Cook v. Kramer

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[Cite as Cook v. Kramer, 2023-Ohio-2374.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY ROBERT COOK, Plaintiff-Appellant, v. JULIA KRAMER fka COOK, Defendant-Appellee. OPINION AND JUDGMENT ENTRY Case No. 22 JE 0020 Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 18 DR 348 BEFORE: Cheryl L. Waite, David A. D’Apolito, Mark A. Hanni, Judges. JUDGMENT: Affirmed. Atty. Francesca T. Carinci, Carinci Law Office, 100 North Fourth Street, Suite 904-911, Sinclair Building, Steubenville, Ohio 43952, for Plaintiff-Appellant Atty. Elgine Heceta McArdle, McArdle Law Office, 2139 Market Street, Wheeling, West Virginia 26003, for Defendant-Appellee. Dated: June 30, 2023 –2– WAITE, J. {¶1} Appellant Robert Cook appeals a September 28, 2022 judgment entry of the Jefferson County Court of Common Pleas. Appellant argues that the trial court abused its discretion by failing to immediately release an amount of impounded child support, instead holding the money for the purpose of future child support payments to Appellee Julia Kramer. In addition to responding to Appellant’s arguments on the issues, Appellee has requested we award her attorney fees. For the reasons provided, Appellant’s arguments are without merit and the judgment of the trial court is affirmed. Appellee’s request for attorney fees is overruled. Factual and Procedural History {¶2} This is the second time this matter has been before the Court. See Cook v. Kramer, 7th Dist. Jefferson No. 21 JE 0026, 2022-Ohio-3422, appeal not allowed, 168 Ohio St.3d 1530, 2023-Ohio-86, 200 N.E.3d 1162 (“Cook I”). Both regard issues that have arisen pertaining to the parties’ minor son, R.C. (date of birth July 18, 2018) following the parties’ divorce. {¶3} In Cook I, before the divorce decree was signed by both parties Appellant filed a series of motions in the trial court, most notably a motion for reallocation of parental rights. The remaining motions filed by Appellant were voluntarily dismissed at different points in the litigation. The trial court granted the motion for reallocation and declared Appellant the residential parent. {¶4} While the matter was pending on appeal, however, the trial court continued to entertain several motions. First, both parties filed objections to the “CSEA Investigation Case No. 22 JE 0020 –3– and Findings of Child Support.” Appellant raised “no objections as to the amount of child support, and has no other complaints other than there is no effective date listed” on the Jefferson County Child Support Enforcement Agency’s findings and recommendations. (11/22/21 Motion to Object.) Appellee requested a child support deviation as Appellant has a significantly higher yearly income. {¶5} Despite the fact that Appellee had filed a notice of appeal concerning the parenting order on October 20, 2021, the trial court held a hearing on the child support issues on February 2, 2022. The court heard testimony regarding both the child support end date and the requested deviation. On March 29, 2022, the court acknowledged that it had received the parties post-hearing briefs, but had decided to hold the case in abeyance due to the fact that the case was on review in the appellate court. {¶6} On May 24, 2022, Appellant filed a motion for contempt and to modify parenting time. Appellant sought both a finding of contempt and a change in visitation, allowing Appellee only every other weekend and one weekday with the child. Before the court entered judgment on the motions, on September 20, 2022, we released our Opinion in Cook I reversing the trial court’s reallocation order and entering judgment in favor of Appellee. {¶7} Thereafter, the trial court filed two judgment entries on September 28, 2022. One of the trial court’s entries addressed an issue not relevant to the instant appeal. The second judgment entry is relevant, and addressed two issues. As to the first, Appellee was designated the residential parent and parenting time, rights, and responsibilities were ordered consistent with the court’s prior March 23, 2020 entry. Regarding the second, the court stated: “[a]s to [Appellant’s] impounded Child Support monies paid during the Case No. 22 JE 0020 –4– pendency of this matter, he should be credited for the period of time September 20,2021, [sic] to September 21, 2022. Those monies shall be applied to future Child Support consistent with the March 23, 2020 Order. Child Support as previously established shall resume effective September 21, 2022.” (9/28/22 J.E.) It is from the second September 28, 2022 judgment entry that Appellant timely appeals. ASSIGNMENT OF ERROR NO. 1 The Court erred by not releasing the impounded funds to the Appellant in its September 28, 2022 order. As of this writing, there is a balance of $6,341.73 on deposit in Appellant's child support account. The Court never ordered the impounded funds back to Appellant and never put an official termination date of the child support order when Appellant obtained custody. ASSIGNMENT OF ERROR NO. 2 The Court erred by not issuing Findings of Facts and Conclusions of Law in the decision regarding child support and the Court erred by not providing a work sheet of the new child support amount. {¶8} Appellant’s arguments are more clearly addressed by separating them into two categories rather than by assignment of error. First, he argues that the trial court did not hold a hearing and did not make findings of fact or conclusions of law before entering the September 28, 2022 order. Second, he argues that the court failed to provide an official termination date for his child support payments once the trial court declared him Case No. 22 JE 0020 –5– as the residential parent of the child. As a result, child support payments were deducted from his pay for the year that he served as the child’s residential parent and he did not receive any support from Appellee during this time period. Appellant argues that the court failed to instruct the child support enforcement agency as to how he should be credited for these payments or how the funds were to be released. Appellant now urges that the full amount in the account, which he claims is $6,341, should be immediately released to him since he claims holding this money does not benefit the child. {¶9} Appellee responds that the judgment entry Appellant has appealed did not address any substantive issues. Even so, Appellee emphasizes that that the trial court did hold a hearing and accept post-hearing briefs before ultimately deciding to hold the matter in abeyance during the pendency of the prior appeal. Despite the fact that Appellant continued to file motions against her while that appeal was pending, he chose not to file any motion for relief concerning his child support obligations. Appellee notes that Appellant could have filed a motion to terminate his child support obligations, to stay collection of child support obligations, or to suspend his child support obligation entirely. He also failed to claim any financial hardship or ask the court to order Appellee to pay him child support. Regardless, Appellee points out that the impounded money does, in fact, benefit the child as the court ordered that it be applied to future child support payments. These clearly directly benefit the child. {¶10} Our review of the record reveals that Appellant is incorrect in his assertion that the trial court failed to hold a hearing on these motions or to make appropriate findings. The trial court did hold a hearing on February 2, 2022 where both parties attended and presented testimony and arguments. At the conclusion of that hearing, the Case No. 22 JE 0020 –6– court addressed the requisite factors one-by-one and made a finding on each. The court did not rule from the bench, as the parties requested they be allowed to present additional evidence concerning the child tax deduction. It is apparent from the record that, although a stay was later imposed, the court did hold the appropriate hearing and make the requisite findings of fact. {¶11} Although Appellee claims the trial court failed to attach a worksheet, exhibit 1 is a worksheet detailing the mandatory calculations. The trial court referred to this worksheet throughout the hearing. Even so, In appeals such as this, where the record provides sufficient detail for an appellate court to review a child support award, the failure to incorporate the worksheet into the record does not materially prejudice the appellant. Longo v. Longo, 11th Dist. No.2008-G-2874, 2010-Ohio-3045, ¶ 35-36; Wellman v. Munyan, 4th Dist. No. 99CA2638 (June 14, 2000); Carr v. Blake, 1st Dist. No. C-990174 (Feb. 18, 2000); Guidera v. Guidera, 3d Dist. No. 193-16 (June 30, 1993). When an appellate court can conduct a meaningful review of the trial court's judgment without the worksheet, the absence of the worksheet does not amount to reversible error. Mayberry v. Mayberry, 10th Dist. Franklin No. 15AP-160, 2016-Ohio-1031, ¶ 16. {¶12} The trial court made more than enough findings to allow for an appropriate review. {¶13} Regardless, these issues were moot once the first appeal ended and the trial court returned to the original child support order which was outlined in the court’s Case No. 22 JE 0020 –7– March 23, 2020 entry. Contrary to Appellant’s argument there was no “new child support amount” ordered. (Appellant’s Brf., p. 6.) {¶14} Appellant also complains that the trial court failed to explain how the impounded money would be credited. However, the court expressly stated that the money “shall be applied to future child support consistent with the March 23, 2020 Order.” (9/28/22 J.E.) {¶15} Regarding the argument that the court erred in failing to order the return of the impounded money to Appellant, Appellant presented the testimony of Michelle Roland from Jefferson County Child Support Enforcement Agency during the hearing. Roland testified that if a court order does not provide an end date for child support obligations, the agency uses the timestamp on the final judgment entry. (Trial Tr., p. 12.) The trial court clarified that the date the agency began impounding the money was, then, consistent with the timestamp on the entry granting reallocation; September 20, 2021. {¶16} Again, the notice of appeal pertaining to the reallocation order was filed on October 20, 2021. Despite this, the court held a hearing regarding child support on February 2, 2022 and accepted post-hearing briefs. The court subsequently decided to hold the matter in abeyance pending appeal. {¶17} Instead of filing a motion to suspend or otherwise terminate or pause his child support obligation, Appellant took no action. He knowingly allowed an amount for child support to be removed from his pay even though he had been named the residential parent in the earlier trial court order. This record reveals he understood he could file such a motion even after the matter was held in abeyance, as he filed several subsequent motions seeking contempt and to limit Appellee’s parenting time with the child. Case No. 22 JE 0020 –8– Additionally, the court’s order holding the matter in abeyance would not prevent a motion to suspend child support, as the issue of the impoundment of the support money would need to be addressed regardless of the outcome of the prior appeal. In other words, because Appellant was then the residential parent, his argument that his child support payments should cease because the child was in his primary care were not impacted in any way by any of the issues pending before this Court in the first appeal. The trial court clearly retained jurisdiction to hear and decide Appellant’s motion in this regard, had he filed one. {¶18} We emphasize that Appellant was represented by counsel during this time and no valid reason has been put forth regarding the failure to file any motion to address the issue of impoundment at any point Appellant served as residential parent. {¶19} Even assuming Appellant thought he was foreclosed from raising this issue to the trial court, Appellant has not shown that the trial court erred in retaining the impounded funds for the purpose of future child support obligations. This Court reviews a trial court's decision on the impoundment of child support for abuse of discretion. Roush v. Roush, 10th Dist. Franklin No. 19AP-246, 2019-Ohio-4777, ¶ 10, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). {¶20} The record in this matter fully supports the trial court’s decision. Relevant, here, a trial court may consider the circumstances of a long-running case, particularly where the parties are engaged in constant dispute. Id. at ¶ 13. The court heavily relied on the significant discrepancy between the yearly incomes of Appellant ($88,288.52) and Appellee ($69,152.72). A court does not abuse its discretion in considering significant Case No. 22 JE 0020 –9– discrepancies in yearly salaries. Id. at ¶ 12. It is apparent the trial court believed it may in the future be asked to revisit the support issue and increases may occur. {¶21} Further, one appropriate remedy where a surplus exists in a child support account that is not needed during the child support period is for the court to retain the option of crediting the payee by terminating child support earlier than expected, using accumulated money in the account to eliminate the back end of the relevant time period. Id. at ¶ 11. {¶22} The substance of Appellant’s arguments regarding the impounded child support money suggest that it was not fair to him to have continued his support obligation because he paid processing fees that cannot be refunded, he maintained a duty to support the child while paying child support, and he did not receive child support from Appellee during this period. None of these are directed or applicable to the best interests of the child, and Appellant never complained of financial hardship at any point in this litigation. In fact, Appellant appears to concede that the impounded money is in the best interest of the child as he stated “[t]his was money that was wrongfully withheld from the child for over a year.” (Appellant’s Brf., p. 6.) Based on this record and the applicable caselaw, the court’s order that the child support payments made by Appellant while he (erroneously) served as residential parent be held and used for future support is in the best interests of the child. The trial court did not err in this order. {¶23} As such, Appellant’s first and second assignments of error are without merit and are overruled. Case No. 22 JE 0020 – 10 – Attorney Fees (Appellee) {¶24} Within Appellee’s conclusion, she requests an award of attorney fees in the amount of $10,000 for her costs of defending the underlying action, the prior appeal, and the instant appeals. Appellant did not respond to this request. {¶25} Pursuant to App.R. 23, “[i]f a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs.” {¶26} Appellee requests attorney fees for defending both the underlying action and the subsequent appeals. However, App.R. 23 pertains only to frivolous appeals, not matters in the trial court. See SAFA, Inc. v. Reliable Credit Assn., Inc., 2019-Ohio-336, 129 N.E.3d 928 (12th Dist.). Thus, this Court may not award attorney fees for the underlying actions heard by the trial court. {¶27} As to the appeals, the appropriate time to seek attorney fees for the first appeal was in the brief of the matter or when the Opinion was released, hence her request is untimely. Regarding the instant appeal, while we have found no merit to the assignments of error, Appellant did raise arguably reasonable issues for review. “A frivolous appeal under App.R. 23 is essentially one which presents no reasonable question for review.” Id. at ¶ 14, citing Madewell v. Powell, 12th Dist. Warren No. CA2006-05-053, 2006-Ohio-7046; Talbott v. Fountas, 16 Ohio App.3d 226, 475 N.E.2d 187 (10th Dist.), paragraph one of the syllabus. {¶28} As such, Appellee has not met the standard of App.R. 23 and her request is denied. We also note that, assuming she may be successful in her quest to have this appeal declared frivolous, she did not present any evidence to support her request for Case No. 22 JE 0020 – 11 – attorney fees, merely stating that she seeks $10,000. Accordingly, Appellee’s request for attorney fees is without merit and is overruled. Conclusion {¶29} Appellant argues that the trial court abused its discretion by failing to immediately release his impounded child support, instead holding the money for purposes of future support payments. For the reasons provided, Appellant’s arguments are without merit and the judgment of the trial court is affirmed. Appellee’s request for attorney fees is overruled. D’Apolito, P.J., concurs. Hanni, J., concurs. Case No. 22 JE 0020 [Cite as Cook v. Kramer, 2023-Ohio-2374.] For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Appellee’s request for attorney fees is hereby denied. Costs to be taxed against the Appellant. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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