IN THE SUPREME COURT OF OHIO
DAVID C, KING, . CASE NO.
Appellant,
ON APPEAL FROM THE MEDINA
COUNTY COURT OF APPEALS,
NINTH JUDICIAL DISTRICT
-vLAURA J. KING, nka CRAIG,
Appellee.
COURT OF APPEALS
CASE NO. 08CA0065-M
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT DAVID C. KING
JOSEPH F. SALZGEBER (#0063619) PETER T. CAHOON (#0007343)
P.O. Box 799 Buckingham, Doolittle & Burroughs, LLP
Brunswick, Ohio 44212-0799 3800 Embassy Pkwy, Suite300
Phone: (330) 725-1199 Akron, Ohio 44333
Fax: (440) 846-9770 Phone: (330) 376-5300
DAVID V. GEDROCK (#0016542)
46 Public Square, Suite 210
Medina, Ohio 44256
Phone: (330) 723-4947
Counsel for Appellant,
David C. King
Counsel for Appellee,
Laura J. King nka Craig
TABLE OF CONTENTS
EXPLANATION OF WHY LEAVE TO APPEAL SHOULD BE GRANTED .......................1
STATEMENT OF THE CASE AND FACTS .....................................................................2
PROPOSITION OF LAW .................................................................................................7
A domestic relations court judgment entry, which rules upon and
decides the substance of objections filed by a party to a post-decree
magistrate's decision concerning the reallocation of parental rights
and responsibilities with respect to the parties' minor children, need
not utilize the explicit terms "overruled" or "sustained" in order to
constitute a final appealable order.
CONCLUSION ...............................................................................................................15
PROOF OF SERVICE ...................................................................................................15
APPENDIX
(A) Journal Entry filed on March 18, 2009 in
David C. King v. Laura J. King, nka Craig, 9th Dist. No. 08CA0065-M.
(B) Journal Entry filed on April 15, 2008, dismissing appeal in
David C. Kina v. Laura J. Kina, nka Craig, 9^h Dist. No. 08CA0002-M
Medina County
Domestic Of Common Pleas Case No.
(C) Findings & Judgment Entry filed on January 11, 2008 in
David C. King v. Laura J. King, nka Craig, Medina County
Domestic Relations Court Case No. 02DR0958.
(D) Order filed on July 30, 2008 in
David C. King v. Laura J. King, nka Craig, Medina County
Domestic Relations Court Case No. 02DR0958.
11
EXPLANATION OF WHY LEAVE TO APPEAL SHOULD BE GRANTED
This appeal presents a substantial constitutional question and is of great public
or general interest concerning due process of law and the right of access and redress
under the Ohio Constitution to the lower appellate courts of this State for appellants in
post-decree divorce or dissolution cases.
This Court has held that "the right to file an appeal, as it is defined in the
Appellate Rules, is a property interest and a litigant may not be deprived of that interest
without due process of law." Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St. 3d
80, 523 N.E.2d 851.
In the instant case, the dismissal of Appellant David C. King's appeal by the
Ninth District Court of Appeals was not justified based upon the plain language of Civ.R.
53(D)(4). The Ninth District relied upon its own recent decision in In re: Strickler, 9`n
Dist Nos. 08CA009375 and 08CA009393, 2008 Ohio 5813, to dismiss Mr. King's
appeal. However, contrary to Court of Appeals' decision, Civ.R. 53(D)(4) does not
require any specific language or magic words-such as "overruled" or "sustained"-by a
domestic relations court when it decides objections filed to a magistrate's decision by a
party, or parties, to post-decree divorce proceedings. Mr. King's objections and motions
relating to the Magistrate's Decision at issue in this case were all clearly addressed and
decided by Judge Kovack of the Medina County Domestic Relations Court in the
Findings & Judgment Entry filed on January 11, 2008. The only matter left unresolved
and deferred for later determination was the parenting time schedule of Mr. King, which
the domestic relations court established in separate Orderfiled on July 30, 2008. Mr.
King directly appealed from that Order in August of 2008, months before Strickler was
decided.
The Ninth District Court has been criticized by this Honorable Court in recent
years for its overly restrictive interpretations of what is required for a "final appealable
order" under R.C. 2505.02 and its imposition of requirements for such orders deemed
by this Court to be unnecessary. See Wilson v. Wilson, 116 Ohio St.3d 268, 2007Ohio-6056, 878 N.E.2d 16 at ¶20; and State v. Baker, 119 Ohio St.3d 197, 2008 Ohio
3330, 893 N.E.2d 948, ¶¶ 11-17. In both of the above-cited cases, this Honorable
Court reversed incorrect interpretations of R.C. 2505.02, and related provisions, by the
Ninth District Court. Id.
In order to remedy this denial of Appellant David C. King's constitutional due
process and right of appeal-and those of similar-situated Ohio appellants, who seek
only to have their appeals heard and decided by the lower appellate courts-this
Honorable Court must accept jurisdiction in this case.
STATEMENT OF THE CASE AND FACTS
In December of 2002, Plaintiff-Appellant David C. King (hereinafter "Mr. King" or
"Appellant") and Defendant-Appellee Laura J. King nka Craig (hereinafter "Ms. Craig"
or "Appellee") each filed a separate Complaints for Divorce in the Medina County
Domestic Relations Court, which were subsequently consolidated under Case No.
02DR0958.
On March 9, 2004, the Divorce Decree was filed. In that Decree, the trial court
incorporated the terms and conditions of the attached Separation Agreement and a Plan
for Shared Parenting, which the parties had orally agreed upon. (Appendix A3-A16 and
A17-A36). The Plan for Shared Parenting called for joint parenting of the parties' two
minor children with both parties serving as residential parents. (Appendix A17-A37).
2
On June 27, 2006, Mr. King filed a multi-branch Motion To Terminate Shared
Parenting Plan, Motion to Allocate Parental Rights & Responsibilities to Plaintiff, and
Motion to Modify Parenting Schedule, among other issues. (See Motion, Docket Item#
62). In that multi-branch, Mr. King sought to be named the sole residential parent and
legal custodian of the parties' children and to terminate his child support obligation to
Ms. Craig. The primary reasons for Mr. King's multi-branch motion was that the original
Plan for Shared Parenting had proven unworkable due to lack of adequate cooperation
and communication between the parties and the fact that Mr. King already had the
children in his custody at least 70% of the time. (12/21/06 Tr. 141).
A three-day hearing was held before Magistrate Owen on Mr. King's multi-branch
motion, which commenced on October 30, 2006, continued on December 21, 2006, and
concluded on February 7, 2008. (See Transcripts of Proceedings). Mr. King and Ms.
Craig were both present and represented by their respective counsel. The Magistrate
heard testimony from Dr. Robin Tener; James McFadden of the Medina County CSEA;
Diana Barkman, a counselor with Northeast Ohio Behavioral Health; Mary Ann King
(Mr. King's sister); and both parties.
On March 29, 2007, a Magistrate's Decision was filed. (Appendix Cl to C19; see
also Exhibit "A" attached to Docket Items #106 and #110, respectively). In that
decision, Magistrate Owen denied most of Mr. King's multi-branch motion of June 27,
2006 and reaffirmed the Magistrate's Order of August 15, 2006. In so doing, the
Magistrate found it to be in the best interests of the children to modify the original Plan
for Shared Parenting by formally adopting Dr. Tener's recommendations as follows:
Plaintiff is designated as the primary residential parent of the children
during the school academic year. Defendant shall have parenting time
alternating weekends from Friday after school until Sunday at 6:00 PM. If
there is a school day-off on either the Friday or Monday of Defendant's
3
weekend parenting time, she shall receive that day as well and return the
children at 6:00 PM on either the following Sunday or Monday.
Defendant is the primary residential parent of the children during the
summer. Plaintiff shall have parenting time alternating weekends from
Friday at 6:00 PM to Sunday at 6:00 PM and one weeknight from 5:00 PM
to 8:00 PM. (If they cannot agree on a night, it will be Wednesday.)
Plaintiff shall also have two weeks in the Summer to vacation with the
children with sixty (60) [day] written notice to Defendant of the two-week
period he wishes to exercise.
The parties will follow the Court's Standard Parenting Time Schedule with
Option#1 where applicable for holidays, winter and spring breaks, and
days of special meaning. The holiday schedule supersedes regular
parenting time.
On April 10, 2007, Mr. King timely filed an objection captioned "Motion to Set
Aside Magistrate's Decision of March 29, 2007" to the Magistrate's denial of his multibranch motion. (See Docket Item #106). On April 12, 2007, Mr. King filed an "Amended
Motion to Set Aside Magistrate's Decision of March 29, 2007." (See Docket Item #110).
On June 25, 2007 and July 29, 2007, respectively, Mr. King filed two separate motions
captioned "Motion for Reallocation of Parental Rights and Responsibilities and for
Contempt" based upon Ms. Craig's violations of the Magistrate's Order of March 29,
2007. (See Motions, Docket Items #122 and #132).
On July 19, 2007, an objections hearing was held before the Honorable Mary R.
Kovack, Judge of the Medina County Domestic Relations Court, on Mr. Kings' multiple
objections and motion relating to the Magistrate's Decision of March 29, 2007. (7/19/07
Transcript of Proceedings). Both parties were present in court and represented by
counsel. (Id). After hearing arguments, Judge Kovack took the matter under
advisement. (7/19/07 Tr. 16). The Judge indicated that she would not issue a decision
until she received and reviewed the requested transcripts of the motion hearing before
Magistrate Owen. (7/19/07 Tr. 16).
4
On August 31, 2007-after the hearing transcripts of October 30, 2006,
December 21, 2006, and February 7, 2007 were filed-Mr. King, with leave of court,
filed a "Brief In Support of Motion to Set Aside Magistrate's Decision of March 29,
2007." (See Docket Item #147).
On January 11, 2008, the trial court issued its Findings & Judgment Entry with
respect to Mr. King's objections filed on August 25, 2006 and those filed on April 10 and
April 12, 2007.1 In that Judgment Entry, the trial court reviewed the various factors set
forth in R.C. 3109.04(E)&(F) and R.C. 3119.23 and then affirmed in part and reversed in
part the Magistrate's Decisions of August 15, 2006 and March 29, 2007 as follows:
1. Father' Motion to Terminate Shared Parenting Plan is GRANTED.
2. Mother is designated legal custodian of the minor children, Christopher, 10 years
old, and Elizabeth, 9 years old, effective her first parenting time period after the
end of school this summer.
3. Father's child support obligation shall continue and his motions to terminate are
denied of the reasons set forth by the Magistrate, which are supported by the
evidence presented.
4. A hearing on a parenting time schedule for Father shall be held on April 29, 2008
At 9:00 am until 4:00 pm before Judge Mary R. Kovack.
5. At the time custody changes, if there is not yet a permanent parenting time
schedule for Father, he shall have parenting time in accordance with the Court's
standard parenting time schedule until further order of the Court.
6. Court Investigator Tim Anderson shall replace [Attorney] Steve Bailey as the
Parenting Coordinator and shall make recommendations about parenting time.
The parties shall contact him to set up appointments to meet with him.***
8. Father's motion to terminate spousal support is denied as moot as it already
terminated by the passage of time.***
' Although the Finding & Judgment Entry indicated that "This matter came on for hearing on July 19,
2007 and August 28, 2007 before the Honorable Mary R. Kovaok on the Plaintiff's motions", the
scheduled hearing before Judge Kovack on August 28, 2007 was continued and then never held.
5
An appeal taken from the Findings & Judgment Entry of January 11, 2008 by Mr.
King's previous appellate counsel was properly dismissed by the Ninth District Court in
David King v. Laura King nka Craig, Medina App. No. 08CA0002-M, where a final
appealable order did not yet exist due to the unresolved issue of Mr. King's parenting
time with the parties' minor children having been deferred to a later date. (See attached
Exhibit B, Journal Entry of April 15, 2008).
In its subsequent Order filed on July 30, 2008, the domestic relations court decided
the deferred issue of the father's parenting time and limited Mr. King's parenting time to
every other week end and once a week for dinner. Thus, in conjunction with the
Findings & Judgment Entry of January 11, 2008, the Order of July 30, 2008 constituted
a final and appealable order with respect to the issues of allocation of parental rights
and responsibilities.(See attached Exhibits C, Findings & Judgment Entry of January
11, 2008, and D, Order of July 30, 2008). On August 27, 2008, Mr. King filed a timely
notice of appeal to this Honorable Court from the final appealable order entered of July
30, 2008.
Mr. King clearly understood that-except for the express granting of his motion to
terminate the original shared parenting plan-his objections and motions concerning the
Magistrate's Decision of March 29, 2007 had been denied by the domestic relations
court.
On January 26, 2009, a Magistrate's Order was filed in the Ninth District Court
seeking clarification of whether the order(s) being appealed from are final and
appealable. On February 18, 2009, Mr. King filed a response thereto indicating that the
Medina County Domestic Relations Court had decided all of his objections and motions
6
filed with respect to the Magistrate's Decision of March 29, 2007, which reallocated the
parental rights and responsibilities of the parties.
Nonetheless, on March 18, 2009, the Ninth District Court erroneously dismissed
the instant appeal below as somehow lacking a final appealable order. An appeal to
this Honorable Court was thereafter filed by Mr. King.
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law: A domestic relations court judgment entry,
which rules upon and decides the substance of objections filed by a
party to a post-decree magistrate's decision concerning the
reallocation of parental rights and responsibilities with respect to
the parties' minor children, need not utilize the explicit terms
"overruled" or "sustained" in order to constitute a final appealable
order.
This Court has held that "the right to file an appeal, as it is defined in the
Appellate Rules, is a property interest and a litigant may not be deprived of that interest
without due process of law." Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St. 3d
80, 523 N.E.2d 851.
Article IV, § 3(B) of the Ohio Constitution, which concerns the court of appeals,
provides in relevant parts that:
(1) The courts of appeals shall have original jurisdiction in the following:
***
(f) In any cause on review as may be necessary to its complete
determination.
(2) Courts of appeals shall have such jurisdiction as may be provided by
law to review and affirm, modify, or reverse judgments or final orders of
the courts of record inferior to the court of appeals within the district***.
What constitutes a "final appeal order" in divorce cases is governed by R.C.
2505.02 and Civ.R. 75. R.C. 2505.02 provides, in relevant parts, that:
7
(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes to the
Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly,
including the amendment of sections 1751.67, 2117.06, 2305.11, 2305.15,
2305.234 [2305.23.4], 2317.02, 2317.54, 2323.56, 2711.21, 2711.22,
2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64,
4705.15, and 5111.018 [5111.01.8], and the enactment of sections
2305.113 [2305.11.3], 2323.41, 2323.43, and 2323.55 of the Revised
Code or any changes made by Sub. S.B. 80 of the 125th general
assembly, including the amendment of sections 2125.02, 2305.10,
2305.131 [2305.13.1], 2315.18, 2315.19, and 2315.21 of the Revised
Code.
(7) An order in an appropriation proceeding that may be appealed
pursuant to division (B)(3) of section 163.09 of the Revised Code.
(D) This section applies to and governs any action, including an appeal,
that is pending in any court on July 22, 1998, and all claims filed or actions
commenced on or after July 22, 1998, notwithstanding any provision of
any prior statute or rule of law of this state.
8
Civ.R. 75 provides, in relevant parts, that:
(A) Applicability.
The Rules of Civil Procedure shall apply in actions for divorce, annulment,
legal separation, and related proceedings, with the modifications or
exceptions set forth in this rule.
(F) Judgment.
The provisions of Civ. R. 55 shall not apply in actions for divorce,
annulment, legal separation, or civil protection orders. For purposes of
Civ. R. 54(B), the court shall not enter final judgment as to a claim for
divorce, dissolution of marriage, annulment, or legal separation unless one
of the following applies:
(1) The judgment also divides the property of the parties, determines the
appropriateness of an order of spousal support, and, where applicable,
either allocates parental rights and responsibilities, including payment of
child support, between the parties or orders shared parenting of minor
children;
(2) Issues of property division, spousal support, and allocation of parental
rights and responsibilities or shared parenting have been finally
determined in orders, previously entered by the court, that are
incorporated into the judgment;
(3) The court includes in the judgment the express determination required
by Civ. R. 54(B) and a final determination that either of the following
applies:
(a) The court lacks jurisdiction to determine such issues;
(b) In a legal separation action, the division of the property of the parties
would be inappropriate at that time.
Civ.R. 53(D)(4) provides in relevant part that:
(4) Action of court on magistrate's decision and on any objections to
magistrate's decision; entry of judgment or interim order by court.
.^.
9
(b) Action on magistrate's decision.
Whether or not objections are timely filed, a court may adopt or reject a
magistrate's decision in whole or in part, with or without modification. A
court may hear a previously-referred matter, take additional evidence, or
return a matter to a magistrate.
.^.
(d) Action on objections.
If one or more objections to a magistrate's decision are timely filed, the
court shall rule on those objections. In ruling on objections, the court shall
undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and
appropriately applied the law. Before so ruling, the court may hear
additional evidence but may refuse to do so unless the objecting party
demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.
(e) Entry of judgment or interim order by court.
A court that adopts, rejects, or modifies a magistrate's decision shall also
enter a judgment or interim order.
In the instant case, the Judge Kovack of the Medina County Domestic Relations
Court ruled upon and decided the objections filed by the Plaintiff-Appellant, David C.
King (Mr. King), to the Magistrate's Decision of March 29, 2007 and his related motions.
The Magistrate's Decision of March 29, 2007 addressed Mr. King's multi-branch Motion
To Terminate Shared Parenting Plan, Motion to Allocate Parental Rights &
Responsibilities to Plaintiff, and Motion to Modify Parenting Schedule, and related
issues, which was filed on June 27, 2006. Mr. King timely-filed his objections to that
Magistrate's Decision on April 10, 2007, amended objections two days later on April 12,
2007, subsequent related motions to reallocate parental rights and responsibilities, and
a Brief in Support of his objections on August 31, 2007.
10
In the Findings & Judgment Entry filed on January 11, 2008, Judge Kovack
expressly held that:
The Magistrate's Decision is affirmed in part and reversed in part
and it is therefore ordered as follows:
1. Father' Motion to Terminate Shared Parenting Plan is
GRANTED.
2. Mother is designated legal custodian of the minor children,
Christopher, 10 years old, and Elizabeth, 9 years old, effective
her first parenting time period after the end of school this
summer.
3. Father's child support obligation shall continue and his motions
to terminate are denied of the reasons set forth by the
Magistrate, which are supported by the evidence presented.
4. A hearing on a parenting time schedule for Father shall be held
on April 29, 2008 at 9:00 am until 4:00 pm before Judge Mary
R. Kovack.
5. At the time custody changes, if there is not yet a permanent
parenting time schedule for Father, he shall have parenting time
in accordance with the Court's standard parenting time
schedule until further order of the Court.
6. Court Investigator Tim Anderson shall replace [Attorney] Steve
Bailey as the Parenting Coordinator and shall make
recommendations about parenting time. The parties shall
contact him to set up appointments to meet with him.***
8. Father's motion to terminate spousal support is denied as moot
as it already terminated by the passage of time.***
(Findings & Judgment Entry, pg. 10). Thus, Mr. King's objections and motions relating
to the Magistrate's Decision of March 29, 2007 were all addressed and decided by
Judge Kovack in the Findings & Judgment Entry filed on January 11, 2008. With
exception of the granting of his request that the shared parenting plan set forth in the
Divorce Decree be terminated, Judge Kovack, in substance, overruled Mr. King's
objections and denied his motions challenging-or requesting modification of-the
Magistrate's Decision of March 29, 2009. The only matter deferred for later
11
determination was the parenting time schedule of Mr. King. (Findings & Judgment
Entry, pg. 10).
On July 30, 2008, Judge Kovack filed an Order determining the sole remaining
issue of Mr. King's parenting time with the parties' minor children. At that point, Mr.
King had a final appealable order and, in August of 2008, he timely-filed an appeal from
the Findings & Judgment Entry of January 11, 2008 and the Order of July 30, 2008 in
David C. Kina v. Laura J. King aka Craig, 9`h Dist. Case No. 08CA0065-M.
After that appeal was filed, the Ninth District Court of Appeals decided the case
of In re: Strickler, 9th Dist Nos. 08CA009375 and 08CA009393, 2008 Ohio 5813. In the
Strickler case, the Ninth District Court dismissed an appeal on grounds that the trial
court's order was somehow not a final appealable order. In so doing, the Ninth District
Court reasoned that:
Because the lower court's order does not explicitly rule on the Siblings'
objections so as to fully determine the action below, it is not a final,
appealable order. See R.C. 2505.02; In re K.K. at P11-14. For a trial
court's ruling on a magistrate's decision to be final and appealable, the
trial court must enter judgment independently of the magistrate and must
explicitly overrule or sustain any timely filed objections. See Civ.R.
53(D)(4). If a trial court's order fails to comply with either of these two
requirements, then it is not a final, appealable order. Because the trial
court below failed to explicitly indicate that the Siblings' seven objections
were overruled or sustained, either in part or in their entirety, the court's
order is not final and appealable, and this Court lacks jurisdiction to
consider it.
On March 18, 2009, based upon its decision in Strickler, supra, the Ninth District
Court dismissed the instant appeal below in David C. Kina v. Laura J. King aka Craia,
9tn Dist. Case No. 08CA0065-M. (Appendix A1-A2, Journal Entry). However, contrary
to the Ninth District Court's decision, the plain language of Civ.R. 53(D)(4)(d) does not
require that the trial court expressly state that it had "overruled" or "sustained" a party's
objection to the magistrate's decision where the judgment entry addresses the
12
substance of that party's objection(s). Instead, Civ.R. 53(D)(4)(d) provides in relevant
part that:
If one or more objections to a magistrate's decision are timely filed, the
court shall rule on those objections. In ruling on objections, the court shall
undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and
appropriately applied the law. Before so ruling, the court may hear
additional evidence but may refuse to do so unless the objecting party
demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.
In recent years, the Ninth District Court of Appeals has been criticize by this
Honorable Court for its too restrictive interpretations of what constitutes a""final
appealable order" under R.C. 2505.02 and/or for imposing requirements for a trial
court's order to qualify as a "final appealable order" later deemed to be unnecessary by
this Court. See Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16
(a divorce decree that provides for the issuance of a qualified domestic relations order
("QDRO") is a final, appealable order, even before the QDRO is issued); and State v.
Baker, 119 Ohio St.3d 197, 2008 Ohio 3330, 893 N.E.2d 948,117 11-17 (compliance
with Crim.R. 32(C), so that a sentencing entry constitutes a final appealable order, does
not require that a criminal defendant's original plea of "not guilty" at arraignment be
reflected in that sentencing entry and, where the defendant enters a plea of guilty, does
not require any additional statement of the trial court's verdict or findings to be reflected
in that sentencing entry).
In both Wilson, supra, and Baker, supra, this Honorable Court reversed decisions
by the Ninth District Court of Appeals dismissing the respective appellants' cases due to
the alleged lack of a final appealable order. In Wilson, supra. at ¶20, this Court
critically noted that:
13
[I]f we were to adopt the reasoning of the court of appeals in this case, the
parties could be forever barred from bringing an appeal because if plaintiff
does not work for the time required to make his pension vest, then the
QDRO would never issue and an appeal would be impossible. We hold
that a divorce decree that provides for the issuance of a QDRO is a final,
appealable order, even before the QDRO is issued. Consequently, the
court of appeals erred in dismissing the case for lack of a final, appealable
order.
In Baker, su p ra. at ¶17, this Court was even more critical in noting that:
By erroneously dismissing appeals of this nature, the Ninth District has
unnecessarily complicated cases of those seeking appellate review of
their convictions and sentences. Crim. R. 32(C) does not require what the
court of appeals mandates for a final appealable order.
It is respectfully submitted that, in the instant appeal, the Ninth District Court has
imposed an additional and unnecessary requirement for a post-decree order by the
Medina County Domestic Relations Court to qualify as a "final appealable order" under
R.C. 2505.02 and applicable rules of civil procedure. As in Baker, supra., where the
Ninth District Court misinterpreted the language and requirements of Crim.R.32(C) and
erroneously dismissed numerous criminal appeals, it has misinterpreted the language
and requirements of Civ.R. 53(D)(4) in the instant case to dismiss Mr. Kings' appeal
from the rulings on his post-decree motions/objections.
The constitutional right to file an appeal recognized by this Court is comprised
where a Court of Appeals can reinterpret what is meant by a "final appealable order'
under R.C. 2505.02 and the rules of civil procedure, after an appeal has been timely
filed, and then dismiss that appeal based on its new, and sometimes novel,
interpretation. Like the appellants in Wilson, supra, and Baker, supra, Mr. King's
constitutional right to due process to file an appeal has been denied by the Court of
Appeals' dismissal of his appeal in the instant case.
14
Based on the foregoing, the decision below dismissing Appellant David King's
appeal was incorrect as a matter of law and violated constitutional due process where
Mr. King was entitled to have his appeal heard and decided on the merits.
CONCLUSION
For the foregoing reasons, this appeal clearly presents a substantial
constitutional question and is of great public or general interest. Therefore, Appellant
David C. King respectfully urges this Honorable Court to grant jurisdiction to hear this
appeal.
Respectfully submitted,
Ac?cJ`1/
JO EP . SALZ EBER (#0063619)
P.
BruttsaGick, Ohio 44212-0799
Phone: (330) 725-1199
Fax: (440) 846-9770
Counsel for Appellant David C. King
PROOF OF SERVICE
Undersigned counsel for Appellant hereby certifies that a copy of the foregoing
Memorandum In Support Of Jurisdiction Of Appellant David C. King was served by
regular U.S. Mail, postage prepaid, on this 4th day of May 2009, upon the
following:
Peter T. Cahoon, Esq.
3800 Embassy Pkwy, Suite300
Akron, Ohio 44333
Counsel for Appellee Laura J. King nka Craig
JOS PH V. ALZGEBER (# 0063619)
CoungeLfaf Appellant David C. King
15
STATE OF OHIO ROttR^ OF ARPEALS IN THE COURT OF APPEALS
09 MNR$B A111) ^ 05
NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA ) t lLEE
MEpINF^ CB^. CY
DAVID C. KING CLI^PK OF)C.A. NO. 08CA0065-M
)
Appellant )
)
v.
)
)
LAURA J. KING, nka CRAIG
)
)
Appellee ) JOURNAL ENTRY
On January 26, 2009, this Court ordered appellant to explain whether any
objections had been filed to the magistrate's decision and, if so, whether they had been
explicitly resolved by the trial court. Appellant responded and stated that appellant
filed objections to the magistrate's decision on April 10, 2007, and that the trial court
explicitly ruled upon those objections in its January 11, 2009, order.
Our review of the January 11, 2009, order, however, does not reveal a specific
statement as to the disposition of the objections. As this Court recently held in In Re
Strickler, 9`h Dist. No. 08CA009375, 08CA009393, 2008-Ohio-5813, each objection
must be specifically ruled upon to create a final, appealable order. Because the January
11, 2009, order does not contain an explicit statement resolving objections, no final,
appealable order exists.
The appeal is dismissed. Costs are taxed to appellant. All outstanding motions
are denied as moot.
A
Journal Entry, C.A. No. 08CA0065-M
Page 2 of 2
The clerk of courts is ordered to mail a notice of entry of this judgment to the
parties and make a notation of the mailing in the docket, pursuant to App.R. 30, and to
provide a certified copy of the order to the clerk of the trial court. The clerk of the trial
court is ordered to provide a copy of this order to the judge who presided over the trial
court action.
Judge
Concur:
Carr, J.
Whitmore, J.
STATE OF OHIO )
)ss:
COUNTY OF MEDINA )
DAVID C. KING
IN THE COURT OF APPEALS
NINTH JUDICIAL DISTRICT
00t9RT OF ARPF.6A^No.
08CA0065-M
09 JAN 26 PH 12: 10
Appellant
V.
LAURA J. KING, nka
CRAIG
Appellee I
MAGISTRATE'S ORDER
Upon review of the filings in this appeal, the Court determines that additional
information is necessary to assess whether the order appealed is final and appealable.
Specifically, it is unclear whether the parties filed objections to the magistrate's
decision and whether the trial court ruled on those objections.
Appellant will have until February 18, 2009, to respond to this order,
demonstrating that the trial court has ruled upon all objections. Appellant shall attach a
copy of any objections and the trial court order ruling on those objections, if applicable.
Appellant shall also attach a copy of the "motion to set aside the Magistrate's Decision"
referenced in the trial court's January 11, 2008, order.
This order does not alter the time periods within which the record or appellate
briefs must be filed, as set forth in the Ohio Appellate Rules of Procedure, unless
otherwise ordered by this Court. If appellant does not comply with this order, the
appeal will be dismissed.
C. Michael Walsh,
Magistrate
6
"a
c-oCO"JRT
IN THE COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
MEDINA COUNTY, OHIO
2008 JAN I i AM I I: 22
1- .
K?`,-FiY
DAVID C. KING
554 Red Rock Drive
Wadsworth, Ohio 44281
rd4 ld hJfY
JUDGE MARY R. KOV ^y
tf!f1< C1^= ^;J!'N7S
CASE NO. 02DR0958
Plaintiff
FINDINGS & JUDGMENT ENTRY
vs.
LAURA J. KING
10003 Mt. Eaton
Wadsworth, Ohio 44281
Defendant
INTRODUCTION:
This matter came on for hearing on July 19, 2007 and August 28, 2007 before the
Honorable Mary R. Kovack, on the Plaintiff's motions to set aside the Magistrate's
Decision issued on March 29, 2007 and the Magistrate's Order issued on August 15,
2006. Plaintiff appeared and was represented by Attomey Daniel Gigiano. Defendant
appeared and was represented by Attorney Matthew Duncan.
In her Decision issued on March 29, 2007, the Magistrate made the following
findings of fact and conclusions of law:
1) Plaintiff should continue to pay $730.74 per month plus 2% processing charge for
his child support obligation;
2) Plaintiff should continue to provide the health insurance for the benefit of the
==minor children;
3) Plaintiff should pay the first $100 per year per child in uninsured/unreimbursed
medical, dental, optical, orthodontic and prescription expenses;
4) Any remaining uninsured/unreimbursed expenses should be split proportionate to
ihe parties' incomes with Plaintiff paying 87% and Defendant paying 13%;
5) Plaintiff should receive both dependency income tax exemptions;
6) Defendant should pay Plaintiff $450.00 within thirty (30) days of receipt of
PlaintifPs payment for the substantial child support arrearage he owes;
c
7) Plaintiff should obtain a re-issuance of the missing Coca Cola stock as he is in a
better position and has more knowledge to obtain a re-issuance of the stock;
8) Any cost involved should be split equally between the parties;
9) Plaintiffs motion to terminate spousal support should be deemed moot by
operation of the passage of the stated time; and
10) Plaintiff's motions to show cause are denied.
In her August 15, 2006 order, the Magistrate held the children's best interests would
be served by continuing the shared parenting plan in full force and effect, albeit with a
new parenting time schedule based on the recommendations of Dr. Robin Tener.
Through his various motions, Father essentially wants the Court to terminate the
Shared Parenting Plan, grant him sole custody of the parties' minor children, grant him
sole decision maldng authority on all issues and limit or temiinate Mother's contact with
the children because, he alleges, she is a terrible parent and he is an excellent parent
without fault.
A review of the Court's file, confidential family court file and the transcripts of
proceedings before the Magistrate suggests that it would serve judicial economy as well
as the children's best interests if the Court addresses all of Father's motions and requests
regarding the allocation of parental rights and responsibilities together as they all seek
essentially the same relief.
The parties currently share parenting with Father designated the primary parent
during the school year and Mother designated the primary parent during the summer.
The Shared Parenting Plan has very specific zones of responsibility for each parent.
Father seeks to terminate the Shared Parenting Plan and gain full custody because he
believes Mother is a poor parent and because she does not follow all of his dictates. It
should be noted that the Court appointed a parenting coordinator to help the parties
resolve disputes. Father objected because the parenting coordinator was not a licensed
psychiatrist equipped to deal with what he determined to be his ex-wife's mental illness.
Though the Court overruled his objection, according to the case services assessment, the
parties have never utilized the parenting coordinator, because Father forbid it.
The Court will first consider whether the Shared Parenting Plan should be terminated.
2
R.C. 3109.04(E)(2)(c) permits a Court to terminate a Shared Parenting Plan upon the
request of one or both parties or on its own motion "*** whenever it determines that
shared parenting is not in the best interest of the children."
R.C. 3109.04(F)(2) sets forth additional factors to consider in detennining whether
shared parenting is in the children's best interest to consider in addition to the R.C.
3109.04(F)(1) factors and the R.C. 3119.23 deviation factors.
R.C. 3109.04(F)(2)(a) requires the Court to consider the ability of the parents to
cooperate and make joint decisions with respect to the children. In the instant case, while
Father used to push Mother's buttons in such a way that she was unable to cooperate with
him, the evidence suggests that has changed. Although Father at times dictates decisions
and arrangements for the children that are contrary to Court Orders, Mother appears to
have improved in her ability to acquiesce and try to cooperate for the benefit of the
children. In contrast, Father will not cooperate or make joint decisions with Mother
unless she does what he demands. Though the Court ordered that Mother would be the
primary parent during the summer and would have sole authority to determine the
children's summer activities, Father enrolled them in activities of his choice, filed
contempt motions for Mother's failure to follow his dictates and ultimately and
unilaterally terminated her summer parenting time schedule. As Father demonstrates no
ability to cooperate with or make joint decisions with Mother and has expressly told the
Court that he should have sole custody and solely make all decisions for the children, this
factor heavily favors termination of the Shared Parenting Plan.
R.C. 3109.04(F)(2)(b) mandates consideration of the parents' abilities to encourage
the sharing of love, affection and contact between the child and the other parent. There is
no evidence that Mother does not or would not encourage the love, affection and contact
between Father and the children. Conversely, Father has repeatedly moved the Court to
limit Mother's contact and decision-making regarding the children because he opines she
is a bad parent and contact with her undoes all the good he does for the children. The
record demonstrates Father's belief that Mother has no redeeming qualities and is, in fact,
harmful to the children. This factor overwhelmingly favors termination of the Shared
Parenting Plan and suggests Mother should have custody.
3
R.C. 3109.04(F)(2)(c) requires consideration of any history or potential for child
abuse, spouse abuse, domestic violence or parental kidnapping. There is no evidence
either party has a history of or potential for any of these problems. This factor favors
continuation of the Shared Parenting Plan.
R.C. 3109.04(F)(2)(d) mandates consideration of the geographical proximity of the
parties. Mother and Father both live in Wadsworth. The parents' geographical proximity
favors shared parenting.
R.C. 3109.04(E) mandates consideration of the opinion of the children's Guardian Ad
Litem, if they have one. At present, the parties do not have a Guardian Ad Litem. The
current parenting time coordinator has expressed no opinion because Father has
forbidden the parties from using his services. The Court's investigator issued a report
based on his case services assessment that recommended termination of the shared
parenting plan. At the last trial on this issue and prior to the most recent case services
assessment, the Court ordered psychologist opined shared parenting was not in the
children's best interests. This factor heavily favors termination of the Shared Parenting
Plan.
The R.C. 3109.04(F)(2) factors overwhelmingly suggest termination of the Shared
Parenting Plan.
The Court will now consider the R.C. 3119.23 deviation factors as required by R.C.
3109.04(F)(2).
R.C. 3119.23(A) allows the Court to consider the special and unusual needs of the
children. There is no evidence of special or unusual needs in the instant case. The
parties dispute whether Elizabeth suffers from Attention Deficit Disorder and whether
Christopher is depressed, but there is no evidence that either problem would require
special parenting time arrangements or a child support deviation. This factor is not
relevant to determining whether shared parenting is in the children's best interests in this
case.
R.C. 3119.23(B) permits the Court to consider extraordinary obligations for minor or
handicapped children who are not stepchildren or offspring of either parent. This factor
has no application to the instant case.
4
R.C. 3119.23(C) pennits the Court to consider other Court ordered payments. Other
than support, there are no other Court ordered payments in this case and this factor is not
relevant to whether shared parenting is in the children's best interests.
R.C. 3119.23(D) permits the Court to consider extended parenting time or
extraordinary costs associated with parenting time. Looking at the annual schedule in its
entirety, both parents have substantial parenting time with the minor children.
Unfortunately, Father has unilaterally limited Mother's parenting time so the reality is not
reflected in the court ordered schedule. Though Father argues his child support should
reflect the greater percent of time he has the children, neither party has produced
evidence of extraordinary costs associated with parenting time that would warrant
modification of the shared parenting plan or child support award. Though Mother was
designated the primary residential parent for the summer and to be in charge of the
children's activities, Father did not like her decisions and unilaterally terminated her
designation and possession of the children partway through the summer. This behavior
weighs strongly in favor of termination of the shared parenting plan and awarding Mother
custody.
R.C. 3119.23(E) allows the Court to consider whether the obligor has obtained
additional employment to support a second family. Neither party has a second family.
This factor is moot.
R.C. 3119.23(F) permits the Court to consider the financial resources and earning
ability of the children. While this is germane to determining the appropriateness of a
child support deviation, this Court sees no relevance to the case at bar where the children
are ten (10) and nine (9) years old and unable to support themselves.
R.C. 3119.23(G) allows the Court to consider the disparity in income between the
parties for purposes of determining the appropriateness of a child support deviation. In
this case, when Father is working to capacity, there is a great disparity. Though R.C.
3109.04(F)(2) requires the Court to consider this factor in determining if shared parenting
is in the children's best interests, R.C. 3109.04(F)(3) expressly prohibits consideration of
this factor as follows:
"When allocating parental rights and responsibilities for the care of the children,
the Court shall not give preference to a parent because of that parent's financial
status or condition."
5
Accordingly, the Court will not consider this factor as weighing in favor of any particular
allocation of parental rights and responsibilities.
R.C. 3119.23(H) allows the Court to consider the benefits either parent receives
from remarriage or sharing living expenses with another person. As neither parent in this
case is remarried or living with a significant other, this factor is not relevant.
R.C. 3119.23(1) allows the Court to consider the parties' tax liabilities. While the
tax consequences of parenting time schedules and the exchange of spousal support are
considerations in determining whether a deviation in child support is warranted, this
Court does not believe it is relevant in this case to determine the tax impact of the parties'
shared parenting plan where there is no deviation in child support and where neither party
has meaningful income on a regular basis.
R.C. 3119.23(J) allows consideration of significant in-kind contributions from a
parent, including but not limited to, direct payment for lessons, sports equipment,
schooling or clothing. There is no evidence either party does not take care of ancillary
child expenses. Father, however, has gone long periods without paying his child support
and at one point hired counsel and relentlessly pursued a motion, and ultimately an
appeal, over the Court's refusal to order the children to attend parochial school which he
would not pay tuition for and which Mother could not afford. This factor does not
support continuation of the shared parenting plan or require a deviation in child support.
R.C. 3119.23(K) permits the Court to consider the relative financial resources,
other assets and resources of each parent. While Father has greater financial resources
than Mother, he is unwilling to share them with her, even if to do so would benefit his
children. Mother has fewer financial resources, but has a more cohesive family support
system. This factor does not support continuation of the Shared Parenting Plan.
R.C. 3119.23(L) allows the Court to consider the standard of living and
circumstances of each parent and the standard of living the children would have enjoyed
had the marriage continued. Mother has limited earning potential and Father is extremely
reluctant to contribute to Mother's support or his children's support if, by doing so, the
support would benefit his ex-wife. This factor strongly suggests against shared parenting.
6
R.C. 3119.23(M) permits consideration of the children's physical and emotional
needs. The children do incredibly well and they deserve a parenting time situation
wherein they are not always in the middle. The children would benefit from a reduction
in conflict. This suggests continuation of the shared parenting plan is not in the
children's best interests.
R.C. 3119.23(N) allows the Court to consider the needs and capacities of the
children for an education and educational opportunities that would have been available
had the circumstances requiring a court order not arisen. The court order originated from
the parties' divorce. The post decree financial circumstances of the parties have
precluded the children's attendance in parochial school. This court, however, previously
held that such attendance was not necessary. This factor is not relevant to the allocation
of parental rights and responsibilities.
R.C. 3119.23(0) permits consideration of the responsibility of cach parent for the
support of others. There is no evidence either party supports a significant other, family
member or another child. This factor has no relevance.
The R.C. 3119.23 factors as applies to the facts of this case generally do not favor
continuation of the shared parenting plan.
Given that consideration of the R.C. 3119.23 and the R.C. 3109.04(F)(2) factors
suggest against continuation of the shared parenting plan, the Court will consider the R.C.
3109.04(F)(1) factors to consider to determine the children's best interests both as
applied to the continuation of shared parenting and consideration of whether each factor
favors custody to one party or the other.
R.C. 3109.041(F)(1)(a) requires the Court to consider the wishes of the children's
parents regarding the children's care. Mother has greatly improved in her attitude and
demeanor and is willing to do what the Court determines is best for her children. Father
wants sole custody, sole decision-making authority and termination of or limitation of
contact between the children and their Mother because he believes she is totally
inadequate as a parent and any exposure the children have with her serves to undo all his
exemplary parenting. Father's agenda to alienate the children from their Mother is
deplorable and not in the children's bests interests. This factor strongly supports
termination of the shared parenting plan and an award of custody to Mother.
7
R.C. 3109.04(F)(1)(b) requires the Court to consider the children's wishes and
concems if the Court interviewed them. As the Court did not interview the children, this
factor is inapplicable.
R.C. 3109.04(F)(1)(c) mandates consideration of the children's interactions and
interrelationships with the children's parents, siblings and anyone else who may
significantly affect the children's best interests. There is no evidence that any of the
children's interrelationships favor a particular allocation of parental rights and
responsibilities.
R.C. 3109.04(F)(1)(d) mandates consideration of the children's adjustment to
home, school and community. The parents live in the same community and school
district and so this factor is not dispositive. Both parents maintain appropriate homes and
there is no evidence of adjustment problems at either home. This factor does not favor
any particular allocation of parental rights and responsibilities.
R.C. 3109.04(F)(1)(e) requires the Court to consider the mental and physical
health of all persons involved in the situation. Mother has had some health issues that are
improving and, in any event, have in no way interfered with her ability to parent. Though
Father insists Mother has significant mental health issues, there is no evidence to
corroborate his accusations. Though Father offers no physical or mental health issues,
Father's extreme preoccupation with interfering with the children's relationship with their
Mother and interfering with her parenting time and authority is of concern to the Court.
The factor suggests against shared parenting and for Mother to have sole custody.
R.C. 3109.04(F)(1)(f) mandates consideration of which parent is more likely to
honor and facilitate court ordered parenting time. Mother has demonstrated good faith
attempts to follow this Court's orders. Father only follows court orders he agrees with
and frequently acts in contravention of the court orders he does not approve of. He
unilaterally terminated Mother's summer parenting time, disregarded the Court's orders
regarding the children's summer activities and unilaterally discontinued the services of a
court ordered parenting time coordinator. Mother is far more likely to honor and
facilitate court ordered parenting time. The factor weighs heavily against shared
parenting and in favor of sole custody to Mother.
8
R.C. 3109.04(F)(1)(g) requires the Court to consider whether either parent failed
to make all child support payments, including arrearages, as ordered. Only the Father has
been obliged to pay child support and he has failed to do so as ordered. As of the trial,
Father owed Mother $21,556.28 in support arrears, including $7,328.52 in child support.
He has not consistently maintained employment and has not cooperated to meet his
support obligation. At one point, the Court ordered a substantial portion of his child
support arrearages to be paid via a qualified domestic relations order on his one-half the
marital portion of the couple's retirement assets. The back child support has yet to be
paid because he has refused to effectuate the divorce decree by dividing his retirement
assets as ordered, rendering it impossible to collect child support arrearages from his
share. This factor suggests termination of the shared parenting plan and favors custody to
Mother.
R.C. 3109.04(F)(1)(h) is inapplicable to the instant case because neither party has
been convicted of or pleaded guilty to a criminal act that resulted in the abuse or neglect
of a child; neither has abused or neglected a child and neither has committed a sexually
oriented or other criminal offense toward a family or household member.
R.C. 3109.04(F)(1)(i) requires the Court to consider whether either of the parents
subject to a shared parenting plan has "*** continuously and willfully denied the other
parent's right to parenting time in accordance with an order of the Court." There is no
evidence in the record that Mother denies Father parenting time. The evidence and the
Court's confidential file disclose that Father consistently makes parenting time rules and
schedules that he insists Mother must follow. Though the Court ordered the children
reside primarily with Mother during the summer and gave her primary authority over the
children's summer activities, the Father enrolled the children in summer activities,
admonished Mother for not following his directives and unilaterally tenninated her court
ordered parenting time schedule for the summer, giving her more limited time as he
directed. While Father has superior organization abilities, his micro management of
Mother's parenting time and controlling behavior outweighs his organizational skills and
does not serve his children's bests interests. This factor strongly suggests shared
parenting is not in the children's best interests and favors an award of custody to Mother
who appears more likely to facilitate parenting time for Father.
9
R.C. 3109.04(F)(I)(j) is inapplicable as neither parent has expressed a serious
desire to establish a residence outside of this state, though Father has in the past
mentioned such a possibility.
The R.C. 3109.04(F)(1) factors favor termination of the Shared Parenting Plan
and an award of custody to Mother.
The Magistrate's Decision is affirmed in part and reversed in part and it is
therefore ordered as follows:
1. Father's Motion to Terminate Shared Parenting Plan is GRANTED.
2. Mother is designated legal custodian of the minor children, Christopher, 10 years
old, and Elizabeth, 9 years old, effective her first parenting time period after the
end of school this summer
3. Father's child support obligation shall continue and his motions to terminate are
denied for the reasons set forth by the Magistrate, which are supported by the
evidence presented.
4. A hearing on a parenting time schedule for Father shall be held on April 29,
2008 at 9:00 am until 4:00 pm before Judge Mary R. Kovack.
5. At the time custody changes, if there is not yet a permanent parenting time
schedule for Father, he shall have parenting time in accordance with the Court's
standard parenting time schedule until further order of the Court.
6. Court Investigator Tim Anderson shall replace Steve Bailey as tbe Parenting
Coordinator and shall make recommendations about parenting time. The parties
shall contact him to set up appointments to meet with him.
7. Mother shall reimburse Father $450.00 for medical expenses within thirty (30)
days of his payment to her in full for child support arrearages.
8. Father's motion to terminate spousal support is denied as moot as it already
terminated by the passage of time.
9. The Magistrate's denials of the Plaintiff's motions to show cause are supported by
the evidence and affirmed.
10. The Court finds that OBLIGOR has health insurance available at a reasonable
cost through a group health insurance or health care policy, contract or plan
offered through OBLIGOR'S employer or through another group health insurance
10
or health care policy, contract or plan. The health insurance coverage is not
available at a more reasonable cost through a group health insurance or health
care policy, contract or plan available to OBLIGEE.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
OBLIGOR is ordered to obtain health insurance coverage through his employer.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that health
insurance coverage be obtained for the following children and that the children be
designated by the OBLIGOR and the OBLIGEE as covered dependents under any health
insurance or health care policy, contract or plan for which they contract.
FULL NAME OF CHILDREN
Christopher King
Elizabeth King
ADDRESS
DOB
10003 Mt Eaton
Wadsworth, OH 44281
3/16/97
10003 Mt Eaton
11/1/98
Wadsworth, OH 44281
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the party
ordered to provide health insurance supply the other party with information regarding the
benefits, limitations and exclusions of the health insurance coverage, copies of any
insurance forms necessary to receive reimbursement, payment of other benefits under the
health insurance coverage, and a copy of any necessary insurance cards.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that OBLIGEE pay
the first $100.00 per child per calendar year of the reasonable and ordinary uninsured and
unreimbursed medical, dental, optical and prescription drug expenses for the minor
children as are defined pursuant to O.R.C. 3119.01. Any remaining uninsured and/or
unreimbursed medical, dental, optical, and prescription drug expenses including copayments and/or deductibles shall be split with Obligee paying 13% and Obligor paying
87%.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the health
insurer shall reimburse Laura King, 10003 Mt. Eaton, Wadsworth, Ohio 44281, for out of
pocket medical, hospital, dental, optical, or prescription expenses paid for the following
children: Christopher and Elizabeth.
11
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that OBLIGOR
submit a copy of this order to the insurer at the time application is made to enroll the
children and that OBLIGOR/OBLIGEE no later that thirty (30) days after the issuance of
this order, furnish written proof to the Medina County Child Support Enforcement
Agency that the foregoing orders have been satisfied.
If the person required to obtain health insurance coverage for the children subject
to this child support order obtains new employment and the health insurance coverage for
the children is provided through the previous employer, the Medina County Child
Support Enforcement Agency shall comply with the requirements of O.R.C. 3119.44
which may result in the issuance of a notice requiring the new employer to take whatever
action is necessary to enroll the children in health care coverage provided by the new
employer.
If the person required to obtain health insurance coverage for the children
pursuant to this order fails to obtain health insurance coverage; the Medina County Child
Support Enforcement Agency shall comply with O.R.C. 3119.40 to obtain a Court order
requiring OBLIGOR or OBLIGEE to obtain the health insurance coverage.
The insurer that provides the health insurance coverage for the children may
continue making payments for medical, optical, dental, or prescription services directly to
any health care provider in accordance with the applicable health insurance or health care
policy, contract or plan.
Any insurer that receives a copy of an order issued under O.R.C. 3119.41 shall
comply with that section, and with any order under that section, regardless of the
residence of the children.
The employer of the party required to obtain insurance coverage is required to
release to the other parent or the Medina County Child Support Enforcement Agency
upon written request any necessary information on the health insurance coverage,
including, but not limited to, the name, address of the insurer and any policy, contract or
plan number, and to otherwise comply with O.R.C. 3119.49 and any Court order issued
under this section.
Any employer who receives a copy of an order issued under O.R.C. 3119.41 shall
notify the Medina County Child Support Enforcement Agency of any change in or the
12
termination of OBLIGOR'S OR OBLIGEE'S health insurance coverage that is
maintained pursuant to an order issued under this section.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that OBLIGOR
immediately notify the Medina County Child Support Enforcement Agency, in writing,
of any change of employment [including self employment, receipt of additional
income/monies or termination of benefits]. OBLIGOR shall include a description of the
nature of the employment and the name, business address and telephone number of any
employer. OBLIGOR shall immediately notify the Medina County Child Support
Enforcement Agency of any change in the status of an account from which support is
being deducted or the opening of a new account with any financial institution, and
account number(s).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all parties
comply with the request of the Medina County Child Support Enforcement Agency or the
Court to provide a copy of his/her health insurance benefits, federal income tax return
from the previous year, all pay stubs within preceding six (6) months, all other records
evidencing the receipt of any other salary, wages or compensation within the preceding
six (6) months. Said records include but are not limited to: proof of unemployment, subpay, sick leave, Worker's Compensation, severance pay, retirement, disability, or
annuities, Social Security and Veteran's Administration.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the residential
parent and legal custodian of the children shall immediately notify the Medina County
Child Support Enforcement Agency of any reason for which the support order should
terminate, including but not limited to, death, marriage, emancipation, high school
completion/termination, incarceration, enlistment in the armed services, deportation or
change of legal or physical custody of the child.
Either party's failure to provide any earnings/beneftts information pursuant to this
order, or failure to comply with the foregoing order of notification shall be considered
contempt of Court, punishable by a fine and/or jail sentence. Attorney fees and Court
costs may then be assessed against the party held in contempt.
The following infonnation is provided for the use of the Medina County Child
Support Enforcement Agency in accordance with O.R.C. 3119, 3121, 3123 AND 3125:
13
OBLIGEE: NAME: Laura King
RESIDENCE ADDRESS: 10003 Mt. Eaton, Wadsworth, OH 44281
MAILING ADDRESS: same
TELEPHONE #:
SOCIAL SECURITY #^
DATE OF BIRTH: 9/1
OBLIGOR: NAME: David King
RESIDENCE ADDRESS: 554 Red Rock Drive, Wadsworth, Ohio 44281
MAILING ADDRESS: same
TELEPHONE #:
SOCIAL SECURITY #:DATE OF BIRTH: 5/27/47
NOTICE
EACH PARTY TO THIS SUPPORT ORDER MUST NOTIFY THE CHILD
SUPPORT ENFORCEMENT AGENCY IN WRITING OF HIS OR HER
CURRENT MAILING ADDRESS, CURRENT RESIDENCE ADDRESS,
CURRENT TELEPHONE NUMBER, CURRENT DRIVER'S LICENSE
NUMBER, AND OF ANY CHANGES IN THAT INFORMATION. EACH PARTY
MUST NOTIFY THE AGENCY OF ALL CHANGES UNTIL FURTHER NOTICE
FROM THE COURT OR AGENCY. IF YOU ARE THE OBLIGOR UNDER A
CHILD SUPPORT ORDER AND YOU FAIL TO MAKE THE REQUIRED
NOTIFICATIONS, YOU MAY FINED UP TO $50.00 FOR A FIRST OFENSE,
$100.00 FOR A SECOND OFFENSE AND $500.00 FOR EACH SUBSEQUENT
OFFENSE. IF YOU ARE AN OBLIGOR OR OBLIGEE UNDER ANY SUPPORT
ORDER ISSUED BY A COURT AND YOU WILLFULLY FAIL TO GIVE THE
REQUIRED NOTICES, YOU MAY BE FOUND IN CONTEMPT OF COURT
AND BE SUBJECTED TO FINES UP TO $1,000.00 AND IMPRISONMENT FOR
NOT MORE THAN NINETY (90) DAYS.
IF YOU ARE AN OBLIGOR AND YOU FAIL TO MAKE THE REQUIRED
NOTICES, YOU MAY NOT RECEIVE NOTICE OF THE FOLLOWING
ENFORCEMENT ACTIONS AGAINST YOU: IMPOSITION OF LIENS
AGAINST YOUR PROPERTY; LOSS OF YOUR PROFESSIONAL OR
OCCUPATIONAL LICENSE, DRIVER'S LICENSE, OR RECREATIONAL
LICENSE; WITHHOLDING FROM YOUR INCOME; ACCESS
RESTRICTION AND DEDUCTION FROM YOUR ACCOUNTS IN
FINANCIAL INSTITUTIONS; AND ANY OTHER ACTION PERMITTED BY
14
LAW TO OBTAIN MONEY FROM YOU TO SATISFY YOUR SUPPORT
OBLIGATION. [PER O.R.C. 3121.291
Father shall pay the costs of this action.
IT IS SO ORDERED.
SRYR.
cc: Daniel F. Gigiano, Esq.
Peter T. Cahoon, Esq.
Steve Bailey, Esq.
Tim Anderson
15
a
KOVACK
ilj,jp^
` LMMp^.ptEAS
IN THE COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
MEDINA COUNTY, OHIO
2009 JUL
CO!!R'.
'30 PM 3:53
KATHYlFpR7M
MEDlNA
CLE???; n,FCDUNTY
rQqTS
DAVID C. KING
Plaintiff
JUDGE MARY R. KOVACK
vs. CASE NO. 02DR0958
LAURA J. KING aka CRAIG ORDER
Defendant
To clarify the father's parenting time, the Court orders as follows until fiuther
order of the Court:
1. Father shall have parenting time altemating weekends from 6:00 p.m.
on Friday to 6:00 p.m. on Sunday and every Wednesday from 5:00
p.m. until 8:00 p.m.
2. All oommunications between Father and the parenting coordinator will
be via e-mail.
3. Father shall return the children to Ms. Craig by 8:00 p.m. today,
Wednesday, July 30, 2008. If Father fails to return the children as
ordered, the Court will consider its own motton to show cause and the
possibility of supervised parenting time on August 18, 2008 at 9:30
a.m.
IT IS SO ORDERED.
Judge Mary R ovack -?-130 ^ r
MEDINA^^URFOF OMMODYf'!FAS-3YAlE0FONID,MFDINACOUMY,
I hereby rtily that thi s a tp (e cop ( of ^p ri8pi on file in seid ca
Witnes r dal ot sa^ 4 t^M a, Dhio this
4.ya
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IarkotCaaAs.
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cc: David King, 554 Red Rock Drive, Wadsworth, OH 44281
Gerald D. Piszczek, Esquire
Peter T. Cahoon, Esquire
Tim Anderson, Parenting Coordinator
/amh
2