COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71156 JAMES J. KASSOUF : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION PHYLLIS V. PANTONA : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court, Case No. D-177197 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SUSAN M. LAWKO, ESQ. STANLEY MORGANSTERN, ESQ. LAWKO & LAWKO PAMELA J. MacADAMS, ESQ. 55 Public Square MORGANSTERN, MacADAMS & DEVITO 1250 Illuminating Building The Burgess Building, Suite 400 Cleveland, Ohio 44113 1406 West Sixth Street Cleveland, Ohio 44113 H. W. KANE, ESQ. KANE, SICURO, & SIMON 101 E. Main Street Ravenna, Ohio 44266 JOHN H. LAWSON, ESQ. Caxton Office Building 812 Huron Road Suite 800 Cleveland, Ohio 44115 KARPINSKI, J.: This appeal is the most recent in a long series of litigation and is at least the twelfth time that the parties and this matter -2- have been presented to this court. This is the third time these precise child support issues are before the court. The facts of the case are briefly summarized as follows: James Kassouf married Phyllis Pantona in Reno, Nevada on November 30, 1985. Their first child, Elias, was born approximately seven months thereafter. Kassouf filed an action for divorce eight months later. Their second child, James, was born approximately two months later during the pendency of the case, and the parties were divorced on January 8, 1988. Pantona was originally awarded custody of the two children and Kassouf ordered to pay $900 per month child support. Thereafter followed a series of visitation disputes, charges and countercharges of abuse and sexual abuse of the children, claims of nonpayment of support, and requests for modification of child support obligations. The Ohio Supreme Court assigned a visiting judge to preside over the matter. The trial court conducted a hearing over the course of several days in February 1992. The court awarded Kassouf custody of the children, established a comprehensive visitation schedule, and entered judgment on various support obligations in an order journalized May 26, 1992. This court affirmed the change in custody and reversed and remanded the court's judgment concerning outstanding support obligations for further proceedings. Kassouf v. Pantona (Feb. 2, 1994), Cuyahoga App. Nos. 63945, 63947, 64030 and 65475, unreported. Following remand, the trial court did not conduct an -3- evidentiary hearing. The record indicates that the trial court filed a second child support worksheet on October 11, 1995. This court dismissed Pantona's earlier appeal for lack of a final appealable order because the trial court did not dispose of pending issues concerning healthcare coverage and expenses. Kassouf v. Pantona (Nov. 6, 1995), Cuyahoga App. No. 69673, unreported. The trial court ultimately resolved this matter and, on July 29, 1996, entered a final appealable order with a completed child support worksheet (the 1996 Child Support Worksheet ). Pantona timely appeals raising the following four related assignments of error: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO FOLLOW THE DIRECTION OF THE APPELLATE COURT ON REMAND. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY APPELLEE CHILD SUPPORT OF $1,900.00 PER MONTH BEGINNING FEBRUARY, 1991. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS ORDER MODIFYING THE AMOUNT OF CHILD SUPPORT DUE APPELLANT FROM APPELLEE FOR THE PERIOD MARCH 30, 1990 THROUGH JANUARY, 1991. IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT APPELLANT OWED APPELLEE $81,390.31 AS OF AUGUST, 1995. Pantona argues that the trial court did not follow the mandate of this court on remand, that its determination of the parties' respective child support obligations was not supported by the evidence, and that its resulting calculation of the net judgment is erroneous. We agree with most of her contentions. While we decline to find that the trial court disregarded our mandate on -4- remand, we conclude that its monetary awards are not supported by the evidence. The record shows that the trial court did not originally complete and include a child support worksheet to support its original May 26, 1992, order. Approximately one year thereafter on June 10, 1993, during the course of the appeal, the trial court filed a completed worksheet in the trial court (the 1993 Child Support Worksheet ). No party filed a request with this court, however, to supplement the record with the worksheet filed in the common pleas court. This court concluded, pursuant to Marker v. Grimm(1992), 65 Ohio St.3d 139, that it could not review the trial court's child support orders without such completed appropriate documentation and remanded the matter to the trial court for further proceedings. Kassouf v. Pantona, supra at pp. 8-9. The trial court did not conduct any further evidentiary hearings following remand and ultimately filed a slightly modified version of this child support worksheet with its final July 29, 1996 order. Both the 1993 and 1996 Child Support Worksheets recite that each parent earns a total annual gross income of $150,000. The record shows that each party was involved with various businesses and their respective earnings and finances are complicated. Upon reviewing the transcript of the February, 1992 hearing--the primary and almost exclusive focus of which was related to child custody--we find that there is no evidence to support such a figure for either party. The record shows that Kassouf, a real estate developer, -5- repeatedly refused to provide any financial information despite subpoenas.1Although Kassouf testified that he had a substantial net worth with no financial problems or concerns whatsoever (Tr. 575, 457, 467-468), Pantona's ability to discover, investigate, and develop this information was completely stymied. Moreover, counsel's examination of Kassouf's new wife and nanny was truncated. (Tr. 450, 498). Finally, after the hearing, counsel for Kassouf submitted personal federal income tax returns for 1987 through 1990, each of which stated he suffered substantial losses. Counsel simply argued that the court could assume for purposes of discussion that his available funds were roughly equivalent to Pantona's, and asserted Pantona's income to be $152,000. (Plaintiff's Post-Trial Memorandum at p. 20.) Pantona testified during the February 1992, hearing that she earned only $72,000, which was lower by $50,000 to $60,000 than the prior year. (Tr. 790-791). Pantona's 1990 federal income tax return, filed with Kassouf's post-hearing memorandum, stated that she earned a total adjusted gross income of $95,790 for that year. Kassouf's argument to the contrary is supported by a loan application completed by Pantona in April 1991, and submitted by Kassouf after the hearing. The gross monthly income included contingent bonuses, consulting fees, and child support payments totaling $13,666 per month. At most, the document indicates that 1 To justify not disclosing the information, Kassouf testified that the Internal Revenue Service seized his financial records, maintained that he could not retrieve records from the federal government, and also invoked the Fifth Amendment. -6- Pantona earned $54,664 as of April, 1991, which is substantially less than $150,000 for the year. The monthly figures, which present an optimistic scenario, cannot be annualized because they contain admittedly contingent items and there is no evidence that the favorable contingencies would occur later in 1991. Furthermore, the court knew that the child support payments to Pantona would cease once custody of the two children was transferred to Kassouf, and, therefore her annual income would be further reduced.2 It should be noted that the trial court likewise restricted Kassouf's cross-examination of Pantona concerning her finances. (Tr. 792-793.) The 1996 worksheet contains errors in addition to asserting annual gross income figures which are not supported by the evidence. For example, the worksheet erroneously provides Pantona rather than Kassouf a $2,500 adjustment for Kassouf's daughter with his new wife. Each party was also credited with $3,000 in local income taxes paid although no evidence was submitted to support this figure and the amount of tax is necessarily dependent on their respective incomes. Because the annual gross income and adjustment figures provide the basis for calculating the parties' respective child support obligations, these errors are carried throughout the worksheet. Under the circumstances, neither the trial court's award of child support to Pantona or Kassouf nor its net judgment 2 It should be noted that even if all these monthly figures had been annualized, Pantona's annual gross income would have been $163,992, rather than the $152,000 asserted by Kassouf, or the $150,000 stated by the trial court. -7- offsetting their respective outstanding obligations is supported by the evidence. The trial court, therefore, abused its discretion by adopting these figures. Further discussion of the evidence or record would serve no useful purpose. These matters should be resolved justly without further controversy or delay. The trial court is instructed to take a fresh look at the parties' respective child support obligations and to conduct a hearing to receive evidence to support each and every applicable item on the child support worksheet form for the relevant time periods. The court should consider such evidence, together with any appropriate evidence already in the record, in accordance with applicable child support guidelines to: (1) determine whether the high income child support guidelines apply, (2) calculate the amount under such guidelines, and (3) determine whether any deviation is warranted under the circumstances. See e.g., Pratt v. McCullough (1995), 100 Ohio App.3d 479, and Carson v. Weiss (Sep. 16, 1993), Cuyahoga App. Nos. 63486 and 63722, unreported at 10-12. Accordingly, Pantona's first assignment of error is overruled and her second, third and fourth assignments of error are well- taken. The trial court's child support awards and resulting net support judgment are reversed and remanded for further proceedings. The trial court is expressly instructed to conduct an evidentiary hearing and determine the appropriate child support and resulting net support judgment consistent with applicable guidelines. Judgment accordingly. -8- This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellee her costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of this court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .