An uncontested divorce typically occurs when one party cannot be found, is incarcerated, or will simply not respond to communication efforts by the other party of his lawyer.  The spouse with an attorney simply files the paperwork with the court, obtains proper service on the other spouse, shows up with witnesses to attest to the incompatibility of the marriage, and obtains the divorce.

A dissolution simply means the terms of the divorce were hashed out by the two parties before any documents are filed with the court. There is no need to go to trial in front of a family court judge. Both parties show up in court and verify their signatures on the documents and that such documents contain their intentions on how they want their marriage dissolved.  A dissolution is the easier, faster and less expensive way to terminate the marriage, dissolution does not necessarily mean undisputed.

Many couples agree to a dissolution for practical reasons. If there are no minor children, custody, visitation and child support are not issues that need to be addressed. If the marriage is short, there may be no alimony (also known as spousal support) to be awarded. If there are few assets to be divided, it makes no sense to have a long drawn-out fight.

That said, dissolutions can still have plenty of drama and tension as the splitting couple work out the division of community property and debt accrued, as well as child custody arrangements and spousal or child support, if applicable. It also does not mean that only one attorney is involved. Often, both sides have a lawyer.  Sometimes, what starts as a dissolution ends up as a contested divorce proceeding.

The ideal dissolution is when the couple can work out their financial and familial issues without the intercession of the courts. If there is an impasse, most divorce lawyers would then recommend mediation or arbitration, also referred to as collaborative law.  Mediation is where the two parties are assisted by a third party in making a mutually agreed upon solution.  Both sides get a say in the final decision.

The other advantage of a dissolution is that all disagreements and personal issues are discussed in private and do not become a matter of public record. The moment you go to trial and take the stand to testify, your life becomes public. And again, when any case goes to trial, the participants lose the opportunity to control their own destiny because now a third party ― in this case the family court judge ― will make the decisions.

That is not to say everyone should have a dissolution. For example, when there are large, complicated financial issues, it may be prudent to have everything on record. And when there has been abuse in the marriage, a contested divorce can assure the interest of the abused spouse is protected.   To see if your case is best suited for a divorce or dissolution, contact a good family law attorney.

First, if you have not done so already, make sure you have a credit card, checking account and savings account in your name only. This is going to help rebuild your credit score once again. Next, you will need to incorporate any aspects of your divorce decree into your financial decisions, such as paying child support. You will also need to change information on documents pertaining to things such as health insurance, auto insurance, renters insurance and life insurance to reflect your individual status.

Fully understanding the process of transitioning from joint to individual financial status is very important. This will help you avoid making bad financial decisions. There are many options available for better educating yourself on this process. These include taking a course online or at the local university; reading a book; or checking out one of the many websites on the Internet that feature a wealth of helpful resources on how to better understand your finances. You can also consult with your divorce attorney, who is typically knowledgeable about these issues, or may be able to refer you to another attorney within his/her firm to help you.

Now that you are handling your own finances, you will also want to audit yourself. Working with an attorney or CPA to get your taxes in order will ensure that any outstanding tax returns get filed. During tax time, it is also wise to seek the advice of a financial expert. This allows you to gain a better understanding of your overall financial situation as well as receive some guidance on ways to better manage your money.

Lastly, you need to create a long-term financial plan. This strategy will help you reach your long-term financial goals. Depending on your individual situation, you may want to seek financial assistance in crafting this plan as well.

Getting a divorce can create financial problems. But if you prepare yourself properly, you can get your finances back in order and avoid future financial difficulty.

All states recognize no fault divorces, but not all no fault divorces are equal. In California, which essentially invented no fault divorce, either party can file without assigning blame. The petitioner just needs to choose from one of two grounds listed: “irreconcilable differences” or “incurable insanity.” Other states require couples to live apart for a designated period of time, which can range from months to years, before they may file for no fault divorce.

Fault divorces can be contested. While most judges feel it is not in the public interest to force people to stay married, it has happened, particularly in conservative jurisdictions.  No fault divorce was devised to leave the decision of whether to stay married or get a divorce in the hands of the couple, not a judge.

Besides easing the divorce process, no fault divorce has other advantages. According to statistics, reported instances of domestic violence declined in state that adopted no fault filings. It is easier for victims of spousal abuse to leave. It helps reduce family courts’ caseloads. No fault divorces take less time, cost less and save emotional wear and tear. It tends to be easier on the children compared to a contested fault divorce.

While do it yourself divorces are possible, you should consult with an attorney to make sure you know all the options available to you in your state. Especially where children are involved, court orders regarding child custody, visitation rights, child support, health care, etc are very hard to over-turn once put into place.

When a marriage breaks up, the parties involved are often so consumed by the emotional fallout that they do not realize their health could be at risk. They are usually overwhelmed by all the questions that need to be addressed, such as child custody, as well as the reams of paperwork involved in approaching a divorce settlement. If the marriage did produce children, everyone recognizes that their needs must come first as the divorce proceeds, and that one of the best things that can be done for the children’s welfare is if the couple divorces as amicably as possible. The former spouses should also realize amicable proceedings not only benefit children; they can also have a hugely beneficial effect on the parties to the divorce.

One of the best ways to achieve this is by seeking dissolution as opposed to filing for divorce. Not all states offer dissolution, but there is a nationwide movement toward making the process of divorce a more collaborative, less antagonistic experience.

What is dissolution? Many don’t know, or aren’t aware of this option, perhaps in part because in a number of states, like Oregon and California, the term “dissolution of marriage” is just another way of saying divorce. In those states divorce equals dissolution of marriage.

But in the states, that offer dissolution as the most amicable way to end a marriage, a divorcing couple must agree on all the issues resulting from their separation before they file a petition with the court.  Along with the petition, a separation agreement is drawn up.  This document lists and describes all aspects of their marriage ending, such as division of property, child custody, spousal support, etc. Once the petition and separation agreement are filed, within a few months a hearing is held. Both spouses must appear at the hearing to confirm before a judge that they agree to all parts of the separation agreement, and if so, the judge dissolves their marriage.

It is important to remember that the parties must agree on everything beforehand—every detail must be sorted out and agreed to in writing. But if the couple can communicate well enough to discuss these issues and come to that agreement, dissolution provides a much easier, and less costly, alternative to filing with the court for a divorce.

If you live in a state that offers it, consider dissolution. Find a lawyer who has experience with this branch of family law. Talk to more than one divorce attorney with this experience—some offer a free initial consultation—to find the best match for you, your situation and your budget. An amicable approach will be good for everyone involved, as well as for your health.

About the Author:

Mark Godbey of Mark Godbey & Associates a full service general practice law firm specializing in bankruptcy law, debt consolidation, divorce law and other kinds of family law, auto accidents, personal injury claims, probate and estate planning, criminal defense law, traffic cases, and small business representation.  Mr. Godbey has been focusing his practice in the area of Personal Injury Law for over 22 years.  Mark Godbey is a lifetime member of the Million Dollar Advocates Forum, a group of attorneys recognized for having achieved verdicts or settlements for an amount of at least One Million Dollars.

Divorce is difficult on every part of a family.  While the parents are choosing to end their marriage, children are often confused about the situation and often need extra attention and guidance through this time.  There are a number of things to keep in mind.  Divorce and child custody disputes are very emotional.  Let your kids know they are not responsible for your decision to split up and that they are still loved by both parents.  Never ask children to take sides in custody battles.  Divorce means financial pressures will be felt by both sides—try to keep children out of bitter disputes or angry feelings toward your former spouse.

For these reasons, you should consider hiring a child custody lawyer.

The child custody lawyer should be a different person than the attorney handling your divorce proceedings.  Family law is always changing and differs among states; therefore, hiring a dedicated child custody attorney will benefit your case.  Your attorney will not only be your legal representation in court, he or she will explain your situation to the judge, help you understand the process, and walk you through your responsibilities.

Once the divorce and child custody proceedings are complete, consider retaining your attorney for child support needs.  If you are the custodial parent, there are a number of steps you need to complete before you will be given child support payments.  Parents may need to legally establish paternity, complete mountains of paperwork, obtain a court order, or work with a child support enforcement agency.  A child support attorney will be able to walk you through this process much like he or she did when you were trying to gain custody.  Attorneys understand how to track down parents who refuse to pay child support, even if that parent moves to another state.

The non-custodial parent should also consider hiring a child support lawyer.  The attorney can represent the parent’s interest when establishing paternity, help determine the amount of child support the parent is able to pay, and find the easiest way to make child support payments.

When searching for a child support or child custody attorney, begin by asking family and friends for recommendations.  They likely know someone who needed a dedicated child support attorney, or may have used one themselves.  After asking a few people, you will probably hear the same name mentioned.  Once you are finished asking close family and friends for advice, do your research online.

This person will be your partner in the battle for custody of your child, or will represent you when deciding how much money you can afford to give in child support.  You need someone you can trust and whom you know will represent your best interests.

About the Author:

Mark Godby of Mark Godbey & Associates a full service general practice law firm specializing in bankruptcy, debt consolidation, divorce and other kinds of family law, auto accidents, personal injury claims, probate and estate planning, criminal defense and traffic cases, and small business representation.

Appellant, Jackie Barth, appeals the Trial Court’s (“TC”) decision awarding her husband, Appellee Christopher Barth, certian real property in their divorce action.  Specifically, the Appellant states the TC erred in finding th parties had entered into a valid, binding premarital agreement and objects to the resulting property division.

Two days prior to their marriage, Appellant signed a premarital agreement which had been prepared by Appellee’s father, melvin Barth. The premarital agreement concerned real property and a residence that was to be constructed after the marriage.  The premarital agreement was drafted to protect real property transferred to appellee more than two years before the marriage took place.  After the marriage, Melvin Barth arranged for a series of transfers of money from his wife’s mother and aunt to pay for the construction of the home. The controbutions from the women totaled approximately $190,000.

From the Opinion:
{¶10} Though the provisions of the document itself were not in dispute, the parties’ testimony concerning the circumstances surrounding the document’s execution was vastly different. Appellee and Melvin Barth testified that: Appellant willingly provided information for the creation of the agreement, namely her debts and assets; she was given a copy of the full agreement for her review prior to the day she signed it; she understood the terms of the agreement, including that it was to protect the money being transferred to Appellee for the construction of the house; she was told that, if she did not sign the agreement, the money to build the house would not be forthcoming, and she had a discussion with Melvin Barth to that effect; and Melvin Barth specifically told her the document was a premarital agreement.

Directly contradicting that testimony, Appellant testified that: she had nothing to do with creating the agreement, but she did admit to providing her father-in-law information about her assets; she was not provided a copy of the agreement before she signed it and had never seen any part of it until the day she signed it; the document she signed was not the full, premarital agreement; she never read the agreement and did not know what she was signing; a discussion about the availability of the money to build the house being contingent upon her signing the agreement never took place; she was told the agreement was just insurance to protect her and her children from the potential claims of her previous spouses; the document was never referred to as a premarital agreement; and had she known it was a premarital agreement, she never would have signed it.

As the parties do not contest the terms of the agreement itself, but rather the circumstances surrounding its execution, the validity and enforceability of the agreement are issues of fact. The magistrate determined that while the testimony of both parties could be seen as selfserving, Appellant’s version of events was less credible than Appellee’s. The magistrate found that the agreement contained both detailed information regarding the parties’ respective assets and an acknowledgement concerning each party’s right to seek the advice of counsel, which was located
immediately above the dated and notarized signatures. Further, the magistrate found the parties had signed not only the primary document but also the exhibits listing the parties assets and liabilities and an acknowledgement that each had received copies of the other parties’ exhibits.

As previously stated, determining the validity of a prenuptial agreement is primarily an issue for the trier of fact. That deference is particularly appropriate in the present case, where the parties’ testimony is factually contradictory on a number of vital issues, including whether Appellant was provided with a copy of the document prior to the day of signing, and whether the document was understood to be a premarital agreement. “The underlying rationale for appellate courts to defer to the trier of fact on matters of evidence weight and witness credibility is that the trier of fact is best positioned to view the witnesses and to observe their demeanor, gestures, and voice inflections and to use those observations to weigh credibility.” Cox Paving, Inc. v. Indell Constr. Corp., 4th Dist. No. 08CA11 at ¶11, citing Myers v. Garson (1993), 66 Ohio St.3d 610, 615, 614
N.E.2d 742; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80,
461 N.E.2d 1273.

Here, the magistrate found Appellant’s version of events to be less credible than Appellee’s version. Under the particular circumstances of the case, we cannot say the trial court, which adopted the magistrate’s decision, abused its discretion in determining that Appellant entered into the premarital agreement with full knowledge and without fraud, duress, coercion or overreaching. Accordingly, Appellant’s first assignment of error is overruled.

This case is on appeal from the Hocking County Court of Common Pleas where Mr. Heisler’s motion to modify a divorce decree allocating parental rights and responsibilities was dismissed.

A year after Mr. Heisler filed his motion, the parties reached an agreement, which was reduced to a handwritten entry signed by both parties. Mr. Heisler was ordered to present a formal agreed entry. Before Ms. Heisler received her copies, their son became subject to delinquency and truancy charges in Fairfield County Juvenile Court. Ms. Heisler then argued that, due to the action in Fairfield County Juvenile Court, that Hocking County had lost Jurisdiction to decide the motion to modify. The Hocking County Court of Common Pleas dismissed Mr. Heisler’s motion.

In his appeal, Mr. Heisler claims that the Hocking County Court of Common Pleas retained jurisdiction over the allocation of parental rights despite a pending delinquency matter in the Fairfield County Juvenile Court. The court held that the courts had concurrent jurisdiction and “where two courts have concurrent jurisdiction, the general rule is that the court where proceedings are first properly initiated acquired the right to adjudicate the matter to the exclusion of all other courts.” See State ex rel. Phillips v. Polcar (1977), 50 Ohio St. 2d 279, 364 N.E.2d 33.

From the Opinion:

A DR Court that enters an order allocating parental rights and responsibilities retains jurisdiction of ther those issues. R.C. 3109.06 provides, in part: “In any case in which a court of common pleas, or other court having jurisdiction, has issued an order that allocates parental rights and responsibilities for the care of minor children and designates their place of residence and legal custodian of minor children, has made an order…the jurisdiction of the courts shall not abate upon the death of the person awarded custody but shall continue for all purposes during the minority of the children. The court, upon its own motion or the motion of either parent or of any interested person acting on behalf of the children may proceed to make further disposition of the case in the best interests of the children and subject to sections 3109.42 to 3109.48 of the Revised Code.

But, somewhat contradictorily, a juvenile court obtains “exclusive original jurisdiction” concerning the custody of a child against whom delinquency is alleged. R.C. 2151.23(A). R.C. 2151.23(A)(1) and (2) provide that “[t]he juvenile court has exclusive original jurisdiction under the Revised Code as follows: (1) [c]oncerning any child who on or about the date specified in the complaint, indictment, or information is alleged *** to be a juvenile traffic offender or a delinquent, unruly, abused, neglected, or
dependent child *** to determine the custody of any child not a ward of another court of
this state[.]”

In In re Poling, 64 Ohio St.3d 211, 1992-Ohio-144, 594 N.E.2d 589, the Supreme Court of Ohio held that, despite the “not a ward of another court” language, a juvenile court may issue orders concerning the custody of a child who is the subject of a previous custody order contained in a separate domestic relations court’s divorce decree. Id. at syllabus. In effect, when a domestic relations court enters a decree addressing the allocation of parental rights and responsibilities concerning a child, the
child does not become a “ward” of the domestic relations court for purposes of R.C. 2151.23. Id. at 214. The Court further held that where a domestic relations court has entered a decree regarding the custody of the child, and the child later comes under the jurisdiction of the juvenile court, the courts share “concurrent jurisdiction” over the custody of the child. Id. at 215.

Where courts share concurrent jurisdiction, the general rule is that the court where proceedings are first properly initiated acquires the right to adjudicate the matter to the exclusion of all other courts. See State ex rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279, 364 N.E.2d 33, at syllabus; Miller v. Court of Common Pleas (1944), 143 Ohio St. 68, 70, 54 N.E.2d 130. Under this rule, the domestic relations court, which first established jurisdiction through the divorce decree, would retain exclusive jurisdiction to entertain custody issues involving a child the subject of an earlier divorce decree in that court. But in Poling the Court held that the legislative scheme set forth in R.C. 2151.23 (requiring juvenile courts to determine custody matters in accordance with R.C. 3109.04) indicated that juvenile courts may nonetheless make “particularized determinations regarding the care and custody of children subject to its jurisdiction, while respecting the continuing jurisdiction of the domestic relations or common pleas court that makes a custody decision in a divorce case.” Poling at 216.

The Trial Court did not address the more troubling issue of what happens when a juvenile court and a domestic relations court, possessing concurrent jurisdiction over the issues of custody and allocation of parental rights, both assert jurisdiction and then enter different, potentially conflicting orders. But we need not address that quandary. We are only faced with the question of whether Hocking County retained jurisdiction over the support matters addressed in the Memorandum Entry. And based on Poling, we hold that it did. Fairfield County Juvenile Court shares concurrent jurisdiction over the issue of custody by virtue of the delinquency charges. But this action did not divest Hocking County of the ability to modify its existing divorce decree.

Plaintiff-Appellant/Cross-Appellee Suzanne Horvath (“Suzanne”)appeals the June 5, 2009 Judgment Entry of the Union County Court of Common Pleas, Domestic Relations Division, granting a divorce between Suzanne and Defendant-Appellee/Cross-Appellant Jeffrey Louis Horvath (“Jeffrey”) specifying the division of marital property and apportioning the marital debt between the parties. We will focus on Suzanne’s claim that the TC erred by equally dividing the parties’ marital debt when Ms. Horvath received a discharge in Bankruptcy for the outstanding marital debt owed to Jeffrey.

On January 15, 2008, Suzanne filed a complaint for divorce. On July 8, 2008, the Court stayed the divorce proceedings due to Suzanne’s filing of a Chapter 7 Bankruptcy petition. In Suzanne’s voluntary petition for bankruptcy, Suzanne listed Jeffrey as an unsecured creditor with a disputed non-priority claim. In describing Jeffrey’s claim, Suzanne stated, “potential disputed claim of estranged spouse” and listed the amount of the claim as “unknown”.

At trial, Suzanne presented the testimony of her Bankruptcy attorney and her Bankruptcy petition was entered into evidence. When the trial court equally split the marital debt (including the joint debt Suzanne had listed in the petition), Suzanne appealed. Suzanne argues that he action of listing Jeffrey as a potential creditor in her Bankruptcy petition – regardless of any claim actually materializing during the pendency of the Bankruptcy or thereafter – deprived the state trial court of jurisdiction to apportion any of the marital debt to her in the subsequent divorce action.

The Court of Appeals held that based on the principles of concurrent jurisdiction shared by the trial court and the Bankruptcy court in these matters, the TC had the authority to divide the marital debts in dispute.

From the Opinion:

Adopting Suzanne’s argument would effectively allow any party in a pending state divorce case to file a bankruptcy petition listing one debt and naming the spouse as a potential creditor and thereby permanently deprive the state court of any further authority to apportion marital debt between the parties— not only for those debts actually listed in the bankruptcy—but as to any debts that could have been listed.

We are not persuaded that Suzanne’s argument is consistent with basic principles of concurrent jurisdiction between the state and federal judicial systems in domestic relations matters. See Barnett v Barnett (1984), 9 Ohio St.3d 47, 49, 458 N.E.2d 834. Nor is Suzanne’s argument consistent with the “domestic relations exception” to federal jurisdiction which recognizes that state courts have exclusive jurisdiction in matters involving the issuance of a divorce, alimony, or
child support. See In Re: McMinis (Bkrtcy.N.D.Ohio 2008), No. 07-32411; see also Ankenbrant v. Richards (1992), 504 U.S. 689, 704.

In domestic relations matters, it has been established that state courts have concurrent jurisdiction with the bankruptcy courts in determining the allocation of specific obligations that arise from divorce actions. Barnett, supra. In particular, other appellate districts have stated that the nature of concurrent jurisdiction permits a state court to determine the dischargeability of a marital obligation despite the fact that the issue of dischargeability of that debt was not raised in the bankruptcy. See Loveday v. Loveday, (stating “that when [the] dischargeability of a marital debt is not raised in bankruptcy court, then it is an issue which may be ruled on by a court with concurrent jurisdiction after the discharge in bankruptcy.”); see also Markley v. Markley, 9th Dist. No. 07CA0085, 2008-Ohio-3208 ¶20 (reiterating that the concurrent jurisdiction allows a state court to rule on the issue of a marital debt after a discharge in bankruptcy).

Mother/Appellant and Father/Appellee were granted an uncontested divorce on April 2, 2004. Pursuant to the Decree of Divorce, the Trial Court (“TC”) adopted a shared parenting plan and, subject to further order of the court, no child support was to be paid to either party. Reasons for the nonpayment of child support were enumerated in the Decree.  At the time of the divorce, Father earned $42,000 while Mother earned $37,500.

In June of 2007, Father filed a motion to terminate shared parenting and for custody. Father’s motion was resolved by agreement of the parties. The parenting time schedule was altered and, due to Father’s increase in income to $42,054 and Mother’s decrease in income to $26,000, the parties agreed Father would pay Mother $158.14 in child support which represented an 80% deviation from the guidelines.

On September 5, 2008, Mother filed a motion to modify child support and for clarification of the ambiguities in the parties’ SPP.  At the time of the hearing, Mother’s only source of income was unemployment compensation totaling $187 per week and Father’s income had increased to $51,000. After finding the requisite 10% change in circumstances, the magistrate determined, pursuant to the guidelines, that Father’s support obligation was $919.31 per month.

Despite Mother having demonstrated a change in circumstances (income decreasing from $26k to <10k), the Magistrate determined that because the parties had previously agreed to an 80% deviation that Mother’s substantial change in her economic situation was nonetheless not a legally relevant change in circumstances.  The Magistrate applied an 80% deviation to the new child support order. The TC affirmed the Magistrate’s decision. Mother appealed.

In her first assignment of error, Mother contends that the TC erred in imputing income to her. In her second assignment of error, Mother argues the TC erred in deviating 80% from the child support guidelines.  The Court of Appeals agreed with Mother in both assignments of error.

From the Opinion:
1st Assignment of Error
A trial court may impute income to a parent for purposes of calculating child support if it first makes the required finding that the parent to whom income is imputed is either voluntarily unemployed or voluntarily underemployed. Misleh v. Badwan, 9th Dist. No. 24693, 2009-Ohio-6949, at ¶7. See, also, Ramskogler v. Falkner, 9th Dist. No. 22886, 2006-Ohio-1556, at ¶13. (stating that the Supreme Court of Ohio has determined that R.C. 3119.01 must be complied with literally and further holding that the trial court must explicitly make a finding of voluntary un- or underemployment before imputing income). Thus, as our cases hold that the trial court is required to explicitly make a finding of voluntary under- or unemployment, if the trial court does not make that finding, it has incorrectly applied the law. Our review of the trial court’s application of the law is de novo. In re V.S., 9th Dist. No. 22632, 2005-Ohio-6324, at ¶6.

Here, the magistrate stated that she “considers [Mother] to be voluntarily unemployed[.]” However, the trial court found “[t]hat the Magistrate did not err in finding [Mother] to be voluntarily underemployed[.]” While the implication of the trial court’s statement is that it is finding Mother to be voluntarily underemployed, the statement nonetheless falls short of the explicit finding required by this Court’s jurisprudence. See, e.g., Misleh v. Badwan, 9th Dist. No. 24185, 2009-Ohio-842, at ¶¶6-8; Musci v. Musci, 9th Dist. No. 23088, 2006-Ohio-5882, at ¶17. A statement that the magistrate did not commit a legal error is not equivalent to making a specific factual finding. Musci at ¶17. Accordingly, we determine that the trial court committed reversible error because it incorrectly applied the law when it failed to make the express finding that Mother was voluntarily unemployed. Mother’s first assignment of error is sustained.

2d Assignment of Error
When modifying an existing child support order, the trial court must complete a child support worksheet and schedule. R.C. 3119.79(A). The resulting support obligation is rebuttably presumed correct. R.C. 3119.03. The trial court may enter a final support order that deviates from the amount as calculated in the worksheet and schedule if the trial court: (1) finds that the amount calculated is unjust or inappropriate; (2) finds that the amount calculated does not conform to the child’s best interest, and; (3) states findings of fact supporting the deviation from the amount calculated. (Citations omitted.) Maiorana v. Maiorana, 9th Dist. No. 08CA0016-M,
2008-Ohio-6179, at ¶7. The trial court must consider [those factors enumenrated in R.C. 3119.23 when determining whether a deviation is appropriate].  The trial court has discretion when considering the evidence presented relative [R.C. 3119.23]. However, because the trial court does not have the discretion to ignore those factors, it commits an error of law if it fails to consider the factors enumerated in R.C. 3119.23 for which evidence has been presented at trial. After determining that there was a change in circumstances warranting a modification of child support and the revised amount of child support payable to Mother pursuant to the child support guidelines, the court was then required to consider the above statutory factors in determining whether deviation from the presumptive guideline support was appropriate. R.C. 3119.22. However, in our review of the record, while there was evidence presented pertaining to many of the financial factors expressly contained in the statute, it is apparent that the magistrate and the trial court essentially found that the prior agreement to deviate was determinative of whether deviation was appropriate rather than considering the matter anew in light of all of the relevant statutory factors. Significantly, the magistrate concluded that the only “legally relevant” circumstance requiring re-evaluation of the 80% deviation would be a change in parenting time. The magistrate reasoned that because the parties had based the deviation upon Father’s extended parenting time and the parties’ parenting time had not changed1, it would be “clearly unjust, unfair, and not in the best interests of the children” to eliminate the 80% downward deviation. The trial court determined “[t]hat the Magistrate did not err in finding that the near eighty (80) percent downward deviation remains applicable due to the fact that no change in parenting time exists between the May 20, 2008 agreed journal entry and the present.” The trial court also found that “the Magistrate did not err in finding that the extended parenting time exercised by father continues and that it would be unjust, unfair, and not in the best interests of the children to not deviate from the child support worksheet guidelines.”

The record reflects that evidence was offered concerning numerous statutory considerations, including: (1) extended parenting time or extraordinary costs associated with parenting time; (2) disparity in income between parties or households; (3) benefits that either parent receives from remarriage or sharing living expenses with another person; (4) significant in-kind contributions from a parent; (5) the relative financial resources, other assets and resources, and needs of each parent; (6) the standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married. See R.C. 3119.23(D), (G)-(H), (J)-(L).

Mother provided unrebutted evidence that she had lost her job and was receiving unemployment compensation. Pursuant to the child support guideline worksheet, Mother’s annual unemployment income placed her at the federal poverty level. By contrast, Father’s income had increased. In addition, Father had remarried and his spouse was also employed and receiving child support for her child from a prior marriage. Notwithstanding the evidence presented related to many of the above factors, the court below determined that it was appropriate to center its analysis on the fact that the parties had previously agreed to a child support deviation in 2008 and that the children spend equal if not more time with Father. It concluded that it was in the minor children’s best interest “to maintain the integrity of the parties’ agreement” and thus to deviate to the same extent as previously agreed.
Although extended parenting time is one factor that the trial court must consider in evaluating whether guideline support is unjust, inappropriate, and not in the children’s best interest, we conclude that the trial court’s reasoning was flawed. Instead of considering extended parenting time in conjunction with the other enumerated factors, the trial court focused upon the parties’ prior agreement to deviate, in essence finding that because the parties had a prior agreement to deviate that was purportedly based upon equalized parenting time, it should hold the parties to their agreement. However, in focusing on the parties’ prior agreement and prior circumstances, the trial court failed to consider the parties’ present circumstances in conjunction with the statutory factors. Whether the parties have a prior contractual obligation to deviate is not among the specific factors set forth in R.C. 3119.23. As is evident by the factors enumerated in the statute, the inquiry is not whether it is fair to hold parties to a prior bargain; rather, the inquiry requires the court to evaluate all of the factors in light of the current circumstances of the parties. Thus, notwithstanding a prior agreement that took into account extended parenting time, in determining whether to deviate from the presumptive guideline support, extended parenting time was only one of many factors that the trial court was required to consider in evaluating the parties current circumstances. See R.C. 3119.23(A)-(P). Here, the trial court essentially focused on the parties’ prior agreement as being determinative of whether deviation was appropriate, notwithstanding the fact that Mother was living at poverty level and unable to meet the children’s needs and Father arguably had sufficient income to meet his needs. Further, many of the enumerated factors concern the relative financial circumstances of the parties and the needs of the children, thereby evidencing legislative intent to comprehensively consider the relative financial and economic situation of the parties. R.C. 3119.23(D)-(L), (O). For example, the statute requires the trial court to consider the physical needs of the children and the standard of living of each parent and the standard of living the children would have enjoyed had the marriage continued. R.C. 3119.23(M), (L). In the case at bar, it does not appear that the court gave due consideration to all of the relevant financial factors expressly enumerated in the statute. The record reflects a striking difference between Mother’s financial circumstances at the time of the May 2008 agreement and her financial situation at the time of the hearing, as well as a striking difference between Mother and Father’s incomes at the time of the hearing. Further, there was evidence that Mother was not able to adequately meet the needs of the children while in her home and that she was incurring credit card debt to subsist.

We acknowledge that in addition to the primary emphasis upon the parties’ prior agreement to deviate, the trial court made reference to additional expenses incurred by the Father. While these expenses can appropriately factor into the court’s analysis, we find that the court considered the prior deviation agreement and Father’s expenses to the exclusion of other specifically enumerated factors for which evidence was produced at trial. We further observe that the evidence adduced at the hearing revealed that both Mother and Father were making additional financial contributions to the children such as the purchase of uniforms or payment of extracurricular activities. For example, Mother testified that she had paid or would be paying fees for basketball, Cub Scouts, and band. Father also testified that he has paid some amounts for school field trips and Cub Scouts. Further, there was no evidence that Father was making any additional contribution to tuition for preschool, as was the case when the parties initially executed their separation agreement. Father did have an additional monthly expense of $138 for eighteen months after an initial down payment of $1070 for orthodontia, which he was obligated to pay pursuant to the parties’ shared parenting plan. In addition, because Father had remarried and elected to provide his spouse with medical insurance coverage there was no additional cost to cover the children. Father estimated that his monthly out-of-pocket expenses for the children’s healthcare were $75. Thus, although there was consideration of Father’s additional expenditures, we find that the trial court did not evaluate that factor along with the other factors it was required to consider as made relevant by the evidence.
{¶13}
After determining that there was a change in circumstances warranting a
modification of child support and the revised amount of child support payable to Mother
pursuant to the child support guidelines, the court was then required to consider the above
statutory factors in determining whether deviation from the presumptive guideline support was
appropriate. R.C. 3119.22. However, in our review of the record, while there was evidence
presented pertaining to many of the financial factors expressly contained in the statute, it is
apparent that the magistrate and the trial court essentially found that the prior agreement to
deviate was determinative of whether deviation was appropriate rather than considering the
matter anew in light of all of the relevant statutory factors. Significantly, the magistrate
concluded that the only “legally relevant” circumstance requiring re-evaluation of the 80%
deviation would be a change in parenting time. The magistrate reasoned that because the parties
had based the deviation upon Father’s extended parenting time and the parties’ parenting time
had not changed 1, it would be “clearly unjust, unfair, and not in the best interests of the children” to eliminate the 80% downward deviation. The trial court determined “[t]hat the Magistrate did not err in finding that the near eighty (80) percent downward deviation remains applicable due to
the fact that no change in parenting time exists between the May 20, 2008 agreed journal entry
and the present.” The trial court also found that “the Magistrate did not err in finding that the
extended parenting time exercised by father continues and that it would be unjust, unfair, and not
in the best interests of the children to not deviate from the child support worksheet guidelines.”
{¶14}
The record reflects that evidence was offered concerning numerous statutory
considerations, including: (1) extended parenting time or extraordinary costs associated with
parenting time; (2) disparity in income between parties or households; (3) benefits that either
parent receives from remarriage or sharing living expenses with another person; (4) significant
in-kind contributions from a parent; (5) the relative financial resources, other assets and
resources, and needs of each parent; (6) the standard of living and circumstances of each parent
and the standard of living the child would have enjoyed had the marriage continued or had the
parents been married. See R.C. 3119.23(D), (G)-(H), (J)-(L).
{¶15}
Mother provided unrebutted evidence that she had lost her job and was receiving
unemployment compensation. Pursuant to the child support guideline worksheet, Mother’s
annual unemployment income placed her at the federal poverty level. By contrast, Father’s
income had increased. In addition, Father had remarried and his spouse was also employed and
receiving child support for her child from a prior marriage. Notwithstanding the evidence
presented related to many of the above factors, the court below determined that it was
appropriate to center its analysis on the fact that the parties had previously agreed to a child
support deviation in 2008 and that the children spend equal if not more time with Father. It
concluded that it was in the minor children’s best interest “to maintain the integrity of the
parties’ agreement” and thus to deviate to the same extent as previously agreed.
{¶16}
Although extended parenting time is one factor that the trial court must consider
in evaluating whether guideline support is unjust, inappropriate, and not in the children’s best
interest, we conclude that the trial court’s reasoning was flawed. Instead of considering extended
parenting time in conjunction with the other enumerated factors, the trial court focused upon the
parties’prior agreement to deviate, in essence finding that because the parties had a prior
agreement to deviate that was purportedly based upon equalized parenting time, it should hold
the parties to their agreement. However, in focusing on the parties’ prior agreement and prior
circumstances, the trial court failed to consider the parties’ present circumstances in conjunction
with the statutory factors. Whether the parties have a prior contractual obligation to deviate is
not among the specific factors set forth in R.C. 3119.23. As is evident by the factors enumerated
in the statute, the inquiry is not whether it is fair to hold parties to a prior bargain; rather, the
inquiry requires the court to evaluate all of the factors in light of the current circumstances of the
parties. Thus, notwithstanding a prior agreement that took into account extended parenting time,
in determining whether to deviate from the presumptive guideline support, extended parenting
time was only one of many factors that the trial court was required to consider in evaluating the
parties current circumstances. See R.C. 3119.23(A)-(P). Here, the trial court essentially focused
on the parties’ prior agreement as being determinative of whether deviation was appropriate,
notwithstanding the fact that Mother was living at poverty level and unable to meet the
children’s needs and Father arguably had sufficient income to meet his needs. Further, many of
the enumerated factors concern the relative financial circumstances of the parties and the needs
of the children, thereby evidencing legislative intent to comprehensively consider the relative
financial and economic situation of the parties. R.C. 3119.23(D)-(L), (O). For example, the
statute requires the trial court to consider the physical needs of the children and the standard of
living of each parent and the standard of living the children would have enjoyed had the marriage
continued. R.C. 3119.23(M), (L). In the case at bar, it does not appear that the court gave due
consideration to all of the relevant financial factors expressly enumerated in the statute. The
record reflects a striking difference between Mother’s financial circumstances at the time of the
May 2008 agreement and her financial situation at the time of the hearing, as well as a striking
difference between Mother and Father’s incomes at the time of the hearing. Further, there was
evidence that Mother was not able to adequately meet the needs of the children while in her
home and that she was incurring credit card debt to subsist.
{¶17}
We acknowledge that in addition to the primary emphasis upon the parties’ prior
agreement to deviate, the trial court made reference to additional expenses incurred by the
Father. While these expenses can appropriately factor into the court’s analysis, we find that the
court considered the prior deviation agreement and Father’s expenses to the exclusion of other
specifically enumerated factors for which evidence was produced at trial. We further observe that
the evidence adduced at the hearing revealed that both Mother and Father were making additional financial contributions to the children such as the purchase of uniforms or payment of
extracurricular activities. For example, Mother testified that she had paid or would be paying
fees for basketball, Cub Scouts, and band. Father also testified that he has paid some amounts
for school field trips and Cub Scouts. Further, there was no evidence that Father was making any
additional contribution to tuition for preschool, as was the case when the parties initially
executed their separation agreement. Father did have an additional monthly expense of $138 for
eighteen months after an initial down payment of $1070 for orthodontia, which he was obligated
to pay pursuant to the parties’ shared parenting plan. In addition, because Father had remarried
and elected to provide his spouse with medical insurance coverage there was no additional cost
to cover the children. Father estimated that his monthly out-of-pocket expenses for the children’s
healthcare were $75. Thus, although there was consideration of Father’s additional expenditures,
we find that the trial court did not evaluate that factor along with the other factors it was required
to consider as made relevant by the evidence.

Plaintiff, Deborah Smith, appeals from a final judgment of the Court of Common Pleas holding her in contempt.

The parties marriage was terminated November 18, 2002 after the court granted a Decree of Dissolution. The Decree adopted the terms of a Separation Agreement the parties signed and filed. The Separation Agreement provided, among other things, that the parties equally split the minor child’s college educational expenses.

The Defendant, in his motion for contempt, alleged that he paid $4,752.70 to Wright State University on behalf of the minor child and that Plaintiff had failed to reimburse him for her half of those expenses. At a hearing on the issue, Plaintiff admitted that she had failed to reimburse Defendant but defended her failure by stating, “that while it was her ‘intention’ to pay an equal share when she signed the Separation Agreement, that intention was conditioned on her ability to do so. The [Plaintiff] testified that she now lacks that ability, and therefore did not reimburse the [Defendant] the amount he asked her for.

The Magistrate filed a written decision recommending that the Plaintiff be found in contempt, applying breach of contract principles. The Magistrate held that the Separation Agreement is a written contract, and that its terms regarding the intentions of the parties are unambiguous. The Magistrate reasoned that because “the parties specifically stated their intent to share costs equally,” … “it was inherent in the language that the Plaintiff has the same obligation” as the Defendant.

After stating that a Separation Agreement is a contract, the Court of Appeals agreed with the Magistrate.

From the Opinion:

We agree with the finding of the magistrate, implicitly adopted by the trial court, that the separation agreement is not ambiguous. Accordingly, the parties’ intent is to be found solely within the four corners of the agreement. Blasser v. Enderlin (1925), 113 Ohio St.121.

Confining ourselves to the language of the agreement we can only conclude, as did the magistrate and trial court, that the parties obligated themselves to equally share their child’s college expenses.

The parties anticipated that their child would attend college. The first sentence of Article XII makes clear the parties’ “intention” to equally share the child’s college expenses. Any possible doubt about whether the word “intention” is merely aspirational is dispelled by the word “shall” in each of the remaining four sentences, particularly the second and fifth sentences. “Shall” is a word of obligation, not aspiration. Defendant wouldn’t be obligated to pay 50% of the expenses to Deborah, or 50% of equivalent expenses should the child attend an out-of-state school, if Deborah is not obligated to pay the other 50%. The agreement does not obligate the parties’ child to pay these expenses. That Defendant is to pay his share to Plaintiff recognizes that Plaintiff was the child’s custodial parent, as of the time the marriage was dissolved, as the magistrate observed.