Schumann v. Schumann, 93382.

• Decision Date: 10 November 2010
• Docket Number: No. 93382.,93382.
• Citation: 944 N.E.2d 705,190 Ohio App.3d 824
• Parties: SCHUMANN, Appellant,v.SCHUMANN et al., Appellees.
• Court: Ohio Court of Appeals

190 Ohio App.3d 824

944 N.E.2d 705

2010 -Ohio- 5472

SCHUMANN, Appellant,

v.SCHUMANN et al., Appellees.

No. 93382.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Nov. 10, 2010.

Zukerman, Daiker & Lear Co., L.P.A., Paul B. Daiker, and Larry W. Zukerman, Cleveland, for appellant.Stafford & Stafford Co., L.P.A., Joseph G. Stafford, Nicholas M. Gallo, Michele A. Kalapos, Cleveland, and Gregory J. Moore, for appellee.

ANN DYKE, Judge.

[Ohio App.3d 828] {¶ 1} Appellant Terrie S. Schumann, now known as Terrie McKelvey, appeals from the order of the trial court entered in connection with numerous postdivorce decree motions. Cross-appellee Michael A. Schumann challenges the amount of attorney fees that he was awarded in connection with his motions. For the reasons set forth below, we vacate that portion of the May 6, 2009 order that modified the allocation of parental rights and that portion that required appellant to deliver two statues to appellee. We affirm the order of the trial court in all other respects and remand for the trial court to vacate those two provisions.

{¶ 2} The parties were married on January 2, 1982, and had two daughters. The older daughter, who is not a subject of the instant matter, was born on April 19, 1984, and the younger daughter was born on April 19, 1989. Appellant filed for divorce against appellee on December 10, 1998. Appellee filed an answer and counterclaim on or about December 14, 1998, and the court issued its final judgment entry of divorce on September 18, 2003. See Schumann v. Schumann, Cuyahoga App. Nos. 83404 and 83631, 2005-Ohio-91, 2005 WL 77087.

{¶ 3} The trial court designated appellant as the residential parent and legal custodian of the younger daughter, ordered appellee to pay $4,000 per month for child support until her emancipation, ordered appellee to pay $40,000 toward appellant's attorney fees, ordered appellant to pay one-half of the debt from [Ohio App.3d 829] Provident Bank, and ordered that the personal property in the marital residence be equally divided between the parties. The trial court also concluded that I. Schumann & Company and related entities were appellee's separate property based upon an agreement dated December 29, 1981.

{¶ 4} The parties filed numerous postdecree motions, and on June 17, 2004, the younger daughter, then age 15, left appellant's residence and moved in with appellee. On August 2, 2004, appellee filed a petition for a domestic violence civil protection order, “due to issues between [appellant] and [the younger daughter].” On August 24, 2004, the trial court issued a journal entry that stated as follows:

{¶ 5} “The petition for domestic violence is dismissed upon the terms and conditions set forth herein.

{¶ 6} “1. Plaintiff and defendant are each designated as residential parents and legal custodians of [the younger daughter].

{¶ 7} “ * * *

{¶ 8} “3. Every Monday and Tuesday from after school to 8:30 p.m. Plaintiff shall pick the child up directly from school or from defendant's home. * * * Every other weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m. * * * Holidays will be alternated [and] the child shall be in the possession of the defendant at all other times.”

{¶ 9} In October 2004, appellee filed a motion to terminate child-support payments and to determine overpayments and arrearages, noting that both parents had been designated as the residential parents and legal custodians of the younger daughter, who turned 18 on April 19, 2007, and graduated from high school in June 2007. Appellee filed a motion to modify child support on October 31, 2005.

{¶ 10} On January 28, 2005, appellee filed a motion to show cause and for a temporary restraining order. He asserted that appellant had not complied with the terms of the parties' divorce decree that required her to pay one-half of the marital debt to Provident Bank. He additionally asserted that appellant had not complied with her duty to equally divide household items from the marital residence that was sold in September 2003. The parties' motions were heard on various dates in 2008. Essentially, appellant asserted that child support continued to accrue and that the trial court was without authority to modify support orders in light of the younger daughter's emancipation. Appellee asserted that the child-support obligation terminated when the girl moved in with him and became emancipated and that he has overpaid his child-support obligation.

{¶ 11} On May 6, 2009, the trial court determined that modification of parental rights was in the “best interests of the minor child,” and granted it. The trial court further held that the child-support order of $4,000 per month was premised, [Ohio App.3d 830] in part, upon the girl attending Hawken School and that she had not attended Hawken School subsequent to June 2004. The trial court ruled that appellant was not entitled to receive child support following August 24, 2004, the date on which the younger daughter moved in with appellee. At this point, according to the trial court, appellant was no longer the primary residential parent and “knew or should have known that child support payments may terminate when there is a change of legal custody.” The trial court further noted that although the August 24, 2004 entry did not “comply with R.C. 3109.04(A)(1) in terms of designating a residential parent and legal guardian for the younger daughter and it is also not an order for shared parenting,” it was a “hybrid” order through which appellee waived the termination of her designation as sole primary residential parent and legal custodian.

{¶ 12} The trial court next determined that it was in the child's best interests to order appellant to pay child support to appellee from August 24, 2004, to the date of her 18th birthday and ruled that appellant owed appellee $10,083.87. The trial court held that appellant “waived any objection to award child support by entering into an agreement to defer all other motions to December of 2004 after agreeing that [she] would live primarily with her father * * * and that child support was at issue when she signed the journal entry.”

{¶ 13} The trial court additionally concluded that although appellee was in arrears in connection with spousal-support payments, the arrearage amount would be reduced to $88,333.57 to reflect his child-support overpayment. Finally, the trial court held that appellant failed to pay appellee $60,000, her share of a loan from Provident Bank, and that appellant owed appellee $77,300 for household property, plus $6,500 for his attorney fees.

{¶ 14} Appellant challenges these provisions in seven assignments of error, and appellee cross-appeals.

THE APPEAL

{¶ 15} In her first assignment of error, appellant asserts that the trial court was without authority to enter a modification of parental rights and responsibilities in May 2009, because the younger daughter was emancipated at the time, as well as at the time of the hearing. In opposition, appellee asserts that the modification was in the child's best interests and merely reiterated the terms of the August 2004 entry.

{¶ 16} In DiFranco v. DiFranco, Cuyahoga App. No. 87269, 2006-Ohio-5010, 2006 WL 2777522, ¶ 17, this court stated:

{¶ 17} “It is well-settled that a court generally lacks subject matter jurisdiction to modify parental rights and responsibilities after a child has been emancipated. [Ohio App.3d 831] State ex rel. Mandich v. Mandich (Aug. 20, 1997), Medina App. No. C.A. 2622–M, citing Miller v. Miller (1951), 154 Ohio St. 530 , 97 N.E.2d 213, paragraph two of the syllabus; Rohrbacher v. Rohrbacher (1992), 83 Ohio App.3d 569, 575, 615 N.E.2d 338; Maphet v. Heiselman (1984), 13 Ohio App.3d 278, 279 , 469 N.E.2d 92.”

{¶ 18} Similarly, in Berthelot v. Berthelot, Summit App. No. 23561, 2007-Ohio-3884, 2007 WL 2192963, the court held that a court generally lacks subject-matter jurisdiction to modify parental rights and responsibilities after a child has been emancipated, and stated:

{¶ 19} “In its decision, the magistrate found that the child at issue had attained the age of majority and had graduated from high school. We note as well that this Court previously recognized that only two children were unemancipated when Appellant filed her motion to modify * * *. Accordingly, the trial court erred in using three unemancipated children on the worksheet.”

{¶ 20} In this matter, the trial court determined that modification of parental rights was “in the best interests of the minor child,” because she had become integrated into the father's family and was alienated from her mother, and an order of counseling was ineffective. Because the younger daughter was no longer a “child,” but was emancipated, the trial court was without subject-matter jurisdiction to modify the order of parental rights as of the May 6, 2009 journal entry.

{¶ 21} We next consider the import of the August 24, 2004 entry, and whether it constituted a modification through which appellant waived her right to continue as sole primary residential parent and legal custodian and effectively designated appellee the residential parent and legal custodian for the younger daughter. “[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano (1993), 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461. Accord Chubb v. Ohio Bur. of Workers' Comp. (1998), 81 Ohio St.3d 275, 690 N.E.2d 1267. Waiver may occur by words or by conduct. State ex rel. Ford v. Cleveland Bd. of Edn. (1943), 141 Ohio St. 124, 25 O.O. 241, 47 N.E.2d 223. A waiver partakes of some of the nature of estoppel and may be enforced by the person having a duty to perform, who has changed his position as a result of the waiver. Andrews v. Teachers Retirement Sys. Bd. (1980), 62 Ohio St.2d 202, 205, 16 O.O.3d 240, 404 N.E.2d 747.

{¶ 22} In this...