What Is Chapter 13 Bankruptcy?
By Mark Godbey | July 12, 2010
Around the United States, consumers are trying to get back on their feet following the recent economic crisis. As the recovery effort begins, many Americans are facing mounting debt and continued creditor calls. In some cases, bankruptcy is the financial fresh start that will help many consumers get back in the black.
Filing bankruptcy is not an easy decision, and should only be considered after all other options are exhausted. If you are considering filing, contact a dedicated bankruptcy attorney immediately. This person will advise you whether you are qualified for bankruptcy and guide you through the proceedings.
Bankruptcy is not a magic cure all for your financial problems, but there are a few benefits. It will immediately stop all creditors from seeking payment until after your debts are sorted out. It will also allow you a chance to catch up on missed payments, prevent repossession of your car, stop foreclosure filing against your home and restore or prevent termination of your utility services.
Consult closely with your debt attorney, and be sure you understand what filing for bankruptcy cannot do. It cannot eliminate the rights of secured creditors, including those who hold mortgages for your home. Bankruptcy cannot discharge debts singled out by bankruptcy law, such as alimony, child support or student loans. It will not protect any cosigners on your debt or discharge debts that arise after bankruptcy is filed.
Chapter 13
Any time you file bankruptcy it is damaging to your credit history, but Chapter 13 will do the least permanent damage. Generally a bankruptcy stays on your credit history for 10 years but if you receive your Chapter 13 discharge, the Chapter 13 will be off your credit report in 7 years from when you originally filed the Chapter 13. The Chapter 13 entails filing a plan with the court about how you will pay off your past due debts over a 3 to 5 year period of time. It allows you to keep valuable property, including your car or your home, which could be lost in other forms of bankruptcy filing.
Your bankruptcy attorney will likely recommend Chapter 13 if you own your home and are in danger of losing it; if you are behind in your debt but could catch up given a little time; or if you have valuable property that is not exempt in other bankruptcy filings that you will not need to liquidate to pay your debts.
Should you decide to file, your Chapter 13 plan will need to be accepted by the Court and you will begin to make Chapter 13 payments to the Court-appointed Trustee. You will be responsible for making a monthly payment to the Trustee who will disburse the money to all of your creditors. Your bankruptcy attorney will be able to explain the payment process to you. You will also meet with the Trustee in a meeting with your bankruptcy attorney in which the Trustee will review the Chapter 13 Plan to determine if it is acceptable to the Court.
In determining what kinds of debts go into your payment plan, your bankruptcy attorney will first determine what kinds of debt you have. Your debts will fall into three categories: secured debts paid outside the payment plan; secured debts paid as part of the payment plan; and unsecured debts.
Secured debts like mortgage payments are generally paid outside of the payment plan and directly by you. These debts must continue to be paid on-time or else collection efforts can continue. Generally, secured debts like a car payment are paid as part of the payment plan. The car loan company will still receive their payment and generally cannot repossess your vehicle so long as you remain current with your Chapter 13 payment.
The final kind of debt called unsecured debt includes debts like credit card debt, personal loans, and medical bills. These debts are always paid in your Chapter 13 plan at 0% interest and generally at much less than the full amount owed. This is where the majority of consumers find the Chapter 13 to be the most beneficial to obtain the financial relief they are looking for.
Finally, any creditors outside the court’s payment plan – or debts accrued after bankruptcy was filed – must be paid on a timely basis. These debts can include utility bills or credit card bills, and will fall outside the scope of the bankruptcy court’s jurisdiction.
Before deciding to file for Chapter 13 or any other form of bankruptcy, it is vital to consult with a dedicated debt collection lawyer. Only someone who is familiar with bankruptcy law can give you the best advice about how to proceed and whether bankruptcy is the best option for you.
Topics: Bankruptcy | No Comments »
Hot Coffee: Documentary Film by Susan Saladoff
By admin | April 30, 2010
From the Hot Coffee blog:
Is justice being served?
Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee. Check out the trailer at: http://hotcoffeethemovie.com
Topics: Uncategorized | No Comments »
Dealing With Debt Collectors 101
By admin | March 12, 2010
Debt collection can be a scary situation, especially given the current state of the economy. But, if a debt collector is calling you, there are steps you can take to reduce your debt and make sure the calls end. We have pulled together some of the best tips and tricks to deal with debt collectors.
Start by understanding your rights and the rules regulating debt collection. The Federal Trade Commission (FTC) has set debt collection rules, so take time to visit its website and request information regarding your rights and what the debt collectors can and cannot do. The National Consumer Law Center is another good information resource. You will also want to enlist the services of a debt attorney. Only a personal attorney will be well acquainted with debt collection law in your state.
In the 1970s, Congress passed the Fair Debt Collection Practices Act (FDCPA) to regulate debt collection companies and attorneys. Remember, this law does not regulate the creditors to whom you owe money. FDCPA covers all personal, family and household debts, including car payments, personal credit cards and medical bills. Under the law, creditors can contact you about your debt via mail, phone, fax or in person; but they may not call you before 8 a.m. or after 9 p.m. unless you specifically agree to it. Collectors must speak with your debt attorney if you have one. If you do not have a debt attorney, creditors may contact people you know to learn your address, phone number or where you work. Usually, debt collectors cannot contact a third party more than once. In most cases, the collector will only tell you and your attorney that you owe money.
Under FDCPA, debt collectors are not allowed to harass or abuse you; these prohibited actions can include threats of violence or obscene language. They cannot give false or misleading representation by implying they are from a government organization or that you have committed a crime. Debt collectors are also prohibited from collecting more money than you owe, taking your property when they do not have the authority to do so or forcing you into a foreclosure filing.
If you are contacted by a debt collector, keep thorough records of any dealings you have with the person. Consider taping any phone conversations you have so there are no “he said, she said” moments down the road. If you choose to do this, make sure the person you are speaking with is aware they are being taped.
If you believe you do not owe the money or the amount given by the debt collector is incorrect, request verification. They are required to mail you a verification letter within five days of their first contact with you. If you believe the debt is yours and correct, set a payment arrangement in writing before sending a check or money order.
Never allow a debt collector access to your checking or savings accounts. In fact, consider sending money orders instead of personal checks. Never assume you will get goodwill from a debt collector – it’s their job to clear your debt and they may tap into your personal bank accounts to do it. Always control information when speaking with debt collectors. Do not tell them where you work, where you bank or where you live. Give them as little personal information as you possibly can.
Calls and other contact from debt collectors can be scary. Instead of dealing with them yourself, try to find a lawyer who is experienced in debt collection law. A personal attorney will look out for your best interests and keep you from any unintentional slip ups – like sending a check when you should send a money order – that could end up costing you. This lawyer may also be familiar with bankruptcy law and can educate you on your best options.
Mark E. Godbey, Attorney at Law
Mark E. Godbey & Associates
708 Walnut Street, Suite 600
Cincinnati, Ohio 45202
(513) 241 – 6650 phone
(513) 241 – 6649 fax
Topics: Bankruptcy, Borrowers, Credit, Financial, Foreclosure, Lenders, mortgage | No Comments »
Family Law – Enforcability of a Prenuptual Agreement
By admin | February 17, 2010
Barth v. Barth
2010-Ohio-425
Fourth Appellate District
Washington County
-Enforcability of a Prenuptual Agreement
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.
Topics: Divorce, Family law | No Comments »
Family Law – Divorce Decree Modification Case
By admin | February 17, 2010
Heisler v. Heisler, 2010-Ohio-98
Fourth Appellate District
Hocking County
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.
Topics: Child custody, Divorce, Family law | No Comments »
Family Law – Bankruptcy filing in a Divorce Proceeding
By admin | February 17, 2010
Horvath v. Horvath
Cite as [Horvath v. Horvatyh, 2010-Ohio-316]
Third District Court of Appeals
Union County
Rendered February 1, 2010
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).
Topics: Bankruptcy, Divorce, Family law | No Comments »
Family Law – Child Support Modification Case
By admin | February 17, 2010
Irish v. Irish
2010-Ohio-403
Ninth District Court of Appeals
Lorain County
-Child Support
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.
Topics: Divorce, Family law | No Comments »
Family Law – Contempt Appeal
By admin | February 17, 2010
Smith v. Smith, 2010-Ohio-31
Second District Court of Appeals
Darke County
Rendered: January 8, 2010
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.
Topics: Divorce, Family law | No Comments »
What to Do If You Are Charged with a DUI
By admin | November 16, 2009
Often, when people are charged with drunk driving or driving under the influence (DUI), they consider defending themselves or using a public defender. Sometimes hiring an attorney may not be your best choice; however, when it comes to DUI charges, a lawyer can make a big difference.
The court system is confusing and a good attorney will help argue your case and explain the possible consequences you face. Lawyers are not magicians, however they can increase the chances your charges will be dropped or lowered.
Experienced attorneys will understand how to interview witnesses and officers; as well as what evidence will help your case. They have access to expert witnesses who know how to refute the accuracy of blood and urine tests. Attorneys will also be able to tell you what chemicals and over the counter drugs could impact the results of a breathalyzer.
Cost is one of the most common concerns surrounding hiring a DUI attorney. Many people facing DUI charges believe a lawyer is too expensive and they can avoid the cost by defending themselves. While a lawyer is a larger up front expense, he or she could save you a great deal of money in the long run. If you are still concerned about the cost of an attorney, consider how much even two or three months in jail will cost you in lost income. It could even mean losing your job.
Others believe they can save money by using a court appointed attorney. DUI laws are constantly being modified and only an attorney specializing in that type of law will be able to stay up to date on all of the changes. When searching for a personal lawyer, you should look for someone who has years of experience in DUI laws. A less experienced lawyer means you could face higher fees or more time in jail.
Lawyers are able to do the most good for first time offenders. Hiring an attorney after your first offense increases the chances you will keep your license and put the charges behind you. He or she will also check the evidence to make sure it supports an arrest. If the evidence is weak, your charges could be dismissed.
If you are involved in the following situations, defending yourself or using a court appointed attorney should not be considered an option:
• You have been arrested for a DUI in the past.
• You are accused of injuring someone.
• You do not understand your rights.
• You do not know which steps you need to take.
When searching for a DUI attorney, look for a firm that specializes in serious injury or drunken driving cases. Find out which professional organizations the attorneys participate in and how many years of experience they have.
Topics: DUI | No Comments »
How to Hire a Divorce Attorney
By admin | November 9, 2009
Hiring a divorce attorney is an unpleasant yet realistic truth for many Americans. It is important to do your homework before hiring someone to handle such delicate matters.
Luckily, there is strength in numbers. As the divorce rate steadily climbs each year, there are more than enough people to consult about finding a reputable attorney. Consider your circle of friends and colleagues. Who is divorced? Chances are there is at least one person who is willing to fill you in on the good, the bad and the ugly of dealing with a divorce attorney. Do not be shy or embarrassed about asking a lot of questions, as this information will help you make an informed decision.
Once you have a few names, set up some meet n’ greet appointments. This is a chance to size up the person who could be representing you. Once the meeting begins, ask the relevant questions: What is the focus of your practice? Are you a general practice law firm? Have you handled my type of case before?
After the meeting, run an Internet search on the lawyer and his practice and look for websites with a blog. Blogs are a great way to get to know a lawyer because it provides a peek into their thought process. It might even have a few entries relevant to your case.
Personality is another important consideration. You are going to be spending a significant amount of time with this person, so mutual understanding and respect should be a factor in your decision. Consider it this way: If you’re clashing with your attorney and your soon-to -be -ex, that’s two battles to fight.
So what are the ideal qualities? Generally, you want a divorce lawyer who’s willing to be aggressive but who is not an aggressive person. He or she needs to know how to stand firm yet not be a piranha in the court room. Remember, divorce is mostly about negotiations and an always aggressive person does not generally negotiate well.
Lastly, consider price. This factor is listed last for a reason. Some things in life require you to look past a monetary figure. Hopefully, finding a divorce lawyer is a once in a lifetime process. Bargain shopping is not the way to go. Quality and personality should have more weight than the price tag.
Price should be taken into consideration and context. If you cannot afford a $300/hour attorney, then you can’t afford them. However, if it is a close call between a $200/hour attorney and a $250/hour attorney, then you might want to consider what the $250 brings you. Would you prefer an easy going person with a great reputation, or a slimy character who charges less?
Some lawyers are willing to work out a payment plan. This is a viable option for people on a budget who do not want to compromise quality for the sake of money. Note: If you cannot afford a lawyer, consider calling your local legal aid office. If you qualify for the services, a lawyer will at least discuss the legal aspects of your case and may continue to answer questions on an ongoing basis during your proceedings while you represent yourself. You might want to consider asking whether the legal aid office has a pro bono program. The office may have a list of private attorneys that are willing to take on cases referred by legal aid, at little or no cost.
Topics: Divorce | No Comments »
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