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e-filed on 01/07/2019 04:25 PM in Wayne County, Ohio
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
SARAH L, SUPPAN
CASE NO, 14-DR-0382
Plaintiff )
Judge WIEST
vs. ) Magistrate DOSSI
JASON N. SUPPAN ) PLAINTIFF’S TRIAL BRIEF/
CLOSING ARGUMENT
Defendant )
Now comes Plaintiff, Sarah L. Suppan, by and through her undersigned counsel,
and hereby submits her Closing Argument to the Court.
SHRINER LAW OFFICE
By: /s/ Rosanne K. Shriner
Rosanne K. Shriner #0075257
449 North Market Street
Wooster, Ohio 44691
330.264.0278 Telephone
330.706.6491 Fax
Email: rosanne@shrinerlaw.com
Attorney for PlaintiffSTATEMENT CASE/FACTS
Sarah Suppan married Dr. Jason Suppan on July 18, 1997. The parties have two
children. Lillian R. Suppan, born on October 1, 1998, and Jason R. Suppan, born on July 11,
2000. The parties lived a majority of their marriage in Orrville, Ohio at 2829 Paradise Street
Extension in Orrville, Ohio.
Dr. Suppan is a Doctor of Podiatry. He is employed by Suppan Foot & Ankle Clinic,
Inc. He has 100% interest and ownership in the business.
Sarah was unemployed until the parties decided to terminate their marriage. In 2014,
based upon the recognition that their marriage was ending, Sarah obtained a certificate in
medical coding.
On October 30, 2014, Sarah Suppan filed a Complaint requesting the termination of her
marriage. This was after the parties’ negotiations for a dissolution failed. In December 2014,
the parties entered into a temporary orders agreement that would permit Sarah the financial
security to move out of the marital residence and establish a separate residence. The parties
further agreed to share the minor children on an equal basis and to be considered “co-
residential parents” during the pendency of the matter.
The parties were scheduled to hold a final hearing at the end of the 2015 calendar year.
However, not all of the discovery had completed, including the business valuation of the Clinic.
The final hearing was continued until February 2, 2016. The hearing concluded after a three
days of litigation. A Magistrate’s Decision was issued on October 11, 2016. Objections were
filed by Sarah Suppan and cross-objections by Dr. Suppan. One of Dr. Suppan’s objections
was sustained. Based upon the trial court’s decision, Sarah timely filed her Notice of Appeal.
Dr. Suppan being satisfied with the trial court’s decision had not filed a cross-appeal.On July 2, 2018, the Ninth District Court of Appeals reversed and remanded several of
Sarah’s assignments of error. Specifically, the Court reviewed Sarah’s first assignment of error
and determined that not all of Dr. Suppan’s income had been considered and included by the
trial court. The Appellate Court held that the trial court just ignored the additional income that
Dr. Suppan received from the business that he holds 100% ownership to. The Appellate Court
was unable to examine any other issue argued regarding child support because at the onset he
Court determined that Dr. Suppan’s income was not accurately included in the trial court’s
child support worksheet and resulting order. Therefore, the Court remanded the issue of child
support to determine the true and accurate income that the trial court must use for purposes of
child support. The Court of Appeals then went on to state that the trial court’s failure to
include Dr. Suppan’s true and accurate income also caused a rippling affect as to Sarah’s
assignments of error that addressed the child support deviation, spousal support and attorney
fees. Although the Appellate Court determined that each of these additional assignments of
error needed to be remanded because the Court could not even begin to analyze Sarah’s
assignments of error regarding the same without having Dr. Suppan’s proper income as part of
their consideration, the Court did not limit the trial court’s review of these additional issues just
to Dr. Suppan’s income. They were remanded for the trial court to further consider these issues
and to use Dr. Suppan’s true and accurate income.
After several months of exchanging information and discovery, the matter is now
scheduled for final hearing on December 12, 2018 and December 13, 2018.ARGUMENT
CHILD SUPPORT REMAND
Income:
Sarah is asking the Court to compute child support using Jason’s true and accurate
income. Jason is arguing that the trial court correctly determined his income and child support.
Sarah is asking that the Court, at the very least, average Dr. Suppan’s business
distribution income over the last several applicable years. In order to determine his accurate
child support calculation as addressed by the remand, the years used for this average of
distribution income should be 2010 through 2014. Dr. Suppan will likely argue that the
Appellate Court already determined that it was within the discretion of the trial court to average
and did not remand that issue. However, the Court of Appeals did not examine whether the
income from Dr. Suppan’s distributions should be average.
Regardless, Sarah believes that the trial court can consider all issues related to Dr.
Suppan’s income as the Appellate Court was unable to examine all of the arguments related to
Dr. Suppan’s income since the Court was unable to move past the glaring issue of a large
amount of income for Dr. Suppan not being accounted for. If all of these issues are not
examined through the pending litigation, then there would likely be another appeal, which is
not in the best interest of the parties or in interest of judicial economy.
The underlying purpose of “Ohio's child support legislation...is to meet the current
needs of the minor child." Harbour v. Ridgeway, 10th Dist. 2005-Ohio-2643, Marker v. Grimm
(1992), 65 Ohio.St.3d 139. Sarah is merely trying to have child support calculated in
accordance with the rationale and principle of child support.The Court of Appeals in Rossi v. Rossi (2014), 2014-Ohio-1832, 100133, 100144, Court
of Appeals of Ohio, Eighth District, upheld the trial court’s decision that averaging the
obligor’s income and distributions over five years was a "reliable method" to determine his
income as there was variability in his business. Section 3119.01(C)(7) defines gross income as:
“..the total of all earned and unearned income from all sources during a calendar year,
whether or not the income is taxable, and includes income from salaries, wages,
overtime pay, and bonuses to the extent described in division (D) of section 3119.05 of
the Revised Code; commissions; royalties; tips; rents; dividends; severance pay;
pensions; interest; trust income; annuities; social security benefits, including retirement,
disability, and survivor benefits that are not means-tested; workers’ compensation
benefits; unemployment insurance benefits; disability insurance benefits; benefits that
are not means-tested and that are received by and in the possession of the veteran who is
the beneficiary for any service-connected disability under a program or law
administered by the United States department of veterans' affairs or veterans’
administration; spousal support actually received; and all other sources of income.
"Gross income" includes income of members of any branch of the United States armed
services or national guard, including, amounts representing base pay, basic allowance
for quarters, basic allowance for subsistence, supplemental subsistence allowance, cost
of living adjustment, specialty pay, variable housing allowance, and pay for training or
other types of required drills; self-generated income; and potential cash flow from any
source.”
Self-generating income, defined in Section 3119.01(C)(13) is “gross receipts received
by a parent from self-employment, proprietorship of a business, joint ownership of a
partnership or closely held corporation, and rents minus ordinary and necessary expenses
incurred by the parent in generating the gross receipts. "Self-generated income" includes
expense reimbursements or in-kind payments received by a parent from self-employment, the
operation of a business, or rents, including company cars, free housing, reimbursed meals, and
other benefits, if the reimbursements are significant and reduce personal living expenses.”
Although there is variability in Dr. Suppan’s income and distributions, he has received
Income and Distributions from Suppan Foot & Ankle Clinic, Inc. for more than three years.The most reliable method of calculating his income is to take an average of the distributions
from the Clinic for the last five years.
By including a five-year average for the distributions from the Clinic totals $45,711.80.
If his five-year average of distributions is then included in his 2014 W-2 income of 103,600.00,
Dr. Suppan’s total income is $149,311.80. However, this income does not include the ordinary
business income that Dr. Suppan has through his business, Suppan Foot and Ankle Clinic, Inc.
A synopsis of that ordinary business income is as follows:
2010: $70,483.00
2011: $56,383.00
2012: $94,464.00
2013: $34,834.00
2014: ($17,717.00)
These numbers are derived after expenses for Suppan Foot and Ankle Clinic, Inc are
deducted from the clinics gross receipts. However, these deductions include, depreciation,
expenses for an attorney and accountant, which the amount deducted does not correlate with
the Clinic’s business records or checking account statements, personal cell phones for Dr.
Suppan and the children, and a handyman expense as well as utilities associated with the
commercial building that is a separate entity from Suppan Foot and Ankle Clinic, Inc.
Dr. Suppan will inevitably argue that the viability of his business and his income
decreased in 2014 and continues to plummet. Ironically, this decrease of income is also aligned
with the pendency of this case. The marriage of Sarah and Dr. Suppan broke down in 2014.
The parties agreed to terminate their marriage in 2014. After unsuccessfully attempting to
negotiate a settlement through a dissolution the matter was filed as a divorce by Sarah Suppan.
This is the same year that there is a significant difference in Dr. Suppan’s business income.
However, his gross receipt amount in 2014 were only $40,000 less than his gross receipts in2013. Yet in 2014 he shows a loss of $17,717.00 and in 2013 he shows income of $34,834.00
after taking distributions in excess of $55,000.00.
Dr. Suppan’s deductions are already questionable given his inability to demonstrate
documentation that coincides with his attorney/accountant deduction as well as taking non-
business related deductions for the business. Sarah believes that the Court should also
question his argument that his business is failing and income is decreasing through no fault of
his own.
Sarah is requesting that the Court consider his ordinary income from 2010 through the
final hearing in its analysis of in determining the proper amount of support to the needs of the
children herein.
Moreover, Dr. Suppan has the following additional income from ownership of
Commerce Parkway and Wooster Ambulatory and Surgery Center:
2012: CPA: $0.00,
WASC: $1397.00 per Schedule E of Tax Return, (Never provided documentation)
2013: CPA: $1,749.00 (passive income per Schedule E of Tax Return),
WASC: $17,408.00
2014: CPA: $2196.00(Passive Income per Schedule E of Tax Return)
WASC: $4887.00(Passive income per Schedule E of Tax Return)
Without averaging the last three years of income from these additional entities and
merely using the numbers from 2014, Dr. Suppan’s includable income at the time of the final
divorce hearing in 2015 should have been, at the very least, 156,394.80. Just using Dr.
Suppan’s income alone, the gross income is greater than $150,000.00 per year.
Gross Income Greater than $150,000.00 per year:
When the parents' combined gross income is greater than $150,000.00 per year, a court
"shall determine the amount of the obligor's child support obligation on a case-by-case basisand shall consider the needs and the standard of living of the children who are the subject of the
child support order and of the parents." R.C. 3119.04(B). Taking into consideration Jason’s W-
2 Income, average of distributions from the business, and distributions from CPA and WASC,
the parties combined income is more than $150,000.00 per year.
R.C. 3119.04 provides that "[t]he court ... shall compute a basic combined child
support obligation that is no less than the obligation that would have been computed under the
basic child support schedule and applicable worksheet for a combined gross income of one
hundred fifty thousand dollars, unless the court ... determines that it would be unjust or
inappropriate and would not be in the best interest of the child, obligor, or obligee to order
that amount." The statute mandates that should the court make "such a determination, it shall
enter in the journal the figure, determination, and findings."
We have already outlined Dr. Suppan’s minimal amount of includable income. His
income alone totals above $150,000.00 per year. However, the Court is to consider the
parties’ combined income. Sarah’s income for the applicable years is as follows:
2012: $12,000.00 (Payment from Suppan Foot & Ankle Clinic, Inc. to fund Sarah’s IRA, which Dr.
Suppan received half of the same)
2013: $12,000.00 (Payment from Suppan Foot & Ankle Clinic, Inc. to fund Sarah’s IRA, which Dr.
Suppan received half of the same)
2014: $6,285.00 Team Health
In cases where the parties' combined income exceeds $150, 000, the court is bound by
three requirements. The court must: (1) set the child support amount based on the qualitative
needs and standard of living of the children and parents; (2) ensure that the amount set is not
less than the $150,000-equivalent, unless awarding the $150,000-equivalent would be
inappropriate (i.e., would be too much); and (3) if it decides the $150,000-equivalent is
inappropriate or unjust (ie., awards less), then journalize the justification for that
decision. Zeitler v. Zeitler, 9th Dist. No. 04CA008444, 2004-Ohio-5551.Deviation:
Sarah does not believe a deviation is appropriate in this matter as it takes away her
ability to financially meet the children’s needs.
R.C. 3119.24(A)(1) requires a trial court to calculate child support for a shared
parenting order "in accordance with the schedule and with the worksheet set forth in [R.C]
3119.022.". Trial courts have considerable discretion in formulating child support awards.
Booth v. Booth, 44 Ohio St.3d 142, 144 (1989).
The underlying purpose of “Ohio's child support legislation...is to meet the current
needs of the minor child." Harbour v. Ridgeway, 10th Dist. 2005-Ohio-2643. R.C.
3113.215(B)(1) requires that a calculation of the amount of an obligor's child support obligation
must be made "in accordance with the basic child support schedule set forth in R.C.
3113.215(D), the applicable worksheet in R.C. 3113.215(E) or (F), and other requirements of
the law. Marker v. Grimm (1992), 65 Ohio.St.3d 139. R.C. 3113.215(B)(1) provides that the
amount calculated using the schedule and worksheet is a "rebuttable presumption" to be the
correct amount of child support due and that that amount must be ordered to be paid unless
both of the following apply:
"(a) The court, after considering the factors and criteria set forth in division (B)(3) of this
section, determines that the amount calculated pursuant to the basic child support schedule
and pursuant to the applicable worksheet, through line 18, would be unjust or inappropriate
and would not be in the best interest of the child.
"(b) The court enters in the journal the amount of child support calculated pursuant to the
basic child support schedule and pursuant to the applicable worksheet, through line 18, its
determination that that amount would be unjust or inappropriate and would not be in the
best interest of the child, and findings of fact supporting that determination." Marker v.
Grimm (1992), 65 Ohio.St.3d 139.The party who seeks to rebut the presumption and asks the court to deviate has the
burden of proof. Murray v. Murray (1999), 128 Ohio App.3d 662, 671.
The court may consider any of the following factors in determining whether to grant a
deviation pursuant to section 3119.22 of the Revised Code:
(A) Special and unusual needs of the children; (B) Extraordinary obligations for minor
children or obligations for handicapped children who are not stepchildren and who are
not offspring from the marriage or relationship that is the basis of the immediate child
support determination; (C) Other court-ordered payments; (D) Extended parenting time
or extraordinary costs associated with parenting time, provided that this division does
not authorize and shall not be construed as authorizing any deviation from the schedule
and the applicable worksheet, through the line establishing the actual annual obligation,
or any escrowing, impoundment, or withholding of child support because of a denial of
or interference with a right of parenting time granted by court order; (E) The obligor
obtaining additional employment after a child support order is issued in order to support
a second family; (F) The financial resources and the earning ability of the child; (G)
Disparity in income between parties or households; (H) Benefits that either parent
receives from remarriage or sharing living expenses with another person; (I) The
amount of federal, state, and local taxes actually paid or estimated to be paid by a parent
or both of the parents; (J) Significant in-kind contributions from a parent, including, but
not limited to, direct payment for lessons, sports equipment, schooling, or clothing; (K)
The relative financial resources, other assets and resources, and needs of each parent;
(L) The standard of living and circumstances of each parent and the standard of living
the child would have enjoyed had the marriage continued or had the parents been
married; (M) The physical and emotional condition and needs of the child; (N) The
need and capacity of the child for an education and the educational opportunities that
would have been available to the child had the circumstances requiring a court order for
support not arisen; (O) The responsibility of each parent for the support of others; (P)
Any other relevant factor.
The court granted a deviation to Jason in the amount of $11,068 annually when health
insurance is provided and $9,919 annually when health insurance is not provided, which
required a support obligation by Dr. Suppan of merely $400.00 per month. (See Magistrate’s
Decision, page 6).
Although the Judgment Entry Decree of Divorce fails to provide reasoning for the
deviation, the magistrate’s decision state that the deviation was based upon equal parentingtime, dividing costs associated with the children in accordance with Line 16 of the support
obligation and Dr. Suppan paying 100% of uninsured medical expenses as well as the factors
outlined in Section 3119.22. (Magistrate’s Decision, page 5-6).
This deviation equates to 69.75%. This deviation is unreasonable and strips Sarah of
her financial ability to meet the needs of the children.
Deviation based upon Parenting Time: While the parties agreed to enter a shared parenting
plan whereby the children equally divide their time between the parties’ households, the
division of time does not necessarily require a deviation of child support. Rather, the Court
must also consider the disparity in the parties’ income. Additionally, while the shared
parenting plan may outline that the children will equally divide their time between the parties’
households, a basic child support calculation considers the time and expense associated with a
schedule such as the Local Rule of visitation. Additionally splitting time between households
does not necessarily mean that the parties shall have equal expenses at their respective
households. Especially, when one of the parents is gone from the home due to traveling or
participating in bike races on a regular basis.
In Irish v. Irish (2011), 2011-Ohio-3111, C. A. 10CA009810, the Ninth District Court
of Appeals, reversed the trial court’s decision to deviate from basic child support amount. The
Appellate Court held that Father, who requested the deviation and was required to demonstrate
that the basic support obligation was not in the children’s best interest, failed to produce
evidence that it was in the children's best interest for the court to deviate from the presumed
child support amount given the difference between the parties’ incomes. Additionally, the
Court held that although there must be a threshold determination that a deviation is in thechildren's best interest because of the “extraordinary circumstances of the parents or other
factors, there must also be a factual finding to support that conclusion.” Jrish at.
In /rish, the trial court considered extraordinary circumstances set forth in R.C. 3119.24
and the factors set forth in R.C. 3119.23 based upon the evidence presented at the hearing.
These factors were parenting time, ability to provide housing, disparity of income, benefits
from remarriage or shared living expenses, in-kind contributions, and relative resources. The
Irish trial court then ordered a deviation based upon parenting time and healthcare expenses.
However, the Court of Appeals overturned the trial court’s decision to deviated based
upon Father’s failure to present evidence in support of a deviation. Basically, Father only
presented evidence that the parents’ parenting time was equally divided. The Court held that
Father did not “overcome the presumption that the annual amount was correct because the
disparity of their income and relative financial resources, when coupled with the children's
needs and Mother’s inability to provide housing, which outweighed consideration of the
parenting time schedule.” The Appellate Court noted that even though a shared parenting plan
is involved, "no automatic credit in the support order for the time the child(ren) reside
with that parent is warranted." citing Spencer v. Spencer, Sth Dist. No. 2005-CA-00263,
2006-Ohio-1913, at §44, citing Pauly v. Pauly (1997), 80 Ohio St.3d 386, 390. “The mere fact
that a factor is present is not determinative.” /rish, citing Mitchell v. Mitchell 11th Dist. No.
2009-L-124, 2010-Ohio-2680, at §28.
In the /rish matter, the father presented evidence that he has the children at least 50% of
the time in accordance with the terms of the shared parenting plan as well as costs regarding
their care, such as food and clothing. The trial court concluded that the “time caring directly for
the children and the cost of their clothing justified a 50% deviation.” The Court of Appealsexplained in reversing the trial court that the trial court failed to properly consider that by
granting a 50% deviation it in effect was concluding that half of the children's needs were being
met by Father.” As well as failing to properly consider “Mother's ability to provide adequate
housing.”
The Appellate Court pointed out that "one cannot discount the traditional principles that
oversee all grants of child support." Ohlemacher v. Ohlemacher, 9th Dist. No. 04CA008488,
2005-Ohio-474, at 34. “Those traditional principles provide that each parent has a common
law duty to support the minor children by providing "necessaries" such as food, clothing,
shelter, and medical care.” Jrish, citing Kulcsar v. Petrovic (1984), 20 Ohio App.3d 104, 105.
When determining the necessary and reasonable amount of child support, a court should
consider the children's current needs and inability of a parent to meet the needs of the children
while in his/her care if a deviation is granted. Ohlemacher at 32. “It is not a question of
equalizing incomes or satisfying standard of living requirements, but of providing necessities
for the children such as food and shelter.” /rish. The Court of Appeals concluded that the trial
court abused its discretion in failing to consider the Mother's inability to meet the needs of the
children while in her care. The court stated, “[i]t is not a question of equalizing incomes or
satisfying standard of living requirements, but of providing necessities for the children such as
food and shelter.” /rish.
In the Suppan matter, looking at the income disparity alone with Dr. Suppan at a
minimum income of $156,394.80 and Sarah at just over $6,000.00 in 2014, a deviation is not
justifiable or in the best interest of the children. Such a deviation divests Sarah from having the
financial ability to provide for the children.Even though Sarah has been living with this large financial disadvantage since 2014 and
even more so beginning in 2016, she has still financially provided for her children by living
minimally, buying a fixer-upper home and using her property settlement check to supplement
those unexpected child expenses.
The evidence will show that Sarah paid for the children’s uninsured medical expenses
and for months Dr. Suppan failed to reimburse her. In fact, Dr. Suppan has still failed to
reimburse Sarah for all those expenses. The evidence will also demonstrate that Sarah paid for
the children’s expenses while Dr. Suppan Jason failed to timely reimburse her. Not only did
Dr. Suppan decide when he was going to make said reimbursement, but he also left the children
during his weeks of parenting time on a regular basis, whch caused Sarah to transport the
children during Dr. Supan’s parenting time as well as feed the children during Dr. Suppan’s
parenting time.
The presence of a deviation factor is not enough to justify that a deviation is in the best
re «6,
interest of the minor children. Dr. Suppan’s “additional expenses” for the children are used as
a tax dudction, specifically the children’s cell phones and household utilities. He does not
provide the children with health insurance, Sarah provides this exclusively. Moreover, even id
Dr. Supan has justifiable “additional expenses” (which have never been clearly outlined), with
the disparity of incomes, any deviation would cripple Sarah’s financial ability to meet the needs
and provide for the necessities of the children herein, including food and shelter.
The Court of Appeals in the /rish matter specifically held that we must consider the
ability of the parents to meet the needs of the minor children while they are spending time in
each parent’s household. Any deviation in Dr. Suppan’s support obligation ignores the best
interest of the minor children.No deviation is warranted based upon the equal sharing of parenting time.
Other Factors:
The prior Magistrate also cited justification for the deviation based upon Dr. Suppan
paying 100% of the children’s uninsured medical expenses. Sarah has been covering the
children on her health insurance since October 2016, alleviating the private health insurance
expense for Dr. Suppan. Although the trial court’s decision fails to note it, the uninsured
medical expenses for the children are minimal. The deductible is $750.00 per person. (Tr.524-
525). Co-pays for office visits are merely $25.00. Dr. Suppan paying 100% of the uninsured
expenses is a minimal expense for someone who earns over $150,000 per year and it is not in
the best interest of the children to use this factor as justification for a deviation.
The trial court also notes that Dr. Suppan will be paying marital debt and retaining the
marital home while Sarah will be leaving the marriage debt-free and living in a smaller home.
The trial court also reports that the children would have enjoyed a higher standard of living
based on the combined resources of the parties had they remained married. However, the
children will still enjoy this higher standard of living when with their father, just not their
mother if Dr. Suppan receives said deviation.
Dr. Suppan shall continue to raise the children in the large and plush marital home with
acreage and horse stables. During Dr. Suppan’s parenting time, the children remain, when
actually staying there, in the same household and enjoy the same perks that they received while
the parties lived together. The children also be able to continue to vacation with their father.
During Sarah’s parenting time, the children reside in a smaller residence and enjoy no
additional perks, vacations or entertainment.Regarding the debt referenced by the trial court, it is secured by assets that Dr. Suppan
is retaining. Sarah received her Prius vehicle, however she is responsible for the debt secured
by the vehicle. Other than her vehicle, she is not receiving any high value assets. There is only
one marital credit card that Jason is retaining in the amount of $5,414.00. This does not justify
a deviation.
SPOUSAL SUPPORT REMAND:
Again, the Court of Appeals was unable to fully review the issue of spousal support as
there analysis was disrupted by not having a true and accurant amount of income for Dr.
Suppan.
Using the minimal amount of income attributable to Dr. Suppan of $156,394.80, the
prior award of spousal support is unreasonable and inappropriate. Sarah should have received
an award of spousal support of at least $3,000.00 per month.
Using the factors provided in section 3105.171 of the Revised Code it is reasonable and
appropriate for the Court to grant a spousal support award payable by Jason to Sarah for more
than $3000.00 per month for a period of seventy-two (72) months. The court must consider the
following making this determination:
Ohio Revised Code, Section 3105.18 provides the following:
(C)(1) In determining whether spousal support is appropriate and reasonable, and in
determining the nature, amount, and terms of payment, and duration of spousal support,
which is payable either in gross or in installments, the court shall consider all of the
following factors:
(a) The income of the parties, from all sources, including, but not limited to, income
derived from property divided, disbursed, or distributed under section 3105.171 of the
Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the
physical, mental, and emotional conditions of the parties; (d) The retirement benefits of
the parties; (e) The duration of the marriage; (f) The extent to which it would be
inappropriate for a party, because that party will be custodian ofa minor child of the marriage, to seek employment outside the home; (g) The standard
of living of the parties established during the marriage; (h) The relative extent of
education of the parties; (i) The relative assets and liabilities of the parties, including
but not limited to any court-ordered payments by the parties; (j) The contribution of
each party to the education, training, or earning ability of the other party, including, but
not limited to, any party's contribution to the acquisition of a professional degree of the
other party; (k) The time and expense necessary for the spouse who is seeking spousal
support to acquire education, training, or job experience so that the spouse will be
qualified to obtain appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought; (1) The tax consequences, for each
party, of an award of spousal support; (m) The lost income production capacity of either
party that resulted from that party's marital responsibilities; (n) Any other factor that the
court expressly finds to be relevant and equitable.
To reiterate the relevant factors previously presented at the 2016 trial: The parties
married on July 18, 1997, which classifies this marriage as a long-term marriage. Sarah met Dr.
Suppan in Texas. Sarah resided in Texas and Dr. Suppan completed his residency at a local
hospital. (Tr.345). Upon completing his residency Sarah and Dr. Suppan moved to Ohio, where
Jason grew up. (Tr.346). They married two weeks after returning to Ohio. (Tr.346). Sarah did
not receive a college degree. (Tr.369). Rather she quit her job at a hospital in Texas so that Dr.
Suppan could return to his family and his family’s podiatry practice located in Ohio.(Tr.344-
345). After the parties were married, Sarah requested to return to college, but Dr. Suppan did not
support this. (Tr.466). Based upon no education or job skills, Sarah earned minimum wage
working for an insurance agency. (Tr.369). Upon the birth of the parties’ first child, Sarah quit
her employment and never worked outside the home until the parties’ separated. (Tr.369, 467)
Although, Dr. Suppan attempted to testify that she worked for his Clinic, he ultimately
acknowledged that the annual pay of $12,000.00 that Sarah earned from the Clinic was merely
payments to fund the marital IRA. (Tr.370).
Dr. Suppan is a Doctor of Podiatric Medicine. (Tr.379) He is a board-certified
Podiatrist. (Tr.379). upon realizing their marriage was ending, Sarah earned a certificate formedical coding. In 2014, Sarah earned $6,825.00. Although it is commendable that Sarah has
secured income given her work history, she has little potential to earn much more income.
Dr. Suppan earns at a minimum in come in excess of $155,000.00. He can earn as much
or little as he desires based upon his education and self-employment. Dr. Suppan, by earning a
higher rate of pay and having greater financial resources will likely continue to fund his
retirements while Sarah will not be in the same position to do so. (Tr. 371-372). In fact
according to financial statements completed by Dr. Suppan in 2018, he has the same amount of
assets, in excess of $1,000,000.00, in 2018 as he had prior to the parties’ final divorce decree
issued in 2016. (See financial statements of Jason Suppan, Exhibit J).
Dr. Suppan is 46 years old and in excellent health. (Tr.371.) He continues to enjoy a
rather expensive hobby of competitive cycling. (Tr.371). Throughout the pendency of these
proceedings, he has been able to travel and vacation for personal enjoyment and cycling events,
including West Virgina and North Carolina.(Tr.375). Moreover, Dr. Suppan has remained in the
home valued over $370,000.00. He has vacationed, he has participated in his hobby of cycle
racing, and he has continued to enjoy entertainment and eating out in restaurants. (Tr.275-377).
Even the trial court notes that the parties enjoyed a higher standard of living. That
lifestyle was based upon Dr. Suppan’s income, not Sarah’s income. Dr. Suppan is the only
party that continues to enjoy that lifestyle, while Sarah is forced to scrape together enough
money to meet her monthly expenses.
Case law in our Ninth District is fairly clear that “need” is not a basis for the award of
spousal support and the “reasonable and appropriate” standard should be utilized by our court.
However, in reality it is not only reasonable and appropriate for Jason to pay spousal support inthe amount of $3,000.00 it is also necessary as Sarah will need significant financial assistance
from Jason in order to meet her very conservative budget.
ATTORNEY FEES/LITIGATION EXPENSES REMAND
Section 3105.73 of the Ohio Revised Code governs award of attorney's fees and
litigation expenses. Subsection (A) states the following:
A) In an action for divorce, dissolution, legal separation, or annulment of marriage or an
appeal of that action, a court may award all or part of reasonable attorney's fees and litigation
expenses to either party if the court finds the award equitable. In determining whether an award
is equitable, the court may consider the parties' marital assets and income, any award of
temporary spousal support, the conduct of the parties, and any other relevant factors the court
deems appropriate.
An award of attorney fees and litigation expenses is appropriate in this matter. Sarah is
at a financial disadvantage and unable to pay her attorney fees. It is well outlined that at a
minimum Sarah earned $120,000.00 less than Jason in 2014. It is also well documented that
she does not have the financial resources that Jason has. During the proceedings he was n able
to make payments for his attorney fees and litigation expenses. In fact, he used his business to
pay some of those expenses for his expert and likely his attorney.
Sarah does not have these same resources. She has her limited wages and does not earn
$4000.00, as minimum, every two weeks as Dr. Suppan does. She has kept her expenses to a
minimum but she still does not have excess money available to her to pay these fees.
Merely looking at Sarah’s income versus Dr. Suppan’s income requires an award of
attorney fees as the same is equitable.
Dr. Suppan will inevitably argue that Sarah should not receive an award of fees because
she was obstructive during the pendency of the divorce proceedings and continued to cause
litigation expenses and fees based upon her appeal and remand. He will likely try to persuade
the trial court that the reviewing Judge got it right the first time and this remand is simply alast-ditch effort by Sarah to bleed Dr. Suppan dry and the trial court should stick with its
original decision regarding each of the remanded issues including attorney fees. However that
is not reasonable and appropriate, in the best interest of the children nor is it fair and equitable.
Just looking at Jason’s arguments regarding fees and expenses:
1. The continuance of final hearing in 2015: At the time of the originally scheduled
divorce hearing in 2015, discovery had not been completed. Moreover, the matter had been
pending less than twelve months. Sarah did not have any money and Dr. Suppan refused to
pay any of the litigation expenses for Sarah to hire an expert. Sarah had to find an expert that
would work with her financial issues. Ultimately Sarah had to place her expert’s fees on her
credit card, after the decision was received (in order to follow the mutual restraining order).
Moreover, Dr. Suppan had not provided all the documentation for a true valuation to be
completed.
2. Motions to Compel: The Motion to Compel was based upon Sarah refusing to
disclose personal information that Manny told her in confidence and she did not want to break
his confidence. The other issue dealt with questions regarding Sarah’s sex life that were
irrelevant to the proceedings since at the time, the children were not at issue. The children’s
schedule only became relevant well after these personal irrelevant questions were asked of
Sarah.
3. Request for a Guardian ad litem and Agreement to a Shared Parenting Plan:
During the pendency of the proceedings Sarah had growing concerns about Jason’s parenting.
He was not around for the children on his week. He was not providing for their needs. The
children’s money had been taken by Jason from their personal accounts. Therefore, Sarah
requested a Guardian ad litem to investigate. Once the Guardian recommended a sharedparenting plan and Sarah analyzed her ability to convince the Court that a shared parenting plan
was not in the best interest of the children, she consented to the adopting of said plan.
4. Amended Tax Returns and 2014 Tax Return filing: Sarah, as was her right to do
so, wanted her own accountant to review these proposed returns that were prepared by Dr.
Suppan’s personal accountant, Rea and Associates. But Dr. Suppan wanted them signed
without Sarah having that opportunity.
Dr. Suppan enjoys blaming Sarah for nearly everything. Dr. Suppan truly ignores his
own culpability through his actions. For instance, Dr. Suppan has been obstructive to the
discovery process through these entire proceedings. In the divorce proceedings he failed to
provide credit card statements, pay stubs, bank statements, 1099s, K-1s (he finally produced
these). In fact, at the final hearing he requested that Sarah be held responsible for one-half of
the debt that he incurred during the pendency of divorce, which was contrary to the mutual
restraining order. It was this same credit card debt that Sarah repeatedly requested the
statements of to determine why Jason had accumulated so much credit card debt throughout the
pendency of this matter. She incurred attorney fees just trying to get the documentation that she
was entitled to through the discovery process.
The pending matter is more of the same. There has been extensive discovery requested.
The following is a synopsis of those requests:
Defendant’s First Set of Interrogatories and Request for Production of Documents
served on December 14, 2017, Sarah respond January 11, 2018
Defendant’s Request for Admissions, Supplemental Interrogatories and Supplemental
Request for Production of documents served on January 8, 2017, Sarah respond February 5,2018 to Defendant’s Request for Admissions, and Sarah responded to the supplemental
requests on February 23, 2018
Defendant’s Third Set of Interrogatories and Request for Production of Documents
served on January 25, 2018, Sarah Responded on February 23, 2018
Plaintiff's First Set of Interrogatories and Request for Production of Documents served
on October 13, 2017, Jason respond on November 28, 2017
Plaintiff's Second Set of Interrogatories and Request for Production of Documents
served on May 2018, Jason responded on June 7, 2018
Plaintiff's Third Set of Interrogatories and Request for Production of Documents served
on August 27, 2018, Jason has NOT FULLY responded.
Dr. Suppan has not provided credit cards statements, pay stubs, and 2015 personal and
business taxes. Moreover, at his deposition, Dr. Suppan indicated that he did not save any text
messages, yet, at the deposition he provided text message conversations that were screen shots
from his cellular phone.
Dr. Suppan also refused to give Sarah information and documentation related to
expenses for commercial building so that she could accurately file her 2015 income taxes since
1099 for the commercial building came in Sarah’s name. Sarah also had difficulty in getting the
personal property divided. She has also incurred unnecessary expenses chasing down
information that Dr. Suppan failed to provide or she had to get the correct information due to
misrepresentations.
Awarding fees, attorney fees and litigation fees to Sarah is equitable.
CHILD SUPPORT REVIEW/MODIFICATION:
The Court must also consider Dr. Suppan’s income for 2015, 2016 and 2017 as part ofSarah’s request for a review and modification upon her objection to the child support agency’s
determination of support upon Lilly emancipating.
The relevant income for Dr. Suppan for these years is as follows:
2015: DR. SUPPAN failed to provide
2016: $8,794.00 ordinary income
$6,866.00 Distributions
$108,376.00 salary
$2,000.00 Commerce Parkway
$9,723.30 WASC
2017: $9,892.00 ordinary income
$19,316.00 Distributions
$106,871.00 salary
$2,000.00 Commerce Parkway
$16,391.50 WASC
Dr. Suppan’s average five years of distributions is $30,590.00. Using the average of his
distributions, income from WASC, Commerce Parkway and his 2017 salary, Dr. Suppan’s
income if $155,852.50. This does not include his ordinary business income, which was
calculated after the inclusion of expenses of depreciation, personal cell phones, health
insurance, commercial building expenses, and inaccurate deductions for his
accountant/attorney.
Sarah’s Income:
2015 30,849.00
2016 30,753.00
2017 31,274.00
Additionally, Sarah covers the medical insurance for the minor child. Her total cost
differential for medical, dental and vision coverage is $3,241.16 per year. Just as argued above,
the parties’ income disparity as well as other relevant factors provides that a deviation is not in
the best interest of the minor child.
Lastly, the combined income of the parties still exceeds $150,000.00 per year andsupport should be calculated accordingly.
CONTEMPTS:
Contempt of court is defined as "disobedience of an order of a court...which brings the
administration of justice into disrespect, or which tends to embarrass, impede or obstruct a
court in the performance of its functions." Sparks v. Sparks, 12th Dist. No. CA2010-10-096,
2011-Ohio-5746, 4 11, quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, paragraph one
of the syllabus (1971). To support a contempt finding, the moving party must establish by clear
and convincing evidence that a valid court order exists, that the offending party had knowledge
of the order, and that the offending party violated such order. Ossai-Charles v. Charles,12th
Dist. Nos. CA2010-12-129, CA2011-01-007, 201 1-Ohio-3766, § 30.
Contempt has been classified as either direct or indirect. Direct contempt occurs in the
presence of the court in its judicial function. R.C. 2705.01. Indirect contempt involves behavior
that occurs outside the presence of the court and demonstrates a lack of respect for the court or
its lawful orders. State v. Drake (1991), 73 Ohio.App.3d 640, 643. One accused of indirect
contempt is entitled to a "hearing on the charge, at which the court must investigate the charge,
hear any answer or testimony that the accused makes or offers, and then determine whether the
accused is guilty." Hueber v. Hueber, 12" Dist. Nos. CA2006-01-004, CA2006-02-019,
CA2006-02-020, 2007-Ohio-913, 916, citing Windham Bank v. Tomaszczyk (1971), 27 Ohio
St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus.
"The distinction between civil and criminal contempt depends upon the character and
purpose of the sanctions imposed." Mackowiak v. Mackowiak, 12th Dist. No. CA2010-04-009,
2011-Ohio-3013. Where the sanctions imposed are primarily for reasons benefiting the
complainant and are remedial and coercive in nature, the contempt is civil innature. /d. "Prison sentences imposed as punishment for civil contempt are conditional, and the
contemnor is said to carry the keys of his prison in his own pocket due to the fact that his
compliance with the court order secures his freedom." Whittington v. Whittington, 12th Dist.
No. CA2011-06-065, 2012-Ohio-1682.
In cases of criminal contempt, it must be shown that the contemptor intended to defy the
court. Jn re Estate of Lanning, 7" Dist. No. 00 CA 110, 2003-Ohio-1438, citing Midland Steel
Prods. Co. v. U.A.W. Local 486 (1991), 61 Ohio.St.3d 121. In addition, the offending conduct
must constitute an imminent threat to the administration of justice. Oakwood Village v. Brown,
Cuyahoga App. Nos. 89135 and 89786.
The burden of proof is upon the movant for a finding of contempt. Proof beyond a
reasonable doubt is required in criminal contempt cases. Brown v. Executive 200, Inc. (1980),
64 Ohio St.2d 250. The movant must demonstrate by clear and convincing evidence that a civil
contempt has been committed. /d., citing Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d
250, 253.
There are two elements to a contempt. The first is a finding of contempt; the second is
the imposition of a penalty. Moser v. Moser, 11th Dist. 2008-Ohio-5860. Pursuant to R.C.
2705.02(A), a person may be punished for contempt if he is guilty of "[d]isobedience of, or
resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer."
Fisher v. Fisher, 2009-Ohio-4739, citing Pugh v. Pugh (1984), 15 Ohio.St.3d 136, 139-40.
A, Indirect Criminal Contempt
Indirect contempt involves behavior that occurs outside the presence of the court and
demonstrates a lack of respect for the court or its lawful orders. State v. Drake (1991), 73Ohio.App.3d 640, 643. The complained of behavior in this matter occurred outside the
presence of the Court causing it to be considered as an indirect contempt.
With any criminal contempt finding, it must be shown that the contemptor intended to
defy the court. In re Estate of Lanning, 7" Dist. No. 00 CA 110, 2003-Ohio-1438, citing
Midland Steel Prods. Co. v. U.A.W. Local 486 (1991), 61 Ohio.St.3d 121, 573 N.E.2d 98,
paragraph two of the syllabus. In addition, the offending conduct must constitute an imminent
threat to the administration of justice. Oakwood Village v. Brown, Cuyahoga App. Nos. 89135
and 89786, 2008-Ohio-3151, citing Cleveland v. Heben (1991), 74 Ohio.App.3d 568, 599
N.E.2d 766.
Moreover, proof beyond a reasonable doubt is required in criminal contempt cases.
Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250."The essential elements of criminal
contempt are the lawful and reasonably specific order of a court and the willful violation of that
order. Criminal contempt involves conduct that is calculated to embarrass, hinder, or obstruct
the administration of justice and is used to vindicate the authority of a court and to punish the
offending participant." 17 American Jurisprudence 2d (1990), Contempt, Section 5.
In order to find a person in criminal contempt of court, “the court order must contain the
specificity necessary for the person to "readily know exactly what duties or obligations are
imposed upon him." Highland Square Mgmt, Inc. v. Willis & Linnen Co., LP.A., Summit App.
Nos. 21234 and 21243, 2003-Ohio-2630. "A trial court cannot impose contempt sanctions on a
party if the party cannot know whether or not its actions violate the trial court's order." Contos
vy. Monroe County, Monroe App. No. 04 MO 3, 2004-Ohio-6380.
B. Indirect Civil ContemptThe Court must review the pending motions for contempt herein as an indirect civil
contempt.
The burden of proof is upon the movant for a finding of contempt. The movant must
demonstrate by clear and convincing evidence that a civil contempt has been committed. /d.,
citing Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253. "Clear and convincing
evidence is that measure or degree of proof which is more than a mere preponderance of the
evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in
criminal cases, and which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio.St. 469.
Indirect civil contempt finding should provide punishment that is remedial or coercive
in na
Preview
e-filed on 01/07/2019 04:25 PM in Wayne County, Ohio IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO SARAH L, SUPPAN CASE NO, 14-DR-0382 Plaintiff ) Judge WIEST vs. ) Magistrate DOSSI JASON N. SUPPAN ) PLAINTIFF’S TRIAL BRIEF/ CLOSING ARGUMENT Defendant ) Now comes Plaintiff, Sarah L. Suppan, by and through her undersigned counsel, and hereby submits her Closing Argument to the Court. SHRINER LAW OFFICE By: /s/ Rosanne K. Shriner Rosanne K. Shriner #0075257 449 North Market Street Wooster, Ohio 44691 330.264.0278 Telephone 330.706.6491 Fax Email: rosanne@shrinerlaw.com Attorney for PlaintiffSTATEMENT CASE/FACTS Sarah Suppan married Dr. Jason Suppan on July 18, 1997. The parties have two children. Lillian R. Suppan, born on October 1, 1998, and Jason R. Suppan, born on July 11, 2000. The parties lived a majority of their marriage in Orrville, Ohio at 2829 Paradise Street Extension in Orrville, Ohio. Dr. Suppan is a Doctor of Podiatry. He is employed by Suppan Foot & Ankle Clinic, Inc. He has 100% interest and ownership in the business. Sarah was unemployed until the parties decided to terminate their marriage. In 2014, based upon the recognition that their marriage was ending, Sarah obtained a certificate in medical coding. On October 30, 2014, Sarah Suppan filed a Complaint requesting the termination of her marriage. This was after the parties’ negotiations for a dissolution failed. In December 2014, the parties entered into a temporary orders agreement that would permit Sarah the financial security to move out of the marital residence and establish a separate residence. The parties further agreed to share the minor children on an equal basis and to be considered “co- residential parents” during the pendency of the matter. The parties were scheduled to hold a final hearing at the end of the 2015 calendar year. However, not all of the discovery had completed, including the business valuation of the Clinic. The final hearing was continued until February 2, 2016. The hearing concluded after a three days of litigation. A Magistrate’s Decision was issued on October 11, 2016. Objections were filed by Sarah Suppan and cross-objections by Dr. Suppan. One of Dr. Suppan’s objections was sustained. Based upon the trial court’s decision, Sarah timely filed her Notice of Appeal. Dr. Suppan being satisfied with the trial court’s decision had not filed a cross-appeal.On July 2, 2018, the Ninth District Court of Appeals reversed and remanded several of Sarah’s assignments of error. Specifically, the Court reviewed Sarah’s first assignment of error and determined that not all of Dr. Suppan’s income had been considered and included by the trial court. The Appellate Court held that the trial court just ignored the additional income that Dr. Suppan received from the business that he holds 100% ownership to. The Appellate Court was unable to examine any other issue argued regarding child support because at the onset he Court determined that Dr. Suppan’s income was not accurately included in the trial court’s child support worksheet and resulting order. Therefore, the Court remanded the issue of child support to determine the true and accurate income that the trial court must use for purposes of child support. The Court of Appeals then went on to state that the trial court’s failure to include Dr. Suppan’s true and accurate income also caused a rippling affect as to Sarah’s assignments of error that addressed the child support deviation, spousal support and attorney fees. Although the Appellate Court determined that each of these additional assignments of error needed to be remanded because the Court could not even begin to analyze Sarah’s assignments of error regarding the same without having Dr. Suppan’s proper income as part of their consideration, the Court did not limit the trial court’s review of these additional issues just to Dr. Suppan’s income. They were remanded for the trial court to further consider these issues and to use Dr. Suppan’s true and accurate income. After several months of exchanging information and discovery, the matter is now scheduled for final hearing on December 12, 2018 and December 13, 2018.ARGUMENT CHILD SUPPORT REMAND Income: Sarah is asking the Court to compute child support using Jason’s true and accurate income. Jason is arguing that the trial court correctly determined his income and child support. Sarah is asking that the Court, at the very least, average Dr. Suppan’s business distribution income over the last several applicable years. In order to determine his accurate child support calculation as addressed by the remand, the years used for this average of distribution income should be 2010 through 2014. Dr. Suppan will likely argue that the Appellate Court already determined that it was within the discretion of the trial court to average and did not remand that issue. However, the Court of Appeals did not examine whether the income from Dr. Suppan’s distributions should be average. Regardless, Sarah believes that the trial court can consider all issues related to Dr. Suppan’s income as the Appellate Court was unable to examine all of the arguments related to Dr. Suppan’s income since the Court was unable to move past the glaring issue of a large amount of income for Dr. Suppan not being accounted for. If all of these issues are not examined through the pending litigation, then there would likely be another appeal, which is not in the best interest of the parties or in interest of judicial economy. The underlying purpose of “Ohio's child support legislation...is to meet the current needs of the minor child." Harbour v. Ridgeway, 10th Dist. 2005-Ohio-2643, Marker v. Grimm (1992), 65 Ohio.St.3d 139. Sarah is merely trying to have child support calculated in accordance with the rationale and principle of child support.The Court of Appeals in Rossi v. Rossi (2014), 2014-Ohio-1832, 100133, 100144, Court of Appeals of Ohio, Eighth District, upheld the trial court’s decision that averaging the obligor’s income and distributions over five years was a "reliable method" to determine his income as there was variability in his business. Section 3119.01(C)(7) defines gross income as: “..the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses to the extent described in division (D) of section 3119.05 of the Revised Code; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; benefits that are not means-tested and that are received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a program or law administered by the United States department of veterans' affairs or veterans’ administration; spousal support actually received; and all other sources of income. "Gross income" includes income of members of any branch of the United States armed services or national guard, including, amounts representing base pay, basic allowance for quarters, basic allowance for subsistence, supplemental subsistence allowance, cost of living adjustment, specialty pay, variable housing allowance, and pay for training or other types of required drills; self-generated income; and potential cash flow from any source.” Self-generating income, defined in Section 3119.01(C)(13) is “gross receipts received by a parent from self-employment, proprietorship of a business, joint ownership of a partnership or closely held corporation, and rents minus ordinary and necessary expenses incurred by the parent in generating the gross receipts. "Self-generated income" includes expense reimbursements or in-kind payments received by a parent from self-employment, the operation of a business, or rents, including company cars, free housing, reimbursed meals, and other benefits, if the reimbursements are significant and reduce personal living expenses.” Although there is variability in Dr. Suppan’s income and distributions, he has received Income and Distributions from Suppan Foot & Ankle Clinic, Inc. for more than three years.The most reliable method of calculating his income is to take an average of the distributions from the Clinic for the last five years. By including a five-year average for the distributions from the Clinic totals $45,711.80. If his five-year average of distributions is then included in his 2014 W-2 income of 103,600.00, Dr. Suppan’s total income is $149,311.80. However, this income does not include the ordinary business income that Dr. Suppan has through his business, Suppan Foot and Ankle Clinic, Inc. A synopsis of that ordinary business income is as follows: 2010: $70,483.00 2011: $56,383.00 2012: $94,464.00 2013: $34,834.00 2014: ($17,717.00) These numbers are derived after expenses for Suppan Foot and Ankle Clinic, Inc are deducted from the clinics gross receipts. However, these deductions include, depreciation, expenses for an attorney and accountant, which the amount deducted does not correlate with the Clinic’s business records or checking account statements, personal cell phones for Dr. Suppan and the children, and a handyman expense as well as utilities associated with the commercial building that is a separate entity from Suppan Foot and Ankle Clinic, Inc. Dr. Suppan will inevitably argue that the viability of his business and his income decreased in 2014 and continues to plummet. Ironically, this decrease of income is also aligned with the pendency of this case. The marriage of Sarah and Dr. Suppan broke down in 2014. The parties agreed to terminate their marriage in 2014. After unsuccessfully attempting to negotiate a settlement through a dissolution the matter was filed as a divorce by Sarah Suppan. This is the same year that there is a significant difference in Dr. Suppan’s business income. However, his gross receipt amount in 2014 were only $40,000 less than his gross receipts in2013. Yet in 2014 he shows a loss of $17,717.00 and in 2013 he shows income of $34,834.00 after taking distributions in excess of $55,000.00. Dr. Suppan’s deductions are already questionable given his inability to demonstrate documentation that coincides with his attorney/accountant deduction as well as taking non- business related deductions for the business. Sarah believes that the Court should also question his argument that his business is failing and income is decreasing through no fault of his own. Sarah is requesting that the Court consider his ordinary income from 2010 through the final hearing in its analysis of in determining the proper amount of support to the needs of the children herein. Moreover, Dr. Suppan has the following additional income from ownership of Commerce Parkway and Wooster Ambulatory and Surgery Center: 2012: CPA: $0.00, WASC: $1397.00 per Schedule E of Tax Return, (Never provided documentation) 2013: CPA: $1,749.00 (passive income per Schedule E of Tax Return), WASC: $17,408.00 2014: CPA: $2196.00(Passive Income per Schedule E of Tax Return) WASC: $4887.00(Passive income per Schedule E of Tax Return) Without averaging the last three years of income from these additional entities and merely using the numbers from 2014, Dr. Suppan’s includable income at the time of the final divorce hearing in 2015 should have been, at the very least, 156,394.80. Just using Dr. Suppan’s income alone, the gross income is greater than $150,000.00 per year. Gross Income Greater than $150,000.00 per year: When the parents' combined gross income is greater than $150,000.00 per year, a court "shall determine the amount of the obligor's child support obligation on a case-by-case basisand shall consider the needs and the standard of living of the children who are the subject of the child support order and of the parents." R.C. 3119.04(B). Taking into consideration Jason’s W- 2 Income, average of distributions from the business, and distributions from CPA and WASC, the parties combined income is more than $150,000.00 per year. R.C. 3119.04 provides that "[t]he court ... shall compute a basic combined child support obligation that is no less than the obligation that would have been computed under the basic child support schedule and applicable worksheet for a combined gross income of one hundred fifty thousand dollars, unless the court ... determines that it would be unjust or inappropriate and would not be in the best interest of the child, obligor, or obligee to order that amount." The statute mandates that should the court make "such a determination, it shall enter in the journal the figure, determination, and findings." We have already outlined Dr. Suppan’s minimal amount of includable income. His income alone totals above $150,000.00 per year. However, the Court is to consider the parties’ combined income. Sarah’s income for the applicable years is as follows: 2012: $12,000.00 (Payment from Suppan Foot & Ankle Clinic, Inc. to fund Sarah’s IRA, which Dr. Suppan received half of the same) 2013: $12,000.00 (Payment from Suppan Foot & Ankle Clinic, Inc. to fund Sarah’s IRA, which Dr. Suppan received half of the same) 2014: $6,285.00 Team Health In cases where the parties' combined income exceeds $150, 000, the court is bound by three requirements. The court must: (1) set the child support amount based on the qualitative needs and standard of living of the children and parents; (2) ensure that the amount set is not less than the $150,000-equivalent, unless awarding the $150,000-equivalent would be inappropriate (i.e., would be too much); and (3) if it decides the $150,000-equivalent is inappropriate or unjust (ie., awards less), then journalize the justification for that decision. Zeitler v. Zeitler, 9th Dist. No. 04CA008444, 2004-Ohio-5551.Deviation: Sarah does not believe a deviation is appropriate in this matter as it takes away her ability to financially meet the children’s needs. R.C. 3119.24(A)(1) requires a trial court to calculate child support for a shared parenting order "in accordance with the schedule and with the worksheet set forth in [R.C] 3119.022.". Trial courts have considerable discretion in formulating child support awards. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). The underlying purpose of “Ohio's child support legislation...is to meet the current needs of the minor child." Harbour v. Ridgeway, 10th Dist. 2005-Ohio-2643. R.C. 3113.215(B)(1) requires that a calculation of the amount of an obligor's child support obligation must be made "in accordance with the basic child support schedule set forth in R.C. 3113.215(D), the applicable worksheet in R.C. 3113.215(E) or (F), and other requirements of the law. Marker v. Grimm (1992), 65 Ohio.St.3d 139. R.C. 3113.215(B)(1) provides that the amount calculated using the schedule and worksheet is a "rebuttable presumption" to be the correct amount of child support due and that that amount must be ordered to be paid unless both of the following apply: "(a) The court, after considering the factors and criteria set forth in division (B)(3) of this section, determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 18, would be unjust or inappropriate and would not be in the best interest of the child. "(b) The court enters in the journal the amount of child support calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 18, its determination that that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination." Marker v. Grimm (1992), 65 Ohio.St.3d 139.The party who seeks to rebut the presumption and asks the court to deviate has the burden of proof. Murray v. Murray (1999), 128 Ohio App.3d 662, 671. The court may consider any of the following factors in determining whether to grant a deviation pursuant to section 3119.22 of the Revised Code: (A) Special and unusual needs of the children; (B) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination; (C) Other court-ordered payments; (D) Extended parenting time or extraordinary costs associated with parenting time, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet, through the line establishing the actual annual obligation, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of parenting time granted by court order; (E) The obligor obtaining additional employment after a child support order is issued in order to support a second family; (F) The financial resources and the earning ability of the child; (G) Disparity in income between parties or households; (H) Benefits that either parent receives from remarriage or sharing living expenses with another person; (I) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents; (J) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing; (K) The relative financial resources, other assets and resources, and needs of each parent; (L) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married; (M) The physical and emotional condition and needs of the child; (N) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen; (O) The responsibility of each parent for the support of others; (P) Any other relevant factor. The court granted a deviation to Jason in the amount of $11,068 annually when health insurance is provided and $9,919 annually when health insurance is not provided, which required a support obligation by Dr. Suppan of merely $400.00 per month. (See Magistrate’s Decision, page 6). Although the Judgment Entry Decree of Divorce fails to provide reasoning for the deviation, the magistrate’s decision state that the deviation was based upon equal parentingtime, dividing costs associated with the children in accordance with Line 16 of the support obligation and Dr. Suppan paying 100% of uninsured medical expenses as well as the factors outlined in Section 3119.22. (Magistrate’s Decision, page 5-6). This deviation equates to 69.75%. This deviation is unreasonable and strips Sarah of her financial ability to meet the needs of the children. Deviation based upon Parenting Time: While the parties agreed to enter a shared parenting plan whereby the children equally divide their time between the parties’ households, the division of time does not necessarily require a deviation of child support. Rather, the Court must also consider the disparity in the parties’ income. Additionally, while the shared parenting plan may outline that the children will equally divide their time between the parties’ households, a basic child support calculation considers the time and expense associated with a schedule such as the Local Rule of visitation. Additionally splitting time between households does not necessarily mean that the parties shall have equal expenses at their respective households. Especially, when one of the parents is gone from the home due to traveling or participating in bike races on a regular basis. In Irish v. Irish (2011), 2011-Ohio-3111, C. A. 10CA009810, the Ninth District Court of Appeals, reversed the trial court’s decision to deviate from basic child support amount. The Appellate Court held that Father, who requested the deviation and was required to demonstrate that the basic support obligation was not in the children’s best interest, failed to produce evidence that it was in the children's best interest for the court to deviate from the presumed child support amount given the difference between the parties’ incomes. Additionally, the Court held that although there must be a threshold determination that a deviation is in thechildren's best interest because of the “extraordinary circumstances of the parents or other factors, there must also be a factual finding to support that conclusion.” Jrish at. In /rish, the trial court considered extraordinary circumstances set forth in R.C. 3119.24 and the factors set forth in R.C. 3119.23 based upon the evidence presented at the hearing. These factors were parenting time, ability to provide housing, disparity of income, benefits from remarriage or shared living expenses, in-kind contributions, and relative resources. The Irish trial court then ordered a deviation based upon parenting time and healthcare expenses. However, the Court of Appeals overturned the trial court’s decision to deviated based upon Father’s failure to present evidence in support of a deviation. Basically, Father only presented evidence that the parents’ parenting time was equally divided. The Court held that Father did not “overcome the presumption that the annual amount was correct because the disparity of their income and relative financial resources, when coupled with the children's needs and Mother’s inability to provide housing, which outweighed consideration of the parenting time schedule.” The Appellate Court noted that even though a shared parenting plan is involved, "no automatic credit in the support order for the time the child(ren) reside with that parent is warranted." citing Spencer v. Spencer, Sth Dist. No. 2005-CA-00263, 2006-Ohio-1913, at §44, citing Pauly v. Pauly (1997), 80 Ohio St.3d 386, 390. “The mere fact that a factor is present is not determinative.” /rish, citing Mitchell v. Mitchell 11th Dist. No. 2009-L-124, 2010-Ohio-2680, at §28. In the /rish matter, the father presented evidence that he has the children at least 50% of the time in accordance with the terms of the shared parenting plan as well as costs regarding their care, such as food and clothing. The trial court concluded that the “time caring directly for the children and the cost of their clothing justified a 50% deviation.” The Court of Appealsexplained in reversing the trial court that the trial court failed to properly consider that by granting a 50% deviation it in effect was concluding that half of the children's needs were being met by Father.” As well as failing to properly consider “Mother's ability to provide adequate housing.” The Appellate Court pointed out that "one cannot discount the traditional principles that oversee all grants of child support." Ohlemacher v. Ohlemacher, 9th Dist. No. 04CA008488, 2005-Ohio-474, at 34. “Those traditional principles provide that each parent has a common law duty to support the minor children by providing "necessaries" such as food, clothing, shelter, and medical care.” Jrish, citing Kulcsar v. Petrovic (1984), 20 Ohio App.3d 104, 105. When determining the necessary and reasonable amount of child support, a court should consider the children's current needs and inability of a parent to meet the needs of the children while in his/her care if a deviation is granted. Ohlemacher at 32. “It is not a question of equalizing incomes or satisfying standard of living requirements, but of providing necessities for the children such as food and shelter.” /rish. The Court of Appeals concluded that the trial court abused its discretion in failing to consider the Mother's inability to meet the needs of the children while in her care. The court stated, “[i]t is not a question of equalizing incomes or satisfying standard of living requirements, but of providing necessities for the children such as food and shelter.” /rish. In the Suppan matter, looking at the income disparity alone with Dr. Suppan at a minimum income of $156,394.80 and Sarah at just over $6,000.00 in 2014, a deviation is not justifiable or in the best interest of the children. Such a deviation divests Sarah from having the financial ability to provide for the children.Even though Sarah has been living with this large financial disadvantage since 2014 and even more so beginning in 2016, she has still financially provided for her children by living minimally, buying a fixer-upper home and using her property settlement check to supplement those unexpected child expenses. The evidence will show that Sarah paid for the children’s uninsured medical expenses and for months Dr. Suppan failed to reimburse her. In fact, Dr. Suppan has still failed to reimburse Sarah for all those expenses. The evidence will also demonstrate that Sarah paid for the children’s expenses while Dr. Suppan Jason failed to timely reimburse her. Not only did Dr. Suppan decide when he was going to make said reimbursement, but he also left the children during his weeks of parenting time on a regular basis, whch caused Sarah to transport the children during Dr. Supan’s parenting time as well as feed the children during Dr. Suppan’s parenting time. The presence of a deviation factor is not enough to justify that a deviation is in the best re «6, interest of the minor children. Dr. Suppan’s “additional expenses” for the children are used as a tax dudction, specifically the children’s cell phones and household utilities. He does not provide the children with health insurance, Sarah provides this exclusively. Moreover, even id Dr. Supan has justifiable “additional expenses” (which have never been clearly outlined), with the disparity of incomes, any deviation would cripple Sarah’s financial ability to meet the needs and provide for the necessities of the children herein, including food and shelter. The Court of Appeals in the /rish matter specifically held that we must consider the ability of the parents to meet the needs of the minor children while they are spending time in each parent’s household. Any deviation in Dr. Suppan’s support obligation ignores the best interest of the minor children.No deviation is warranted based upon the equal sharing of parenting time. Other Factors: The prior Magistrate also cited justification for the deviation based upon Dr. Suppan paying 100% of the children’s uninsured medical expenses. Sarah has been covering the children on her health insurance since October 2016, alleviating the private health insurance expense for Dr. Suppan. Although the trial court’s decision fails to note it, the uninsured medical expenses for the children are minimal. The deductible is $750.00 per person. (Tr.524- 525). Co-pays for office visits are merely $25.00. Dr. Suppan paying 100% of the uninsured expenses is a minimal expense for someone who earns over $150,000 per year and it is not in the best interest of the children to use this factor as justification for a deviation. The trial court also notes that Dr. Suppan will be paying marital debt and retaining the marital home while Sarah will be leaving the marriage debt-free and living in a smaller home. The trial court also reports that the children would have enjoyed a higher standard of living based on the combined resources of the parties had they remained married. However, the children will still enjoy this higher standard of living when with their father, just not their mother if Dr. Suppan receives said deviation. Dr. Suppan shall continue to raise the children in the large and plush marital home with acreage and horse stables. During Dr. Suppan’s parenting time, the children remain, when actually staying there, in the same household and enjoy the same perks that they received while the parties lived together. The children also be able to continue to vacation with their father. During Sarah’s parenting time, the children reside in a smaller residence and enjoy no additional perks, vacations or entertainment.Regarding the debt referenced by the trial court, it is secured by assets that Dr. Suppan is retaining. Sarah received her Prius vehicle, however she is responsible for the debt secured by the vehicle. Other than her vehicle, she is not receiving any high value assets. There is only one marital credit card that Jason is retaining in the amount of $5,414.00. This does not justify a deviation. SPOUSAL SUPPORT REMAND: Again, the Court of Appeals was unable to fully review the issue of spousal support as there analysis was disrupted by not having a true and accurant amount of income for Dr. Suppan. Using the minimal amount of income attributable to Dr. Suppan of $156,394.80, the prior award of spousal support is unreasonable and inappropriate. Sarah should have received an award of spousal support of at least $3,000.00 per month. Using the factors provided in section 3105.171 of the Revised Code it is reasonable and appropriate for the Court to grant a spousal support award payable by Jason to Sarah for more than $3000.00 per month for a period of seventy-two (72) months. The court must consider the following making this determination: Ohio Revised Code, Section 3105.18 provides the following: (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian ofa minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (1) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. To reiterate the relevant factors previously presented at the 2016 trial: The parties married on July 18, 1997, which classifies this marriage as a long-term marriage. Sarah met Dr. Suppan in Texas. Sarah resided in Texas and Dr. Suppan completed his residency at a local hospital. (Tr.345). Upon completing his residency Sarah and Dr. Suppan moved to Ohio, where Jason grew up. (Tr.346). They married two weeks after returning to Ohio. (Tr.346). Sarah did not receive a college degree. (Tr.369). Rather she quit her job at a hospital in Texas so that Dr. Suppan could return to his family and his family’s podiatry practice located in Ohio.(Tr.344- 345). After the parties were married, Sarah requested to return to college, but Dr. Suppan did not support this. (Tr.466). Based upon no education or job skills, Sarah earned minimum wage working for an insurance agency. (Tr.369). Upon the birth of the parties’ first child, Sarah quit her employment and never worked outside the home until the parties’ separated. (Tr.369, 467) Although, Dr. Suppan attempted to testify that she worked for his Clinic, he ultimately acknowledged that the annual pay of $12,000.00 that Sarah earned from the Clinic was merely payments to fund the marital IRA. (Tr.370). Dr. Suppan is a Doctor of Podiatric Medicine. (Tr.379) He is a board-certified Podiatrist. (Tr.379). upon realizing their marriage was ending, Sarah earned a certificate formedical coding. In 2014, Sarah earned $6,825.00. Although it is commendable that Sarah has secured income given her work history, she has little potential to earn much more income. Dr. Suppan earns at a minimum in come in excess of $155,000.00. He can earn as much or little as he desires based upon his education and self-employment. Dr. Suppan, by earning a higher rate of pay and having greater financial resources will likely continue to fund his retirements while Sarah will not be in the same position to do so. (Tr. 371-372). In fact according to financial statements completed by Dr. Suppan in 2018, he has the same amount of assets, in excess of $1,000,000.00, in 2018 as he had prior to the parties’ final divorce decree issued in 2016. (See financial statements of Jason Suppan, Exhibit J). Dr. Suppan is 46 years old and in excellent health. (Tr.371.) He continues to enjoy a rather expensive hobby of competitive cycling. (Tr.371). Throughout the pendency of these proceedings, he has been able to travel and vacation for personal enjoyment and cycling events, including West Virgina and North Carolina.(Tr.375). Moreover, Dr. Suppan has remained in the home valued over $370,000.00. He has vacationed, he has participated in his hobby of cycle racing, and he has continued to enjoy entertainment and eating out in restaurants. (Tr.275-377). Even the trial court notes that the parties enjoyed a higher standard of living. That lifestyle was based upon Dr. Suppan’s income, not Sarah’s income. Dr. Suppan is the only party that continues to enjoy that lifestyle, while Sarah is forced to scrape together enough money to meet her monthly expenses. Case law in our Ninth District is fairly clear that “need” is not a basis for the award of spousal support and the “reasonable and appropriate” standard should be utilized by our court. However, in reality it is not only reasonable and appropriate for Jason to pay spousal support inthe amount of $3,000.00 it is also necessary as Sarah will need significant financial assistance from Jason in order to meet her very conservative budget. ATTORNEY FEES/LITIGATION EXPENSES REMAND Section 3105.73 of the Ohio Revised Code governs award of attorney's fees and litigation expenses. Subsection (A) states the following: A) In an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that action, a court may award all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties' marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate. An award of attorney fees and litigation expenses is appropriate in this matter. Sarah is at a financial disadvantage and unable to pay her attorney fees. It is well outlined that at a minimum Sarah earned $120,000.00 less than Jason in 2014. It is also well documented that she does not have the financial resources that Jason has. During the proceedings he was n able to make payments for his attorney fees and litigation expenses. In fact, he used his business to pay some of those expenses for his expert and likely his attorney. Sarah does not have these same resources. She has her limited wages and does not earn $4000.00, as minimum, every two weeks as Dr. Suppan does. She has kept her expenses to a minimum but she still does not have excess money available to her to pay these fees. Merely looking at Sarah’s income versus Dr. Suppan’s income requires an award of attorney fees as the same is equitable. Dr. Suppan will inevitably argue that Sarah should not receive an award of fees because she was obstructive during the pendency of the divorce proceedings and continued to cause litigation expenses and fees based upon her appeal and remand. He will likely try to persuade the trial court that the reviewing Judge got it right the first time and this remand is simply alast-ditch effort by Sarah to bleed Dr. Suppan dry and the trial court should stick with its original decision regarding each of the remanded issues including attorney fees. However that is not reasonable and appropriate, in the best interest of the children nor is it fair and equitable. Just looking at Jason’s arguments regarding fees and expenses: 1. The continuance of final hearing in 2015: At the time of the originally scheduled divorce hearing in 2015, discovery had not been completed. Moreover, the matter had been pending less than twelve months. Sarah did not have any money and Dr. Suppan refused to pay any of the litigation expenses for Sarah to hire an expert. Sarah had to find an expert that would work with her financial issues. Ultimately Sarah had to place her expert’s fees on her credit card, after the decision was received (in order to follow the mutual restraining order). Moreover, Dr. Suppan had not provided all the documentation for a true valuation to be completed. 2. Motions to Compel: The Motion to Compel was based upon Sarah refusing to disclose personal information that Manny told her in confidence and she did not want to break his confidence. The other issue dealt with questions regarding Sarah’s sex life that were irrelevant to the proceedings since at the time, the children were not at issue. The children’s schedule only became relevant well after these personal irrelevant questions were asked of Sarah. 3. Request for a Guardian ad litem and Agreement to a Shared Parenting Plan: During the pendency of the proceedings Sarah had growing concerns about Jason’s parenting. He was not around for the children on his week. He was not providing for their needs. The children’s money had been taken by Jason from their personal accounts. Therefore, Sarah requested a Guardian ad litem to investigate. Once the Guardian recommended a sharedparenting plan and Sarah analyzed her ability to convince the Court that a shared parenting plan was not in the best interest of the children, she consented to the adopting of said plan. 4. Amended Tax Returns and 2014 Tax Return filing: Sarah, as was her right to do so, wanted her own accountant to review these proposed returns that were prepared by Dr. Suppan’s personal accountant, Rea and Associates. But Dr. Suppan wanted them signed without Sarah having that opportunity. Dr. Suppan enjoys blaming Sarah for nearly everything. Dr. Suppan truly ignores his own culpability through his actions. For instance, Dr. Suppan has been obstructive to the discovery process through these entire proceedings. In the divorce proceedings he failed to provide credit card statements, pay stubs, bank statements, 1099s, K-1s (he finally produced these). In fact, at the final hearing he requested that Sarah be held responsible for one-half of the debt that he incurred during the pendency of divorce, which was contrary to the mutual restraining order. It was this same credit card debt that Sarah repeatedly requested the statements of to determine why Jason had accumulated so much credit card debt throughout the pendency of this matter. She incurred attorney fees just trying to get the documentation that she was entitled to through the discovery process. The pending matter is more of the same. There has been extensive discovery requested. The following is a synopsis of those requests: Defendant’s First Set of Interrogatories and Request for Production of Documents served on December 14, 2017, Sarah respond January 11, 2018 Defendant’s Request for Admissions, Supplemental Interrogatories and Supplemental Request for Production of documents served on January 8, 2017, Sarah respond February 5,2018 to Defendant’s Request for Admissions, and Sarah responded to the supplemental requests on February 23, 2018 Defendant’s Third Set of Interrogatories and Request for Production of Documents served on January 25, 2018, Sarah Responded on February 23, 2018 Plaintiff's First Set of Interrogatories and Request for Production of Documents served on October 13, 2017, Jason respond on November 28, 2017 Plaintiff's Second Set of Interrogatories and Request for Production of Documents served on May 2018, Jason responded on June 7, 2018 Plaintiff's Third Set of Interrogatories and Request for Production of Documents served on August 27, 2018, Jason has NOT FULLY responded. Dr. Suppan has not provided credit cards statements, pay stubs, and 2015 personal and business taxes. Moreover, at his deposition, Dr. Suppan indicated that he did not save any text messages, yet, at the deposition he provided text message conversations that were screen shots from his cellular phone. Dr. Suppan also refused to give Sarah information and documentation related to expenses for commercial building so that she could accurately file her 2015 income taxes since 1099 for the commercial building came in Sarah’s name. Sarah also had difficulty in getting the personal property divided. She has also incurred unnecessary expenses chasing down information that Dr. Suppan failed to provide or she had to get the correct information due to misrepresentations. Awarding fees, attorney fees and litigation fees to Sarah is equitable. CHILD SUPPORT REVIEW/MODIFICATION: The Court must also consider Dr. Suppan’s income for 2015, 2016 and 2017 as part ofSarah’s request for a review and modification upon her objection to the child support agency’s determination of support upon Lilly emancipating. The relevant income for Dr. Suppan for these years is as follows: 2015: DR. SUPPAN failed to provide 2016: $8,794.00 ordinary income $6,866.00 Distributions $108,376.00 salary $2,000.00 Commerce Parkway $9,723.30 WASC 2017: $9,892.00 ordinary income $19,316.00 Distributions $106,871.00 salary $2,000.00 Commerce Parkway $16,391.50 WASC Dr. Suppan’s average five years of distributions is $30,590.00. Using the average of his distributions, income from WASC, Commerce Parkway and his 2017 salary, Dr. Suppan’s income if $155,852.50. This does not include his ordinary business income, which was calculated after the inclusion of expenses of depreciation, personal cell phones, health insurance, commercial building expenses, and inaccurate deductions for his accountant/attorney. Sarah’s Income: 2015 30,849.00 2016 30,753.00 2017 31,274.00 Additionally, Sarah covers the medical insurance for the minor child. Her total cost differential for medical, dental and vision coverage is $3,241.16 per year. Just as argued above, the parties’ income disparity as well as other relevant factors provides that a deviation is not in the best interest of the minor child. Lastly, the combined income of the parties still exceeds $150,000.00 per year andsupport should be calculated accordingly. CONTEMPTS: Contempt of court is defined as "disobedience of an order of a court...which brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions." Sparks v. Sparks, 12th Dist. No. CA2010-10-096, 2011-Ohio-5746, 4 11, quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, paragraph one of the syllabus (1971). To support a contempt finding, the moving party must establish by clear and convincing evidence that a valid court order exists, that the offending party had knowledge of the order, and that the offending party violated such order. Ossai-Charles v. Charles,12th Dist. Nos. CA2010-12-129, CA2011-01-007, 201 1-Ohio-3766, § 30. Contempt has been classified as either direct or indirect. Direct contempt occurs in the presence of the court in its judicial function. R.C. 2705.01. Indirect contempt involves behavior that occurs outside the presence of the court and demonstrates a lack of respect for the court or its lawful orders. State v. Drake (1991), 73 Ohio.App.3d 640, 643. One accused of indirect contempt is entitled to a "hearing on the charge, at which the court must investigate the charge, hear any answer or testimony that the accused makes or offers, and then determine whether the accused is guilty." Hueber v. Hueber, 12" Dist. Nos. CA2006-01-004, CA2006-02-019, CA2006-02-020, 2007-Ohio-913, 916, citing Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus. "The distinction between civil and criminal contempt depends upon the character and purpose of the sanctions imposed." Mackowiak v. Mackowiak, 12th Dist. No. CA2010-04-009, 2011-Ohio-3013. Where the sanctions imposed are primarily for reasons benefiting the complainant and are remedial and coercive in nature, the contempt is civil innature. /d. "Prison sentences imposed as punishment for civil contempt are conditional, and the contemnor is said to carry the keys of his prison in his own pocket due to the fact that his compliance with the court order secures his freedom." Whittington v. Whittington, 12th Dist. No. CA2011-06-065, 2012-Ohio-1682. In cases of criminal contempt, it must be shown that the contemptor intended to defy the court. Jn re Estate of Lanning, 7" Dist. No. 00 CA 110, 2003-Ohio-1438, citing Midland Steel Prods. Co. v. U.A.W. Local 486 (1991), 61 Ohio.St.3d 121. In addition, the offending conduct must constitute an imminent threat to the administration of justice. Oakwood Village v. Brown, Cuyahoga App. Nos. 89135 and 89786. The burden of proof is upon the movant for a finding of contempt. Proof beyond a reasonable doubt is required in criminal contempt cases. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250. The movant must demonstrate by clear and convincing evidence that a civil contempt has been committed. /d., citing Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253. There are two elements to a contempt. The first is a finding of contempt; the second is the imposition of a penalty. Moser v. Moser, 11th Dist. 2008-Ohio-5860. Pursuant to R.C. 2705.02(A), a person may be punished for contempt if he is guilty of "[d]isobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer." Fisher v. Fisher, 2009-Ohio-4739, citing Pugh v. Pugh (1984), 15 Ohio.St.3d 136, 139-40. A, Indirect Criminal Contempt Indirect contempt involves behavior that occurs outside the presence of the court and demonstrates a lack of respect for the court or its lawful orders. State v. Drake (1991), 73Ohio.App.3d 640, 643. The complained of behavior in this matter occurred outside the presence of the Court causing it to be considered as an indirect contempt. With any criminal contempt finding, it must be shown that the contemptor intended to defy the court. In re Estate of Lanning, 7" Dist. No. 00 CA 110, 2003-Ohio-1438, citing Midland Steel Prods. Co. v. U.A.W. Local 486 (1991), 61 Ohio.St.3d 121, 573 N.E.2d 98, paragraph two of the syllabus. In addition, the offending conduct must constitute an imminent threat to the administration of justice. Oakwood Village v. Brown, Cuyahoga App. Nos. 89135 and 89786, 2008-Ohio-3151, citing Cleveland v. Heben (1991), 74 Ohio.App.3d 568, 599 N.E.2d 766. Moreover, proof beyond a reasonable doubt is required in criminal contempt cases. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250."The essential elements of criminal contempt are the lawful and reasonably specific order of a court and the willful violation of that order. Criminal contempt involves conduct that is calculated to embarrass, hinder, or obstruct the administration of justice and is used to vindicate the authority of a court and to punish the offending participant." 17 American Jurisprudence 2d (1990), Contempt, Section 5. In order to find a person in criminal contempt of court, “the court order must contain the specificity necessary for the person to "readily know exactly what duties or obligations are imposed upon him." Highland Square Mgmt, Inc. v. Willis & Linnen Co., LP.A., Summit App. Nos. 21234 and 21243, 2003-Ohio-2630. "A trial court cannot impose contempt sanctions on a party if the party cannot know whether or not its actions violate the trial court's order." Contos vy. Monroe County, Monroe App. No. 04 MO 3, 2004-Ohio-6380. B. Indirect Civil ContemptThe Court must review the pending motions for contempt herein as an indirect civil contempt. The burden of proof is upon the movant for a finding of contempt. The movant must demonstrate by clear and convincing evidence that a civil contempt has been committed. /d., citing Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253. "Clear and convincing evidence is that measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio.St. 469. Indirect civil contempt finding should provide punishment that is remedial or coercive in na