[Cite as Miller v. Miller, 2015-Ohio-5447.]


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

LORI A. MILLER                                       C.A. No.      14CA0083-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PAUL E. MILLER, JR.                                  COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   08DR0514

                                  DECISION AND JOURNAL ENTRY

Dated: December 28, 2015



        SCHAFER, Judge

        {¶1}     Appellant, Paul Miller (“Paul”), appeals the judgment of the Medina County

Court of Common Pleas, Domestic Relations Division, modifying his spousal support and child

support obligations. For the reasons that follow, we affirm.

                                                I.

        {¶2}     Paul and Appellee, Lori Miller (“Lori”), were divorced by decree issued on

January 26, 2010. The couple has four children from their marriage: triplets born in 1994 and

another son born in 1995. As part of their divorce decree, the parties entered into a separation

agreement that obligated Paul to pay child support to Lori in the amount of $4,000 per month and

spousal support in the amount of $6,000 per month.1 In setting these support amounts, the

parties expressed their intention “to provide [Lori] with a set monthly combined child support




        1
         None of the support figures listed in this opinion includes the additional two percent
processing fee due to the Medina County Child Support Enforcement Agency.
                                                2


and spousal support payment of $10,000.00 per month based on a current baseline of a combined

gross income of $635,000.00 per year ([Paul] at $600,000.00 and [Lori] at $35,000.00), with the

intention of equalizing the parties’ net incomes.” The separation agreement further provided that

in light of this intention, “once the three older children emancipate * * *, the spousal support

shall increase by like amount that child support decreases.”

       {¶3}    The parties attached the relevant statutory child support worksheet for a shared

parenting situation. On the worksheet, Paul’s annual gross income is listed on line 1a as

$400,000 while Lori’s is listed as $35,000. Lori’s income was imputed since at the time of the

divorce decree’s issuance, she was unemployed. The $400,000 figure for Paul was reached after

deducting $200,000 from his income as a broker with Raymond James. This deduction was

specified as follows in the separation agreement:

       In the event of a modification of child and spousal support due to a change of
       circumstances, the parties acknowledge that the first Two Hundred Thousand
       Dollars ($200,000.00) of [Paul]’s annual gross income represents approximately
       $200,000.00 in imputed income in repayment of the bonus/loan structure he
       entered into with Raymond James. The parties agree that so long as the
       obligation on the original debt remains unpaid and Raymond James continues to
       impute the specified amount of income to [Paul], then in any future modification
       proceedings, the first $200,000.00 of [Paul]’s income shall be excluded from
       exposure in the calculation of support, such that support will be calculated and
       considered as if [Paul] earns $200,000.00 less than his actual gross income.

The worksheet contains a $72,000 deduction for spousal support payments, but it does not list

any other adjustments to Paul’s gross income.

       {¶4}    The separation agreement states that Paul’s obligation to pay spousal support was

in force for 70 consecutive months, commencing on March 1, 2013. The amount of spousal

support was originally set to $6,000 per month due to the parties’ intent “to equalize net incomes

* * * through child and spousal support.” Moreover, the initial amount of spousal support was

set “[u]ntil further Order of the Court, or until the parties’ three oldest children emancipate,
                                                 3


whichever is earlier[.]”   The parties stipulated to the trial court retaining jurisdiction over

modifications of spousal support, but they explicitly agreed that the trial court would not retain

jurisdiction to modify the duration of Paul’s spousal support obligation.

       {¶5}    Since the divorce decree’s issuance, the parties have filed a variety of post-decree

motions. For the purposes of this appeal, the following motions are relevant. Paul filed a motion

to modify both spousal and child support on July 26, 2010. He supplemented his motion with an

additional request for modification filed on January 10, 2012. Lori, meanwhile, filed a motion

requesting the initiation of a wage withholding order that attached Paul’s wages for the payment

of spousal and child support. After the trial court granted Lori’s request for a wage withholding

order, Paul filed a motion to vacate the order because his wages were being garnished at a rate

above the maximum allowed under federal law.

       {¶6}    A magistrate conducted an evidentiary hearing on the parties’ motions. The

hearing started on April 30, 2012 with continuances to September 12, 2012 and October 24,

2012. At the hearing, evidence was offered reflecting that Lori’s income substantially increased

from the $35,000 imputed to her in the original decree. Testimony was also received regarding

Paul’s employment with Raymond James. When he left Wachovia in 2008, Raymond James

gave him a forgivable loan of approximately $1.3 million (the “Raymond James Loan”). Of that

amount, approximately $650,000 was paid to Wachovia to repay a debt owed by Paul.

       {¶7}    Raymond James then agreed to forgive the remaining amount at the rate of

approximately $200,000 per year ($50,000 per quarter) so long as Paul met certain performance

standards. If Paul failed to meet those standards during a quarter, he was required to repay

approximately $50,000 for each low-performing quarter. Although he did not receive any

payments after 2008 from the Raymond James Loan, the amount of loan forgiveness was
                                               4


reported as income on Paul’s W-2 forms and he had to pay income taxes on the forgiven amount.

Moreover, in 2010, Paul failed to meet the required performance standard and he was required to

repay approximately $50,000 on the Raymond James Loan.

       {¶8}   Paul offered the expert testimony of James Bogniard, who testified to the

financial circumstances of Paul and Lori. Mr. Bogniard indicated his belief that the divorce

decree’s reference to equalization of net incomes contemplated deducting the parties’ gross

income by any amount forgiven on the Raymond James Loan, the total amount of federal, state,

Medicare, and Social Security taxes paid, and the total amount of spousal and child support

payments made. He also added any support payments to Lori’s income total to reach her net

income.

       {¶9}   After applying this understanding of the parties’ divorce decree, Mr. Bogniard

testified that Paul’s 2010 net income was $39,135 and that his 2011 net income was $60,900.

Conversely, Mr. Bogniard testified that Lori’s 2010 net income was $130,247 and that her 2011

net income was $134,791.      He also offered testimony regarding the parties’ projected net

incomes for 2012. Mr. Bogniard further testified that to equalize the parties’ net incomes, as he

described them above, the trial court should order spousal support and child support as follows

for each year: (1) 2010: spousal support in the monthly amount of $2,025 and child support in

the monthly amount of $1,699; (2) 2011: spousal support in the monthly amount of $1,792 and

child support in the monthly amount of $1,813; and (3) 2012: spousal support in the monthly

amount of $2,000 and child support in the monthly amount of $1,795.

       {¶10} On March 27, 2013, the magistrate issued a decision modifying spousal and child

support.   In deciding how to modify support, the magistrate first made the following
                                                5


determination regarding the parties’ incomes, which he found were substantially different from

the original decree:

       Unfortunately, the parties did not provide in the Separation Agreement or the
       Decree a definition of what they considered ‘equalization of net incomes.’ Mr.
       Bogniard presents [Paul]’s view. However, as brought out on cross-examination,
       Mr. Bogniard did not use gross income from Medicare wages but from the lower
       figure in Box 1 of [Paul]’s W-2. As Medicare wages are earned income, the
       Court finds that Mr. Bogniard did not use the correct starting point for his
       calculations. Furthermore, a reading of the parties’ Separation Agreement and
       Decree does not provide that the parties intended to define net income of [Paul]
       by removing additional tax liability from [Paul]’s income for his Raymond James
       debt for which he assumed sole responsibility. Nothing in the parties’ Separation
       Agreement or Decree provides for this deduction from [Paul]’s net income.
       Notably, the parties clearly indicated that in any modification [Paul]’s gross
       income should be reduced by $200,000 in lieu of the knowledge on both parties
       that the $200,000 of income from loan forgiveness was not truly available for
       payment of support. The Court finds that if the parties were explicit in removing
       this $200,000 from [Paul]’s income for calculation, then it would be logical that
       they would have been just as explicit about leaving [Paul]’s tax liability for his
       sole debt in a calculation of net income if that was intended.

As a result, the magistrate decided against deducting any of Paul’s tax liabilities from his gross

income. Rather, for the purposes of income calculation, the magistrate determined that it would

be fair and equitable to only deduct the amount of forgiveness on the Raymond James Loan from

Paul’s gross income, as well as any support payments made. Lori’s adjusted income for support

purposes was determined by adding her gross wages to any amount of support received.

       {¶11} Based on these decisions, the magistrate recommended that, effective July 26,

2010, child support be modified to $2,970.83 per month and spousal support be modified to

$4,366.67 per month. He also recommended that, effective January 10, 2012, child support be

modified to $3,196.76 per month and spousal support be modified to $4,666.67 per month. The

Magistrate also found that the parties’ triplets emancipated on June 3, 2012. Accordingly, after

determining the parties’ adjusted incomes the same way as described above and considering the

fact that only one minor child was the subject of the support order, the magistrate recommended
                                                   6


that, effective June 3, 2012, child support be modified to $2,223 per month and spousal support

be modified to $6,250. The magistrate ordered that all support payments be made by wage

withholding order and he recommended the denial of Paul’s motions to vacate the wage

attachment.

       {¶12} On March 27, 2013, the trial court adopted the magistrate’s decision.

Subsequently, both parties filed timely objections to the magistrate’s decision.           After oral

argument on the objections, the trial court overruled all of the objections by judgment entry dated

August 27, 2014. Paul filed this timely appeal, presenting three assignments of error for our

review.2

                                                   II.

                                        Assignment of Error I

       The trial court erred as a matter of law in construing the parties’ separation
       agreement as it relates to the meaning of the parties’ stated intent to equalize
       their net incomes.

       {¶13} In his first assignment of error, Paul argues that, for the purposes of his support

obligations, the trial court should have deducted his tax liabilities from his gross wages. We

disagree.

       {¶14} This assignment of error revolves around the proper interpretation of the

separation agreement’s provision expressing “the intention of equalizing the parties’ net

incomes.”3 Paul contends that “net income” in the separation agreement refers to the incomes

that the parties receive after deductions from gross wages for the forgiveness amount of the


       2
            Lori has not cross-appealed the trial court’s denial of her objections to the magistrate’s
decision.
       3
        The parties do not argue on appeal that the separation agreement in this matter is
ambiguous, so we need not concern ourselves with any purported ambiguity in the agreement’s
terms.
                                                 7


Raymond James Loan and the amount of any tax liabilities. Lori counters that net income refers

to the adjusted income that results after the forgiveness amount of the Raymond James Loan is

deducted from gross wages. After reviewing the separation agreement, we conclude that the

parties’ agreement intended to equalize net incomes by deducting only the amount of forgiveness

on the Raymond James Loan from gross wages.

       {¶15} “Separation agreements are contracts, subject to the same rules of construction as

other contracts, to be interpreted so as to carry out the intent of the parties.” Musci v. Musci, 9th

Dist. Summit No. 23088, 2006-Ohio-5882, ¶ 42. “The intent of the parties is presumed to reside

in the language they chose to use in their agreement.” Hare v. Isley, 9th Dist. Summit No.

26078, 2012-Ohio-3668, ¶ 9. If the separation agreement is not ambiguous, “the trial court may

not construe, clarify or interpret the parties’ agreement to mean anything outside of that which it

specifically states.” Wiseman v. Wiseman, 9th Dist. Medina No. 13CA0009-M, 2014-Ohio-

2002, ¶ 8, citing Dzeba v. Dzeba, 9th Dist. Summit No. 16225, 1993 WL 498181 (Dec. 1, 1993).

Accordingly, “‘the trial court must defer to the express terms of the contract and interpret it

according to its plain, ordinary, and common meaning.’” Id., quoting Hyder v. Pizer, 9th Dist.

Summit No. 20791, 2002 WL 570256 (Apr. 17, 2002). Nevertheless, “[t]he interpretation of any

terms of a separation agreement is a question of law,” which we review de novo. (Internal

citations omitted.) Hahn v. Hahn, 9th Dist. Medina No. 11CA0064-M, 2012-Ohio-2001, ¶ 9.

       {¶16} Although the separation agreement does not include a definition of net income, it

does state that $200,000 must be deducted from Paul’s gross wages since that amount reflects the

approximate amount forgiven on the Raymond James Loan each year. The guideline worksheet

attached to the agreement lists Paul’s 2009 wages as $400,000, which is $200,000 less than the

amount of gross income he received that year. The only other deduction from Paul’s income
                                                  8


listed on the worksheet were for the approximately $72,000 in spousal support payments he

made in 2009.

       {¶17} In light of these provisions in the separation agreement, we conclude that the

parties’ use of “net income” referred to the income calculated after deducting the amount of

forgiveness on the Raymond James Loan and his spousal support payments from Paul’s gross

income on his W-2. The agreement never states that any of Paul’s tax liabilities are to be

deducted for the purposes of calculating his support obligations and no such deduction, even for

local tax, is included on the guideline worksheet. Had the parties intended to remove any tax

liabilities from the calculation of income for support purposes, their agreement would have

included an explicit provision like the one regarding the Raymond James Loan deduction or

some other deduction would have been included in the guideline worksheet. See Uram v. Uram,

65 Ohio App.3d 96, 99 (9th Dist.1989) (“Applying the principle of expressio unius est exclusio

alterius [to the separation agreement], which means that the expression in a contract of one or

more things of a class implies the exclusion of all not expressed, the trial court did not abuse its

discretion in limiting [the husband]’s obligation to those terms specified in the agreement.”). As

a result, the trial court did not err in its interpretation of the separation agreement and in deciding

not to deduct Paul’s tax liabilities when calculating his income for support purposes.

       {¶18} Accordingly, we overrule Paul’s first assignment of error.

                                      Assignment of Error II

       The trial court erred as a matter of law in refusing to vacate a wage
       attachment order which exceeds the maximum amount allowable under
       federal law.

       {¶19} In his second assignment of error, Paul asserts that the trial court erred in

declining to vacate the wage withholding order attaching his wages for the payment of spousal
                                                9


and child support. Specifically, he argues that the trial court issued a wage withholding order

that violated 15 U.S.C. 1673(b)(2)’s command that only 55 percent of a person’s “disposable

earnings” can be attached via a wage withholding order to satisfy a support order. We disagree.

       {¶20} 15 U.S.C. 1673(b)(2) pertinently provides as follows:

       The maximum part of the aggregate disposable earnings of an individual for any
       workweek which is subject to garnishment to enforce any order for the support of
       any person shall not exceed –

       (A)    where such individual is supporting his spouse or dependent child (other
       than a spouse or child with respect to whose support such order is used), 50 per
       centum of such individual’s disposal earnings for that week; * * *

       except that, with respect to the disposable earnings of any individual for any
       workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per
       centum * * *, if and to the extent that such earnings are subject to garnishment to
       enforce a support order with respect to a period which is prior to the twelve-week
       period which ends the beginning of such workweek.

“Disposable earnings” is defined as “that part of the earnings of any individual remaining after

the deduction from those earnings of any amounts required by law to be withheld.” 15 U.S.C.

1672(b). As conceded by Paul, 55 percent of his disposable earnings are subject to a wage

withholding order under the statute.

       {¶21} In Gest v. Gest, 9th Dist. Lorain No. 96CA006580, 1998 WL 208872 (Apr. 29,

1998), we addressed the argument that the trial court has the duty to vacate a wage withholding

order that attaches more than the federal maxima contained in 15 U.S.C. 1673. We held that

“[t]o the extent that the trial court’s order exceeds the maximum withholding limitations under

[the federal statute], the withholding employer bears the responsibility to see that no more of the

employee’s wages are withheld than permitted by [the federal statute].” Id. at * 11, citing In re

Yeauger, 83 Ohio App.3d 493, 500 (3d Dist.1992) (“Clearly, then, the withholding employer

bears the responsibility, under the court order of withholding, to see that no more of the
                                                10


employee’s wages are withheld than permitted by the federal statute.”); see also Madama v.

Madama, 8th Dist. Cuyahoga No. 73288, 1998 WL 563997, * 2 (Sept. 3, 1998) (following

Yeauger). We further stated that “[t]he withholding limitation does not excuse an obligor from

satisfying the entire order for support, but provides only that the entire amount may not in all

cases be withheld from wages.” Gest at * 11.

       {¶22} Paul has made the same argument as the appellant in Gest and, following its

guidance, we likewise reject it. Paul’s quarrel is with his employer for withholding more than

the amount allowed under federal law; it is not with the court for issuing a support order in

excess of 55 percent of his disposable earnings or for ordering that his wages be attached to

satisfy his support obligations. Indeed, this result is contemplated by R.C. 3121.03(A)(1)(c),

which relevantly provides as follows:

       If the court * * * determines that the obligor is receiving income from a payor
       [employer], the court * * * shall require the payor to do all of the following:

       ***

       Continue the withholding at intervals specified in the notice until further notice
       from the court * * *. To the extent possible, the amount specified to be withheld
       shall satisfy the amount ordered for support plus any arrearages owed by the
       obligor under any prior support order that pertained to the same child or spouse *
       * *. However, in no case shall the sum of the amount to be withheld and any fee
       withheld by the payor as a charge for its services exceed the maximum amount
       permitted under * * * 15 U.S.C. 1673(b).

       {¶23} Accordingly, we overrule Paul’s second assignment of error.

                                    Assignment of Error III

       The trial court erred in modifying spousal support at the time of termination
       of child support when there was no pending motion and no notice to
       Husband that such a modification was contemplated.

       {¶24} In his third assignment of error, Paul argues that the trial court erred by modifying

his spousal support obligation when it terminated child support for the triplets and modified child
                                                11


support for the parties’ other minor child. Specifically, he asserts that the trial court had no

authority to modify spousal support, effective June 3, 2012, the date of the triplets’

emancipation, absent a pending motion. Lori counters that the separation agreement explicitly

allows the modification of his spousal support amount upon the triplets’ emancipation. We

conclude that the trial court did not err in modifying Paul’s spousal support obligation, effective

June 3, 2012, without a pending motion.

       {¶25} The parties’ separation agreement is plain on this point: “once the three older

children emancipate * * *, then spousal support shall increase by like amount that child support

decreases.”4 (Emphasis added.) This provision explicitly indicates the parties’ agreement that

when the triplets emancipate, spousal support will increase to offset the decrease in child

support. Paul entered into this agreement voluntarily and his Civ.R. 60(B) motion for relief from

it was denied by the trial court. He cannot now ask the trial court to ignore the agreement’s

provision for the increase in spousal support upon the triplets’ emancipation. See Thomas v.

Thomas, 159 Ohio App.3d 761, 2004-Ohio-2928, ¶ 16 (11th Dist.) (holding that trial court did

not have jurisdiction to terminate spousal support upon unilateral motion of one of the parties,

but that it would have jurisdiction if the parties made a joint written request for termination as

the agreement provided that modification of terms was possible if “done in writing and signed by

both parties”).

       {¶26} Accordingly, we overrule Paul’s third assignment of error.




       4
         We recognize that the trial court increased Paul’s spousal support obligation beyond the
amount that his child support obligation decreased. Nevertheless, he has not challenged the trial
court’s spousal support order that was effective June 3, 2012, on the basis that the order’s
increase exceeded the decrease in the child support order. Consequently, we decline to consider
whether these facts give rise to reversible error.
                                                12


                                                III.

       {¶27} Having overruled all of Paul’s assignments of error, we affirm the judgment of the

Medina County Court of Common Pleas, Domestic Relations Division.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

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

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT



CARR, P. J.
CONCURS.

MOORE, J.
CONCURS IN JUDGMENT ONLY.
                                          13


APPEARANCES:

RANDAL A. LOWRY and KENNETH L. GIBSON, Attorneys at Law, for Appellant.

RICHARD J. MARCO, JR., Attorney at Law, for Appellee.
