Graham v. Graham

153 N.E.3d 843

2020 Ohio 1435

Timothy P. GRAHAM, Plaintiff-Appellee,

v.Patricia L. GRAHAM, Defendant-Appellant.

NO. 14-19-18

Court of Appeals of Ohio, Third District, Union County.

Date of Decision: April 13, 2020

John H. Cousins IV, Columbus, for Appellant

Bruce A. Hyslop, Hilliard, for Appellee

WILLAMOWSKI, J.

{¶1} Defendant-appellant Patricia L. Graham ("Patricia") brings this appeal from the judgment of the Union County Court of Common Pleas, Domestic Relations Division, modifying the child support paid by plaintiff-appellee Timothy P. Graham ("Timothy"). On appeal, Patricia alleges that the trial court erred in calculating the child support and by denying her motion for attorney fees. For the reasons set forth below, the judgment is affirmed.

{¶2} On November 17, 2014, the trial court entered a decree of divorce and found that the shared parenting plan of the parties children was in their best interest. Doc. 52. The trial court ordered Timothy to pay child support in the amount of $1,250 per month. Id. At the time of this order, the parties combined income was approximately $228,800.70, which exceeded the $150,000 maximum scheduled income of the worksheet. Id.

{¶3} On May 2, 2018, the Union County Child Support Enforcement Agency filed an administrative adjustment recommendation that Timothy now pay child support in the amount of $3,221.71. Doc. 54. The recommendation determined that Timothy had an adjusted gross income of approximately $267,724 and Patricia had an adjusted gross income of approximately $85,593 for a combined income of approximately $353,318. Id. The amount of child support was extrapolated because the amount exceeded the $150,000 schedule set by statute. Id. Timothy objected to the recommendation and requested a court hearing. Id. A hearing was set for July 17, 2018. Doc. 59. On July 10, 2018, Patricia requested a continuance of the hearing to allow for additional discovery. Doc. 67. The motion for the continuance was granted. Doc. 68.

{¶4} On August 1, 2018, Patricia filed a motion to reallocate parental rights and responsibilities which included a request to increase Timothy's child support to $3,194.26 per month. Doc. 76. Timothy filed his memorandum contra Patricia's motion on August 17, 2018. Doc. 80. On September 20, 2018, Patricia filed a motion for attorney fees and litigation expenses. Doc. 81. Timothy also filed a motion for attorney fees and litigation expenses on October 4, 2018. Doc. 83. A hearing was held on all motions on November 29, 2018.

Doc. 88. On January 23, 2019, the magistrate issued his decision. Doc. 88. The magistrate determined that Timothy's income for child support purposes was $246, 897 and Patricia's income for child support purposes was $87,318. Id. at 7. The magistrate then determined that using the extrapolation method from the support worksheet, the guideline support from Timothy would be $2,954.47. Id. The magistrate then adjusted the amount to account for the in-kind support received and reduced the amount of child support to $2,600 per month. Id. at 10. The magistrate denied both motions for attorney fees finding that the facts did not support the requests. Id. at 11-12.

{¶5} On January 29, 2019, Timothy filed objections to the magistrate's decision claiming 1) the effective date of the modification was prejudicial and 2) the magistrate improperly calculated the support when considering the in-kind contributions. Doc. 91. Patricia filed cross-objections to the magistrate's decision claiming the magistrate erred by 1) excluding Timothy's "additional" income, 2) denying her motion for attorney fees, and 3) failing to modify the shared parenting decree. Doc. 92. On April 19, 2019, the trial court entered judgment on the objections. Doc. 94. The trial court overruled all of the objections, but modified the magistrate's decision as to the amount of child support owed. Id. The trial court ordered that from May 1, 2018 until March 28, 2019, Timothy would owe monthly child support of $2,600. Id. However, the trial court noted that on March 28, 2019, a new child support statute became effective that set forth a worksheet for combined incomes of up to $336,467.04 rather than the previous $150,000. Id. at 17. Since the combined income of Patricia and Timothy was less than that amount, the trial court found the statute to be applicable to all support after the effective date. Id. As of the effective date of the statute, the monthly child support was reduced to $1,921.91 as determined by the appropriate worksheet. Id. at 19 and Ex. C. Timothy did not appeal the judgment of the trial court. Patricia filed a timely notice of appeal from this judgment. Doc. 96. On appeal, Patricia raises the following assignments of error.

First Assignment of Error

The trial court abused its discretion and erred as a matter of law by calculating child support under the statutory amendments in H.B. 366.

Second Assignment of Error

The trial court abused its discretion and erred as a matter of law by excluding $39,861 from [Timothy's] gross income under R.C. 3119.05(K).

Third Assignment of Error

The trial court abused its discretion and erred as a matter of law by denying [Patricia's] motion for attorney fees and litigation expenses.

For the purpose of clarity, we will address the assignments out of order.

Calculation of Income

{¶6} In the second assignment of error, Patricia claims that the trial court erred by excluding $39,861 from Timothy's gross income. This alleged income was additional income that Timothy earned by performing chart reviews that he had done from his residency. Timothy's tax returns showed that in the three years prior to the hearing, he had earned an average of $39,861 in addition to his annual salary of $246,897. Patricia argues that the trial court erred by not including this income in the child support calculation.

{¶7} At the hearing, Timothy testified that he was employed as the Program Director for the Family Medicine Residency Program at Mount Carmel/St. Ann's. Vol. 1 Tr. 42-43. Timothy testified that at the time of the hearing, his salary was $246,897, which included a recent increase of $6,000 for being the director of the department. Id. at 44. Timothy also indicated that he received a stipend of $6,000 for being the elected department chair, but that his position would end at the end of the year and there was no guarantee he would receive it again. Id. at 46. From the time of the divorce forward, Timothy also had been working reviewing charts as an independent contractor for CareWorks. Id. at 47. Timothy testified that he had stopped working for CareWorks in April of 2018. Id. at 50-51. When asked why he stopped working for CareWorks, Timothy testified as follows.

Q. Why don't you explain to the Court why you stopped working for CareWorks?

A. Several reasons, actually. Um, at around – around that time, um, our – my level of responsibility in my job at St. Ann's actually increased. We're down a couple of faculty members, so I'm doing more clinical responsibility within the program to keep it running effectively and be able to train our residents.

Q. Keep your voice up.

A. I'm sorry, yes, I tend to have a quiet voice. I'm sorry. Secondly, I am, also completing my Master's of Health Professions Education through the University of Illinois at Chicago. This year is my focus year on completing my thesis so I can actually get that degree done. Um, UIC gives you five years to get your Master's done. This is my fifth year, so I am devoting a significant amount of time to preparing, um, reviewing and getting ready to defend my thesis before this year ends.

Q. Now, wait a minute. Make sure you clarify. This year –

A. I'm sorry, this – I think academic year, so yeah, thankfully, it's not this month but by the end of July I need to have my – I need to have my thesis defended.

Q. Okay.

A. Thirdly, next year is – next year is 2019, is my Board recertification date. So, um, in family medicine, we're on a ten year Board cycle, and so I need additional time to actually prepare for those Boards and make sure that I actually pass them because my employment is contingent upon me being a Board certified family medicine physician. So, this tends to be a high stakes endeavor for all of us in the practice and it's not atypical for us to spend additional time trying to prepare for that.

Next – I forget what number I'm on – but next I, also, have recently joined the Accreditation Council for Graduate Medical Education's Milestone Review Committee which is a national opportunity to actually help shape the assessment system for residents in family medicine which are going to go into effect in 2020, so that's going to require additional time of me in review, revision over the next year-and-a-half or so.

And, finally, a couple months after that I was getting married and I am actually going to and do now have somebody at home with me every night. Um, my wife would prefer that I don't do that because she would rather have me at home spending time with her and with the family than with my nose in charts and so that was a good motivation for me as well.

Q. Would you tell me, the Board certification, that's kind of front and center, isn't it, in terms of your job?

A. Out of everything that I mentioned, that's probably the most critical to me continuing employment. Virtually every place requires Board certification but most clearly with me being in graduate medical education we have to be Board Certified. There's not – there's not another way around that.

Q. You really didn't tell us. What is the last year for obtaining that Board certification?

A. A, yeah, I'm sorry, it is in 2019. It's a set time. It's a ten year – a ten year cycle and my ten year cycle is coming up in 2019.

Q. So, when do you plan on taking your Boards for recertification?

A. I have two opportunities. Either in April or in November depending upon level of preparation. Currently, I have two self-study Board review courses that I've ordered that I

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