Brandner v. Brandner
| Decision Date | 02 July 2012 |
| Docket Number | No. CA2011–07–136.,CA2011–07–136. |
| Parties | Susan BRANDNER, Plaintiff–Appellant, v. David S. BRANDNER, Defendant–Appellee. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
John D. Smith Co., LPA, Andrew P. Meier, Springboro, OH, Jacqueline M. Handorf, Mason, OH, for plaintiff-appellant.
Lawrence P. Fiehrer, Fiehrer & Fritsch, LLC, Hamilton, OH, for defendant-appellee.
{¶ 1} The question posed in this appeal is whether the money paid to a husband for a noncompete provision of the sale of his business should be excluded from his income calculations in the decision to modify his child and spousal support obligations. We find the determination of income for spousal support is not limited by the nonrecurring income exception of R.C. 3119.01 and reverse part of the trial court's decision.
{¶ 2} A judgment entry and decree of divorce between David S. Brandner and Susan Brandner was filed in Butler County Domestic Relations Court in June 2010. The decree required husband to pay child support for the couple's two minor children, and spousal support to wife for 47 months. The trial court reserved jurisdiction to modify or terminate spousal support. The decree ordered husband to sell the pharmacy business and the couple to sell the marital home, with the proceeds of both divided equally.
{¶ 3} Five months after the decree was filed, husband moved to modify and reduce both his child and spousal support obligations. He argued that with the business now sold, his income as a pharmacist with Walgreens—the purchaser of his business—is $118,000, a reduction from his previous annual salary of $220,000 before the divorce.
{¶ 4} Wife did not contest that husband's annual salary is less than before, but argued that the support modification determination should also consider his salary along with the $280,500 Walgreens gave husband as payment for agreeing not to compete with Walgreens within a 10–mile radius of his former pharmacy for five years.
{¶ 5} The contract for sale of the business indicates the purchase price for the purchased assets and the covenants and agreements shall be “an amount equal to the Records Amount, plus the Inventory Amount, plus the Non–Compete Payment.” According to the decision issued by the domestic court magistrate, the parties apparently agreed on the record that the noncompete agreement payment was not marital property, and that issue has not been challenged.
{¶ 6} After holding a hearing on the modification motion, the magistrate found the one-time nature of the noncompete payment did not require a finding that it was nonrecurring income; rather, the magistrate found the payment constituted future wages. The magistrate said that husband, by entering into the noncompete agreement, was agreeing to limit his income potential for the life of the agreement and this payment supplemented his income for five years. The magistrate divided $280,500 by the term of five years and added that amount to husband's annual income. Based on that calculation, the magistrate modified the spousal support amount accordingly. The magistrate did not find sufficient change to modify the child support award.
{¶ 7} Husband objected to the magistrate's determination for both child and spousal support. The trial court overruled its magistrate, finding the noncompete payment was a onetime payment and was excludable from husband's income for child and spousal support purposes. The trial court also made additional findings, particularly in reference to child support, but wife limits her appeal to the noncompete payment issue.
{¶ 8} Assignment of Error:
{¶ 9} THE TRIAL COURT ERRED IN REVERSING THE MAGISTRATE'S DECISION AND FINDING THAT MONEY RECEIVED FOR SIGNING A NON–COMPETE AGREEMENT SHOULD NOT BE INCLUDED IN GROSS INCOME FOR PURPOSES OF DETERMINING CHILD AND SPOUSAL SUPPORT.
{¶ 10} Wife argues in her single assignment of error that the noncompete payment to husband represented future wages as a nonmarital asset and should be included in gross income. She also argues that if the noncompete payment is excludable as nonrecurring income for purposes of child support, it is still income that must be considered for purposes of spousal support.
{¶ 11} The purpose of the child support system is to protect the best interests of the child. Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993). Whether a prior order for child support should be modified is within the sound discretion of the trial court, and its decision in that regard may be reversed on appeal only for an abuse of that discretion. Kauza v. Kauza, 12th Dist. No. CA2008–02–014, 2008-Ohio-5668, 2008 WL 4766862, ¶ 10.
{¶ 12} Likewise, a trial court has broad discretion in determining a spousal support award, including whether or not to modify an existing award. Strain v. Strain, 12th Dist. No. CA2005–01–008, 2005-Ohio-6035, 2005 WL 3031896, ¶ 10. Courts must look at the totality of the circumstances and determine whether the trial court acted unreasonably, arbitrarily or unconscionably in modifying a spousal support obligation. Id.
{¶ 13} The definitions provided for child support orders in R.C. 3119.01 state in pertinent part that “[a]s used in this chapter,” and except as excluded in division (C)(7), “gross income” means the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses. Also included are commissions, royalties, tips, rents, dividends, severance pay, pensions, interest, trust income, annuities, social security benefits, including retirement, disability, and survivor benefits that are not means-tested, workers' compensation benefits; unemployment insurance benefits, disability insurance benefits, spousal support actually received, and all other sources of income.
{¶ 14} “Gross income” does not include nonrecurring or unsustainable income or cash flow items, which is defined as “an income or cash flow item the parent receives in any year or for any number of years not to exceed three years that the parent does not expect to continue to receive on a regular basis.” “Nonrecurring or unsustainable income or cash flow item” does not include a lottery prize award that is not paid in a lump sum or any other item of income or cash flow that the parent receives or expects to receive for each year for a period of more than three years or that the parent receives and invests or otherwise uses to...
To continue reading
Request your trial
-
Smith v. Smith, APPEAL NO. C-140391
...whether the trial court acted unreasonably, arbitrarily, or unconscionably in modifying a spousal support obligation." Brandner v. Brandner, 2012-Ohio-3043, 973 N.E.2d 330, ¶ 12 (12th Dist.). {¶22} Angela first argues that the version of R.C. 3105.18 in effect at the time of the divorce sho......