Sharon Leasure v. Howard Leasure
| Decision Date | 12 March 1998 |
| Docket Number | 98-LW-1650,72415 |
| Parties | SHARON LEASURE, Plaintiff-appellee v. HOWARD LEASURE, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Court of Common Pleas, Case No. C.P. D-202534.
FOR PLAINTIFF-APPELLEE: Lisa R. Kraemer, Esq., 310 Chagrin Plaza East, 23811 Chagrin Blvd., Cleveland, Ohio 44122.
FOR DEFENDANT-APPELLANT: John S. Salem, Esq., Zashin & Rich, 1490 Illuminating Bldg., 55 Public Square, Cleveland, Ohio 44113.
Appellant Howard Leasure appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. D-202534, in which the trial court overruled appellant's motion to modify custody, found appellant in contempt of court for failure to pay child support and ordered appellant to pay the attorney fees of appellee Sharon Leasure in the amount of $2,500 as well as the guardian ad litem fees incurred in the case in the amount of $2,400. Appellant assigns four errors for this court's review.
Appellant Howard Leasure and appellee Sharon Leasure were married in Cleveland, Ohio on June 20, 1983. Two children were born as issue of this marriage; Jason (date of birth 1-18-84) and Megan (date of birth 8-5-85).
On January 24, 1991, the parties were divorced pursuant to a divorce decree under which appellee was awarded custody and control of the couple's two minor children, Jason and Megan, subject to appellant's right of reasonable visitation. At the time of the divorce, appellant was ordered to pay child support in the amount of $584 per month. Subsequently, appellant relocated to California and remarried in September 1992.
On September 9, 1994, appellant filed a motion to modify custody and child support in which he maintained that both Jason and Megan had expressed a strong desire to live with him in California. Appellant also sought a reduction in his child support obligation based upon his alleged inability to pay the previously determined amount.
On February 3, 1995, appellant filed a motion to interview minor children in chambers pursuant to R.C. 3109.04(B)(1). The trial court overruled appellant's motion.
On January 5, 1996, the trial court modified appellant's child support obligation to $42.84 per week. (T. 5, 6). All remaining issues were scheduled for hearing by the trial court.
On November 25, 1996, appellee filed a number of motions including a motion to find appellant in contempt of court for failure to pay child support, a motion for reasonable attorney fees and a motion for payment of guardian ad litem fees. The trial court consolidated appellee's motions and scheduled them for hearing along with appellant's motions on March 19, 1997.
At the hearing, appellant argued that his children maintained a constant and sincere desire to live with him in California. (T. 140, 141). Appellant argued further that, as of January 1997, he has lived with his current wife in a mobile home located in San Lois Obispo, California. The mobile home, a double wide, could allegedly accommodate appellant, his current wife and both minor children comfortably. (T. 119).
Appellant testified that, due to recurring health problems he has been substantially unemployed since the date of the parties divorce. It was appellant's position that, in spite of having no steady income source since 1991, he has attempted to pay as much child support as possible since the divorce.
Lastly, appellant stated that he had experienced continued problems with visitation and telephone contact with his children. Appellant blamed the majority of the problems upon the allegedly willful actions of appellee. (T. 137-139).
Appellee maintained that, while the children have expressed an interest in spending more time with their father, that interest has never risen to a constant and sincere desire to live with him. Appellee maintained further that, during the course of the postdecree litigation, appellant has lived in at least three different locations and has had approximately five different telephone numbers. (T. 114, 157). It was appellee's position that the transitory nature of appellant's living arrangements was the main factor in any alleged difficulty the children may have had in contacting appellant over the telephone, not any willful or deliberate attempt by appellee to prevent communication. (T. 113).
Appellee disputed appellant's contention that he had been substantially unemployed since the divorce arguing to the contrary that appellant had a number of different employers since moving to California. It was appellee's position that much of appellant's actual income was unreported during this time period. Appellant himself admitted during his testimony that some of his past income had been "under the table." (T. 123).
Appellee also maintained that, with the exception of a couple of voluntary payments after court hearings, appellant had consistently refused to pay the court ordered child support payments. Appellant's failure to provide child support forced appellee to utilize tax refund intercepts of appellant's tax refund check on a number of occasions. (T. 126).
Lastly, appellee testified that, in contrast to appellant, she has been steadily employed with Ohio Business Machines for approximately sixteen years as a senior data entry employee. (T. 31). Appellee stated further that she lived within the Lakewood School District for a number of years in order to provide a stable environment for the children. (See Family Conciliation Services Report dated 11/25/96).
At the conclusion of the hearing, the following exhibits were offered into evidence; a report from Family Court Services of the San Lois Obispo Superior Court for the State of California which was designated as Court Exhibit 1; a report from the Family Conciliation Services of Cuyahoga County Common Pleas Court, Domestic Relations Division, designated as Court Exhibit 2; the report of the guardian ad litem designated as Court Exhibit 3; a letter purported to be a letter of reference from appellant's current employer designated as defendant's Exhibit A; and a psychiatric report regarding appellant's mental health designated as Defendant's Exhibit B.
On March 26, 1997, the trial court issued its judgment entry disposing of all post decree motions. The trial court found appellees' motions for contempt for failure to pay child support, attorney fees and guardian ad litem fees to be well taken and granted. The trial court overruled appellant's motion for a change of custody.
The trial court then found appellant in contempt of court and ordered him to serve thirty days in the Cuyahoga County Jail and assessed a $250.00 fine. The trial court found further that appellant could purge the contempt order by paying appellee's attorney fees in the amount of $2,500 and the guardian ad litem fees in the amount of $2,400. Lastly, the trial court suspended appellant's visitation rights until such time as the above stated amounts were paid in full.
On April 25, 1997, appellant filed a timely notice of appeal from the judgment of the trial court.
I
Appellant's first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY REFUSING TO INTERVIEW THE MINOR CHILDREN IN CHAMBERS AND DENYING APPELLANT'S MOTION FOR AN IN CHAMBERS INTERVIEW.
Appellant maintains, through his first assignment of error, thatthe trial court improperly refused to interview the couple's minor children pursuant of R.C. 3109.04 (B(1) in spite of numerous requests to that effect by appellant. R.C. 3109.04(B)(1), which deals with the allocation of parental rights and responsibilities for care of children, provides:
(B)(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.
Where the language of a statute is clear and unambiguous, there is no need for statutory interpretation. The statute must be applied as written. Wingate v. Hordge (1979), 60 Ohio St.2d 55, 58, 396 N.E. 2d 770. A review of R.C. 3109.04(B)(1) demonstrates that the language of the statute is clear and unambiguous and should, therefore, be applied as written. Zygela v. Euler (Dec. 30, 1996), Lucas App. No. L-95-323, unreported. R.C. 3109.04(B)(1) provides that upon the request of either party to the action, the trial court shall interview the minor children in chambers. The use of the word "shall" denotes mandatory compliance with the requirements of the statute. Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534, 605 N.E. 2d 368.
In this case, appellant not only filed a motion with the trial court requesting an in chambers interview of the minor children pursuant to R.C. 3109.04(B)(1), appellant also renewed that requeston a number of occasions during the hearing of March 19, 1997. (T. 13, 14, 180). Clearly, under the present facts, the trial court was obligated to conduct an in chambers interview of the two minor children in accordance with the mandates of R.C. 3109.04(B)(1). Such a hearing is absolutely necessary even though the possibility...
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