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In Pelikan v. Pelikan (July 1, 1993), Cuyahoga App. No. 62962, unreported, the court held that the trial court properly included interest accruing on the obligor's public employee retirement plan.
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NO. 62962
July 1, 1993, Announced
For Plaintiff-Appellee: L. CHRISTOPHER FREY, 21801 Lakeshore Boulevard, Euclid, Ohio 44123-1743. C. TERRENCE KAPP, Suite 1200, One Erieview Plaza, Cleveland, Ohio 44114-1781.
For Defendant-Appellant: THOMAS A. KONDZER, 24500 Center Ridge Road, Westlake, Ohio 44145.
KRUPANSKY, J.:
Appellant James A. Pelikan appeals from a post-dissolution order of the domestic relations court finding him in contempt, ordering the payment of modified child support, child support arrearages and $ 500 in attorney fees incurred by his former wife.
James and Rebecca G., second wife of defendant, were granted a dissolution of their marriage and custody of their minor daughter Sara, born during their marriage was awarded to Rebecca G. in a decree journalized June 21, 1983. James Pelikan was ordered to pay $ 325 per month in child support for Sara and was granted the income tax dependency exemption. James Pelikan was also obligated under a Michigan court decree or order to pay child support for another daughter Christine born during his prior marriage to his first wife Helen Pelikan.
Defendant-appellant James A. Pelikan to date has been married three times. For the purpose of clarification in this opinion, his wives will be referred to as follows: (1) first wife, Helen; (2) second wife, Rebecca G., appellee herein; and (3) present wife, Rebecca Brady.
The record demonstrates the child support obligation for Sara was subsequently increased to $ 425 per month by agreement of James and Rebecca G. in an order journalized September 28, 1988. James Pelikan's child support obligations were deducted from his pay while he was employed at Cleveland Metropolitan General Hospital ("Metro General") and there is no dispute that he satisfied his child support obligations for Sara through the 1989 calendar year. However, James Pelikan was discharged from his employment as an assistant vice president at Metro in June 1989 and ceased receiving severance pay in December 1989.
James Pelikan filed a motion to reduce child support due to the termination of his unemployment, to set visitation for Sara and for attorney fees in the domestic relations court prior to the time he ceased receiving severance pay on November 17, 1989. James Pelikan began receiving unemployment compensation of $ 1,209 per month in January 1990 and continued to directly pay full child support of $ 375 per month for Christine but unilaterally paid reduced support of $ 80 per month for Sara instead of the $ 425 required by the prior court order. The matter was referred to the family conciliation department and the visitation dispute was resolved in an order journalized August 28, 1990 which is not a part of this appeal. The domestic relations court also ordered on August 28, 1990 that the remaining motions of James Pelikan to reduce child support and for attorney fees be rescheduled for hearing.
Rebecca G. thereafter filed a motion to show cause against James Pelikan for nonpayment of the full court ordered child support obligation of $ 425 per month for Sara and for her attorney fees on September 11, 1990. A domestic relations court referee thereafter conducted a hearing over the course of five days during November and December 1990 on the consolidated motions of the parties concerning child support, to show cause and for attorney fees. Rebecca G. presented testimony from herself and a Metro General records custodian during the course of the hearing. Also during the course of the hearing James Pelikan presented testimony from himself, Rebecca G., his first wife Helen Pelikan, and an employment consultant.
The referee subsequently issued a nine-page report with recommendations on June 15, 1991. The referee recommended the motion of James Pelikan to reduce child support from $ 425 per month be granted to $ 190 per month for the 1990 calendar year and to $ 375 per month thereafter. The referee also recommended granting the motions of Rebecca G. to show cause against James Pelikan for failing to pay full child support and for her attorney fees. The domestic relations court thereafter modified the recommendations of the referee to correct a date and the amount of accumulated support arrearage in an order journalized November 26, 1991. Appellant James Pelikan timely appeals raising eight assignments of error.
I.
Appellant's first, second, third and seventh assignments of error challenge the child support determination of the domestic relations court as follows:
I. THE TRIAL COURT ILLEGALLY IMPUTED INCOME TO MR. PELIKAN IN ARRIVING AT HIS LEVEL OF CHILD SUPPORT.
II. THE COURT'S SETTING OF THE CHILD SUPPORT LEVEL AT $ 190 PER MONTH COMMENCING JANUARY 1, 1990 AND $ 375 PER MONTH COMMENCING JANUARY 1, 1991 WAS CONTRARY TO LAW AND AN ABUSE OF DISCRETION.
III. THE TRIAL COURT ERRED IN CONSIDERING MR. PELIKAN'S NEW WIFE'S INCOME IN SETTING THE LEVEL OF CHILD SUPPORT.
VII. THE TRIAL COURT ERRED IN REFUSING TO HEAR EVIDENCE OF THE FINANCIAL NEEDS OF MR. PELIKAN'S DAUGHTER CHRISTINE, WHEN SETTING A SUPPORT LEVEL FOR HIS DAUGHTER, SARA.
Appellant's first and second assignment of error are well-taken but his third and seventh assignments of error lack merit.
James Pelikan argues the domestic relations court improperly imputed annual retirement plan interest income to him prior to calculating his child support obligations for Sara during the 1990 and 1991 calendar years. Appellant also contends the domestic relations court improperly considered the income of his third wife, Rebecca Brady, to whom he was married at the time of the hearing and erroneously excluded evidence relating to the financial needs of his other minor daughter Christine from his first marriage.
R.C. 3113.215(A)(1) defines "income" for purposes of calculating a parent's child support obligations as follows:
(a) For a parent who is employed to full capacity, the gross income of the parent;
(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent, and any potential income of the parent.
R.C. 3113.215(A)(2) broadly defines the term "gross income" as follows:
(2) "Gross income" means, except as excluded in this division, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes, but is not limited to income from salaries, wages, overtime pay and bonuses to the extent described in division (B)(5)(d) of this section, commissions, royalties, tips, rents, dividends, severance pay, pensions, interest, trust income, annuities, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, spousal support actually received from a person not a party to the support proceeding for which actual gross income is being determined, and all other sources of income; self-generated income; and potential cash flow from any source.
"Gross income" does not include any benefits received from means-tested public assistance programs, including, but not limited to, aid to families with dependent children, supplemental security income, food stamps, or general relief, does not include any benefits received for any service-connected disability under a program or law administered by the United States department of veterans' affairs or veterans' administration, and does not include any child support received for children who were not born or adopted during the marriage at issue. (Emphasis added).
Finally, R.C. 3113.215(A)(5) defines the term "potential income" as follows:
(5) "Potential income" means both of the following for a parent that the court determines is voluntarily unemployed or voluntarily underemployed.
(a) The income that the court determines the parent would have earned if fully employed as determined from the parent's employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides;
(b) Imputed income from any nonincome-producing assets of a parent, as determined from the current rate of long-term treasury bills or another appropriate rate as determined by the court, if the income is significant.
The record demonstrates the domestic relations court approved the referee's recommendation to impute "other income" to appellant for purposes of determining his child support obligations in 1990 and 1991 of $ 5,161 and $ 5,600, respectively. The child support worksheets accompanying the referee's report reveal these sums were calculated by multiplying appellant's accumulated contributions of $ 78,422 to the Public Employees Retirement System ("PERS") and Public Employees Deferred Compensation Program ("PEDCP") under R.C. Chapter 145 while employed at Metro General from 1975 to 1989 by the long term treasury bill rates. The referee concluded that income should be imputed to appellant from these retirement funds since he elected not to receive any distributions from the accounts following the termination of his employment at Metro General.
However, R.C. 3113.215(A)(5)(b) authorizes the imputation of income by applying treasury bill rates only to "nonincome-producing assets of a parent" if the income is significant when the parent is voluntarily unemployed or underemployed. The domestic relations court made no express finding that appellant was voluntarily unemployed or underemployed in the case sub judice. See Parzynski v. Parzynski (Dec. 30, 1992), Erie App. No. E-91-30, unreported at 12. Moreover, employee retirement plans such as the public employee retirement plans in the case sub judice actually produce "income" and, therefore, clearly do not constitute "nonincome-producing assets" for purposes of imputing income under R.C. 3113.215(A)(5)(b). See Albertson v. Ryder (June 30, 1992), 1992 Ohio App. LEXIS 3424, Lake App. No. 91-L-103, unreported (annual interest earned on private employer savings plans and private individual retirement accounts constitute "gross income" for purposes of calculating child support).
Although annual increases in such funds are not taxable until actually distributed, R.C. 3113.215(A)(2) broadly includes in the definition of gross income "all earned and unearned income from all sources during a calendar year, whether or not the income is taxable." Id. at 9. Since the record sub judice contains no evidence concerning the income actually accrued on appellant's $ 47,590 in accumulated PERS or $ 30,852 PEDCP contributions during 1990 or 1991, the judgment of the domestic relations court imputing income of $ 5,161 and $ 5,600 from these sources prior to determining appellant's child support obligations in these years must be vacated as unsupported by the evidence.
Although this matter must be remanded for a redetermination of appellant's child support obligations for 1990 and 1991, we find no merit to appellant's remaining assignments of error three and seven relating to the calculation of his child support obligations.
Appellant has failed to demonstrate the domestic relations court improperly considered the amount of his current wife Rebecca Brady's annual income prior to determining his child support obligations. The child support worksheets included in the record clearly do not deviate from the child support guidelines or include any income from appellant's present wife, Rebecca Brady, in his "gross income" for purposes of calculating child support. It is well settled that the income of a new spouse is an appropriate factor for the domestic relations court to consider when determining a parent's ability to pay child support under R.C. 3105.09. Esber v. Esber (1989), 63 Ohio App.3d 394, 579 N.E.2d 222; Roach v. Roach (1989), 61 Ohio App.3d 315, 572 N.E.2d 772. R.C. 3113.215 specifically directs the domestic relations court to consider the benefits a parent receives from a subsequent remarriage when deciding whether to deviate from the child support guidelines. R.C. 3113.215(B)(3)(g). The domestic relations court also correctly excluded the income of defendant's present wife in the gross income of defendant pursuant to the statute prior to calculating defendant's child support obligation. R.C. 3113.215(B)(5)(e).
Appellant has likewise failed to demonstrate the domestic relations court abused its discretion by excluding testimony from his first wife Helen Pelikan relating to the financial needs of his other minor child Christine prior to determining the support for Sara in the case sub judice. See Renfro v. Black (1990), 52 Ohio St.3d 27, 556 N.E.2d 150. The record demonstrates the exclusion of the evidence which was proffered testimony was essentially cumulative and error, if any, was harmless. The domestic relations court deducted the $ 3,750 in child support payments appellant made for Christine in 1990 prior to determining his adjusted gross income for purposes of calculating child support for Sara. The referee recognized that appellant's support obligations for Christine were scheduled to terminate in 1991. None of the proffered testimony warranted a deviation from the child support obligation for Sara calculated by the child support guidelines.
Accordingly, appellant's first and second assignments of error are well-taken and his third and seventh assignments of error are overruled.
II.
Appellant's fourth and eighth assignments of error challenge the domestic relations court's finding of contempt and award of $ 500 in attorney fees to appellee as follows:
IV THE TRIAL COURT'S AWARD OF ATTORNEY FEES TO [REBECCA G.] MRS. PELIKAN IS CONTRARY TO LAW AND NOT SUPPORTED BY THE EVIDENCE.
VIII THE TRIAL COURT'S FINDING THAT MR. PELIKAN IS IN CONTEMPT OF COURT FOR FAILING TO PAY CHILD SUPPORT OF $ 425 PER MONTH AFTER HE BECAME UNEMPLOYED IS NOT SUPPORTED BY THE EVIDENCE.
Appellant's fourth assignment of error lacks merit and his eighth assignment of error is well-taken.
Appellant argues the domestic relations court improperly found him in contempt and awarded appellee $ 500 in attorney fees incurred in connection with her motion to show cause.
The domestic relations court's order finding appellant in contempt of court based on his failure to satisfy his child support obligations must likewise be reversed due to its erroneous child support calculations. Contrary to appellant's contention, however, it is well settled that proof of an intentional violation of a child support order is not necessary to support a finding of contempt pursuant to R.C. 2705.02 in this context. Pugh v. Pugh (1984), 15 Ohio St.3d 136, 472 N.E.2d 1085; Hughes v. Hughes (1991), 72 Ohio App.3d 286, 594 N.E.2d 653; Johnson v. Johnson (1991), 71 Ohio App.3d 713, 595 N.E.2d 388; Pedone v. Pedone (1988), 11 Ohio App.3d 164, 463 N.E.2d 656. Nevertheless, under the circumstances, this matter must be remanded to the domestic relations court for reconsideration since we are unable to determine whether the domestic relations court would have found appellant in contempt had it made proper calculations in his child support obligations and any accompanying arrearage.
R.C. 3109.05(C) mandates the award of attorney fees when the domestic relations court makes a finding of contempt in this context. However, the domestic relations court has authority to make such an award even when no such finding of contempt is made in post-decree child support enforcement proceedings. See Rand v. Rand (1985), 18 Ohio St.3d 356, 481 N.E.2d 609; Roach v. Roach, supra. Appellant has failed to demonstrate the domestic relations court abused its discretion by making the reasonable award of $ 500 for attorney fees incurred by Rebecca G. in connection with this matter or that this award is unsupported by the evidence. See Kern v. Kern (1990), 68 Ohio App. 3d 659, 589 N.E.2d 434; Roach v. Roach, supra.
Accordingly, appellant's eighth assignment of error is well-taken and his fourth assignment of error is overruled.
III.
Appellant's fifth assignment of error follows:
V. THE COURT ERRED IN RECOMMENDING THAT MR. PELIKAN BE REQUIRED TO PROVIDE HEALTH CARE COVERAGE FOR. SARA PELIKAN.
Appellant's fifth assignment of error lacks merit.
Appellant complains on appeal that the domestic relations court erred by requiring him to provide health care insurance for Sara. However, appellant has failed to demonstrate any error.
The record demonstrates appellant testified Sara received insurance coverage at absolutely no expense to appellant under a health plan provided by, Rebecca Brady, his current wife's employer. Appellant has failed to demonstrate the domestic relations court abused its discretion by directing appellant to obtain health insurance coverage for Sara or in failing to deduct the cost of such insurance from his support obligation. See R.C. 3113.215(B)(5)(b) and (c).
Accordingly, appellant's fifth assignment of error is overruled.
IV.
Appellant's sixth assignment of error follows:
THE TRIAL COURT ERRED IN TAKING THE INCOME TAX EXEMPTION FOR SARA FROM MR. PELIKAN.
Appellant's sixth assignment of error lacks merit.
Appellant contends in his sixth assignment of error that the trial court erred by granting the federal income tax dependency exemption for Sara to appellee. Appellant argues the domestic relations court retroactively applied amendments to R.C. 3113.21(B), effective April 12, 1990, to deprive him of the income tax dependency exemption which he was awarded in the June 21, 1983 dissolution decree.
However, the Ohio Supreme Court has recognized that Ohio law prior to the amendments permitted the transfer of the federal income tax dependency exemption from one parent to another in connection with the modification of child support. See Singer v. Dickinson (1992), 63 Ohio St.3d 408, 588 N.E.2d 806. It should be noted at the outset that appellant requested the modification of his child support obligations for Sara. The substantial reduction in monthly child support obligations he obtained for 1990 and subsequent years resulted in a substantial corresponding increase in the total amount and proportion of child support expense borne by appellee. Transferring the federal income tax dependency exemption to appellee, who was required to pay more than half Sara's child support expenses for these years and who could apparently make greater use of the exemption due to her income, served to reduce this increased financial burden. The domestic relations court did not retroactively transfer the federal income tax dependency exemption for Sara from appellant to appellee for years prior to 1990. Under the circumstances, appellant had failed to demonstrate the domestic relations court erred or abused its discretion in awarding the federal income tax dependency exemption for Sara to Rebecca G.
Accordingly, appellant's sixth assignment of error is overruled.
The judgment of the domestic relations court ordering appellant to provide health care for Sara and awarding appellee $ 500 in attorney fees and the federal income tax dependency exemption for Sara is affirmed. The domestic relations court's judgment finding appellant in contempt and calculating his child support obligations for 1990 and 1991 and accumulated arrearages is reversed and remanded for further proceedings.
Judgment accordingly.
It is ordered that each party is to pay his/her own costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court 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.
NAHRA, P.J., and
PARRINO, J., CONCUR
BLANCHE KRUPANSKY, JUDGE
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.