Carpenter v. Reis

• Decision Date: 23 February 1996
• Docket Number: No. L-95-101,L-95-101
• Citation: 672 N.E.2d 702,109 Ohio App.3d 499
• Parties: CARPENTER, Appellant and Cross-Appellee, v. REIS, Appellee and Cross-Appellant.
• Court: Ohio Court of Appeals

Page 499

109 Ohio App.3d 499

672 N.E.2d 702

CARPENTER, Appellant and Cross-Appellee, v. REIS, Appellee and Cross-Appellant.

No. L-95-101.

Court of Appeals of Ohio Sixth District, Lucas County.

Decided Feb. 23, 1996.

Theodore B. Tucker, III, Toledo, for appellant and cross-appellee.

George Gernot III, Toledo, for appellee and cross-appellant.

PER CURIAM.

This case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, which ordered plaintiff-appellant/cross-appellee, Jane E. Carpenter, to pay $325.10 per month, plus poundage, as child support for her minor son, Timothy Reis. ¹ Appellant appeals that judgment and sets forth the following assignment of error:

"The trial court erred when it failed to deviate from the Ohio child support guideline and/or otherwise take into account Social Security disability benefits from plaintiff/appellant's husband paid to or for the benefit of the minor child of the parties in determining appropriate child support to be paid by plaintiff/appellant to defendant/appellee for the minor child of the parties and same was an abuse of discretion."

In its judgment, the domestic relations court denied the motion of defendant-appellee/cross-appellant, George H. Reis, for fees, costs, and expenses incurred as the result of filing a motion to compel the production of documents. Appellee cross-appeals that ruling and asserts the following assignment of error:

"The trial court committed reversible error when, having found defendant's motion to compel discovery well taken, and having ordered the production of Mrs. Carpenter's tax returns, the trial court failed to grant judgment for the fees and costs necessary to obtain production of the relevant subpoenaed information."

The facts relevant to the disposition of this case are as follows.

Appellant and appellee were divorced in 1984. Appellant was awarded custody of the parties' two minor children, Timothy and Tamara. In January 1992, appellee filed a motion to modify custody, asserting that Timothy, who was then fourteen years of age, was then living with his father. Appellee further asked the court to determine, among other things, the amount of appellant's child support obligation to Timothy.

In May 1992, the trial entered an interim consent judgment naming appellee as the residential parent and legal custodian of Timothy. Appellant was ordered to pay child support in the amount of $15.06 per week. Under the agreement, appellee was not required to pay any child support for Tamara.

During the subsequent discovery process, appellee served appellant with a subpoena duces tecum requesting that she produce copies of her joint federal, state and local income tax returns for the years 1989 [672 N.E.2d 704] through 1992, copies of her 1992 W-2 and 1099, any receipts or writings relevant to appellant's business for the calendar year of 1992 and year to date, and a copy of her most recent pay stub. Appellant was ordered to produce these items at her deposition held on March 9, 1993. She failed to produce the requested income tax returns. Pursuant to Civ.R. 37, appellee filed a motion to compel the production of the documents. After a hearing, the trial court granted this motion and ordered appellant to provide appellee with the requested tax returns at the hearing scheduled on the child support issues. Appellant complied with this order.

Appellee then filed an application for fees, costs, and expenses related to the motion to compel discovery. These included a $110 fee for service of the subpoena, $120 for the services of a court reporter at appellant's deposition and $392 for attorney fees that arose from the taking of appellant's deposition.

At a hearing held on June 16, 1993, a referee heard evidence on the issues of child support and appellee's motion for fees, costs, and expenses.

At the hearing, appellant revealed that she was employed as an assistant vice-president for Standard Federal Bank. Her gross income for 1992 was approximately $39,000. Her monthly salary, as of March 1993, was $2,415. Appellant has health and dental benefits for her entire family through her place of employment. Appellant is married to Bruce Carpenter, who is not employed but has an income of about $3,100 per month from Social Security disability payments and a Veterans' Administration pension.

At the time of the hearing, the Carpenters supported and cared for four children: Tamara, their own two children, and Bruce Carpenter's daughter (who was adopted by appellant). They recently moved to Michigan, where they purchased a home for $227,000. The mortgage on that house totalled $204,750. The Carpenters had not yet sold their house in Toledo, Ohio. This house was valued at $139,000 with a mortgage of $134,000. The Carpenters' monthly expenses, as of December 1992, were $4,473 per month. This figure does not include the increase in monthly mortgage payments due to the purchase of the new house.

Appellee testified that he worked at Detroit Stoker for thirteen years. In both 1990 and 1992, his gross earnings were slightly over $20,000 per year. Appellee was laid off in January 1992. During that year, he received $2,023.23 in wages, $200 per week in unemployment compensation and collected a gross monthly rental income of $700 from two rental properties. Appellee resided with his wife, Debra, whose gross earnings for 1992 were over $46,000, and his son Timothy. Appellee stated that Timothy received a $140 (recently increased to $145) per month Social Security payment as a result of his stepfather's disability. At the time of the hearing, appellee was unemployed. He listed his family's monthly expenses as $2,176.

On the question of whether appellee should be awarded costs and fees incurred as a result of his motion to compel, Bruce Carpenter testified that, upon receiving the subpoena duces tecum, he took appellant's joint federal, state and local tax returns and refused to allow appellant access to these returns. He gave the documents to appellant only after the trial court granted appellee's motion to compel, and then only after consulting with an attorney. Appellant corroborated this testimony.

In a December 1993 report and recommendation, the referee set forth several findings of fact associated with a determination of appellant's child support obligation. One of the findings stated:

"17. That the Plaintiff was unable to turn the prior years tax returns over to Defendant when previously requested because her husband locked them up."

The referee's sole recommendation did not address the question of child support. It recommended that appellee be awarded a lump sum of $702 for the fees, costs, and expenses incurred in the taking of appellant's deposition.

Both appellant and appellee filed objections to the referee's report and recommendation in which they asked the trial court to refer the case to the referee again for a determination of the child support obligation of the parties. The trial court sustained these objections and referred the cause to the referee with instructions to determine child support.

On April 29, 1994, the referee filed a second report and recommendations. This report incorporated the findings and recommendation provided in the December 1993 report. It also concluded, based on appellee's education and prior work history, that he was capable of earning at least $8,840 per year at a minimum wage. The referee therefore imputed this amount as income to appellee for the purpose of determining child support. Appellant's adjusted gross income for the purpose of determining child support was found to be $33,730. The referee specifically found that appellant was requesting that the $140 per month Social Security payment received by Timothy be applied as a credit against her child support obligation. The referee made the following recommendation:

"1. That having given consideration to the evidence before the Court and factors contained in Revised Code 3109.05(A)(a)-(j), and Revised Code 3113.215, as shown in this case, the prior order of the Court is modified from $65.00 per month per child plus poundage to $325.10 per month per child for (1) child plus poundage of 2% payable through the Lucas County Child Support Enforcement Agency effective January 31, 1992."

The referee further recommended that $76.52 per week be withheld from appellant's wages for the purpose of satisfying her child support obligation.

Appellant filed objections to the referee's report. She argued that the referee erred in failing to credit the $140 per month Social Security payment received by Timothy against her child support obligation. She also asserted that the award of the lump sum judgment of $702 was against the manifest weight of the evidence.

On March 13, 1995, the domestic relations court overruled appellant's objection to the recommended amount of the child support order. In doing so, the court found:

"The statutory language is clear. This court is empowered to deviate from the guidelines, if the guideline figure would not be in the child's best interest. In the case at bar, this court is of the opinion that the guideline figure of $325 per month is in the child's best interest. The amount arrived at via the utilization of the guidelines is not unjust or inappropriate. Plaintiff has means to pay said obligation. The fact that her current husband qualifies the child for some benefit does not relieve Plaintiff of her obligation to pay. Therefore, the Referee properly recommended that Plaintiff be ordered to pay $325.10, plus poundage."

The trial court did, however, sustain appellant's objection to the lump sum judgment of $702. The court held that appellant demonstrated that it was impossible for her to produce the requested tax returns. From the court's judgment entry, it also appears that the trial court upheld appellant's objection on equitable grounds. That is, the court balanc...