McRae v. Salazar , 2019 Ohio 4638 ( 2019 )

[Cite as McRae v. Salazar, 2019-Ohio-4638.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Charles E. McRae, :
Petitioner-Appellant/ : No. 18AP-749
Cross-Appellee, (C.P.C. No. 15JU-11518)
:
v. (REGULAR CALENDAR)
:
Joanna L. Erwin McRae Salazar,
:
Respondent-Appellee/
Cross-Appellant. :
D E C I S I O N
Rendered on November 12, 2019
On brief: The Law Office of Nicholas W. Yaeger, LLC, and
Nicholas W. Yaeger, for petitioner-appellant/cross-appellee.
Argued: Nicholas W. Yaeger.
On brief: Eugene R. Butler; and R. Chris Harbold, for
respondent-appellee/cross-appellant. Argued: R. Chris
Harbold.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Division
LUPER SCHUSTER, J.
{¶ 1} Petitioner-appellant/cross-appellee, Charles E. McRae ("Father"), appeals
from a decision and judgment entry of the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch, modifying his child support obligation he
must pay respondent-appellee/cross-appellant, Joanna L. Erwin McRae Salazar
("Mother"). Mother filed a cross-appeal from the amount of attorney fees awarded to her
under the same decision and judgment entry. For the following reasons, we affirm.
No. 18AP-749 2
I. Facts and Procedural History
{¶ 2} Mother and Father were married in 1991 and had four children. In June
2007, the parties divorced. As part of the distribution of property in their divorce, both
Mother and Father received assets in the approximate amount of $2.6 million each.
{¶ 3} On September 18, 2015, Mother registered a foreign divorce decree and
parenting plan with the trial court for their two minor children. Mother's initial attempt to
register the foreign divorce decree was unsuccessful, and she filed a second notice of
registration on May 24, 2016. Under the foreign divorce decree and parenting plan,
originating in Tennessee in 2011, Father paid $1,400 per month to Mother as child support.
This amount reflected an agreed upon downward deviation from the child support
guidelines to reflect Father's assumption of responsibility for the costs of private school. At
the time the Tennessee court approved the parenting plan, Father's income was $185,000
per year and Mother's income was $77,000 per year.
{¶ 4} In November 2011, Father obtained new employment and relocated to
Columbus. Father commuted between Columbus and Tennessee until 2014, at which time
the children relocated to Columbus, pursuant to an agreed order in the parties' Tennessee
case, to live full time with Father. The children moved in with Father in Columbus in
August 2014. Mother then relocated to Columbus in September 2014 and purchased a
home in Upper Arlington.
{¶ 5} Subsequently, on July 19, 2016, Mother filed a motion for an increase in child
support. In her motion, Mother argued that her income has decreased while Father's
income has increased significantly since the time of the Tennessee child support obligation
order. Mother additionally noted that the children stopped attending private school in
2014, eliminating Father's obligation to pay one-half of the private school tuition.
{¶ 6} The trial court conducted a hearing on Mother's motion to modify child
support in May 2017. In a January 8, 2018 decision, the magistrate modified Father's child
support to $3,300 per month, effective July 19, 2016. The magistrate determined the child
support order was an upward deviation based on the $150,000 calculation cap due to the
discrepancy in Father's and Mother's incomes and lifestyles. Additionally, the magistrate
determined the children's basic needs were being met. The magistrate also ordered Father
to pay $2,500 to Mother for her attorney fees and costs.
No. 18AP-749 3
{¶ 7} Both parties timely filed objections to the magistrate's decision, and the trial
court held a hearing on those objections on June 13, 2018. Mother objected to the
magistrate's finding that the children's basic needs were being met and the corresponding
amount of child support ordered, and she additionally objected to the amount of attorney
fees the magistrate recommended be awarded to her. Father objected to the modification
of the child support order and to the magistrate's finding that Mother was entitled to
attorney fees and expenses.
{¶ 8} In an August 30, 2018 decision and judgment entry filed under seal, the trial
court overruled Father's objections, sustained Mother's objections related to the
magistrate's finding that the children's basic needs were being met and the amount of child
support ordered, and overruled Mother's objections related to the amount of attorney fees
the magistrate determined she be awarded related to her motion to modify child support.
Specifically, the trial court increased Father's child support obligation to $4,800 per month
for the two minor children. Effective May 29, 2017, pursuant to the emancipation of one of
the minor children, the trial court ordered Father's child support obligation to be modified
to $3,360 per month. The trial court also ordered Father to pay Mother $2,500 for her
reasonable attorney fees and expenses related to her motion to modify child support.
Additionally, the trial court ordered Father to pay Mother $6,800 for her reasonable
attorney fees and costs related to her second motion for attorney fees, filed March 23, 2018,
after the magistrate's decision.
{¶ 9} Father timely appeals, and Mother timely cross-appeals.
II. Assignments of Error
{¶ 10} Father assigns the following errors for our review:
[1.] The trial court erred as a matter of law and abused its
discretion by finding that the children's basic needs are not
being met and by relying on that standard in order to justify a
modification of the magistrate's child support.
[2.] The trial court erred as a matter of law and abused its
discretion by modifying the magistrate's child support order
where the magistrate's order was reasonable and based on the
relevant facts.
No. 18AP-749 4
{¶ 11} In her cross-appeal, Mother assigns the following error for our review:
The trial court erred as a matter of law and/or abused its
discretion in its review of the magistrate's decision on the issue
of attorney fees awarded to cross-appellee.
III. First Assignment of Error – Children's Basic Needs
{¶ 12} In his first assignment of error, Father argues the trial court abused its
discretion by finding that the children's basic needs are not being met and relying on that
standard in order to modify the magistrate's child support order.
{¶ 13} It is undisputed that the parties' combined yearly gross income exceeds
$150,000. Under this circumstance, the court must calculate the child support obligation
on a case-by-case basis and must consider the needs and the standard of living of the
children and of the parents. Guertin v. Guertin, 10th Dist. No. 06AP-1101, 2007-Ohio-
2008, ¶ 4, citing R.C. 3119.04(B). The version of R.C. 3119.04(B) in effect when the parties
litigated the matter in 2018 provided that "[i]f the combined gross income of both parents
is greater than one hundred fifty thousand dollars per year, the court, with respect to a court
child support order, * * * shall determine the amount of the obligor's child support
obligation on a case-by-case basis and shall consider the needs and the standard of living
of the children who are the subject of the child support order and of the parents." The
statute further provides that "[t]he court * * * shall compute a basic combined child support
obligation that is no less than the obligation that would have been computed under the basic
child support schedule and applicable worksheet for a combined gross income of one
hundred fifty thousand dollars, unless the court * * * determines that it would be unjust or
inappropriate and would not be in the best interest of the child, obligor, or obligee to order
that amount." Former R.C. 3119.04(B). The statute mandates that should the court make
"such a determination, it shall enter in the journal the figure, determination, and findings."
Former R.C. 3119.04(B).
{¶ 14} In view of former R.C. 3119.04(B), in cases where the parties' combined
income exceeds $150,000, the court is bound by three requirements. Chawla v. Chawla,
10th Dist. No. 13AP-399, 2014-Ohio-1188, ¶ 14. The court must (1) set the child support
amount based on the qualitative needs and standard of living of the children and parents,
(2) ensure that the amount set is not less than the $150,000-equivalent, unless appropriate,
No. 18AP-749 5
and (3) if it decides less than the $150,000-equivalent is appropriate, then journalize the
justification for that decision. Id.{¶ 15} Here, the magistrate awarded $3,300 in child support, which the trial court,
in the final decision and entry, increased to $4,800 per month to be reduced to $3,360 per
month upon the emancipation of the older of the two minor children. Under his first
assignment of error, Father argues the trial court abused its discretion when it concluded
the children's basic needs were not being met and used that finding as the basis for its
upward deviation from the standard child support order. However, after a thorough review
of the trial court's decision and the underlying record, we conclude Father's argument in
this regard lacks merit.
{¶ 16} While the magistrate stated "[e]ach party has the ability to provide for the
children's basic needs," the trial court found that a review of the evidence indicated that
Mother could not meet the needs and standard of living of the children compared to the
lifestyle Father is able to provide. (Jan. 8, 2018 Mag. Decision at 26.) This conjunctive
analysis, considering both the qualitative needs and the standard of living of the children
and parents, is precisely the analysis contemplated under former R.C. 3119.04(B).
Although Father disagrees with the trial court's ultimate conclusions related to the amount
of child support, the subject of Father's second assignment of error, Father's argument that
the trial court somehow applied the wrong standard in reaching those conclusions lacks
merit. Thus, we overrule Father's first assignment of error.
IV. Second Assignment of Error – Modification of the Magistrate's Child
Support Order
{¶ 17} In his second assignment of error, Father argues the trial court abused its
discretion in modifying the child support order. Specifically, Father asserts the trial court's
decision is contrary to the weight of the evidence on the issues of the disparity in lifestyles
of the parties and the budgets and expenses of the parties.
{¶ 18} Absent an abuse of discretion, a trial court's determination regarding child
support obligations will not be disturbed on appeal. Pauly v. Pauly, 80 Ohio St.3d 386,
390 (1997), superseded by statute on other grounds. An abuse of discretion connotes more
than an error of law or judgment; it implies that the attitude of the trial court was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
No. 18AP-749 6
219 (1983). The trial court does not abuse its discretion where some competent, credible
evidence supports the court's decision. Ross v. Ross, 64 Ohio St.2d 203, 208 (1980).
A. The Parties' Lifestyles
{¶ 19} Father first argues the trial court abused its discretion in determining the
extent of the disparity in the parties' lifestyles. Father points to several factual conclusions
by the trial court that he asserts are unsupported by the evidence.
{¶ 20} In concluding the parties had a significant disparity in their lifestyles, the trial
court noted that Father owns a timeshare in Utah while Mother typically vacations in state
parks. Additionally, the trial court noted Father owns a lake property used for vacations.
Father argues the trial court erroneously concluded he uses the timeshare and lake house
to actually take vacations and relied solely on Mother's testimony that she is unable to take
lavish vacations like she did when Mother and Father were married. Despite Father's
dissatisfaction that the trial court considered his ownership of the timeshare and lake
property, the trial court nonetheless relied on competent, credible evidence regarding his
vacation property ownership, and we find no abuse of discretion in the trial court
considering the parties' vacation abilities in determining the disparity in the parties'
lifestyles.
{¶ 21} Father next asserts the trial court unfairly compared the size and cost of the
parties' Columbus homes. The trial court noted, in accordance with the evidence, that
Father owns and lives in a 2,400 square-foot condominium while Mother owns and lives in
a 1,000 square-foot freestanding home. As Mother notes, Father does not dispute this
factual finding as supported by the evidence; rather, he disagrees with the trial court's
manner of interpreting this factual finding in its overall depiction of the parties' lifestyles.
In particular, Father argues Mother could increase her own standard of living, including
the size of house she could afford in Columbus, by selling other assets. However, the trial
court specifically noted that its findings regarding the disparity in the parties' lifestyles
included its consideration that Father is able to maintain his lifestyle with his current
income while Mother would not be able increase the standard of her lifestyle without
liquidating her assets. Thus, while Father may disagree with the weight the trial court
afforded to the parties home sizes, he does not demonstrate the trial court abused its
discretion in assigning that weight.
No. 18AP-749 7
{¶ 22} Similarly, Father argues the trial court inappropriately considered his
ownership of an airplane as a luxury item that would affect his standard of living. However,
the evidence indicated that Father owned the airplane and used it for both business and
personal travel. Again, Father disagrees with the trial court's consideration of the facts in
evidence but does not demonstrate that the trial court lacked competent, credible evidence
to support its findings.
{¶ 23} Finally with respect to the disparity in the parties' lifestyles, Father argues the
trial court erroneously concluded Mother can only meet the children's basic needs by
liquidating her own assets. As we noted in our resolution of Father's first assignment of
error, the trial court's finding in this regard applied both to the children's needs and their
standard of living. Additionally, Mother testified that she regularly liquidates assets from
her investments in order to cover her expenses for herself and for the children. Thus, there
was competent, credible evidence to support the trial court's finding that Mother relies on
liquidating her assets in order to provide a certain lifestyle for the children.
B. The Parties' Budgets and Expenses
{¶ 24} Father additionally argues the trial court abused its discretion in its
consideration of the evidence related to the parties' budgets and expenses. The crux of
Father's argument in this regard is that the trial court erroneously relied on the financial
and budget testimony of Mother while downplaying the significance of his own financial
and budget testimony. The record shows, however, that the trial court carefully considered
the financial and budget evidence as it related to both Mother and Father and calculated a
child support order based on that evidence. Father may disagree with the trial court's
decision, but he does not articulate how the trial court abused its discretion in fashioning
the child support order.
{¶ 25} The common theme of all of Father's arguments is that the trial court did not
adequately consider or analyze the pertinent information relating to the child support
award, especially given the substantial assets distributed to the parties when they divorced.
However, the trial court conducted a de novo review of the evidence and found, based on
that evidence, that the disparity in the parties' lifestyles justified the upward deviation in
child support based upon the children's and the parties' standards of living. As there is
competent, credible evidence in the record to support that decision, the trial court did not
No. 18AP-749 8
abuse its discretion in determining the amount of child support Father owes to Mother. See
Weaver v. Weaver, 10th Dist. No. 16AP-743, 2017-Ohio-4087, ¶ 14. Accordingly, we
overrule Father's second and final assignment of error.
V. Mother's Assignment of Error – Attorney Fees
{¶ 26} In her sole assignment of error, Mother argues the trial court abused its
discretion in not awarding her the full amount of attorney fees she requested. Mother
asserts the trial court's award of $2,500 for her first motion for attorney fees is not
equitable.
{¶ 27} In a post-decree motion arising out of a divorce, R.C. 3105.73(B) permits a
trial court to 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 under R.C.
3105.73(B) is equitable, "the court may consider the parties' income, the conduct of the
parties, and any other relevant factors the court deems appropriate, but it may not consider
the parties' assets." An award of attorney fees in a domestic relations action is within the
sound discretion of the trial court and will not be reversed on appeal absent an abuse of
discretion. Settele v. Settele, 10th Dist. No. 14AP-818, 2015-Ohio-3746, ¶ 51.
{¶ 28} Here, the trial court found it fair and equitable to require Father to pay
$2,500 towards Mother's attorney fees pursuant to R.C. 3105.73(B). The trial court
considered all relevant factors in making its attorney fees determination. After weighing
the parties' income disparity against the additional attorney fees Father incurred related to
Mother's improper filing of the foreign divorce decree prolonging the litigation of the
motion to modify child support, the trial court concluded it was equitable that Father pay
$2,500 to Mother for her reasonable attorney fees. R.C. 3105.73(B) expressly permits a
trial court to award "all or part" of a party's reasonable attorney fees. That the trial court
decided to award Mother less than the full amount of attorney fees she incurred in pursuing
her motion to modify child support does not render the trial court's decision an abuse of
discretion. Serra v. Serra, 10th Dist. No. 15AP-528, 2016-Ohio-950, ¶ 32.
{¶ 29} Because the trial court acted within its discretion when it awarded Mother
$2,500 in attorney fees, we overrule Mother's sole assignment of error.
No. 18AP-749 9
VI. Disposition
{¶ 30} Based on the foregoing reasons, the trial court did not apply the wrong
standard in reviewing the magistrate's determination of the appropriate amount of child
support, did not abuse its discretion in determining the amount of child support Father
owes, and did not abuse its discretion in awarding Mother less than the full amount of
attorney fees she incurred. Having overruled Father's two assignments of error and
Mother's sole assignment of error, we affirm the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BROWN and BRUNNER, JJ., concur.