[Cite as Feldmiller v. Feldmiller, 2012-Ohio-4621.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

DAVID S. FELDMILLER                                   :

        Plaintiff-Appellant                           :   C.A. CASE NO. 24989

vs.                                                   :   T.C. CASE NO. 2006 DR 01397

SARA P. FELDMILLER                                    :   (APPEAL FROM THE COMMON
                                                          PLEAS
(nka Priest)                                               COURT - DOMESTIC RELATIONS
                                                      :    DIVISION)
        Defendant-Appellee
                                                .........

                                             OPINION

                            Rendered on the 5th day of October, 2012.

                                                .........

Jennifer L. Brogan, Atty. Reg. No. 0075558, 400 PNC Center, 6 North Main Street,
Dayton, Ohio 45402
       Attorney for Plaintiff-Appellant

Keith R. Kearney, Atty. Reg. No. 0003191, 40 North Main Street, Suite 2160, Dayton,
Ohio 45423
      Attorney for Defendant-Appellee

                                                .........

GRADY, P.J.:

        {¶ 1} David S. Feldmiller and Sara P. Feldmiller, nka Priest, were married on May

22, 1991. Three children, one of whom is now emancipated, were born of their marriage.
                                                                                              2
                      1
       {¶ 2} David        filed a complaint for divorce on November 30, 2006. Sara filed an

answer and counterclaim on December 8, 2006.

       {¶ 3} Hearings were held on March 16 and 17 and June 29, 2011. The parties

entered stipulations agreeing to the valuation and division of their marital residence and other

properties. They also agreed concerning the identity of certain financial assets and the value

of those assets as of December 31, 2010.

       {¶ 4} The domestic relations court entered its Final Judgment and Decree of Divorce

on January 4, 2012. [Dkt. 181]. The court adopted the stipulations of the parties. The court

ordered a division of David’s retirement accounts at their value as of December 31, 2010.

Sara was designated the residential parent and legal custodian of the parties’ two minor

children.   The court calculated David’s child support obligation at $846.00 per month, and

ordered him to pay that amount in the lump-sum amount of $65,000.00. David was ordered

to pay Sara a lump-sum amount of $250,000.00 as a distributive award due to his financial

misconduct. Sara was awarded a judgment of $25,000.00 as and for her attorneys’ fees. The

judgment also included other features standard to decrees of divorce. David filed a timely

notice of appeal from the Final Judgment and Decree.

       {¶ 5} First Assignment of Error:

       “THE DOMESTIC RELATIONS COURT ABUSED ITS DISCRETION AND HELD

AGAINST         THE   WEIGHT       OF   THE     EVIDENCE       BY     ESTABLISHING         THE




            1
          For purposes of clarity and convenience, the parties will
    be identified by their first names.
                                                                                                3

TERMINATION DATE OF THE MARRIAGE AS DECEMBER 31, 2010, INSTEAD OF

THE DATE OF THE FILING OF THE COMPLAINT FOR DIVORCE.”

          {¶ 6} In divorce proceedings the court is charged to divide the parties’ separate and

marital properties equitably. R.C. 3105.171(B). Marital property shall be divided equally,

unless a different division would be equitable. R.C. 3105.171(C). Marital property includes

all real and personal properties or interests therein that were acquired by either or both spouses

during the marriage. R.C. 3105.171(A)(3)(a)(I). “During the marriage” means the period of

time from the date of the marriage through the date of the final hearing in the divorce action,

unless the court determines that either or both dates would be inequitable, in which event

“during the marriage” means the period between the dates the court selects. R.C.

3105.171(A)(2).

          {¶ 7} We review the court’s selection of dates different from those prescribed by

R.C. 3105.171(A)(2) on the abuse of discretion standard. “Abuse of discretion” has been

defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair

Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is unreasonable if

there is no sound reasoning process that would support that decision. AAAA Enterprises, Inc.

V. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597

(1990).

          {¶ 8} The parties stipulated that David owns three IRA accounts that had a total

value of $715,153.81 as of December 31, 2010. The parties further “agree(d) that the court

shall determine between three different valuation dates (for those accounts). Those will be

December 31, 2006, which represents the month end that the parties filed the divorce; June
                                                                                                4

30, 2007, which represents a date close to the parties’ separation; or December 31, 2010,

which represents the year-end (valuation) figures closest to the current trial date.” (Tr.

18-19).

          {¶ 9}   The court ordered the value of the three accounts as of December 31, 2010,

$715,153.81, minus David’s premarital interest of $19,528.06, divided equally between the

parties. The court also valued an IRA owned by Sara as of that same date.

          {¶ 10} David argues that the domestic relations court abused its discretion when it

failed to adopt December 31, 2006, which was one month after and the end of the year

following the filing of his complaint for divorce on November 30, 2006, as the date the

marriage terminated. David argues that the December 31, 2006 date would be more equitable

because he was prompted to file his complaint after learning that Sara was having an

extramarital affair, which represents the de facto termination of their marriage.

          {¶ 11} The court was authorized to choose a date prior to the date of the final hearing,

June 29, 2011, upon a finding that the prior date would be more equitable for purposes of the

division of the parties’ marital property. The parties agreed that the court could adopt any

one of three dates. We do not agree that December 31, 2006, following the filing of David’s

complaint, would necessarily be a more equitable date. The parties remained living in the

same household, albeit estranged, until Sara vacated the marital residence in July, 2007.

When asked whether the marriage was then over, Sara testified: “One would assume so.”

(Tr. 491).

          {¶ 12} We might have been inclined to find the date the parties separated in July, 2007

as the more equitable date. However, that is not our charge. Our charge is to determine
                                                                                            5

whether the domestic relations court abused its discretion when it chose the date of December

31, 2010, for the purpose of determining and dividing the parties’ marital interest in David’s

IRA accounts. Again, we must find that there is no sound reasoning process that would

support the decision. AAAA Enterprises, Inc.

        {¶ 13} The record demonstrates that the marital value of David’s three accounts

appreciated from $464,758.87 as of December 31, 2006, to $495,446.12 as of June 30, 2007,

to $715,153.81 as of December 31, 2010. David continued to make contributions to his IRAs

during that time. Nevertheless, the court was required to determine the parties’ marital

interest in those accounts and divide those interests equitably.    R.C. 3105.171(B).     We

cannot find that the court abused its discretion in adopting the December 31, 2010 date. It

was a date the parties offered, and was the date most recent to the date of the final hearing,

June 29, 2011, for which R.C. 3105.171(A)(2)(a) creates a preference. There was a sound

reasoning process for the court’s decision. Id.

        {¶ 14} The first assignment of error is Overruled.

        {¶ 15} Second Assignment of Error:

        “THE DOMESTIC RELATIONS COURT ERRED IN AWARDING THE

DEFENDANT A DISTRIBUTIVE AWARD FOR PLAINTIFF’S ALLEGED FINANCIAL

MISCONDUCT.”

        {¶ 16} R.C. 3105.171(E)(1) provides that the court may make a distributive award to

facilitate, effectuate, or supplement a division of marital property. Paragraph (E)(4)of that

section further states:
                                                                                          6

               If a spouse has engaged in financial misconduct, including, but not

       limited to, the dissipation, destruction, concealment, nondisclosure, or

       fraudulent disposition of assets, the court may compensate the offended spouse

       with a distributive award or with a greater award of marital property.

       {¶ 17} R.C. 3105.171(A)(1) states:

               “Distributive award” means any payment or payments, in real or

       personal property, that are payable in a lump sum over time, in fixed amounts,

       that are made from separate property or income, and that are not made from

       marital property and do not constitute payments of spousal support, as defined

       in section 3105.18 of the Revised Code.

       {¶ 18} In Mantle v. Sterry, 10th Dist. Franklin No. 02AP-286, 2003-Ohio-6058, the

Tenth District held:

               {¶32} The financial misconduct statute should apply only if the spouse

       engaged in some type of wrongdoing (i.e., wrongful scienter). Hammond v.

       Brown (September 14, 1995), Cuyahoga App. No. 67268. “Typically, the

       offending spouse will either profit from the misconduct or intentionally defeat

       the other spouse’s distribution of marital assets.” Id. Financial misconduct

       involves some element of profit or interference with another’s property rights.

       Id.   An allegation of financial misconduct, unsupported by evidence of

       wrongdoing, will not support a dissipation award. Rinehart v. Rhinehart (May

       18, 1998), Gallia App. No. 96 CA 10.

Accord, Moore v. Moore, 175 Ohio App. 3d 1, 2008-Ohio-255, 884 N.E.2d 1113 (6th Dist.).
                                                                                              7

       {¶ 19} David is a certified public accountant. After graduation from college, he

joined Battelle & Battelle, LLP, in 1979. David’s responsibilities increased through the

following years. He became a partner of Battelle & Battelle in 1995, eventually responsible

for the firm’s not-for-profit sector clients. In the years 2006 to 2009, David’s annual earnings

from Battelle & Battelle were between $330,000.00 and $390,000.00.

       {¶ 20} David claims that his job performance suffered after learning that Sara was

having an extramarital affair. Also, in the Summer of 2007, David became sole caretaker of

his mother. David consulted a personal counselor about the effect these issues were having

on his job performance.

       {¶ 21} After reviewing those matters, the court made the following findings and

conclusions under the heading “Spousal Support/Distributive Award”:

               In addition, the Plaintiff had a laptop stolen from his vehicle that was

       parked in his driveway. This laptop contained the names and confidential

       information for at least 14,000 Battelle and Battelle clients. All of these

       clients had to be notified by Battelle and Battelle. The Plaintiff admitted that

       at least one partner thought that the Plaintiff’s negligence with respect to the

       laptop should have been immediate grounds for dismissal. Through most of

       2007 and 2008, the Plaintiff was placed under partner review and all of his

       work was scrutinized and he was required to meet regularly with the reviewing

       partner. The Plaintiff’s performance did not improve to the satisfaction of the

       partnership in terms of timeliness and other requirements.         The Plaintiff

       agreed to act as Trustee for a client which was a clear violation of partnership
                                                                                            8

       rules. Effective September 2009, his employment with Battelle and Battelle

       was terminated. The Plaintiff is currently under a non-solicitation agreement

       and cannot solicit any clients from Battelle and Battelle and that

       non-solicitation\non-competition agreement is in effect until 2014. The Court

       found that the Plaintiff’s termination was clearly a termination for cause. In

       addition, the Court finds that the Plaintiff is pursuing self-employment as a

       CPA and that his earnings have been modest to date, $7,000.00 to $8,000.00.

               The Defendant is requesting a lump sum of $250,000.00 to compensate

       her for post decree spousal support she would have received had the Plaintiff

       retained his employment.     Based upon the evidence, IT IS THEREFORE

       ORDERED, ADJUDGED AND DECREED that the Defendant is entitled to

       $250,000.00 in the nature of a distributive award due to the financial

       misconduct of the Plaintiff. The Court further ORDERS that the Plaintiff

       shall pay to the Defendant this sum from his separate assets within thirty (30)

       days.

       {¶ 22} The fact that David was terminated for cause does not demonstrate, in and of

itself, that he engaged in financial misconduct for purposes of R.C. 3105.171(E)(4). We

agree with the holding in Mantle that the required misconduct must portray a form of

wrongdoing undertaken for the purpose of profiting the offending spouse and/or defeating the

other spouse’s share of marital assets. The court made no finding that the conduct in which

David had engaged, albeit a breach of his contract with Battelle & Battelle, was undertaken to

profit him or harm Sara.
                                                                                              9

        {¶ 23} The court found that Sara was harmed by David’s termination because it

operated to reduce the amount of spousal support Sara would otherwise have received had

David retained his partnership with Battelle & Battelle. The court granted a $250,000.00

lump sum judgment to Sara from David’s separate property “in the nature of a distributive

award.” However, R.C. 3105.171(A)(1) provides that distributive awards “do not constitute

payments of spousal support, as defined in section 3105.18 of the Revised Code.” That

prohibition likewise applies to a distributive award to compensate for a loss of spousal

support.

        {¶ 24} For the foregoing reasons, we find that the domestic relations court abused its

discretion when it ordered David to pay Sara a lump-sum amount of $250,000.00 upon a

finding that he engaged in financial misconduct.

        {¶ 25} The second assignment of error is Sustained.

        {¶ 26} Third Assignment of Error:

        “THE DOMESTIC RELATIONS COURT ABUSED ITS DISCRETION BY

NAMING THE DEFENDANT THE RESIDENTIAL PARENT AND LEGAL CUSTODIAN

OF THE MINOR CHILDREN.”

        {¶ 27} The abuse of discretion that David argues is based on two contentions. First,

that the court in its judgment failed to discuss the statutory factors in R.C. 3109.04(F)(1) and

(F)(2). Second, that the evidence supports a finding that shared parenting is in the children’s

best interest.

        {¶ 28} Concerning shared parenting, Sara filed a Petition to Adopt Shared Parenting

Plan and a Proposed Shared Parenting Plan on March 15, 2010. [Dkt. 125]. However, Sara
                                                                                                10

subsequently withdrew her request for shared parenting when the issue of parental rights and

responsibilities for care of the children was heard during the first day of trial, March 16,

2011. (Tr. 76).

        {¶ 29} David filed a Request for Shared Parenting and Proposed Shared Parenting

Plan [Dkt. 154] on March 10, 2011. R.C. 3109.04(G) provides that in divorce actions “[t]he

plan for shared parenting shall be filed * * * at a time at least thirty days prior to the hearing

on the issue of parental rights and responsibilities for the care of the children.”

        {¶ 30} Inasmuch as David’s request for shared parenting was not supported by a

timely-filed plan, and Sara’s request was withdrawn, the court was not required to decide

whether shared parenting should be ordered. The court did not abuse its discretion in failing

to consider shared parenting or find that shared parenting is in the minor children’s best

interest.

        {¶ 31} R.C. 3109.04(A) authorizes the court in a divorce proceeding to allocate

parental rights and responsibilities for the care of the minor children of the parties, taking into

consideration the best interest of the children pursuant to R.C. 3109.04(B)(1).               R.C.

3109.04(F)(1) provides that the court shall consider “all relevant factors” in making that best

interest determination, including factors (a) through (j) of that section. R.C. 3109.04(F)(2)

provides factors for the court to consider in determining whether shared parenting is in the

best interest of the children. For reasons previously discussed, the domestic relations court

was not required to consider the R.C. 3109.04(F)(2) factors.

        {¶ 32} David did not request findings of fact or conclusions of law pursuant to Civ. R.

52, and therefore the court’s judgment concerning allocation of parental rights and
                                                                                            11

responsibilities “may be general for the prevailing party.” Civ. R. 52. We presume the

regularity of the trial court’s proceedings. Scovanner v. Toelke, 119 Ohio St. 256, 163 N.E.

493 (1928). Although the court is instructed by R.C. 3109.04(F)(1) to “consider” the factors

enumerated therein, the court’s alleged failure to give the required consideration will not be

found by an appellate court to be against the manifest weight of the evidence so long as the

court’s judgment is supported by some competent, credible evidence. Bunten v. Bunten, 126

Ohio App.3d 443, 710 N.E.2d 757 (3d Dist. 1998).

       {¶ 33} The court entered a general judgment stating that “based on the evidence that

the Defendant shall be designated as the residential parent and legal custodian of the parties’

minor children, [E] and [G].” [Dkt. 181, section IV]. That evidence included the Report and

Supplemental Report of the Guardian ad Litem appointed by the court, Kenneth J. Krochmal,

who also testified in the proceeding.

       {¶ 34} The Guardian ad Litem (hereafter referred to as “GAL”) filed two written

reports. In his Report [Plaintiff’s Exhibit 38], the GAL recommended shared parenting, but

failing that further recommended that David be designated the children’s residential parent

and legal custodian, providing that the parenting time schedule for visitation the parties

established should continue.      Following the court’s order granting Sara’s request for

reconsideration, the GAL filed a Supplemental Memorandum [Plaintiff’s Exhibit 39]. The

GAL again recommended shared parenting.            However, the GAL withdrew his prior

conclusion that, failing that, David should be designated the children’s residential parent and

legal custodian because he is the more stable parent. After reviewing his reasons, the GAL

concluded that Sara is the more stable parent, and recommended that Sara should be the
                                                                                             12

children’s residential parent and legal custodian should her request for shared parenting not be

granted. The GAL again recommended that the current visitation schedule continue. The

Report and Supplemental Memorandum were both filed before Sara withdrew her shared

parenting request and plan.

       {¶ 35} The GAL testified that he changed his recommendation after learning that

David had for several months not told Sara of his termination by Battelle & Battelle and its

impact on her and the children, including their loss of health insurance. The GAL testified

that [G.] told him that David was sometimes not responsive to her requests, and on one

occasion grabbed and pulled her hair and caused her to cry when [G.] asked David where her

shoes were. The GAL also confirmed that [G.] said that Sara is the parent who always takes

her to the medical, dental, and eye examination appointments, to everything, and that she

would like Sara to continue to be so involved. The other child, [E.], told the GAL that Sara

attempted to involve David in parenting decisions. The GAL withdrew his recommendation

concerning shared parenting, but recommended that the current visitation schedule continue.

       {¶ 36} In its judgment and decree, the court stated: “The court adopted in its entirety

the supplemental report of the Guardian Ad Litem, Kenneth Krochmal.” [Def. 181, § IV].

The GAL’s supplemental report and testimony is competent, credible evidence on which the

court could rely in deciding to designate Sara the children’s residential parent and legal

custodian. We find no abuse of discretion.

       {¶ 37} The third assignment of error is Overruled.

       {¶ 38} Fourth Assignment of Error:
                                                                                         13

       “THE DOMESTIC RELATIONS COURT ABUSED ITS DISCRETION IN ITS

AWARD OF CHILD SUPPORT.”

       {¶ 39} Both parties filed child support calculation worksheets. The court rejected

David’s proposal. Regarding Sara’s proposal, the court stated:

              The Defendant is requesting child support based on imputed income to

       the Plaintiff by $366,071.66 per year and the Defendant’s income of

       $26,896.83 per year. The Defendant’s calculation results in child support

       payable by the Plaintiff in the amount of $846.00 per month per child for two

       children.

              [E.] will be 18 years of age on February 14, 2013, although not

       necessarily emancipated by that date, and [G.] will turn 18 years of age on

       September 14, 2015, and may or not be emancipated as of that date. The

       Defendant is requesting a lump sum of $100,000.00 as and for child support,

       on a somewhat distributive award theory.

              The Court ORDERS the Plaintiff to pay defendant the lump sum of

       $65,000.00. Upon payment of said sum by the Plaintiff to the Defendant, the

       Defendant shall be and the Court ORDERS the Defendant solely responsible

       for all school fees, extracurricular activity fees, and clothing for both minor

       children.

              The Plaintiff/Father, David Feldmiller (“Obligor”) shall pay to the

       Defendant/Mother, Sara Feldmiller (“Obligee”) as and for support of the two
                                                                                           14

       minor children of the parties, the sum of $65,000.00 lump sum, there being two

       children for a total of $65,000.00 directly to the Defendant/Mother.

              Still further, Father’s child support obligation shall continue for a

       particular child until the child reaches the age of majority or no longer attends

       an accredited high school on a full time basis, whichever occurs last, but not

       beyond the child’s nineteenth birthday or until the child is otherwise

       emancipated by law, or until further Order of the Court.

       {¶ 40} R.C. 3119.02 governs calculation of a parent’s child support obligation, and

provides:

              In any action to which a court child support order is issued or modified,

       in any other proceeding in which the court determines the amount of child

       support that will be ordered to be paid pursuant to a child support order, or

       when a child support enforcement agency determines the amount of child

       support that will be paid pursuant to an administrative child support order, the

       court or agency shall calculate the amount of the obligor’s child support

       obligation in accordance with the basic child support schedule, the applicable

       worksheet, and the other provisions of sections 3119.02 to 3119.24 of the

       Revised Code. The court or agency shall specify the support obligation as a

       monthly amount due and shall order the support obligation to be paid in

       periodic increments as it determines to be in the best interest of the children.

       In performing its duties under this section, the court or agency is not required
                                                                                               15

       to accept any calculations in a worksheet prepared by any party to the action or

       proceeding. (Emphasis supplied).

       {¶ 41} R.C. 3119.022 provides that when a court calculates the amount of child

support to be paid pursuant to a child support order in a proceeding in which one parent is the

residential parent and legal custodian of all the children who are subject to the order, “the

court * * * shall use a worksheet identical in content and form” to the model set out in that

section. After arriving at the obligor’s actual annual obligation, the court is authorized at line

27(a) of the model worksheet to deviate from that amount if “the amount shown * * * would

be unjust or inappropriate.” However, the court is required to find and state “specific facts”

to support the deviation. Factors relevant to granting a deviation include the factors set out in

R.C. 3119.23(A) through (P), which is “[a]ny other relevant factor.” After then arriving at a

“Final Child Support Order,” the court is required at line 29 to enter the amount of support

“For Decree: Child Support per month.”

       {¶ 42} It appears that the court adopted the Child Support Calculation Worksheet that

Sara filed, which arrived at a support obligation for David in the amount of $846.00 per

month per child, to continue “not beyond the child’s nineteenth birthday or until the child is

emancipated, or until further Order of the Court.”

               {¶ 43} The Decree was entered on January 4, 2012. [E.] will reach her

nineteenth birthday on February 14, 2014, a period of twenty-six months, for which David’s

support obligation for [E.] could total $21,996.00. [G.] will reach her nineteenth birthday on

September 14, 2016, a period of fifty-seven months, for which David’s support obligation for

[G.] could total $48,222.00. David’s support for both children, barring an earlier termination,
                                                                                           16

would then total $70,218.00. Instead of ordering that amount paid in monthly payments of

$846.00 per child, the court ordered David to pay Sara the lump sum of $65,000.00 as and for

support of both children.

       {¶ 44} In adopting the worksheet that Sara filed, the court appears to have imputed an

annual income to David in the amount of $366,071.66. Courts are required to follow a

two-step process in imputing income.       First, there must be a finding that a parent is

voluntarily unemployed or underemployed before income can be imputed.            Badovick v.

Badovick, 128 Ohio App.3d 18, 713 N.E.2d 1066 (8th Dist. 1998); In re Westendorf, 1st Dist.

Hamilton No. C-020804, 2003-Ohio-5955. Second, a parent’s potential income must be

determined by evaluating the parent’s work experience, education, any mental or physical

disabilities, prevailing job opportunities in the area, special skill or training, evidence of

ability to earn income, special needs of the children, and any other relevant factor. R.C.

3119.01(C)(11)(a); Kiehborth v. Kiehborth, 169 Ohio App.3d 308, 2006-Ohio-5529, 862

N.E.2d 863 (5th Dist.). Imputed income also arises from non-income producing assets as

determined from the local passbook savings rate or another appropriate rate as determined by

the court, but not exceeding the statutory rate of R.C. 1343.03(A). R.C. 3119.01(C)(11)(b).

       {¶ 45} The court made no finding that David is voluntarily underemployed. Neither

did the court determine David’s potential income with reference to the factors in R.C.

3119.01(C)(11)(a), or otherwise say that it had. Instead, the $366,071.66 in annual income

that was imputed appears to be based on the income David realized from his position with

Battelle & Battelle, which was as a partner responsible for a major area of client services.

Since his termination, it is unrealistic to assume that a similar income is available to David
                                                                                             17

from other sources, particularly in view of the non-solicitation agreement with Battelle &

Battelle to which David is subject.

       {¶ 46} We find that the court abused its discretion when it ordered an amount of child

support based on an annual income of $366,071.66 that Sara imputed to David. The further

issue is whether the court also abused its discretion in ordering the amount of support paid in

a lump sum instead of monthly installments.

       {¶ 47} In Roach v. Roach, 164 Ohio St. 587, 132 N.E.2d 742 (1956), the Supreme

Court held:

               Where a court in a divorce action makes an order for the support of a

       minor child of the parties, payable in installments, over which order the court

       retains expressly or by implication continuing jurisdiction, such order must be

       reduced to a lump-sum judgment as to unpaid and delinquent installments

       before an execution may be lawfully levied thereunder.

Id., paragraph 2 of the Syllabus by the Court.

       {¶ 48} A lump sum judgment for the amount of support payments unpaid and

delinquent is available as a relief for the delinquency because that amount is fixed and payable

on the date the last support payment becomes due and owing; at that time, the payee has an

absolute right to have all past due payments reduced to a judgment on which execution may

be levied. Smith v. Smith, 168 Ohio St. 447, 156 N.E.2d 113 (1959). However, an order or

judgment for installment payments, being uncertain in amount when it is rendered, is typically

not rendered in the form of a sum certain, and in the case of child support payments is entered

as an order to pay a certain amount periodically until the minor becomes emancipated. “It
                                                                                               18

would be possible, by a multiplication of the number of payment periods in a year by the

number of years contemplated by the support order, then by a multiplication of that product by

the amount of the periodical payment, to determine mathematically the sum certain

contemplated by the order on the date of its issuance. There exists on that date, however, no

certainty that the child will live for the duration of the support order or that the court issuing

the order will not modify it as to future installments sometime prior to its termination.”

Id., at 450.

        {¶ 49} Smith preceded the original child support guidelines, which have been refined

by subsequent enactments to include the provisions in R.C. Chapter 3119. None of those

provisions expressly provides for lump sum payments of child support. Instead, the regimen

now imposed by R.C. Chapter 3119 calls for child support obligations to be specified “as a

monthly amount due * * * to be paid in periodic increments as (the court) determines to be in

the best interest of the children.”     R.C. 3119.02.     That section authorizes the court to

structure the particular periodic increments to be other than “monthly” payments when it is in

the best interest of the child or children. It does not expressly authorize the court to abandon

the periodic increments requirement in favor of a lump sum judgment.

        {¶ 50} R.C. 3111.13(D), which is part of the parentage chapter, provides that support

orders “ordinarily shall be for periodic payments that may vary in amount,” but also authorizes

the court to order the “purchase of an annuity (that) may be ordered in lieu of periodic

payments.” However, the exigencies of parentage are different from those in a divorce

action. Also, while R.C. 3111.13(D) formerly allowed the further alternative of a “lump sum
                                                                                            19

payment,” that alternative was subsequently removed from R.C. 3111.13(D) by the General

Assembly. 2000 S.B. 180, eff. March 22, 2001.

        {¶ 51} It is, in our view, difficult to read R.C. Chapter 3119 to allow orders for lump

sum payments of child support on an original or modified basis. Further, even though R.C.

3105.011 preserves the full equitable powers of the court in domestic relations matters, the

court’s particular exercise of those powers must accord with R.C. Chapter 3119. Therefore,

even if the court could, or does, order a lump sum payment as a “deviation” from the “child

support per month” order that R.C. 3119.022 requires, that section also requires the court to

state “specific facts” supporting the deviation. R.C. 3119.022, line 27(a). The court stated

no specific facts supporting the $65,000.00 lump sum payment it ordered in lieu of the

$846.00 per child per month the court found that David should pay.

        {¶ 52} Finally, David argues that the court abused its discretion because its support

award appears to be based on a finding that David failed to offer a plan to pay his children’s

expenses.    David claims that he did so in the Shared Parenting Plan he filed. As we

previously held, that plan was not timely filed. Further, this contention is too speculative to

permit us to resolve it.

        {¶ 53} The domestic relations court abused its discretion when it imputed an annual

income of $366,071.66 to David, and when it ordered a lump sum payment of $65,000.00 as

and for child support instead of periodic monthly payments of the amount due, absent a

finding of specific facts in support of a lump sum judgment.

        {¶ 54} The fourth assignment of error is Sustained.

        {¶ 55} Fifth Assignment of Error:
                                                                                          20

       “THE DOMESTIC RELATIONS COURT ABUSED ITS DISCRETION BY

FAILING TO ACCOUNT FOR THE TAX LIABILITY CREATED AS A RESULT OF THE

CONVERSION FROM THE CASH BASIS METHOD OF ACCOUNTING TO THE

ACCRUAL BASIS METHOD OF ACCOUNTING.”

       {¶ 56} Under the cash method of accounting, a taxpayer is not required to report

income as taxable income until the payment is actually received. (Tr. 149, 150, 239). Under

the accrual method of accounting, a taxpayer is required to report the income as taxable

income when it is earned, rather than when it was received. (Tr. 150, 238).

       {¶ 57} The parties filed joint income tax returns until 2006. During those years, they

used the cash method of accounting in reporting the salary David was paid by Battelle &

Battelle. The parties filed separate tax returns beginning with the 2006 tax year. David did

not file returns for the years 2006 to 2009 until 2010. Because he could no longer use the

cash method of accounting, and had to use the accrual method of accounting following his

termination by Battelle & Battelle, David was required to report the income the parties

received in prior years on his 2009 tax return. David claims that additional income was

$225,407.00, and that it increased his income tax liability for 2009 by an additional

$93,539.00. Because that additional income was actually received by the parties while they

were married and had filed joint returns, David claims that the additional $93,539.00 is a

marital debt that the court was required to divide between the parties, but did not.

               Joint debts are not property or an interest in property the domestic

       relations court must equally divide between the spouses. R.C. 3105.17(B).

       They represent merely a charge against the marital property that the court
                                                                                            21

         divides. The court may then order one of the parties to pay some or all of the

         joint debt out of his or her share of marital property or out of the separate

         property disbursed to that spouse. The court does not abuse its discretion by

         allocating the debts between the parties on an unequal basis, so long as the

         allocation is equitable.

Maloney v. Maloney, 160 Ohio App. 3d 209, 2005-Ohio-1368, 826 N.E.2d 864, ¶ 48 (2d

Dist.)

         {¶ 58} In its decree, the court divided a tax refund for the year 2005 David had

retained, but the court did not address his claim concerning the additional income he reported

for 2009. Both parties offered evidence on that issue.

         {¶ 59} On the first day of hearings, the parties entered into a number of stipulations

concerning division of marital property, including the following:

                Debts.     The parties acknowledge there’s no joint debts existing

         between the parties with the exception that the plaintiff is raising an issue

         concerning a past joint Citi equity line of credit debt in the amount of

         $4,973.75. Except for that debt, each party will be responsible for timely

         payment of any and all other debts individually incurred by them or listed in

         names except as otherwise provided for in the parties’ stipulation.

(Tr. 14).

         {¶ 60} The only other stipulation concerning joint debts involved refunds for

overpayments of estimated taxes.
                                                                                             22

       {¶ 61} In its judgment and decree, at § I, the court adopted a number of the parties’

stipulations concerning property division. Item 7 of that section of the decree provides:

               [B]oth Parties shall be solely responsible for the timely payment of any

       all debts individually listed in their own names and hold the other Party

       blameless and harmless thereon, with the exception of the National City Equity

       Line which is a contested issue.

[Dkt. 181, p. 3].

       {¶ 62} David may not have intended to include his additional tax payment for the

year 2009 among the debts he individually incurred and to which the stipulation referred.

However, the issue is whether the trial court abused its discretion when the court apparently

construed the stipulations to that effect. On this record, we cannot find that there was no

sound reasoning process to support the court’s application of the stipulation.              AAA

Enterprises, Inc.

       {¶ 63} Even had there been no stipulation, we would not find an abuse of discretion.

There is evidence that, beginning in 2006, David resisted Sara’s request to file joint tax

returns (Tr. 223-224, 446-448), requiring Sara to file separate returns for the years 2006

through 2009. (Tr. 444). David did not file his returns for those years until 2010. Under

those circumstances, we could not find that the court acted unreasonably by failing to grant

David’s request to order Sara to pay David a share of his additional tax liability for the year

2009 as a charge against Sara’s share of the marital property. Maloney.

       {¶ 64} The fifth assignment of error is Overruled.

       {¶ 65} Sixth Assignment of Error:
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     “THE DOMESTIC RELATIONS COURT ERRED IN AWARDING THE

DEFENDANT $25,000.00 IN ATTORNEY FEES.”

     {¶ 66} R.C. 3105.73(A) provides:

            In an action for divorce, dissolution, legal separation, or annulment of

     marriage or an appeal of that action, a court may award all or part of reasonable

     attorney’s fees and litigation expenses to either party if the court finds the

     award equitable. In determining whether an award is equitable, the court may

     consider the parties’ marital assets and income, any award of temporary

     spousal support, the conduct of the parties, and any other relevant factors the

     court deems appropriate.

     {¶ 67} At § IX of its judgment and decree, the could held:

            The Defendant is requesting an award of attorney fees. The Court

     finds that this litigation has been unreasonably delayed due to the actions of the

     Plaintiff. The court finds that in view of all of the assets of the Parties, the

     contested custody matter and other issues, from the onset, this case would have

     been an expensive case to litigate with the need for expert witnesses, etc. The

     Court finds however, that the Plaintiff’s lack of communication with his initial

     lawyer, his failure to provide discovery, failure to file income tax returns in a

     timely fashion, have exacerbated the attorney fees required by the Defendant.

            The Defendant’s total legal fees, which were stipulated as reasonable

     and necessary, total $63,296.25. The Defendant requested that she be awarded
                                                                                             24

       at least half of her attorney fees payable by the Plaintiff. The Plaintiff argued

       that only 22 hours of fees have been caused by the Plaintiff.

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that

       the Defendant shall receive $25,000.00 as and for reasonable and necessary

       attorney fees from the Plaintiff.     Said attorney fees shall be paid to the

       Defendant within thirty (30) days of the effective date of Decree.

[Dkt. 181, p. 7].

       {¶ 68} David argues that the $25,000.00 award was an abuse of discretion and “not

based on the manifest weight of the evidence.” (Brief, p. 33). The proper standard is that a

decision is against the manifest weight of the evidence. A decision of a trial court will not be

reversed on that basis when it is supported by some competent, credible evidence going to all

the essential elements of the case. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d

279, 376 N.E.2d 578 (1978).

       {¶ 69} David does not dispute the court’s findings regarding his conduct and its effect

on the litigation of the case. David does dispute the amount of attorney’s fees the court

awarded. David relies on our holding in Janis v. Janis, 2d Dist. Montgomery No. 23898,

2011-Ohio-3731.

       {¶ 70} In Janis, the court made similar findings concerning the conduct of the

husband and his prior attorney. The court then awarded the wife the entire amount of her

attorney’s fees in the case. We reversed, finding that the award of the entire amount of the

wife’s attorney’s fees was unreasonable under the circumstances. One of the circumstances
                                                                                                25

we identified was the wife’s failure to identify the portion of that total that was attributable to

the conduct of the husband and/or his attorney. Id, ¶ 87.

       {¶ 71} The parties stipulated that the hourly rate Sara’s            attorneys charged is

reasonable and that the work they performed was reasonable and necessary. The fees charged

by Sara’s attorneys totaled $63,296.25 for 358 hours of billable time. David contends that

only twenty-two of those hours were directly the result of the conduct for which the court

made its award. In her testimony, Sara disputed that proposition, but without identifying

what additional time was required. (T. 494).

       {¶ 72} The remaining, unpaid balance of Sara’s bill from her attorneys when the court

entered its award was approximately $50,000.00. Sara requested an award of one-half of her

total fees, or $31,648.25.        Instead, the court awarded her one-half of the approximate

outstanding balance, $25,000.00.

       {¶ 73} The sense of our holding in Janis is that, when an award of attorneys’ fees is

based on the conduct of a party, the record must reasonably demonstrate some nexus between

the amount of fees awarded pursuant to R.C. 3105.73(A) and the particular conduct for which

the award is made. In Janis, we held that an award of all the fees charged was an abuse of

discretion. We see no real difference between that and an award of one-half or some other

arbitrary portion of the unpaid fees remaining, as the court ordered in the present case.

Therefore, the trial court abused its discretion when it ordered David to pay Sara $25,000.00

as and for her attorney’s fees.

       {¶ 74} The sixth assignment of error is Sustained.
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       {¶ 75} Having sustained the second assignment of error, we will reverse and vacate

the domestic relations court’s distributive award to Sara in the amount of $250,000.00 on a

finding that David engaged in financial misconduct.

       {¶ 76} Having sustained the fourth assignment of error, we will reverse the domestic

relations court’s order requiring David to pay Sara child support in the lump sum amount of

$65,000.00, based on an income imputed to David, and will remand the case to the trial court

for further proceedings on the matter of child support, consistent with this opinion.

       {¶ 77} Having sustained the sixth assignment of error, we will reverse the domestic

relations court’s award of $25,000.00 to Sara as and for her attorney’s fees, and will remand

the case to the trial court for further proceedings on Sara’s request for attorney’s fees,

consistent with this opinion.

       {¶ 78} The judgment of the domestic relations court from which this appeal was taken

will otherwise be affirmed.

Fain, J., concurs.

Froelich, J., concurring:

       {¶ 79} In reviewing the filings in the trial court, the transcripts, and the briefs on

appeal as well as having heard excellent oral arguments, I have no doubt that these divorce

proceedings were contentious and that the parties, the attorneys, and the judge are aware of

actions that are not reflected in the written record. However, in reviewing assignments of

error, we are limited to that record, including any findings by the court.

       {¶ 80} I am writing separately only to emphasize that I believe we are not holding that

a court cannot impute income, cannot award attorney fees for financial misconduct or
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otherwise, can never award lump sum child support, or cannot make a distributive award for

financial misconduct.

       {¶ 81} Rather, we are addressing specific assignments based on a specific record of

specifically determined facts in the record.




Copies mailed to:

Jennifer L. Brogan, Esq.
Keith R. Kearney, Esq.
Hon. Timothy D. Wood
