Smith v. Smith

[Cite as Smith v. Smith, 2018-Ohio-3387.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Deborah J. Smith, :

Plaintiff-Appellee, :
No. 17AP-486
v. : (C.P.C. No. 15DR-3415)

Jackie M. Smith, Jr., : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on August 23, 2018

On brief: Jonathan W. Klein, for appellant. Argued:
Jonathan W. Klein.

APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations

HORTON, J.
{¶ 1} Defendant-appellant, Jackie M. Smith, Jr., appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, granting the
parties a divorce and settling all issues that had not been previously settled by stipulation.
For the following reasons, we affirm in part, reverse in part, and remand the matter to the
trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties were married on March 9, 1996, and two children were adopted
as issue of the marriage. On September 11, 2015, appellee, Deborah J. Smith, filed a
complaint for divorce from appellant. On October 15, 2015, appellee filed a relocation
notice that she moved to Erie, Pennsylvania. On October 27, 2015, appellant filed an
answer and counterclaim for divorce. On February 8, 2016, a magistrate issued temporary
orders. On the same day, appellant filed a motion to modify temporary orders pursuant to
No. 17AP-486 2

Civ.R. 75(N). On April 29, 2016, the magistrate issued an order modifying the temporary
orders. On June 29, 2016, appellee filed a motion to modify the temporary orders issued
on April 29, 2016. On August 2, 2016, appellee filed an amended motion to modify the
temporary orders seeking to modify the orders issued on February 8 and the orders on
April 29, 2016.
{¶ 3} The parties entered into an agreed interim magistrate's order settling child
support, health insurance, and cash medical support. On June 6, 2017, the trial court held
a hearing on issues that the parties had not settled. On June 7, 2017, the parties submitted
their shared parenting plan for the children and stipulations. On June 19, 2017, the trial
court issued a decision and judgment entry decree of divorce. On July 7, 2017, appellant
filed a notice of appeal.
II. ASSIGNMENTS OF ERROR
{¶ 4} Appellant filed a timely notice of appeal and raised the following assignments
of error for our review:
I. THE TRIAL COURT ERRED IN GRANTING APPELLEE
TO CLAIM ONE OF THE CHILDREN FOR THE TAX
DEPENDENCY EXEMPTION.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN BASING ITS SPOUSAL SUPPORT ORDER ON
SPECULATION, RATHER THAN UPON THE NEEDS OF
THE APPELLEE, THE APPELLANT'S ABILITY TO PAY
AND/OR ANY OF THE REQUIRED STATUTORY FACTORS,
INCLUDING APPELLEE'S EARNING CAPACITY.

III. THE TRIAL COURT REASONS FOR AWARDING
ATTORNEY FEES ARE NOT SUSTAINED BY THE
MANIFEST WEIGHT OF THE EVIDENCE.

III. STANDARD OF REVIEW
{¶ 5} The standard of review for appellate courts in domestic relations cases is
whether the trial court abused its discretion. Scinto v. Scinto, 10th Dist. No. 09AP-5, 2010-
Ohio-1377, ¶ 4, citing Booth v. Booth, 44 Ohio St.3d 142 (1989). An abuse of discretion
connotes more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
No. 17AP-486 3

IV. DISCUSSION
{¶ 6} In his first assignment of error, appellant contends that the trial court erred
in allocating the federal tax dependency exemptions one to each parent. He argues that the
trial court should have allocated both to him.
{¶ 7} When a trial court issues a child support order, pursuant to R.C. 3319.82, it
must designate which parent may claim the child who is the subject of the support order as
a dependent for federal income tax purposes. "Under federal tax law, a custodial parent
generally may claim the dependency exemption." Serra v. Serra, 10th Dist. No. 15AP-528,
2016-Ohio-950, ¶ 35, citing 26 U.S.C. 152(c)(1). However, a trial court has discretion to
allocate the tax dependency exemption to a non-custodial parent. Id. "A trial court enjoys
broad discretion when allocating tax dependency exemptions, and absent a showing of an
abuse of discretion, an appellate court may not substitute its judgment for that of the trial
court." Geschke v. Geschke, 9th Dist. No. 32660M, 2002-Ohio-5426, ¶ 32, citing Morgan
v. Morgan, 9th Dist. No. 01CA0017 (Oct. 24, 2001).
{¶ 8} R.C. 3119.82 provides, in relevant part, as follows:
Whenever a court issues, or whenever it modifies, reviews, or
otherwise reconsiders a court child support order, it shall
designate which parent may claim the children who are the
subject of the court child support order as dependents for
federal income tax purposes as set forth in section 151 of the
"Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1,
as amended. * * * If the parties do not agree, the court, in its
order, may permit the parent who is not the residential parent
and legal custodian to claim the children as dependents for
federal income tax purposes only if the court determines that
this furthers the best interest of the children and, with respect
to orders the court modifies, reviews, or reconsiders, the
payments for child support are substantially current as
ordered by the court for the year in which the children will be
claimed as dependents. In cases in which the parties do not
agree which parent may claim the children as dependents, the
court shall consider, in making its determination, any net tax
savings, the relative financial circumstances and needs of the
parents and children, the amount of time the children spend
with each parent, the eligibility of either or both parents for
the federal earned income tax credit or other state or federal
tax credit, and any other relevant factor concerning the best
interest of the children.
No. 17AP-486 4

{¶ 9} Thus, the trial court may award the nonresidential parent the dependency
exemption if it determines that this furthers the best interest of the child and the payments
for child support are substantially current. The trial court is to consider other factors when
making its determination such as any net tax savings, the relative financial circumstances
and needs of the parents and children, the amount of time the children spend with each
parent, the eligibility of either or both parents for the federal earned income tax credit or
other state or federal tax credit, and any other relevant factor concerning the best interest
of the children.
{¶ 10} In this case, the trial court awarded each parent a dependency exemption.
Appellant argues that the trial court did not provide a sufficient basis for its decision or
consider the factors. We agree. The trial court stated in its analysis that it recognized that
"Plaintiff's Exhibit 24, FinPlan calculations, is not entirely insightful as it does not factor in
the payment of spousal support as ordered in this case. Without further information the
Court can only speculate as to the tax ramifications to each party in claiming a child or both
children. However, utilizing as guidance Exhibit 24 and reviewing the overall financial
equities, the Court finds that splitting the two tax dependency exemptions would be most
appropriate." (June 19, 2017 Decision at 15.)
{¶ 11} The trial court decision fails to reflect that the trial court properly considered
the applicable factors and whether allowing appellee to claim one child for the federal tax
exemption is in the best interest of the children. Further, the trial court stated that it was
speculating regarding the tax ramifications. The nonresidential parent has the burden to
demonstrate that allocating the dependency exemption to the nonresidential parent is in
the best interests of the children. Serra at ¶ 37, quoting Meassick v. Meassick, 171 Ohio
App.3d 492, 2006-Ohio-6245, ¶ 15 (7th Dist.). A trial court abuses its discretion when it
fails to provide any reasoning to support its decision to award the federal dependent child
exemption. Lopez v. Lopez, 10th Dist. No. 04AP-508, 2005-Ohio-1155, ¶ 53. Thus, the trial
court erred in allocating the federal tax dependency exemptions one to each parent without
considering the factors and determining the children's best interest. Appellant's first
assignment of error is sustained.
No. 17AP-486 5

{¶ 12} In his second assignment of error, appellant contends that the trial court
erred in basing its spousal support order on speculation, rather than upon the needs of the
parties, the appellant's ability to pay and/or any of the required statutory factors, including
appellee's earning capacity.
{¶ 13} R.C. 3105.18(B) authorizes the trial court to award reasonable spousal
support. When determining whether spousal support is appropriate and reasonable, the
trial court must consider the factors set forth in R.C. 3105.18(C)(1). The 14 factors provided
in R.C. 3105.18(C) include:
(a) The income of the parties, from all sources, including, but
not limited to, income derived from the property divided,
disbursed, or distributed under property divided, disbursed,
or distributed under section 3105.171 of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional
conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party,
because that party will be custodian of a minor child of the
marriage, to seek employment outside the home;

(g) The standard of living of the parties established during the
marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including
but not limited to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training,
or earning ability of the other party, including, but not limited
to, any party's contribution to the acquisition of a professional
degree of the other party;

(k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or job
experience so that the spouse will be qualified to obtain
No. 17AP-486 6

appropriate employment, provided the education, training, or
job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of
spousal support;

(m) The lost income production capacity of either party that
resulted from that party's marital responsibilities;

(n) Any other factor that the court expressly finds to be
relevant and equitable.

{¶ 14} It is not necessary that the trial court expressly comment on each factor, but
it must indicate the basis for an award of spousal support in sufficient detail to enable a
reviewing court to determine that the award is fair, equitable, and in accordance with the
law and there must be a clear indication that the factors were considered. Hightower v.
Hightower, 10th Dist. No. 02AP-37, 2002-Ohio-5488, ¶ 24, citing Casper v. DeFrancisco
10th Dist. No. 01AP-604 (Feb. 19, 2002). The record need only show that the trial court
considered the factors in making its award. McClung v. McClung, 10th Dist. No. 03AP-156,
2004-Ohio-240, ¶ 21, citing Carman v. Carman, 109 Ohio App.3d 698, 703 (12th
Dist.1996). The trial court has broad discretion in determining what is equitable and
whether or not to award spousal support given the facts and circumstances of the case and
an appellate court will not disturb a spousal support award unless the trial court abused its
discretion. Leimbach v. Leimbach, 10th Dist. No. 09AP-509, 2009-Ohio-6991, ¶ 20, citing
Kunkle v. Kunkle, 51 Ohio St.3d 64, 67 (1990).
{¶ 15} The trial court made specific findings regarding the R.C. 3105.18(C) factors,
as follows:
1. Plaintiff's present income if [sic] $25,720.00. Defendant's
present income is $68,474.00.

2. Plaintiff's earning ability was previously established herein
at $29,000.00

3. Plaintiff is 56 years of age; no evidence was presented as to
any inability to work. Defendant is 45 years of age; no
evidence was presented as to any disability.

4. Both parties have minimal retirement.
No. 17AP-486 7

5. The parties' marriage was 21 years in duration, however, the
Court notes that the parties have lived separate and apart for
approximately the last 20 months.

6. The parties' standard of living while together was modest.

7. The parties have minimal assets and liabilities.

8. The Court will and has factored in the tax consequences of
the payment of spousal support.

9. Other considerations by the Court were a recognition that
the Defendant does receive $900.00 per month to assist with
the children. While the Court does not find the stipend to be
income for the purposes of a Child Support Guideline
calculation, the Court does find it to benefit the Defendant by
increasing his cash flow and assisting with the payment of the
ongoing expenses of the residence. The Court further finds
that the Defendant is presently utilizing the services of a
nanny/child care provider and the Court does not make any
determination as to whether or not there is a need for child
care or the appropriate cost for the same, but merely
recognizes this as an expense of the Defendant.

Additional factors within R.C. 3105.18(C)(1) were not
specifically addressed by the parties.

(June 19, 2017 Decision at 17-18.)
{¶ 16} The trial court addressed each of the R.C. 3105.18(C)(1) factors on which
evidence was presented and noted that the additional R.C. 3105.18(C)(1) factors were not
specifically addressed by the parties. "When a trial court specifically indicates that it has
reviewed the appropriate statutory factors, there is a strong presumption that the factors
were indeed considered." Huffman v. Huffman, 10th Dist. No. 01AP-726, 2002-Ohio-
2565, ¶ 35, citing Babka v. Babka, 83 Ohio App.3d 428, 435 (9th Dist.1992). Considering
the broad discretion that the trial court has in determining what is equitable and whether
or not to award spousal support, we cannot say that the trial court abused its discretion.
Appellant's second assignment of error is overruled.
{¶ 17} By his third assignment of error, appellant contends that the trial court's
award of attorney fees to appellee is against the manifest weight of the evidence. Appellant
No. 17AP-486 8

argues that appellee did not offer an expert to testify concerning the necessity or
reasonableness of the fees incurred. Further, appellee never presented any billing sheet
from her first attorney demonstrating she paid $2,000. Appellant's final argument is that
the trial court did not consider the relative liabilities of the appellant or make any findings
in the record that appellant's conduct caused delay or frustrated the process.
{¶ 18} Appellant testified that she had paid her first attorney approximately $2,000
in attorney fees. (Tr. at 117.) She had accrued over $7,000 in attorney fees before the
hearing. (Tr. at 117.) She still owed $3,607.50 as of June 1, 2017. (Ex. No. 31.) She
submitted all the invoices from her current attorney. (See Ex. No. 31.) The trial court
ordered appellant to pay $2,000 to appellee for expense money. The trial court stated, as
follows at page 23-24 of its decision:
4. Plaintiff believes that her expense[s] are extraordinarily
high due to Defendant's failure to cooperate and causing this
case to continue on.

***

The Court having reviewed the Court file, as well as the
timesheets of Plaintiff's Counsel, finds that Plaintiff's
Counsel's services were reasonable and necessary in order to
promote her position. The Court further finds that the
Plaintiff has operated at a financial disadvantage throughout
the pendency of this cause of action and has a greater inability
to fund her case.

The Court does find that the Defendant inappropriately
caused this cause of action to be delayed, however, the Court
believes that equity would be served by issuing an Order for
expense money.

{¶ 19} Initially, we note that appellant stipulated that appellee's attorney fees are
reasonable in amount. (June 7, 2017 Stipulation at ¶ 10.) Further, it is within the trial
court's discretion to award attorney fees if the court finds the award equitable. R.C.
3105.73; Swanson v. Swanson, 48 Ohio App.2d 85 (8th Dist.1976). In order to determine
whether an award is equitable, the trial 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. R.C. 3105.73(A).
No. 17AP-486 9

{¶ 20} Appellee did not need an expert to testify concerning the reasonableness of
the fees incurred because appellant stipulated to their reasonableness. Moreover, appellee
testified that she had paid approximately $2,000 to her first attorney. (Tr. at 117.) At the
time of the hearing, appellee owed more to her current attorney than the trial court
awarded.
{¶ 21} " 'A trial court is able to evaluate, in a large measure, the work performed by
an attorney in a domestic relations case by merely looking at the record before the court.' "
Tonti v. Tonti, 10th Dist. No. 03AP-494, 2004-Ohio-2529, quoting Ward v. Ward, 10th
Dist. No. 85AP-61 (June 18, 1985). Furthermore, "a trial court in such circumstances can
use its own knowledge and experience in determining the necessity and reasonableness of
attorney fees." Id.
{¶ 22} Appellee testified that she believed ordering appellant to pay some of her
attorney fees was equitable because of the delays and lack of cooperation and agreement.
(Tr. at 118.) Despite appellant's argument that it did not do so, the trial court stated that it
considered the entire file, conducted a hearing, reviewed the attorney timesheets, and made
findings that the attorney's services were reasonable and necessary, that appellee operated
at a financial disadvantage during the pendency of the case, and had a greater inability to
fund her case and that appellant inappropriately caused delay. The trial court did not abuse
its discretion in awarding $2,000 in attorney fees to appellee and the award of attorney fees
to appellee is not against the manifest weight of the evidence. Appellant's third assignment
of error is overruled.
V. CONCLUSION
{¶ 23} For the foregoing reasons, appellant's first assignment of error is sustained,
the second and third assignments of error are overruled, the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, is affirmed in part and
reversed in part, and this cause is remanded to the trial court to consider the R.C. 3119.82
factors and to make the appropriate findings.
Judgment affirmed in part, reversed in part;
cause remanded.

BROWN, P.J. and KLATT, J., concur.
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