Andrea (Messer) Schwager v. Timothy Scott Messer

<bold>No. 02SC316</bold>, <bold><underline>People In re J.R.T. v. Martinez</underline></bold><bold>, and No. 02SC317</bold>, <bold><underline>People In</underline></bold><bold><underline>re J.A. v. Martinez</underline></bold> <bold>child support imputation of income voluntarily</bold><bold>unemployed voluntarily underemployed shirking a child support obligation</bold><bold>unreasonably foregoing higher paying employment all relevant factors</bold><bold>termination of employment firing of parent from employment move to</bold><bold>another city Uniform Dissolution of Marriage Act child support</bold><bold>guidelines § <cross_reference>14-10-115</cross_reference>(7)(b)(I), 5 C.R.S. (2002).</bold> This opinion consolidates two cases in which the trial courts modified the amount of child support that Jason Martinez was required to pay for two of his children, J.A. and J.R.T. In both cases, the trial courts held that Martinez was voluntarily underemployed after he had been terminated from two jobs in Denver for knowingly violating company policy and had subsequently taken a lower paying position in Pueblo. The Court of Appeals reversed both trial courts, holding that Martinez was not "voluntarily underemployed" simply because he had been fired. The Court of Appeals held that the trial courts should have examined "the reasonableness of father's attempts, if any, to obtain comparable employment and pay following his firings." The Supreme Court affirms the Court of Appeals. The Supreme Court holds that an income imputation inquiry must start with whether the parent is shirking a child support obligation. Is the parent unreasonably foregoing higher paying employment that he or she could obtain? If not, the child support obligation calculation commences with actual gross income. If the parent is shirking a child support obligation, the trial court must determine what the parent can reasonably earn and contribute to the child's support. The Supreme Court also holds that

R.C. 2151.414/permanent custody best interest of the child manifest weight. The trial court's determination that CCDCFS made reasonable efforts to reunite Mother and children was proper. The trial court considered factors under R.C. 2151.414 for abandonment, lack of action, best interest of the children and custodial history. The trial court's judgment of permanent custody to CCDCFS was not against the manifest weight of the evidence. Appellant's argument that the trial court committed reversible error fails where the record supports that the trial court's determination was in the best interest of the children.

This is a post-divorce child custody action involving two children, who were sixteen and seventeen years of age at the time of the most recent trial. The parties were divorced by order of the Sullivan County Law Court ("divorce court") in July 2001. Concomitant with the divorce decree, the divorce court entered a permanent parenting plan designating the father as the primary residential parent. Although the permanent parenting plan was modified in 2003 and 2007, the divorce court had most recently modified the permanent parenting plan in February 2009 ("2009 PPP") upon the parties' stipulation that a material change in circumstance had occurred. The divorce court maintained the father's designation as the primary residential parent and awarded to the father 268 days of annual residential co-parenting time as compared to Mother's 97 days. At some point following entry of the 2009 PPP, the mother relocated to Texas, and the father and the children relocated to Washington County, Tennessee. Upon the mother's request, the case was transferred to the Washington County Circuit Court ("trial court") in April 2014. On March 20, 2015, the mother filed a motion in the trial court to modify custody and child support, as well as a motion for civil and criminal contempt against the father, alleging various violations of the 2009 PPP. Following a hearing regarding the contempt allegations, the trial court entered an order on June 30, 2015, finding the father in "technical contempt" and directing him to pay an expert witness fee as a sanction. Following participation in mediation, the parties announced an agreement, which the trial court ratified in a permanent parenting plan order entered on June 30, 2015 ("2015 PPP"). The 2015 PPP maintained the father's designation as the primary residential parent and provided the mother with 85 days of residential co-parenting time, a great part of which was to be exercised at her residence in Texas. On October 2, 2015, the mother filed an "e

<p>Appeal, No. 2, April T., 1920, by libellant, from order and decree of C. P. Cambria County, June T., 1919, No. 154, making absolute a rule for alimony and counsel fees pendente lite in the case of Daniel E. Swank v. Ada M. Swank.</p> <p>Libel in divorce. Before O’Connor, J.</p> <p>Petition for alimony and counsel fees, pendente lite.</p> <p>The court entered the following order:</p> <p>And now, March 17, 1920, the rule for alimony and costs pendente lite and counsel fees is made absolute, and it is ordered that the libellant pay unto William A. McGuire, Esquire, the sum of one hundred and fifty dollars as counsel fees, as well as fifty dollars monthly for respondent’s maintenance pendente lite and costs; the said maintenance pendente lite to date from October 1, 1919, and continue during the pendency of the divorce proceedings, or until further order of the court; the foregoing amounts to be paid to William A. McGuire, attorney for respondent, or until further order of the court; the foregoing amounts to be paid to William A. McGuire, attorney for respondent, on or before April 1, 1920.</p> <p>Error assigned was the order of the court.</p>

The respondent father appealed to this court from the judgment of the trial court terminating his parental rights with respect to his minor child, P. He claimed, inter alia, that the trial court incorrectly concluded that the petitioner, the Commissioner of Children and Families, proved by clear and convincing evidence that the Department of Children and Families had made reasonable efforts to reunify him with P, that he was unable or unwilling to achieve the requisite degree of personal rehabilitation, and that it was in P's best interest to terminate his parental rights. Held: 1. The trial court correctly concluded that the respondent father failed to achieve a sufficient degree of personal rehabilitation as would encourage the belief that, within a reasonable time, he could assume a responsible position in the life of P: a. The father could not prevail on his challenge to the trial court's determinations with respect to his drug use: the father admitted to having smoked marijuana daily through the early stages of the department's involvement, and he was discharged from a clinic to which he was referred due to lack of engagement; moreover, the court did not improp- erly place the burden to provide drug testing on the father, rather, the court simply found that the father reported that he had stopped daily marijuana use but had submitted to only one toxicology screen, and the court did not indicate that it had inferred that the father was hiding drug use because he had taken only one drug test; furthermore, it was within the purview of the court to question the father's sincerity given his recent engagement in services in anticipation of litigation, despite the fact that he had had two years to participate in such services, and to conclude that the father's efforts were ''too little too late.'' b. The father could not prevail on his claim that the record did not support a finding that he had unresolved mental health issues that served as a barrier to reunification;