interest in controlling its own docket, including facilitating the efficient

dispensation of justice, versus the potential prejudice to the moving party.’” Kocinski v.

Kocinski, 9th Dist. No. 03CA008388, 2004-Ohio-4445, ¶ 10, quoting Burton v. Burton, 132 Ohio

App.3d 473, 476 (3d Dist.1999).

{¶21} Father filed his motion to modify/reduce child support on August 4, 2009. The

trial court scheduled a hearing on the motion on October 23, 2009. The hearing on Mother’s

motion to modify parenting time was subsequently scheduled for the same date and time. Father

moved to extend the time in which he must respond to Mother’s discovery requests until October

19, 2009, merely four days before the scheduled hearing. The hearing date was converted to a

pretrial and the hearing was rescheduled for February 24 and 25, 2010. Father filed his witness

and exhibit lists on February 11, 2010. Thirty-six minutes before the hearing was scheduled to
 10

begin, Father filed a motion to continue because his attorney was involved in an ongoing

complex trial in another court. The magistrate continued the hearing until May 21, 2010. On

May 20, 2010, Father moved to continue the hearing due to his aunt’s death on May 15, 2010,

and an obligation to leave town for the funeral. The trial court bifurcated the motion hearings

and continued the hearing on Mother’s motion to modify parenting time to July 27, 2010, and

continued the hearing on Father’s motion to modify child support to August 10, 2010.

{¶22} On July 29, 2010, Father’s attorney moved to withdraw from further

representation. The trial court granted the motion. The record contains a signed letter from

Father to the magistrate in which Father asserted that he did not challenge his attorney’s

withdrawal, that he had secured alternate counsel, and that his new attorney would be prepared

for the hearing on August 10, 2010. On August 2, 2010, Father’s new attorney filed a notice of

appearance, a supplemental witness and exhibit list, and a motion to continue the hearing. In

support of a continuance, Father’s attorney asserted that he needed additional time to review

documents and provide Mother’s counsel with a supplemental witness and exhibit list. He

further asserted that Father would be unfairly prejudiced by the inability to call any additional

witnesses he might disclose in a supplemental witness list. Father did not suggest a new date for

the hearing. The magistrate denied the motion to continue on August 4, 2010. The same day,

Father’s attorney filed a second supplemental witness and exhibit list. Father’s attorney orally

renewed his motion to continue immediately prior to the hearing. The magistrate again denied

the motion.

{¶23} Based on a review of the circumstances of this case, this Court cannot say that the

domestic relations court abused its discretion by denying Father’s August 2, 2010 motion to

continue the hearing on his motion to modify child support. Father filed his motion nearly a year
 11

earlier, at a time he believed he could present evidence to justify the reduction. He moved for

multiple prior continuances, which the court granted. Father’s attorney did not move to

withdraw on the “eve of trial,” as Father asserts, but rather twelve days prior to trial. Father

informed the magistrate by letter the following day that he had secured new counsel who “will

prepare and be prepared for the hearing on August 10, 2010 regarding the modification of child

support.” Father’s new counsel filed two supplemental witness and exhibit lists and requested

leave to file a third supplement. Although the trial court denied leave to file the third

supplement, Father was not precluded from presenting any evidence at the hearing, even over

Mother’s objection that he had not identified such evidence prior to hearing. Father was

permitted to file two supplemental witness and exhibits beyond the deadline, and he was not

precluded from presenting any witnesses at the hearing.

{¶24} Given the indefinite nature of the requested continuance, Father’s role in creating

the circumstances giving rise to the latest request, the inconvenience of repeated delays and

uncertainty for Mother, the trial court’s right to control its docket coupled with the efficient

dispensation of justice outweighs any potential prejudice to Father. See Kocinski at ¶ 10. In

fact, because Father was not precluded from presenting all evidence and testimony he desired, he

has not demonstrated that he was prejudiced at all, let alone unfairly. Although he argues that he

had no time “to investigate the approximately $25,000 of unknown funds deposited into

[Mother’s] bank account in 2009[,]” he presented copies of Mother’s bank statements evidencing

such activity on her account and was able to cross-examine Mother extensively on the issue.

Accordingly, the denial of a continuance did not violate Father’s right to due process, and the

trial court did not abuse its discretion by denying Father’s third motion for a continuance.

Father’s third assignment of error is overruled.
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ASSIGNMENT OF ERROR IV

THE TRIAL COURT ABUSED ITS DISCRETION BY (1) IMPUTING AN
ADDITIONAL $16,756 OF INCOME FOR CORPORATE BENEFITS WHEN
CALCULATING MR. MORROW’S CHILD SUPPORT OBLIGATION (2)
AVERAGING MR. MORROW’S AND MS. BECKER’S INCOME OVER THE
PRIOR THREE YEARS THEREBY IMPUTING A GROSS INCOME THAT
DOES NOT ACCURATELY REFLECT CURRENT EARNINGS OR EITHER
PARTY AND (3) IGNORING THE BASIC CHILD SUPPORT SCHEDULE
AND TREATING THE INSTANT ACTION ON A CASE-BY-CASE BASIS.
THUS, THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
VIOLATED MR. MORROW’S RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.

{¶25} Father argues that the domestic relations court abused its discretion in its

calculation of child support. Specifically, Father argues that the trial court erred by (1) including

corporate benefits in his gross income, (2) averaging the parties’ incomes and imputing income

to Father, and (3) establishing child support outside the basic child support schedule. This Court

disagrees.

{¶26} As an initial matter, a trial court’s decision regarding child support obligations

will not be overturned absent a showing of an abuse of discretion. Booth v. Booth, 44 Ohio St.3d

142, 144 (1989).

Corporate benefits as income

{¶27} Father argues that the trial court erred by including $16,756 as company benefits

as part of his gross income for purposes of determining his child support obligation. That

amount consisted of the annual values of a company car ($9,600), insurance ($4,356), a cell

phone ($1,200), and Ohio State University football tickets ($1,600). The trial court did not

include the value of the laptop computer provided to Father by his business.
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{¶28} R.C. 3119.02 requires the court to calculate the child support obligation in

accordance with the applicable child support computation worksheet. The worksheet requires

that child support be based on the gross income of the parents. R.C. 3119.01(C)(7) defines

“gross income” as “the total of all earned and unearned income from all sources during a

calendar year, whether or not the income is taxable * * *.” The statute then sets out a non-

exclusive list of the types of income included, for example, salaries, wages, tips, rents, interest,

and pensions. The list concludes with “and all other sources of income.” Moreover, the statute

expressly includes “self-generated income” in a parent’s gross income. However, certain types

of income are expressly excluded from the definition of gross income. R.C. 3119.01(C)(7)(a)-

(f). One such exclusion is “Nonrecurring or unsustainable income or cash flow items[.]” R.C.

3119.01(C)(7)(e).

{¶29} Father is the president of Ohio College of Massotherapy (OCM) and OCM

Online. OCM is a non-profit corporation, while OCM Online is a for-profit corporation. Father

receives a salary from both businesses. While those salaries are not distinguished clearly on his

2007 tax return, his 2008 tax return indicates he was paid a salary of $121,897 by OCM and

$110,316 by OCM Online. He testified that he received certain non-monetary benefits from his

employment, including a Lexus automobile, car insurance, a cell phone, and a laptop computer.

He also admitted that the company buys four-seat season tickets for Ohio State University

football games, but claimed those were a perk for “my” employees but a necessary business

expense for himself when he attended games. It is not entirely clear whether OCM provided

these benefits to Father or whether he received them from employment with both OCM and

OCM Online.
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{¶30} Father does not dispute that the monetary value of the above benefits comports

with the trial court’s finding. Rather, he argues that none of the above benefits should have been

included in the calculation of his gross income. Specifically, he argues that the value of such

benefits could only be included as “self-generated income” pursuant to R.C. 3119.01(C)(13), and

that that provision is not applicable because Father has not received those benefits as “gross

receipts received * * * from self-employment, proprietorship of a business, joint ownership of a

partnership or closely held corporation, and rents[.]” Because R.C. 3119.01(C)(13) includes in

the definition of self-generated income expense reimbursements and in-kind payments such as

company cars, Father argues that such benefits are necessarily excluded as gross income under

R.C. 3119.01(C)(7).

{¶31} This Court does not agree that reimbursements and in-kind payments such as

company cars may only be included as gross income if a parent is self-employed or has an

ownership interest in the business merely because R.C. 3119.01(C)(13) lists examples of such

benefits. There is nothing in the statute which indicates that the provision of company cars,

housing, meals, or other benefits may only be considered as gross income under the limited

circumstances where a parent receives them as self-generated income. R.C. 3119.01(C)(7)

expressly includes “all other sources of income” in the definition of gross income without regard

for the parent’s employment circumstances. R.C. 3119.01(C)(7) identifies six types of income

expressly excluded from the definition of gross income. None of those exclusions mention

benefits of the type included in the trial court’s calculation of Father’s gross income. “Inasmuch

as the legislature chose not to include such an exception it must be presumed that none was

intended.” Patton v. Diemer, 35 Ohio St.3d 68, 70 (1988). Accordingly, even assuming that
 15

Father received the above benefits from OCM, a non-profit corporation in which he necessarily

had no ownership interest, there is no statutory support for excluding the value of those benefits.

{¶32} On the other hand, if Father received those benefits from his employment with

OCM Online, a for-profit corporation in which he had an ownership interest, the value of most of

those benefits would necessarily be included in his gross income as self-generated income

because the benefits “are significant and reduce personal living expenses.” See R.C.

3119.01(C)(13).

{¶33} In either event, Father testified that he had no other car or cell phone for personal

use. He admitted that he had no land line telephone at home. He testified that the company paid

for his car insurance. He admitted in his appellate brief that he would lose the benefit of these

items if he lost his job. He would, therefore, have to pay for such items out of pocket.

Accordingly, the trial court did not abuse its discretion by including the value of these benefits as

part of Father’s gross income.

{¶34} On the other hand, in regard to the Ohio State tickets, Father testified that he

provided the dates of the football games to his employees and asked them to let him know which

games they were interested in attending. He further testified that he sometimes gives some

tickets away to non-employees who have business with the companies. While Father attends

some football games every season, he reasonably does not derive a personal benefit from all four

seats of every game. Therefore, while he derives some personal economic benefit, he does not

derive the full $1,600 value of the tickets as a benefit. He did not, however, testify regarding

how many tickets he used for himself and his personal guests, such as his child Mo.

Accordingly, the trial court erred by including that entire amount in his gross income. However,

based on our resolution of the remaining issues in this assignment of error and the negligible
 16

result the slightly reduced income would have on Father’s child support obligation, any error was

harmless.

Imputation of income and income averaging

{¶35} Father argues that the trial court erred because it averaged his income from the

prior three years and imputed the averaged income to him without making an express finding

that he was underemployed. He further argues that the trial court erred by averaging Mother’s

income to calculate her gross income.

{¶36} R.C. 3119.01(C)(5) defines “income” depending on the circumstances of the

parent: “(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.” This Court has consistently held that a trial court must

expressly find a parent to be voluntarily unemployed or underemployed before imputing income

to that parent. Misleh v. Badwan, 9th Dist. No. 24185, 2009-Ohio-842, ¶ 7, citing Musci v.

Musci, 9th Dist. No. 23088, 2006-Ohio-5882, ¶ 17. However, in this case, the trial court did not

impute income to Father. Instead, the trial court averaged Father’s income based on fluctuations

in his income. Father’s reliance on law that requires the trial court to make an express finding of

voluntary underemployment before averaging income is misplaced.

{¶37} R.C. 3119.05(H) states: “When the court or agency calculates gross income, the

court or agency, when appropriate, may average income over a reasonable period of years.” This

Court had held that the decision as to the propriety of averaging a parent’s income lies in the

sound discretion of the trial court which is in the best position to weigh the facts and

circumstances. Akin v. Akin, 9th Dist. Nos. 25524, 25543, 2011-Ohio-2765, ¶ 13; Krone v.

Krone, 9th Dist. No. 25450, 2011-Ohio-3196, ¶ 32.
 17

{¶38} Father testified that his income has fluctuated based on the recent decrease in

student enrollment. His accountant testified that the businesses have recently rebounded after the

economic downturn. Father testified as to the changes he made in the year before the hearing to

cut business overhead, and the accountant testified that those actions greatly improved the

companies’ financial positions. Under the circumstances, the trial court did not abuse its

discretion by averaging Father’s income from the prior three years based on the fluctuations in

his income.

{¶39} Father further argues that the trial court erred by averaging Mother’s income

because her income has steadily increased rather than fluctuated. His argument is not supported

by the record. Mother’s tax returns submitted into evidence indicated that Mother’s adjusted

gross income was $58,588 in 2007, $42,212 in 2008, and $51,716 in 2009. She testified that she

received a one-time $500 employee of the month bonus and a one-time $5000 employee of the

year bonus in 2009. By averaging Mother’s income over the past three years, properly not

including the bonuses as nonrecurring or unsustainable income pursuant to R.C.

3119.01(C)(7)(e), the trial court arrived at an amount nearly $3000 more than it would have had

it merely used Mother’s gross income from 2009 minus the nonrecurring income. By doing so, a

higher percentage of the support obligation was attributed to Mother, thereby inuring a benefit to

Father. Under the circumstances, the trial court did not abuse its discretion by averaging

Mother’s income from the prior three years based on fluctuations in her income.

Basic child support schedule

{¶40} Father argues that the trial court erred by failing to apply the basic child support

schedule because the parents’ combined gross income was not more than $150,000.
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{¶41} R.C. 3119.021 sets out the basic child support schedule which must be used to

calculate child support unless the parents’ combined gross income is less than $6,600 or more

than $150,000. R.C. 3119.04(B) states, in relevant part: “If the combined gross income of both

parents is greater than one hundred fifty thousand dollars per year, the court * * * shall determine

the amount of the obligor’s child support obligation on a case-by-case basis and shall consider

the needs and the standard of living of the children who are the subject of the child support order

and of the parents.”

{¶42} Father argues that the trial court was precluded from determining his child support

obligation on a case-by-case basis because the combination of the parents’ actual income is less

than $150,000. He argues that, because R.C. 3119.01(C)(7) defines gross income as income

earned during a calendar year, the trial court erred by using the parties’ averaged incomes. This

Court has already concluded that the trial court did not err by averaging the parents’ prior three

years’ incomes to determine their annual gross incomes. The average of Father’s prior three

years’ incomes was $143,622, while Mother’s was $49,954, resulting in a combined gross

income of $193,576 for the parents. Accordingly, the trial court was required to determine

Father’s child support obligation on a case-by-case basis.

{¶43} Father further argues that his child support obligation is more than 50% of his

current take home pay. In support, he cites Siebert v. Tavarez, 8th Dist. No. 88310, 2007-Ohio-

2643, ¶ 36, for the proposition that the trial court must “ensure that the obligor parent is not so

overburdened by child support payments that it affects that parent’s ability to survive.” Father

fails, however, to explain how his current obligation impacts his ability to survive.

{¶44} On the other hand, the evidence adduced at trial demonstrated that Father

continued to live well. He recently bought a $405,000 home with a pool on which he was able to
 19

make an $80,000 down payment even before he sold his prior home for $260,000. He made

certain improvements to the property and acquired new furnishings. Father was driving a Lexus

automobile, furnished by OCM, as well as an $11,000 motorcycle for which he paid cash. He

continued to travel internationally, ostensibly for business, although he had not secured any new

business opportunities from his numerous and frequent trips to China. Moreover, even though

Father recently voted to decrease his salary, because of the control he exerts on the board of

trustees for the college, he retains considerable power to establish his salary. He did not testify

that his recent decrease in salary caused him to downsize his lifestyle in any way.

{¶45} Moreover, Father cites no law to show that withholding of “over 50%” is not

permissible under these circumstances. In fact, in a garnishment context, 15 U.S.C.

1673(b)(2)(B) would allow withholding of up to 60% of Father’s disposable earnings as he is not

supporting a spouse or other dependent children. Accordingly, Father’s fourth assignment of

error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING MR.
MORROW IN CONTEMPT, THEREBY COMMITTING REVERSIBLE
ERROR AND VIOLATING MR. MORROW’S RIGHTS UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.

{¶46} Father argues that the trial court erred by finding him in contempt for failing to

pay his child support obligation through wage withholding. This Court agrees.

{¶47} This Court reviews contempt proceedings for an abuse of discretion. Akin at ¶ 44,

citing Thomarios v. Thomarios, 9th Dist. No. 14232, 1990 WL 1777 (Jan. 10, 1990). An abuse

of discretion connotes that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore, 5 Ohio St.3d at 219.
 20

{¶48} As this Court previously recognized: “Contempt of court is defined as

disobedience of an order of a court. It is conduct which brings the administration of justice into

disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its

functions.” Poitinger v. Poitinger, 9th Dist. No. 22240, 2005-Ohio-2680, ¶ 31, quoting

Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55 (1971), paragraph one of the syllabus.

Although contempt is generally classified as either civil or criminal to facilitate review, the Ohio

Supreme Court has recognized that contempt proceedings are sui generis, i.e., neither wholly

civil nor wholly criminal. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253. The Brown

court elaborated:

While both types of contempt contain an element of punishment, courts
distinguish criminal and civil contempt not on the basis of punishment, but rather,
by the character and purpose of the punishment. Punishment is remedial or
coercive and for the benefit of the complainant in civil contempt. Prison
sentences are conditional. The contemnor is said to carry the keys of his prison in
his own pocket, since he will be freed if he agrees to do as ordered. Criminal
contempt, on the other hand, is usually characterized by an unconditional prison
sentence. Such imprisonment operates not as a remedy coercive in its nature but
as punishment for the completed act of disobedience, and to vindicate the
authority of the law and the court. Therefore, to determine if the sanctions in the
instant cause were criminal or civil in nature, it is necessary to determine the
purpose behind each sanction: was it to coerce [Father] to obey the [child support
order], or was it to punish [him] for past violations?

(Internal citations omitted.) Id. at 253-254.

{¶49} In this case, the trial court fined Father after finding that he had failed to pay his

child support through wage withholding. However, the court gave him the opportunity to purge

his contempt and avoid paying the fine by establishing wage withholding within thirty days of

the court’s judgment. Because the trial court’s punishment was remedial and coercive in nature,

and Father had the opportunity to purge the contempt, it was civil in nature. In civil contempt

proceedings, a finding of contempt must be premised on clear and convincing evidence. Romans
 21

v. Romans, 9th Dist. No. 23181, 2006-Ohio-6554, ¶ 9. This Court has long recognized that the

movant’s burden of proving a prima facie case of contempt may be met by producing the order

and proof of the contemnor’s failure to comply. Rossen v. Rossen, 2 Ohio App.2d 381, 383-384

(9th Dist.1964).

{¶50} Mother alleged in her contempt motion that Father had failed to pay child support

and that he had failed to effect the mandatory wage withholding. The trial court found Father in

contempt solely on the basis that he had failed to pay his child support obligation by wage

withholding “as ordered by this Court and pursuant to the Ohio Revised Code.” The domestic

relations court cited to the parties’ March 30, 2005 agreed judgment entry which addressed

interim issues of parenting time and child support pending trial to ultimately resolve those issues.

The March 30, 2005 entry ordered Father to pay child support by wage withholding through the

Ohio Child Support Payment Central, in Columbus. That entry included the following order in

bold font: “All child support and spousal support under this order shall be withheld or deducted

from the income or assets of the Obligor pursuant to a withholding or deduction notice or

appropriate court order issued in accordance with Section 3121.03 of the Ohio Revised Code.”

Mother cited neither the March 30, 2005 order nor R.C. 3121.03 in her contempt motion.

{¶51} On March 1, 2006, the domestic relations court issued a final judgment in which it

designated Mother as the residential parent, ordered parenting time for Father, and ordered

Father to pay child support. The child support order stated: “Effective October 1, 2005, Mr.

Morrow shall pay child support through the Medina County Child Support Enforcement Agency

in the amount of $2,198.05 per month, which includes 2% processing fee.” There was no order

that the support be paid through wage withholding. Moreover, the March 1, 2006 order did not
 22

include any notice identical or similar to the notice in the March 30, 2005 order, referencing R.C.

3121.03 or otherwise mentioning wage withholding.

{¶52} Mother relied on the March 1, 2006 order for her allegation that Father was

required to pay child support by wage withholding. However, at the hearing, Mother admitted

that the current order for child support ordered Father to pay CSEA directly, not by wage

withholding.

{¶53} Mother failed to present clear and convincing evidence that Father violated the

current child support order. Before a party may be held in contempt for disobeying a court order,

the prior order “‘must spell out the details of compliance in clear, specific and unambiguous

terms so that such person will readily know exactly what duties or obligations are imposed upon

him.’” Collette v. Collette, 9th Dist. No. 20423, 2001 WL 986209 (Aug. 22, 2001). The interim

child support order issued on March 30, 2005, was superseded by the final judgment issued on

March 1, 2006. While the interim order ordered Father to pay child support by wage

withholding to the central agency in Columbus, the final judgment ordered Father to pay child

support directly to Medina County CSEA. Moreover, the final judgment made no reference to

R.C. 3121.03 or any other code provision which would have put Father on notice of any

obligation to pay child support by wage withholding. Accordingly, the domestic relations court

erred when it found Father in contempt for failing to pay child support by wage withholding

based on the evidence adduced at trial. Father’s fifth assignment of error is sustained.

III.

{¶54} Father’s first, second, third, and fourth assignments of error are overruled.

Father’s fifth assignment of error is sustained. The judgment of the Medina County Court of
 23

Common Pleas, Domestic Relations Division, is affirmed in part and reversed in part, and the

cause remanded for further proceedings consistent with this opinion.

Judgment affirmed in part,
Reversed in part,
And cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

DONNA J. CARR
FOR THE COURT

WHITMORE, P. J.
BELFANCE, J.
CONCUR.
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APPEARANCES:

JOHN C. RAGNER, Attorney at Law, for Appellant.

LINDA HOFFMAN, Attorney at Law, for Appellee.