In the Matter of Carl Arthur Moritz v. Joann Moritz, Now Joann Lindemann
| Decision Date | 21 April 1988 |
| Docket Number | 88-LW-1428,1845 |
| Parties | In the matter of Carl Arthur MORITZ, Jr., Petitioner-Cross Appellant, v. Joann MORITZ, now Joann Lindemann, Petitioner-Appellant. |
| Court | Ohio Court of Appeals |
Anderson & Anderson, W. Mack Anderson, Ironton, for appellant.
J.B Collier, Ironton, for cross-appellant.
DECISION AND JUDGMENT ENTRY
This is an appeal and cross-appeal from a judgment entered by the Lawrence County Court of Common Pleas ordering Carl Arthur Moritz, Jr., petitioner below and cross-appellant herein, to pay, pursuant to a separation agreement incorporated into a dissolution decree, college expenses of the parties' oldest daughter each year in an amount equal to the amount charged at the University of Texas at Austin and to further pay child support for the oldest daughter to Joann Moritz, now Joann Lindemann, petitioner below and appellant herein, in the previously ordered amount of $300 per month when the daughter was home during the summer months and in the reduced amount of $75 per month when the daughter was away at college.
Appellant assigns the following errors:
Cross-appellant assigns the following error:
"I.DOES THE TRIAL COURT HAVE JURISDICTION TO MODIFY A SEPARATION AGREEMENT PROVIDING FOR PAYMENT OF CHILD SUPPORT AND COLLEGE EXPENSES FOR AN EMANCIPATED CHILD."
The parties herein were married and on March 19, 1968 Christine Ann Moritz was born and on July 22, 1970 Debra Yvonne Moritz was born as issue of such marriage. On August 24, 1977, the parties entered into a separation agreement which was incorporated into a dissolution decree on January 10, 1978. The separation agreement provided, in pertinent part, as follows:
"3. SUPPORT FOR CHILDREN:
A.The husband shall pay to the wife the sum of $125.00 per month per child beginning 1 September 1977 for the support and maintenance of the children. Such payments shall be made so that the wife shall actually or constructively receive them by the 15th day of each month.
B.With respect to each child the obligation of the husband to pay child support shall terminate effective the end of the month in which the first of the following occurs:
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(3) Attainment of the age of nineteen years
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C.Notwithstanding the provisions in sub-paragraph B above, the child support payments shall continue so long as the child (1) pursues a college education with reasonable diligence and on a normally continuous basis and (2) lives with the wife either while attending such college or during the vacation in the summer. If the child during any October to June period is not enrolled as a full time student in a college or university, such shall be prima facie evidence that the child is not pursuing a college education with reasonable diligence. In no event will the child support payments extend beyond the month in which the child attains twenty-one years of age.
a.Both the Husband and Wife currently desire that each of the children be afforded the opportunity to attend a college or university.
b.Husband shall pay books, tuition, room and board and fees.
c.Child will attend college mutually agreed by both Husband and Wife.
d.Wife will pay incidental expenses.
e.Husband will set up trust fund to ensure that expenses will be met in the event of his death."
On August 29, 1980, the trial court entered a judgment incorporating an agreement between the parties increasing the amount of child support from $125 to $200 per month per child payable beginning August 1, 1980 and to remain payable "until the date the said child for whom support is being paid reaches the age of eighteen (18) years, attains majority by marriage or otherwise, or until further orders of this court, subject to the provisions of the Separation Agreement filed herein." At the time of this entry, appellant and the parties' two daughters resided in San Antonio, Texas.
In the fall of 1984, the parties' oldest daughter, Christine Ann Moritz, entered the University of Texas at Austin. Subsequently, cross-appellant filed a motion to terminate his obligation to pay child support for Christine Ann Moritz while she was attending college away from the home of appellant, and appellant filed a motion to increase child support. An evidentiary hearing was held before a court appointed referee on the motions and on October 30, 1985, the referee issued a report finding, inter alia, that a material change in circumstances had occurred in that the parties' income had almost doubled since the 1980 modification and the expenses and needs of the parties' children had increased considerably. The referee recommended that the child support be increased from $200 to $300 per month per child and that, pursuant to his interpretation of the separation agreement incorporated into the dissolution decree, cross-appellant's obligation to pay child support would cease for those months the children were enrolled in college and were not living at home with appellant.
On November 12, 1985, appellant filed an objection to the October 30, 1985 referee's report, asserting that the separation agreement incorporated into the dissolution decree provided for the continuation of child support payments during college. Cross-appellant did not object to the referee's report and no transcript of the evidentiary hearing held before the referee prior to his October 30, 1985 report was ordered by either party. On January 15, 1986, the trial court entered judgment affirming the referee's report with the exception of that portion that was the basis of appellant's objection and thereby ordered cross-appellant to pay $300 per month per child as and for child support with such obligation to continue while the children were enrolled in college. Neither party appealed the trial court's January 15, 1986, judgment.
On March 19, 1986, the parties' oldest daughter, Christine Ann Moritz, reached eighteen years of age. On September 16, 1986, appellant filed a motion for an order directing cross-appellant to appear before the court to show cause why he should not be held in contempt of court for failing to abide by the trial court's order with respect to college expenses for the children wherein cross-appellant was ordered to pay for books, tuition, room and board, and fees for the children in college. On September 30, 1986, cross-appellant filed a motion for a protective order with regard to appellant's contempt motion.
On October 22, 1986, cross-appellant filed an affidavit wherein he stated, inter alia, that during the 1985-86 school year, the parties' oldest daughter attended the University of Texas at Austin at the mutual agreement of the parties, that cross-appellant paid approximately $4,100 for the oldest daughter's books, tuition, room and board, and fees at the University of Texas at Austin for the 1985-86 school year, that the parties' oldest daughter transferred to Bradford College near Boston, Massachusetts for the 1986-87 school year, that cross-appellant did not agree to pay all the expenses at Bradford College, which was approximately $11,300 per year, and that at the evidentiary hearing before the referee which culminated in the October 30, 1985 referee's report, cross-appellant "voluntarily agreed" to the child support payments being increased from $200 to $300 per month per child. Cross-appellant further stated in his affidavit that he would agree to pay the equivalent of the college expenses his oldest daughter would incur if she lived at appellant's home and went to the University of Texas at San Antonio.
On October 22, 1986, appellant filed an affidavit wherein she stated that cross-appellant had initially agreed with the choice of Bradford College for the parties' oldest daughter's 1986-1987 school year, that cross-appellant attempted to modify the original agreement by setting a $6,000 limit on his required child support and college expenses, and that she had paid her oldest daughter's expenses at Bradford College up to that point in time.
On the same date that the parties filed their affidavits, a hearing was held before a court appointed referee at which the parties withdrew the contempt and protective order motions and submitted the case to the referee upon the sole issue of what amount cross-appellant should pay for college expenses for the parties' oldest daughter for the 1986-87 school year pursuant to the separation agreement incorporated in the dissolution decree. No testimonial evidence was adduced at such hearing. Appellant argued that cross-appellant should pay the equivalent of college expenses at the University of Texas at Austin, whereas cross-appellant argued that he should only pay the equivalent of college expenses at the University of Texas at San Antonio.
On November 18, 1986, the referee filed a report recommending that an amount equal to the cost of tuition, books, and fees which would have been incurred at the University of Texas at San Antonio would be a reasonable amount for cross-appellant to contribute to Christine Ann Moritz' college education. On November 25, 1986, appellant filed objections to the November 18, 1986 referee's report, objecting to the referee's conclusion that appellant should...
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