Cole v. Cole

• Decision Date: 02 November 1990
• Docket Number: No. E-90-7,E-90-7
• Parties: COLE, Appellee, v. COLE, Appellant.
• Court: Ohio Court of Appeals

Page 188

70 Ohio App.3d 188

590 N.E.2d 862

COLE, Appellee, v. COLE, Appellant.

No. E-90-7.

Court of Appeals of Ohio, Sixth District, Erie County.

Decided Nov. 2, 1990.

Mary M. Hieshetter, Sandusky, for appellee.

Billy Joe Cole, pro se.

PER CURIAM.

This is an appeal from a judgment of the Erie County Court of Common Pleas which denied a motion for temporary suspension of child support while appellant was incarcerated.

Appellant, Billy Joe Cole, and appellee, Kathy Ann Cole, were divorced by decree on August 29, 1989. Appellee was awarded custody of the parties' minor children, Christopher, born on June 29, 1985, and Misty, born on January 1, 1987. Appellant was granted visitation and companionship rights and ordered to pay $88.58 plus poundage per week in child support. At the time of the divorce, appellant was employed at the Ford Motor Company with a gross annual income of over $19,000.

On January 3, 1990, appellant filed a motion requesting the temporary suspension of his child support obligation. Specifically, appellant stated that he was incarcerated in the Madison Correctional Institute and that this circumstance rendered payment of child support impossible. Appellant asked that the suspension of the child support obligation be made retroactive to the date of his sentencing, September 1, 1989.

On June 26, 1990, the trial court filed a judgment entry which found that appellant was currently incarcerated. However, the court further found that "due to the voluntary nature of the acts which resulted in the incarceration of the Defendant, the Court finds that a suspension of his child support obligation is unwarranted." The court then, without holding a hearing, denied appellant's motion.

From that judgment, appellant filed a timely notice of appeal. He asserts three assignments of error:

"1. The trial court erred, as a matter of law, in determining that defendant-appellant's incarceration, even if the result of a voluntary act, constituted voluntary unemployment or underemployment so as not to warrant suspension or modification of defendant-appellant's child support obligation.

"2. The trial court abused its discretion in refusing to modify appellant's child support obligation.

"3. The trial court's decision failing to suspend or modify defendant-appellant's child support obligation while he is incarcerated and unable to pay child support violates both the Eighth Amendment's prohibition of cruel and unusual punishment and the equal protection of the Fourteenth Amendment." Appellant's first and second assignments of error address issues directly related to the trial court's denial of the motion to suspend child support payments. They shall, therefore, be considered together.

Modification of a child support order involves a two-step process. Cheek v. Cheek (1982), 2 Ohio App.3d 86, 87, 2 OBR 95, 97, 440 N.E.2d 831, 833. First, the trial court must decide whether the movant has demonstrated a change of circumstances. Id. See, also, Bright v. Collins (1982), 2 Ohio App.3d 421, 423, 2 OBR 514, 516, 442 N.E.2d 822, 826. Second, after a change of circumstances has been demonstrated, the court, in considering all the relevant factors as found in R.C. 3109.05(A), may make an appropriate modification. Cheek, supra, at 87, 2 OBR at 97, 440 N.E.2d at 833. The trial court has considerable discretion in determining whether a child support order should be modified. Muphy v. Murphy (1984), 13 Ohio App.3d 388, 389, 13 OBR 471, 473, 469 N.E.2d 564, 566. Therefore, the trial court's judgment cannot be reversed absent a finding of abuse of discretion, that is, a finding that the court's attitude in making its decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1141.

In this case, appellant asserts that the trial court abused its discretion by failing to consider the factors delineated in R.C. 3109.05(A). The trial court determined that incarceration did not satisfy the change of circumstances requirement in the two-step process employed to determine a motion for modification of child support. The lower court did not, therefore, reach a consideration of the factors delineated in R.C. 3109.05(A). If the court's assessment of the grounds supporting appellant's motion for modification is correct, then it did not need to engage in the second step of the analysis and did not abuse its discretion in failing to do so.

Appellant contends that the fact of incarceration, in and of itself, constitutes a change of circumstances.

Whether incarceration may constitute a change of circumstances has been considered by at least one other Ohio appellate court. Peters v. Peters (1990), 69 Ohio App.3d 275, 590 N.E.2d 777. In Peters, supra, the Twelfth District Court of Appeals found that the criminal act leading to a criminal conviction of the obligor was voluntary. However, the court concluded that any incarceration, which led to the reduction of the obligor's income, was not voluntary. The Peters court analogized incarceration to a situation where the obligor's employment is terminated due to some act on his part which rendered the action on the part of the employer necessary. The court further held that, as a matter of public policy, requiring appellant to continue to pay his current child support would expose him to a criminal contempt prosecution for failure to pay the child support during his imprisonment. The Peters court concluded that it would be unconscionable to criminally punish an obligor for "neglecting to do what state action prevented him from doing." The dissent in Peters, supra, emphasized the fact that it was the obligor's own voluntary criminal act which caused the incarceration and pointed out that it seemed unlikely that a court could find appellant in contempt for nonpayment of child support while unable to pay as a result of his incarceration.

Other states are divided over the issue of whether incarceration constitutes a change of circumstances and should result in a reduction of the child support obligation. See Leasure v. Leasure (1988), 378 Pa.Super. 613, 549 A.2d 225; Nab v. Nab (App.1988), 114 Idaho 512, 757 P.2d 1231; Pierce v. Pierce (1987), 162 Mich.App. 367, 412 N.W.2d 291; Foster v. Foster (1984), 99 A.D.2d 284, 471 N.Y.S.2d 867; Clemans v. Collins (Alaska 1984), 679 P.2d 1041; Edmonds v. Edmonds (1981), 53 Ore.App. 539, 633 P.2d 4 (granting modification). But, cf., Harper v. Barrows (Del.1990), 570 A.2d 1180; Proctor v. Proctor (Utah App.1989), 773 P.2d 1389; Parker v. Parker (App.1989), 152 Wis.2d 1, 447 N.W.2d 64; Ohler v. Ohler (1985), 220 Neb. 272, 369 N.W.2d 615; Noddin v. Noddin (1983), 123 N.H. 73, 455 A.2d 1051; In re Marriage of Vetternack (Iowa 1983), 334 N.W.2d 761 (denying modification).

In those cases where the state courts determined that a modification of child support was warranted on the ground of incarceration, the fact that the ordered support would be virtually uncollectible was often the underlying rationale for that judgment. Nab, supra, 757 P.2d at 1238 (adding to the financial burden of the obligor at the time he can least afford it is unfair); Pierce, supra, 412 N.W.2d at 293 (heavy financial load on the obligor is not in the best interest of the child); Leasure, supra, 549 A.2d at 227 (child support does not help the child but only adds to the burden of the obligor when he can least bear it); Edmonds, supra (a man cannot be ordered to do the impossible). In Clemans, supra, the Supreme Court of Alaska, without explanation, simply adopted the holding in Edmonds, supra. However, all of the foregoing state courts recognize that if an obligor has assets available to meet a support obligation, a different conclusion might be reached. Leasure, supra (no liability absent an affirmative showing of assets); Nab, supra, 757 P.2d at 1240 (remanded to determine assets of obligor); Pierce, supra, at 293 (assets may be applied to meet child support obligation of incarcerated parent); Foster, supra, 99 A.D.2d at 285, 471 N.Y.S.2d at 869 (not liable absent an affirmative showing of assets); Clemans, supra (remanded to determine if incarcerated obligor had available assets); Edmonds, supra (no liability absent an affirmative showing of assets).

State courts which have held that incarceration is not a change of circumstances warranting modification or suspension of child support have emphasized the willful nature of the obligor's criminal conduct which caused the incarceration. Harper, supra, at 1183 (incarceration is a foreseeable result of criminal activity); Proctor, supra, at 1391 (one who stops working as the result of punishment for an intentional criminal act retains the ability to earn and a duty to support his child or children); Parker, supra, 447 N.W.2d at 65 (the obligor cannot be excused from his child support obligation because of a willful act that resulted in imprisonment); Noddin, supra, 455 A.2d at 1053 (modification denied if the change in condition is due to fault, voluntary wastage or dissipation of one's talents and assets); Ohler, supra, 369 N.W.2d at 618 (incarceration is a foreseeable result of criminal activity).

In our view, the reasoning in those cases which find that incarceration is the result of a voluntary willful act of an obligor are persuasive. The focus of the Peters court in rendering its decision centered solely on the obligor and disregarded the duty of support a parent owes to his child. While appellant is incarcerated, the needs of his children are not diminished. Appellee, perhaps with the aid of a governmental entity, must care for the children of both parties as best she can in order to fulfill those needs. The only person to benefit if support is suspended would be appellant. The child...