Donohoo v. Donohoo

• Court: Ohio Court of Appeals
• Writing for the Court: PIPER
• Citation: Donohoo v. Donohoo, 2012 Ohio 4105, CASE NO. CA2011-11-080, CASE NO. CA2011-11-081 (Ohio App. Sep 10, 2012)
• Decision Date: 10 September 2012
• Docket Number: CASE NO. CA2011-11-081,CASE NO. CA2011-11-080
• Parties: DONOVAN L. DONOHOO, JR., Plaintiff-Appellant/Cross-Appellee, v. JILL R. DONOHOO, Defendant-Appellee/Cross-Appellant.

2012 Ohio 4105

DONOVAN L. DONOHOO, JR., Plaintiff-Appellant/Cross-Appellee,

v.JILL R. DONOHOO, Defendant-Appellee/Cross-Appellant.

CASE NO. CA2011-11-080

CASE NO. CA2011-11-081

COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY

Dated: September 10, 2012

OPINION

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

DOMESTIC RELATIONS DIVISION

Case No. 2009 DRB 1042

Dayle E. Donithan, 1231 Nagel Road, Cincinnati, Ohio 45255, for plaintiff-appellant/cross-appellee

Michael A. Kennedy, 70 North Riverside Drive, Batavia, Ohio 45103, for defendant-appellee/cross-appellant

PIPER, J.

{¶ 1} Plaintiff-appellant/cross-appellee, Donovan Donohoo (Husband), appeals a decision of the Clermont County Court of Common Pleas, Division of Domestic Relations, ordering spousal support and child support after his divorce from defendant-appellee/cross-appellant, Jill Donohoo (Wife). Wife appeals the same decision of the trial court, which accepted Husband's valuation of his business for division of property purposes.

{¶ 2} Husband and Wife were married in May 1985, and had two children born issue of the marriage. Tyler was born in 1987 and Alex was born in 1990. While Alex was born healthy, Tyler was born prematurely and spent four months in the hospital after his birth. Tyler was diagnosed with velocardiofacial syndrome, a congenital genetic disorder, which has caused him several physical and cognitive issues. Tyler's disorder prompted a surgery at age 12, during which rods were placed in his back, and he has been subjected to a life-time of medication and treatment. Due to his syndrome, Tyler suffers from heart issues, pain in his legs, changes in his facial appearance, mild to moderate mental retardation, attention deficit hyperactive disorder, impulsivity problems, difficulty with thinking, seizures, severe separation anxiety, organic affective disorder, depression, obsessive compulsive disorder, and various behavioral disorders. Tyler has had aggression issues towards himself and others throughout his lifetime, and has attempted suicide multiple times and engages in self-mutilation.

{¶ 3} Wife has been Tyler's primary caregiver since his birth. Tyler lived in Wife's care his entire life, except for nine months while Tyler audited college courses and lived in a communal living arrangement with other college students. Wife, who is a nurse, worked only part time during the marriage, due to her caregiving responsibilities for Tyler and Alex, including homeschooling Tyler for several years. Tyler has had three part-time jobs since graduating from high school, with all three employers being clients of Husband's accounting firm. Tyler qualified for Social Security Disability, and also receives Social Security Supplemental Income.

{¶ 4} After 24 years of marriage, Husband moved out of the home and filed for divorce. At the time of the divorce, Tyler was 22 years old, and Alex was 18. After the divorce, Tyler continued to live with Wife, and rarely spends time with Husband. Tyler, however, often sent his father threatening and "nasty" text messages, and has alsothreatened to kill Husband's girlfriend. As a result of the text messages and threats, Husband tried to have Tyler involuntarily committed for evaluation purposes.

{¶ 5} The parties' divorce was heard before a magistrate during a three-day hearing, and both parties offered extensive evidence. One of the more contested issues included the value of Husband's accounting firm, of which he is an 86 percent owner. Both parties offered evidence regarding the value of the business, as well as the parties' living expenses. The magistrate also held a hearing on the admissibility of the parties' exhibits, and then issued a decision in which Husband was ordered to pay $5,120 per month in spousal support, and $208.40 in child support for Tyler. Both the spousal support and child support were ordered indefinitely.

{¶ 6} Both parties filed numerous objections to the magistrate's decision, and the trial court reduced the spousal support order to $4,600 per month, but ordered such support indefinitely. The trial court also increased the child support order to $249.87 per month, and ordered such to continue indefinitely. The trial court overruled Wife's objections to the magistrate's decision regarding the valuation of Husband's accounting firm. Husband and Wife now appeal the trial court's decision, raising the following assignments and cross-assignment of error. For ease of discussion, we will address Husband's first two assignments of error together.

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ASSUMING SUBJECT MATTER JURIDICTION [SIC] OVER AN ADULT CHILD WHO HAD ATTAINED THE AGE OF MAJORITY AND GRADUATED FROM HIGH SCHOOL.

{¶ 9} Assignment of Error No. 2:

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ISSUING A CHILD SUPPORT ORDER, WITHOUT JURISDICTION TO DO SO, FOR AN

ADULT CHILD OVER THE AGE OF MAJORITY, WHO WAS DEEMED DISABLED BUT IS NOT AND WAS NOT FOUND INCAPABLE OF SELF SUPPORT PRIOR TO ATTAINING THE AGE OF MAJORITY.

{¶ 11} Husband challenges the trial court's decision ordering him to pay child support for Tyler indefinitely.

{¶ 12} Although Tyler was over 18 at the time of the parties' divorce, the trial court ordered Husband to pay child support because of Tyler's disability. In doing so, the trial court cited the Ohio Supreme Court's decision in Castle v. Castle, 15 Ohio St.3d 279 (1984), for the proposition that a parent has an ongoing moral and legal duty to support a disabled child, even past the age of majority.

{¶ 13} In 2001, the Ohio General Assembly codified the Castle decision in R.C. 3119.86, which states in pertinent part, "the duty of support to a child imposed pursuant to a court child support order shall continue beyond the child's eighteenth birthday only under the following circumstances: (a) the child is mentally or physically disabled and is incapable of supporting or maintaining himself or herself * * *."

{¶ 14} Husband argues on appeal that R.C. 3119.86 is not applicable to the case at bar because there was never a court order in place before Tyler turned 18, and therefore, the domestic relations court lacked jurisdiction to impose a child support order at the time of the divorce because Tyler was 22. Since the time of the parties' filings before this court, the Tenth District Court of Appeals has issued a decision that directly supports Husband's arguments. Geygan v. Geygan, 10th Dist. No. 11AP-626, 2012-Ohio-1965.

{¶ 15} In Geygan, the Tenth District considered R.C. 3119.86, and determined that the statute did not apply unless a court order actually existed prior to the disabled child turning 18 years of age. In so determining, the court reviewed contrary cases from the Sixth, Seventh, and Eleventh Districts in which the courts rely on the fact that a disabled child is nevertechnically emancipated, and therefore, is always subject to an order from the domestic relations court. See Wiczynski v. Wiczynski, 6th Dist. No. L-05-1128, 2006-Ohio-867, discretionary appeal not allowed, 86 Ohio St.3d 1403; Abbas v. Abbas, 128 Ohio App.3d 513 (7th Dist.1998); and In re Edgell, 11th Dist. No. 2009-L-065, 2010-Ohio-6435. Generally, these courts rely on R.C. 3109.01, which defines the age of majority as, "all persons of the age of eighteen years or more, who are under no legal disability* * *." The sections within R.C. Chapter 3109 do not define "legal disability." Therefore, the Wiczynksi and Edgell courts applied the definition of "legal disability" found within the probate court section of the Ohio Revised Code as, "persons of unsound mind." R.C. 2131.02(B). R.C. 1.02(C) then defines "of unsound mind" as including all forms of mental retardation.

{¶ 16} The Geygan court declined to interpret R.C. 3119.86 by using a definition that is used within probate court jurisprudence. Instead, the Geygan court reasoned that had the Legislature intended to permit the domestic relations court to impose child support orders during a divorce proceeding after the disabled child has already reached 18 years old, it would have stated as such. The Geygan court emphasized that the statute states that "the duty of support to a child imposed pursuant to a court child support order shall continue beyond the child's eighteenth birthday * * *." R.C. 3119.86(A)(1). (Emphasis added). The court continued,

in enacting R.C. 3119.86, the General Assembly considered the question of child support for adult children with disabilities. In so doing, legislators chose to incorporate the words "continue" and "beyond." The General Assembly, at the time of the enactment or in a subsequent amendment, very easily could have deleted these words and stated simply that child support may be imposed for a child who is over the age of 18 and is mentally or physically disabled and incapable of supporting or maintaining himself or herself. It did not.

For these reasons, we conclude that the domestic relations court lacked jurisdiction to enter a child support order relating to [thedisabled child] because he was 38 years old at the time of the final judgment entry.

2012-Ohio-1965 at ¶ 17-18.

{¶ 17} We disagree with the Tenth District. Contrary to the Geygan court's strict textual analysis, we do not read anything in R.C. 3119.86 that prohibits a domestic relations court from ordering child support for disabled children after the child turns 18. The statute merely codified the Ohio Supreme Court's decision that the moral and legal obligation to support disabled children does not stop simply because the disabled child turns 18, as do traditional support orders regarding children with no disabilities. Nor do we believe that the statute was written in such a way as to create two distinct classes of disabled children, those who did not turn 18 before their parents' divorce and therefore are entitled to support, and those who just happened to turn 18 after the...