Update: on October 16, 2013, the Supreme Court handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On June 11, 2013, the Supreme Court of Ohio will hear oral argument in the case of Jeffrey Morrow v. Sherri Becker, 2012-1674, and 2012-1898. The case was accepted on discretionary appeal and conflict certification and the two cases were consolidated. At issue is whether company benefits, such as a company car, are included as income for purposes of child support calculations if the benefits are not the result of self-employment or joint ownership of a partnership or closely held corporation.
Jeffrey Morrow is the non-custodial father of two children with Sherri Becker. The couple, who never married, entered a court ordered parental agreement in 2006 which established Morrow’s monthly child support obligation of $2,198.05. Morrow has worked at the Ohio College of Massotherapy (OCM), a non-profit corporation, for eighteen years. Additionally, Morrow oversees OCM Online. He serves as president of both institutions and receives a salary from each.
In 2009, Morrow’s salary was reduced to $75,000 from both institutions combined. He previously received $121,897 from OCM and $110,316 from OCM Online. Morrow filed a request with the court to modify his child support obligation to reflect his reduced salary. The trial court, while acknowledging the decrease, set Morrow’s annual income at $143,000 for the purposes of calculating child support. The trial court reached this figure by including $16,756 in non-monetary company benefits, including a use of a Lexus company car, car insurance, cell phone, and OSU football tickets. Morrow appealed the inclusion of the non-monetary benefits as part of his gross income. Morrow argued non-monetary benefits could only be included when classified as “self-generated income” under R.C. 3119.01(C)(13); because he did not receive the benefits from self-employment or joint ownership of a partnership or of a closely held corporation, the provision did not apply and the benefits could not be included as gross income.
The Ninth District Court of Appeals upheld the trial court’s decision, finding that company benefits derived from regular employment, not just self-employment or an ownership interest, may be included as income to determine child support. The Ninth District interpreted the language “and all other sources of income” in R.C. 3119.01(C)(7) to act as a catch-all, making the list within the statute non-exclusive. Further, the appeals court rejected the argument that R.C. 3119.01(C)(13) prevents the inclusion of reimbursements and payments for company benefits into the calculation for child support unless the parent is self-employed or holds the defined company ownership interest. The Court determined that R.C. 3119.01(C)(7) defines types of income the legislature intended to exclude from the gross income calculation, and the benefits in question were not listed as an exclusion. Therefore, inclusion of Morrow’s non-monetary benefits in gross income was appropriate.
Key Statutes and Precedent
R.C. 3119.01(C)(7) defines “gross income” for the purpose of calculating child support as the total of all earned and unearned income, taxable or not, from all sources in a calendar year. Income includes salaries, including overtime and some bonuses, commissions, . . . and all other sources of income. Gross income also includes . . . self-generated income and potential cash flows from any source. The statute specifically states six benefits that are not to be included as gross income.
R.C. 3119.01(C)(13) defines self-generated income as receipts from self-employment, proprietorship in a business, joint ownership of a partnership or close corporation, and rents. Self-generated income includes expense reimbursements or in-kind payments received from self-employment, operating a business, or rents. Reimbursements of in-kind payments include a company car, free housing, reimbursed meals, and other benefits if the reimbursements are significant and reduce personal living expenses.
Spier v. Spier, 2006-Ohio-1289 (7th Dist. 2006). This case involved the use of a company car by the custodial parent, where the value of the benefit was not included in the gross income determination. The court determined the benefit was appropriately excluded from the custodial parent’s gross income because she was not self-employed, which prevented application of R.C. 3119.01(C)(13).
Botticher v. Stollings, 1999-Ohio-976 (3rd Dist.1999). The appellate court found no error by the trial court in excluding the benefit of a company car from the custodial parent’s gross income. The appellate court determined that such benefit would only be calculated into gross income if it was the result of self-employment or significantly reduced the parent’s personal expenses.
Merkel v. Merkel, 51 Ohio App.3d 110 (2nd Dist.1988). This case involved the inclusion of military housing benefits in gross income for purposes of calculating child support. The Court ruled that statutory language in a similarly worded but different statute required company benefits, such as a company car, free housing, reimbursed meals, or other benefits, to be included in gross income, whether the benefits are received through self-employment or are benefits as a traditional employee.
Morrow’s Argument on Appeal
Morrow argues that Spier and Botticher correctly interpreted the language of R.C. 3119.01(C)(7). The Spier Court determined that the statutory language of gross income does not include employment related benefits; to include those benefits in gross income is to ignore the plain meaning of the statute. Morrow argues, relying in part on the doctrine expresio unius est exclusio alterus (express inclusion of one thing implies the exclusion of the other), that the legislature included in-kind benefits within the definition of gross income for self-employed individuals, therefore, the exclusion of in-kind benefits from the statutory language governing traditionally employed individuals means the legislature meant for those benefits to be left out of the calculation of gross income, unless the person is self-employed. The proper reading of the statute, according to Morrow, requires three conditions be met before the court may include company benefits in a parent’s gross income: (1) the benefit must come from self-employment or from the operation of a business; (2) the benefit must be significant; and (3) the benefit must reduce personal living expenses.
Morrow further argues that income should only include possible sources of “available funds.” Because Morrow cannot sell the car to generate personal income, it should not be included as a source within the gross income calculation. Additionally, inclusion of such benefits within a parent’s gross income could create over-inflation, which may have significant consequences for custodial parents with minimal income. Morrow argues that the inclusion of in-kind benefits could create a situation where a low-income custodial mother would receive reduced child support from the non-custodial father, if her employment included in-kind benefits which are calculated in to increase her gross income.
Becker’s Argument on Appeal
Becker argues the expresio unius est exclusio alterus application from the Spier Court is incorrect and a misreading of the statute. Inclusion of the in-kind benefits is consistent, even when resulting from employment other than self-employment, because the legislature included the “catch-all” phrase “all other income” within the traditional employee income language. This catch-all phrase makes it incorrect to assume the legislature’s silence was meant as an exclusion. Becker argues instead that the catch-all phrase, included in prior statutory language, is a buffer which allows the courts to look at changes within society which could not be foreseen when the statute was written, and allows courts to use discretion in determining what should and should not be included in gross income.
Second, Becker argues that if the legislature did not intend for in-kind benefits to be included in the gross income calculation, it would have included them in the list of exceptions in R.C. 3119.01(C)(7). Furthermore, Becker argues the inclusion of benefits in the gross income calculation is consistent with the goals of the legislature, which sought to prevent parents from hiding income against the best interests of the child in order to gain a short term financial benefit. In order to prevent this abuse, the legislature empowered the trial court, through R.C. 3119.01, to consider both real and potential income, which could include in-kind benefits.
Morrow’s Proposed Proposition of Law
Employment benefits are includable income for purposes of calculating child support only if the party receiving those benefits is self-employed, the proprietor of a business, or is a joint owner of a partnership or closely held corporation, pursuant to R.C. 3119.01.
Student Contributor: Rebecca Campbell