[Cite as Schwartz v. O'Brien, 2014-Ohio-4813.]




                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 100930



                                       DARBY B. SCHWARTZ

                                                          PLAINTIFF-APPELLEE
                                                          and CROSS-APPELLANT

                                                    vs.

                                       ANTHONY A. O’BRIEN

                                                          DEFENDANT-APPELLANT
                                                          and CROSS-APPELLEE




                                                 JUDGMENT:
                                                  AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                   Domestic Relations Division
                                     Case No. DR-03-291463


        BEFORE: Celebrezze, P.J., Jones, J., and McCormack, J.

        RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEY FOR APPELLANT

Madelon Sprague
10250 Orchard Hill Lane
Twinsburg, Ohio 44087


ATTORNEY FOR APPELLEE

Edward W. Rausch
6300 Rockside Road
Suite 204
Independence, Ohio 44131
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant/cross-appellee, Anthony A. O’Brien, appeals the award of attorney fees

and the increase of his child support obligation as a result of a motion to modify support filed by

appellee/cross-appellant, Darby B. Schwartz.1 Appellant assigns the following errors:

       I. Whether or not the trial court abused its discretion and committed reversable
       [sic] error when it adopted the magistrate’s decision, over the objection of
       appellant’s counsel, that the proper foundation for admission of the Trinet payroll
       records and admission of same had been properly established, pursuant to Rule(s)
       of Evidence 803(6) and 901, which decision is contrary to law and against the
       manifest weight of the evidence.

       II. Whether or not the trial court abused its discretion and committed reversable
       [sic] error when it adopted the magistrate’s decision attributing the Anthony J.
       Smith Company, Inc.’s income from Trinet to defendant/appellant thereby
       drastically increasing his child support obligation, without the proper foundation
       for such increase in child support.

       III. Whether or not the trial court abused its discretion and committed reversable
       [sic] error when it adopted the magistrate’s decision increasing the child support
       obligation of the defendant/appellant without the supporting evidence to form the
       basis of said increase.

       IV. Whether or not the trial court abused its discretion and committed reversable

       [sic] error when it adopted the magistrate’s decision which awarded the attorney

       fees of the plaintiff/appellee against the defendant/appellant in the sum of

       $9000.00 without establishing the proper foundation and law to support said

       award.


       1
        Ms. Schwartz filed a cross-appeal taking issue with the amount of attorney
fees awarded by the trial court and the decision of the court finding her objections to
the magistrate’s decision untimely filed (she argued the magistrate erred when it
excluded evidence of fees incurred as a result of appellant’s bankruptcy filings). She
failed to separately prosecute this appeal by arguing the matter in her brief.
App.R. 16. Therefore, it will not be addressed. Wells v. Michael, 10th Dist.
Franklin No. 05AP-1353, 2006-Ohio-5871, ¶ 18.
        {¶2} The documents admitted and relied on by the lower court were sufficiently

authenticated. Further, this court notes the findings of the magistrate that appellant’s testimony

was entirely self-serving and incredible. As the magistrate stated, “[t]he only consistent aspect

of [appellant’s] testimony was that he was committed to being non-responsive, untruthful and

evasive — even upon questions from the Court!” The trial court in no way abused its discretion

in adopting the magistrate’s decision. Appellant and his attorneys should reflect seriously on

their actions that brought the case to this point.

        {¶3} We overrule appellant’s assigned errors and adopt, in pertinent part, the

well-reasoned decision of the trial court, journalized December 23, 2013, as our own.2

        {¶4} Judgment affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate be sent to the Domestic Relations Division to carry

this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
TIM McCORMACK, J., CONCUR


        Pages 1 through 4 of the 13-page Cuyahoga County Common Pleas Court
        2

Journal Entry dated December 23, 2013, are included in the appendix to this
opinion. We have edited the trial court’s opinion for the sole purpose of correcting
any obvious typographical errors and including paragraph numbers. In all other
respects, the trial court’s opinion remains in its original form.
                                          APPENDIX

                               IN THE COURT OF COMMON PLEAS
                                   CUYAHOGA COUNTY, OHIO

DARBY B. SCHWARTZ                    )       Case No.: DR03 291463
                                             )
                      Plaintiff              )     Judge: JANET RATH COLALUCA
                                             )
                      - vs -                 )
                                             )
ANTHONY A. O’BRIEN                   )       JUDGMENT ENTRY
                                             )
                      Defendant              )

       {¶5} This matter came on for hearing on November 15, 2012, February 19-20, 2013,

March 20-21, 2013, and April 5, 2013, before Magistrate Cathleen J. Chaney, to whom this

matter was referred by the Honorable JANET RATH COLALUCA, Judge of the Domestic

Relations Division of the Court of Common Pleas, upon Plaintiff’s Motion to Modify Support

(post-decree) #316314, Plaintiff’s Motion for Attorney Fees #323552, Plaintiff’s Motion to

Strike #330569, 6th-Party Defendant’s Motion to Set Aside Magistrate’s Order #332975,

6th-Party Defendant’s Motion to Set for Trial/Hearing #332976, Plaintiff’s Motion to Compel

#338246, and Plaintiff’s Motion for Attorney Fees #338247. Appearances were made by Darby

B. Schwartz, Plaintiff; Madelon Sprague, Plaintiff’s Attorney; Anthony A. O’Brien, Defendant;

Edward W. Rausch, Defendant’s Attorney; and Anthony J. Smith, Attorney for 6th-Party

Defendant, Kelly O’Brien. The parties provided their written closing arguments on April 5,

2013, and no testimony was taken on that day. The Official Court Reporter was Kathleen

Kuznik.

       {¶6} The Court hereby adopts the Magistrate’s Decision filed July 3, 2013, in its entirety.

       IT IS HEREBY ORDERED:
       AFTER CONSIDERATION OF THE PLEADINGS, MAGISTRATE’S
       DECISION, EXHIBITS, AND FULL TRANSCRIPT, DEFENDANT’S
       PRELIMINARY OBJECTIONS FILED ON JULY 17, 2013, AND
       SUPPLEMENTAL OBJECTIONS FILED ON AUGUST 28, 2013, AND
       PLAINTIFF’S PRELIMINARY OBJECTIONS FILED ON JULY 29, 2013,
       AND SUPPLEMENTAL OBJECTIONS FILED ON SEPTEMBER 11, 2013,
       ARE HEREBY OVERRULED, AND THE DECISION OF THE
       MAGISTRATE IS ADOPTED IN ITS ENTIRETY.

       {¶7} The Court makes the following findings with respect to Plaintiff’s and Defendant’s

Objections to the Magistrate’s Decision:

       {¶8} Defendant asserts that the Magistrate erred in admitting certain payroll records, as

the proper foundation for authenticating these records was not established.             Specifically,

Defendant claims that Mr. Jinks, the Glacial Energy employee called to authenticate these

records, was not the “custodian of records” or other qualified witness under Evid.R. 901(B)(10)

since the records were prepared by Trinet, a third-party payroll company utilized by Glacial

Energy.

       {¶9} Evid.R.[901](A) provides that authentication is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims. A business record is

authenticated as provided for in Evid.R. 803(6), which states that “[a] memorandum, report,

record, or data compilation, in any form, of acts, events, or conditions, made at or near the time

by, or from information transmitted by, a person with knowledge, if kept in the course of a

regularly conducted business activity, and if it was the regular practice of that business activity to

make the memorandum, report, record, or data compilation, all as shown by the testimony of the

custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of

information or the method or circumstances of preparation indicate lack of trustworthiness.”
       {¶10} Defendant asserts that since the witness was an employee of Glacial Energy and the

records were prepared by Trinet, the witness is not the custodian of records and does not have

sufficient knowledge to authenticate these business records. Presentation of business records

through the testimony of the custodian of the records is not the only option for authentication,

however. Evid.R. 803(6) provides that the custodian of records or “other qualified witness” may

properly authenticate a business record. A witness sufficiently familiar with the operation of the

business can also present the business records. State v. Davis, 62 Ohio St.3d 326, 342-343, 581

N.E.2d 1362 (1991). The witness must be able to vouch, from personal knowledge of the

record-keeping system, that such records were kept in the regular course of business. Id. at 342.

 The witness need not have personal knowledge of the creation of the particular record in

question and need not have been in the employ of the company at the time the record was made.

Id.

       {¶11} Mr. Jinks testified that he is the “senior vice-president of channel partners sales” at

Glacial Energy and that he was familiar with the procedure Glacial Energy used to pay

commissions and salary. He further testified that he executed all of Defendant’s employment

agreements with Glacial. He further explained that Glacial Energy used a payroll company

called Trinet to process and document the payment of salaries and commissions to Glacial

employees, as well as other HR functions. Mr. Jinks clearly established that he was sufficiently

familiar with the operation of the business and that he had personal knowledge of the

record-keeping system Glacial used to pay commissions and salaries to its employees. As stated

in Davis, supra, he need not have personal knowledge of the creation of the particular record in

question, nor must he have been in the employ of the company when the record was made. Mr.

Jinks’s testimony provided sufficient evidence to support a finding that the payroll records
offered into evidence were what they purported to be. Defendant’s first objection is hereby

overruled.

       {¶12} Defendant asserts in his second objection that the Magistrate erred in attributing to

him as income commission income paid to the Anthony J. Smith Management Company by

Glacial Energy. Defendant again asserted that the documentation of the commissions paid by

Glacial Energy to the management company and to Mr. O’Brien were not properly authenticated,

and thus the only verified income information available to the court for child support calculation

purposes was his W-2 forms. As previously stated, however, Mr. Jinks’s testimony was credible

and provided sufficient evidence to authenticate the payroll records.        The payroll records

outlining the commissions paid to Mr. O’Brien match the deposits made into the Anthony J.

Smith Management Company bank account.             Mr. Jinks further testified that Defendant’s

commissions that he earned while employed at Glacial, as well as residual commissions he

continues to receive after his resignation, were set up to be paid to the Anthony J. Smith

Management Company on Defendant’s behalf. Though Defendant testified to the contrary, the

Magistrate specifically found Defendant’s testimony not credible, and found Mr. Jinks to be the

more credible witness. The trier of fact is in the best position to judge witness credibility, and

the self-serving nature of Defendant’s testimony further supports the finding that Mr. Jinks is the

more credible witness. There is sufficient evidence to support the Magistrate’s finding that

these commissions should be attributed to Defendant as income. Defendant’s second objection

is hereby overruled.

       {¶13} Defendant asserts in his third objection that the Magistrate erred in increasing the

child support obligation to the extent increased, as Plaintiff did not establish that the children
could not maintain their standard of living on the support provided for a combined gross income

of $150,000, and further that he is currently unemployed.

       {¶14} In cases where the parties’ combined income exceeds $150,000, R.C. 3119.04(B)

provides that the amount of child support shall be determined on a case-by-case basis and shall

consider the needs and the standard of living of the children. It further provides that the

obligation shall be no less than guideline support for a combined income of $150,000 unless the

court determines that it would be unjust, inappropriate, and not in the best interests of the child,

obligor, and obligee. As the Magistrate stated in her decision, Ohio cases have consistently held

that the appropriate standard for the amount of child support is “that amount necessary to

maintain for the children the standard of living they would have enjoyed had the marriage

continued.”    Keating v. Keating, [8th Dist. Cuyahoga No. 90611,] 2008-Ohio-5345. R.C.

3119.04(B) neither contains nor references any factors to guide the court’s determination in

setting the amount of child support; instead, the court must determine child support on a

“case-by-case basis.” When making a child support determination under R.C. 3119.04(B), the

court must not only look to the standard of living of the child, but to that of the parents as well.

R.C. 3119.04(B) “does not require any explanation of its decision unless it awards less than the

amount awarded for combined incomes of $150,000.” Cyr v. Cyr, [8th Dist. Cuyahoga] No.

84255, 2005-Ohio-504, at ¶ 25. Since the Court did not order support at less than the guideline

amount for $150,000, no explanation of its decision is necessary. However, the Magistrate

specifically considered the standard of living of the Obligor, citing evidence that he and his

current wife live “quite lavishly.” The Magistrate further noted Obligee’s testimony that she is

struggling to pay the medical expenses of the minor children and that all three children are

involved in extracurricular activities with expenses totaling over $16,500 per year. Finally, the
Magistrate found that Defendant is voluntarily underemployed and that he should have income of

$368,000 per year imputed to him. The evidence at trial supported this finding, as the testimony

of Mr. Jinks established that Mr. O’Brien voluntarily resigned from his position with Glacial

Energy when the reporting of his commissions became transparent and would be attributed to

him as W-2 income rather than to the Anthony J. Smith Management Company. The evidence

clearly supports the Magistrate’s decision to award child support in an amount greater than

guideline support for $150,000 combined income. The parties’ children are entitled to enjoy the

standard of living they would have enjoyed had the marriage continued. Defendant’s third

objection is hereby overruled.

       {¶15} Defendant asserts in his fourth objection that the Magistrate erred in awarding the

Plaintiff attorney fees in the amount of $9,000.

       {¶16} Pursuant to R.C. 3109.05(C), when a party is found in contempt for failure to make

support payments as ordered, the court shall require the person to pay any reasonable attorney

fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.

 (Emphasis added.) Though Defendant argues in his objection that Plaintiff did not comply with

the manner in which she was to present the medical bills to Defendant for payment, the parties

entered into an agreement finding Defendant in contempt for unpaid medical expenses. As such,

this court properly required Defendant to pay the reasonable attorney fees Plaintiff incurred in the

prosecution of her motion.       Plaintiff’s counsel offered testimony as to the amount and

reasonableness of the fees, and the Magistrate had sufficient evidence to determine that such fees

were reasonable. Defendant’s fourth objection is hereby overruled.

***

                                                                   /s/ JANET RATH COLALUCA
