On appeal from The Common Pleas Court – Domestic Relations Division ">

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Date: 04-25-2022

Case Style:


Case Number: 28848

Judge: Michael T. Hall



On appeal from The Common Pleas Court – Domestic Relations Division

Plaintiff's Attorney: BRIAN A. KRUSE

Defendant's Attorney:

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Dayton, Ohio - Criminal Defense lawyer represented defendant with appealing the judgment entry overruling his objections to a magistrate’s decision.

The record reflects that Brendan and Lisa married in June 1999. They had
two children during the marriage, a daughter born in 2001 and a son born in 2008. Lisa
filed a complaint for divorce in December 2016. That filing culminated in a June 21, 2018
final judgment and decree of divorce. As relevant here, the divorce decree obligated
Brendan, a retired military officer, to pay Lisa 46.52 percent of his disposable military
retired pay. Under the decree, he was obligated to pay Lisa directly until the necessary
paperwork was filed for the government to pay Lisa directly. The divorce decree also
granted Brendan parenting time with both children pursuant to a modified standard order.
{¶ 3} In post-divorce proceedings, Brendan moved to hold Lisa in civil contempt
for failing to cooperate and enforce his parenting time with their daughter. For her part,
Lisa moved to hold Brendan in civil contempt for failing to pay her the required portion of
his retirement pay. Both issues proceeded to a February 22, 2019 hearing before a
magistrate. The only two witnesses at the hearing were Brendan and Lisa. Brendan
testified that his visits with his daughter decreased significantly after school started in
August 2018. Brendan explained that his daughter was being scheduled to work every
Tuesday during his mid-week parenting time. He also testified that he had been deprived
of his weekend parenting time with his daughter. According to Brendan, when he
discussed the issue with Lisa, she attributed the missed visits to their daughter’s work
schedule and extracurricular activities.
{¶ 4} With regard to retirement pay, Brendan asserted that he had not signed the
required paperwork because he “just got it” the day of the hearing. He later testified that
he had not yet signed the paperwork due to “false information.” He also disputed the
proper computation of his disposable pay. He admitted not knowing how much he had
paid Lisa since the filing of the divorce decree. He believed, however, that he had
overpaid her because his retirement pay had continued being garnished pursuant to a
pre-decree temporary withholding order while he also made direct payments to Lisa. At
some point, Brendan “adjusted” what he directly paid Lisa. He did this to account for
overpayments due to garnishment and based on his interpretation of the definition of his
disposable pay.
{¶ 5} For her part, Lisa testified that Brendan had not paid her anything for June
or July 2018. She stated that he had paid her $1,407 in August, nothing in September,
and $600 in October. According to Lisa, he then paid her $1,261 in November and
December 2018 as well as in January and February 2019. On cross-examination, Lisa
stated that after June 2018, all post-decree payments made to her under the temporary
withholding order were “refunded” and not actually “received” by her.
{¶ 6} With regard to parenting time, Lisa admitted that her daughter had missed
visits with Brendan. Lisa stated that she had encouraged her daughter to see Brendan.
She testified, however, that her daughter, who had turned 17 in December 2018, did not
want to visit her father and that it was difficult to make her go. Lisa also explained that her
daughter worked on multiple week nights, not just on Tuesday evenings when Brendan
was to have parenting time. On cross-examination, Lisa noted that her daughter also had
swimming practice every night, which interfered with visitation. Lisa insisted that she had
tried to encourage her daughter to visit Brendan but that her daughter was “adamant”
about not wanting to go.
{¶ 7} Based on the evidence presented, the magistrate found that Brendan had
not paid Lisa the proper amount of his retirement pay and had underpaid her. The
magistrate found Brendan in civil contempt and held that he could purge the contempt by
paying the deficiency at a rate of $244 per month plus $500 for Lisa’s attorney fees. With
regard to parenting time, the magistrate declined to find Lisa in contempt. In support, the
magistrate cited Brendan’s daughter’s busy work schedule, extracurricular activities, and
lack of desire to visit him.
{¶ 8} Brendan filed objections and supplemental objections to the magistrate’s
decision. The initial objections alleged in general terms that the magistrate’s ruling was
contrary to the evidence and an abuse of discretion. In his subsequent supplemental
objections, which were filed with the assistance of counsel and after the filing of a
transcript, Brendan’s entire substantive argument was as follows:
The Magistrate erred when she overruled Brendan’s Motion to Show
Cause. The testimony presented clearly demonstrates that the parties’ Final
Judgment and Decree of Divorce orders parenting time between Brendan
and his daughter. There is no dispute that Brendan attempted to exercise
his parenting time with his daughter and that Lisa failed to cooperate and
enforce Brendan’s parenting time. Despite what her daughter may have
been expressing, Lisa was obligated to follow the Court’s order of parenting
time between Brendan and his daughter. If Lisa had legitimate concerns
about Brendan’s mental health, she would not have permitted parenting
time to continue with one of their children, but not the other. The fact that
Brendan continued to exercise parenting time with his son is clear evidence
that Lisa did not have a concern about Brendan and was simply refusing to
follow the Court’s order as it related to the parties’ daughter. Brendan
provided clear and convincing evidence that Lisa violated the Court’s order
of parenting time, and the Magistrate should have found Lisa in contempt.
The Magistrate’s failure to do so was an abuse of discretion on her part.
The Magistrate erred when she found Brendan in contempt for failing
to pay Lisa her portion of his military pay. Brendan testified, and the
evidence is clear, that he paid what he calculated to be the appropriate
amount of disposable income to Lisa as ordered. Brendan testified that for
June, July, August, September, and October of 2018 $1,440.00 was
deducted by withholding order from his income and paid to Lisa. (Tr. p. 39).
This would result in an overpayment to Lisa. Brendan testified that he also
began paying Lisa $1,261.00 on top of the amount being withheld from his
income in August of 2018. (Tr. p. 40). Lisa acknowledged in her testimony
receiving that amount in November and December of 2018 and January and
February of 2019. (Tr. p. 50-51). Clearly, from the testimony there is a
dispute between the parties as to how much of Brendan’s military pay Lisa
is entitled to. What else is clear is that Brendan has made substantial
payments to Lisa since the time of the divorce and believed that he was in
strict compliance with the Court’s Final Judgment and Decree of Divorce.
For the Magistrate to then find him in contempt was an abuse of discretion.
(September 25, 2019 Supplemental Objections at 5-6.)1
{¶ 9} The trial court overruled Brendan’s objections and supplemental objections
in a July 17, 2020 decision and judgment entry. In conducting its own independent, de
novo review, the trial court first addressed the retirement-pay issue. Reviewing the
parties’ divorce decree, the trial court noted:
Relevant to this case, the Decree also awarded Lisa an interest in
Brendan’s Military retirement benefit, which was in payout status. Brendan
was to pay Lisa her share directly until DFAS received a Military Retired pay
Division Order, which was to be prepared by a QDRO group. Lisa was
awarded 46.52% of Brendan’s disposable military retired pay. This deviated
from the 50% she was entitled to, as she is responsible for the Survivor
Benefit Premium. The Decree further stated that “both parties shall
cooperate in executing any [and] all documents required by the military to
insure both parties receive all benefits to which she or he may be entitled.”
It also says, “The Member agrees to not interfere with the Former Spouse’s
preparation or submission of an application for direct payment to the Former
Spouse from the Member’s retired or retainer pay pursuant to 10 USC
Section 1408. The Member agrees to execute all documents that the Army

1 Parenthetically, we note that Brendan’s supplemental objections also referenced as a
pending issue a January 18, 2019 ex parte emergency motion to suspend father’s
parenting time. (See Defendant’s September 25, 2019 Supplemental Objections at 2.) As
Brendan correctly notes on appeal, however, Lisa voluntarily dismissed that motion on
February 12, 2019. Therefore, it was not an issue before the trial court, and it is not an
issue in this appeal.
and/or DFAS may require to certify that the disposable military retired pay
can be provided to the Former Spouse.”
(July 17, 2020 Decision and Judgment at 2.)
{¶ 10} The trial court noted that 10 U.S.C. 1408(A) defines “disposable retired pay”
as “the total monthly retired pay to which a member is entitled” minus certain listed
deductions. After finding no evidence that any specified deductions applied, the trial court
* * * Plaintiff’s Exhibit 7 indicates that Brendan’s gross pay is
$3071.00 per month. $199.95 is deducted for SBP, “Survivor Benefit” that
Lisa is responsible for. Lisa’s share was reduced from 50% to 46.52% to
allow for that responsibility. Lisa’s portion of the $3071.00 monthly benefit
is $1428.02 per month, which is 46.52% of the gross pay. As Lisa’s
percentage has already been reduced because of the SBP payment, that
amount is not deducted before applying the percentages.
Brendan argues that he has overpaid spousal support, as a
withholding order was in effect from the SEA and deducted $1407.00 on
6/1/18, 7/3/18, 8/3/18, and $1326.00 on 9/4/18. In looking at the Support
Enforcement Agency Audit (Court’s Exhibit 1) on the second page, it
indicates that the 6/1/18 payment went directly to the family (Lisa), while the
payments on 7/3/18, 8/3/18, and 9/4/18 were returned to Brendan.
Lisa testified to receiving the following payments:
June 2018 = $1407.00 (paid through SEA) Court’s Exhibit 1
July 2018 = $0
August 2018 = $1407.00
September 2018 = $0
October 2018 = $600
November 2018 = $1261.00
December 2018 = $1261.00
January 2019 = $1261.00
February 2019 = $1261.00.
Brendan owes Lisa $12,852.18 for the 9 months of military benefit
pay. As of the date of the hearing he had actually paid $8,458.00, which
leaves an arrearage of $4,394.18.
Brendan is in contempt for failing to pay the retirement benefit
ordered. Notably, he has not complied with filing the paperwork necessary
to have the military pay Lisa directly. Brendan is sentenced to 30 days in
the Montgomery County Jail, with the jail time suspended pending future
compliance with the court order. Brendan may purge the contempt by
signing and filing the paperwork to have Lisa paid her portion of the
retirement directly and paying $500 in attorney’s fees to Lisa within 90 days
of this order. * * *
(Id. at 5-6.)
{¶ 11} With regard to parenting time, the trial court first found the issue moot
because the parties’ daughter had reached age 18 and been emancipated. (Id. at 6.) The
trial court nevertheless proceeded to address the issue. Based on the evidence
presented, the trial court found that Lisa had attempted to “negotiate” parenting time for
Brendan, but that legitimate issues such as their daughter’s school, work schedule, and
extracurricular activities had interfered with visits. The trial court then concluded:
* * * Brendan seems to acknowledge that his daughter is over the
age where she is keeping her own schedule and is making her own plans.
* * * There is no suggestion that Lisa has manufactured appointments or
conflicting obligations to avoid parenting time. Rather, the transcript shows
that at one time Brendan called the police to [his daughter’s] work to attempt
to enforce parenting time with her, with the result that police did not force
[his daughter] to have parenting time with her father, but instead arrested
him at her employment.
There is no evidence that Lisa withheld parenting time, or actively
prevented it. Instead, Lisa attempted to facilitate parenting time between
their daughter and Brendan. Lisa is not in contempt and Brendan’s motions
are overruled.
(Id. at 7.)
{¶ 12} On appeal, Brendan’s opening brief fails to set forth any proper assignments
of error, as required by App.R. 16(A)(3). He does, however, identify the following four
“issues” for review:
1. The Appellant requests the Honorable court’s review of 10 U.S.
Code 1408. The Appellant is subject to the effects of two Trial Court Orders
“Agreed Order Regarding Survivor Benefit Designation and Premium” dated
21 Sept 2017 and the Final Judgment and Decree of Divorce” dated 21 June
2018. In an attempt to bypass 10 U.S. Code 1408 Section (e) protections of
50% of his disposable retired income.
2. The Appellant requests the Honorable court’s review of “The
Military Pay Division Order” prior to signature. The order is not in
compliance with 10 U.S. Code 1408, as it fails to protect 50% of the service
member’s disposable income, through a manipulation of calculations.
3. The Appellant requests the Honorable court’s review and to parse
the Decision and Judgment dated 17 July 2020. The judgment has
considerable errors, prejudices, and deliberate misrepresentations of facts
and law.
4. The Appellant requests the Honorable court to review incidents of
corruption, fraud, and judicial misconduct that not only violate the basic right
of equality before the law but deny procedural rights guaranteed by the
United States Constitution. Determining if the Appellant was represented
honestly and fairly throughout the domestic relations court proceedings and
if the officers of the court acted properly.
(Appellant’s Brief at 5.)
{¶ 13} Brendan’s subsequent analysis addresses an array of issues that exceeds
the scope of his objections to the magistrate’s decision. Brendan also has attached to his
appellate brief numerous exhibits, some of which do not appear to be part of the record
on appeal. To the extent that Brendan’s appellate brief includes materials that were not
before the trial court, we may not consider them. In re O.J.H., 2d Dist. Montgomery Nos.
26976, 26977, 2016-Ohio-4580, ¶ 6 (recognizing that a party may not introduce new
evidence on appeal).
{¶ 14} With regard to the retirement-pay issue, Brendan argued in his objections
to the magistrate’s decision only that he had paid Lisa “what he calculated to be the
appropriate amount,” that there was “a dispute between the parties as to how much of
Brendan’s military pay” Lisa should receive, and that he had “made substantial payments
to Lisa since the time of the divorce and believed that he was in strict compliance” with
the divorce decree.
{¶ 15} Based on the evidence before the trial court, however, we see no error in
its determination that Brendan had not paid Lisa the required amount, despite his belief
to the contrary and notwithstanding the fact that he had made some payments. In order
to establish civil contempt, it is necessary to establish only the existence of a court order,
knowledge of the order, and a violation of it. Gaver v. Miller, 2d Dist. Champaign No. 09-
CA-46, 2010-Ohio-4275, ¶ 6. Intent to violate the order need not be shown. Id.
{¶ 16} The trial court’s retirement-pay calculations are supported by the terms of
the divorce decree and Lisa’s testimony, which the trial court credited. The CSEA audit
cited by the trial court also supported its finding about funds the agency withheld from
Brendan’s pay being returned to him. For his part, Brendan presented no exhibits at the
hearing and testified that he did not know how much he had paid Lisa. (Hearing Tr. at 36.)
On appeal, Brendan suggests that the trial court violated 10 U.S.C.1408 by awarding Lisa
more than 50 percent of his disposable retired pay. But the trial court’s calculations fail to
support that assertion. He also suggests that Lisa has not paid the “survivor benefit
premium” as required. Under the terms of the divorce decree, however, Lisa’s percentage
of Brendan’s military pension was reduced from 50 percent to 46.52 percent to account
for her obligation to pay that premium. Thus, Lisa is paying the premium through this
reduction. Brendan further argues that this deduction of 3.48 percent does not cover the
full cost of the premium. But Brendan consented to this percentage when he signed the
agreed divorce decree containing it. (See July 21, 2018 Divorce Decree at 21-22.) If
Brendan believes the divorce decree is erroneous, a Civ.R. 60(B) motion would be the
proper avenue of relief. As it currently exists, the divorce decree only requires Lisa to pay
3.48 percent, which is being done through the deduction addressed above. Brendan also
appears to suggest that other deductions to his disposable retired pay might apply under
10 U.S.C. 1408, but he did not present evidence of any at the hearing. Brendan further
asserts that the magistrate and the trial court were prejudiced against him. But he did not
raise prejudice by the magistrate in his objections, and we find no basis for such a claim
with regard to the decision of the trial court.
{¶ 17} As for the parenting-time issue, Brendan agrees with the trial court that the
contempt issue became moot when his daughter turned 18 years old. (Appellant’s Brief
at 14.) For that reason, he asks us to “sustain the dismissal of the contempt charge for
frustration of visitation[.]” (Id.) Upon review, we agree with Brendan that the trial court
correctly found the parenting-time issue moot. Judicial control over parenting time
terminates when a child reaches the age of majority. In re S.S., 2d Dist. Montgomery No.
26997, 2016-Ohio-7328, ¶ 8. That being so, any dispute over parenting time became
moot when the parties’ daughter turned 18. Id. “And because the purpose of a civil
contempt motion is to compel compliance with the court’s order rather than to punish
disobedience, when compliance becomes moot, the contempt proceeding is also moot.”
Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28, 2015-Ohio-119, ¶ 47. Therefore,
the trial court did not err in finding the parenting-time contempt issue moot. In light of this
determination, we have no need to address the issue further.

Outcome: Based on the reasoning set forth above, we affirm the judgment of the
Montgomery County Common Pleas Court, Domestic-Relations Division.

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