On December 20, 2012 The Ohio Legislature passed Ohio House Bill 479. Ohio House Bill 479 which becomes effective in March 2013 amends Ohio Revised Code 2329.66 ( A)(10)(a) in certain areas which have an impact on the practice of domestic relations in Ohio. I have reprinted below the sections of Ohio House Bill 479/Revised Code 2329.66 and I have highlighted the relevant and important portions of the new bill. The important portions of the bill for domestic relations practitioners is a) the exemption for a residence has been raised to $ 125,000.00 ( R.C. 2329.66 (b) and that retirement plans transferred by way of a Qualified Domestic Relations Order are exempt ( 2329.66 (f).

Ohio Revised Code 2329.66 ( A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order as follows:

(b) In the case of all other judgments and orders, the person's interest, not to exceed twenty one hundred twenty-five thousand two hundred dollars, in one parcel or item of real or personal property that the person or a dependent of the person uses as a residence.

(c) For purposes of divisions (A)(1)(a) and (b) of this section, "parcel" means a tract of real property as identified on the records of the auditor of the county in which the real property is located.

(10)(a) Except in cases in which the person was convicted of or pleaded guilty to a violation of section 2921.41 of the Revised Code and in which an order for the withholding of restitution from payments was issued under division (C)(2)(b) of that section, in cases in which an order for withholding was issued under section 2907.15 of the Revised Code, in cases in which an order for forfeiture was issued under division (A) or (B) of section 2929.192 of the Revised Code, and in cases in which an order was issued under section 2929.193 of the Revised Code, and only to the extent provided in the order, and except as provided in sections 3105.171, 3105.63, 3119.80, 3119.81, 3121.02, 3121.03, and 3123.06 of the Revised Code, the person's right rights to or interests in a pension, benefit, annuity, retirement allowance, or accumulated contributions, the person's right rights to or interests in a participant account in any deferred compensation program offered by the Ohio public employees deferred compensation board, a government unit, or a municipal corporation, or the person's other accrued or accruing rights or interests, as exempted by section 145.56, 146.13, 148.09, 742.47, 3307.41, 3309.66, or 5505.22 of the Revised Code, and the person's right rights to or interests in benefits from the Ohio public safety officers death benefit fund;

(b) Except as provided in sections 3119.80, 3119.81, 3121.02, 3121.03, and 3123.06 of the Revised Code, the person's right rights to receive or interests in receiving a payment or other benefits under any pension, annuity, or similar plan or contract, not including a payment or benefit from a stock bonus or profit-sharing plan or a payment included in division (A)(6)(b) or (10)(a) of this section, on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the person and any of the person's dependents, except if all the following apply:

(i) The plan or contract was established by or under the auspices of an insider that employed the person at the time the person's rights or interests under the plan or contract arose.

(ii) The payment is on account of age or length of service.

(iii) The plan or contract is not qualified under the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.

(c) Except for any portion of the assets that were deposited for the purpose of evading the payment of any debt and except as provided in sections 3119.80, 3119.81, 3121.02, 3121.03, and 3123.06 of the Revised Code, the person's right rights or interests in the assets held in, or to directly or indirectly receive any payment or benefit under, any individual retirement account, individual retirement annuity, "Roth IRA," "529 plan," or education individual retirement account that provides payments or benefits by reason of illness, disability, death, retirement, or age or provides payments or benefits for purposes of education, to the extent that the assets, payments, or benefits described in division (A)(10)(c) of this section are attributable to or derived from any of the following or from any earnings, dividends, interest, appreciation, or gains on any of the following:

(i) Contributions of the person that were less than or equal to the applicable limits on deductible contributions to an individual retirement account or individual retirement annuity in the year that the contributions were made, whether or not the person was eligible to deduct the contributions on the person's federal tax return for the year in which the contributions were made;

(ii) Contributions of the person that were less than or equal to the applicable limits on contributions to a Roth IRA or education individual retirement account in the year that the contributions were made;

(iii) Contributions of the person that are within the applicable limits on rollover contributions under subsections 219, 402(c), 403(a)(4), 403(b)(8), 408(b), 408(d)(3), 408A(c)(3)(B), 408A(d)(3), and 530(d)(5) of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C.A. 1, as amended;

(iv) Contributions by any person into any plan, fund, or account that is formed, created, or administered pursuant to, or is otherwise subject to, section 529 of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.

(d) Except for any portion of the assets that were deposited for the purpose of evading the payment of any debt and except as provided in sections 3119.80, 3119.81, 3121.02, 3121.03, and 3123.06 of the Revised Code, the person's right rights or interests in the assets held in, or to receive any payment under, any Keogh or "H.R. 10" plan that provides benefits by reason of illness, disability, death, retirement, or age, to the extent reasonably necessary for the support of the person and any of the person's dependents.

(e) The person's rights to or interests in any assets held in, or to directly or indirectly receive any payment or benefit under, any individual retirement account, individual retirement annuity, "Roth IRA," "529 plan," or education individual retirement account that a decedent, upon or by reason of the decedent's death, directly or indirectly left to or for the benefit of the person, either outright or in trust or otherwise, including, but not limited to, any of those rights or interests in assets or to receive payments or benefits that were transferred, conveyed, or otherwise transmitted by the decedent by means of a will, trust, exercise of a power of appointment, beneficiary designation, transfer or payment on death designation, or any other method or procedure.

(f) The exemptions under divisions (A)(10)(a) to (e) of this section also shall apply or otherwise be available to an alternate payee under a qualified domestic relations order (QDRO) or other similar court order.

(g) A person's interest in any plan, program, instrument, or device described in divisions (A)(10)(a) to (e) of this section shall be considered an exempt interest even if the plan, program, instrument, or device in question, due to an error made in good faith, failed to satisfy any criteria applicable to that plan, program, instrument, or device under the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.

Recently I had the occasion to address the issue of the return of children who had been wrongfully removed from the United States to Japan. Although Japan is a member of the Hague Convention on the abduction of children, it has been very difficult to obtain the return of children wrongfully removed from Japan. I have reprinted below a portion of a comment from Attorney Jeremy Morley regarding a change in Japanese law as it relates to the return of children under the Hague Convention from Japan.

"In May the Ministry of Foreign Affairs of the Government of Japan announced a so-called "pilot project" to assist in child abduction cases. Indeed, it renamed a division as the "Hague Child Abduction Convention Division". On August 1, 2012 the Ministry of Foreign Affairs announced that the program has been extended until March 29, 2013.
See http://www.mofa.go.jp/policy/human/pilot_120501_en_2.html

The pilot program allows a left-behind parent to make one telephone call for up to one hour to a Japanese lawyer to receive information. The Ministry cautions that, "The lawyer will not give you professional consultation on your specific case. This pilot project is designed to allow you, who reside outside Japan, to gain a deeper understanding as to what scheme currently available in Japan might be of help to you."

Recently in preparation for a seminar which I am presenting I ran across a very interesting case regarding the dischargeability of a debt. The case is Stocker v Stocker, 9th District, Case No. 12CA 0021
( December 2012). It would appear that at least in the 9th Ohio Appellate District a debt may not be discharged even though it is listed in the bankruptcy petition if the debt is found to be a marital debt as defined by Section 523(a) ( 15) of the Bankruptcy Act. I have summarized the facts and decision below.

FACTS:

1. Parties entered into a settlement agreement to resolve their divorce.
2. The parties agreed as to their marital home to sell the home and that until such time as the hold sold, the Husband would pay the monthly obligation on the first mortgage and the Wife would pay the obligation on the line of credit.
3. The parties also agreed that if the home sold for less then what was owed on the combined mortgage balances, the parties would share equally in the payment of any deficiency.
4. Both parties advised each other that they were considering the filing of bankruptcy and thus the divorce decree recited that nothing in the divorce decree prevented either party from filing for bankruptcy or discharge of any of the debts set forth in the divorce decree.
5. Prior to the sale of the home but post-divorce, both parties file for bankruptcy and stop paying the mortgage payments.  Husband filed for Chap7 and was discharged in November 2012. Wife filed for Chapter 13 and was discharged in March 2012.
6. In December 2010 the home sold for $ 2,472.89 less than the combined mortgages. Wife paid the amount of the deficiency. Wife filed for contempt against the husband for failure to make the payment on the first mortgage. Husband found in contempt and ordered to Wife $4,896.68.
7. This is the amount which the Court determined was due. To arrive at this amount the Court determined that if both had paid their respective mortgages each would have netted $ 2,850.43. After adjusting for the payments that the Wife didn’t make on the line of credit, the wife would have received $ 4,896.68.
8. Husband appeals. Affirmed.

DECISION:

In determining that the trial Court had acted appropriately the Court of Appeals analyzed the Court’s decision in light of the provisions of the BAPCPA ( the Bankruptcy Abuse Prevention and Consumer Act of 2005) and found:

1. Federal law determines whether a debt is non dischargeable in bankruptcy. However, state and federal courts share concurrent jurisdiction to determine whether a debt should be characterized as non dischargeable.

2. Court of Appeals rejected the Husband’s argument that the mortgage payments had been discharged in bankruptcy. The husband filed with the Court his notice of discharge with the trial court. However, the notice of discharged did not indicate which debts were discharged. Therefore the trial court was not precluded from deciding if the debt fell with Section 523(A)(15) making it non dischargeable under federal law.

Court rejected the husband’s argument that the wife did not object to the husband’s discharge in the husband’s bankruptcy proceeding and therefore the trial court exceeded it’s jurisdiction in ordering the husband to pay the wife. The Court of Appeals noted that a non debtor spouse no longer has an affirmative duty to file an adversary proceeding when seeking to have a non dischargeablity determination made pursuant to 11
USC 523 (a)(15). Therefore, the trial court was within it’s jurisdiction to decide if the debt should be characterized as non dischargeable.

4. Husband argued that because there was no hold harmless language in the decree that the Section 523(a)(15) does not apply and the debt is dischargeable. The court rejected that argument and found that the absence of “ hold harmless language” by itself is not dispositive of whether a debt falls within Sec 523(a)(15), but it is a factor to consider when determining whether a debt even exists. The Court found that under the plain language of the divorce decree the wife had a right to seek enforcement of the husband’s obligation to pay the first mortgage. Thus, the husband in the divorce decree incurred a debt in favor of the wife and is non dischargeable under 523( a)(15). The husband’s bankruptcy only discharged his obligation to the bank. The husband “was not permitted to discharge the new debt he incurred in the divorce decree in favor of the wife because the husband became obligated under the separation agreement to pay a third party debt, a debt in favor of the other spouse arises which is non dischargeable under 523(a)(15).

When I first started practicing law 39 years ago there was no need for a young lawyer to know about the collection of child support outside of the United States. However, as time as gone by and the world has grown smaller, the need to know about issues such as the international collection of child support becomes more important and in some cases a necessary tool in a domestic relations matter.

I am reprinting below some information which I came across regarding the collection of child support pursuant to UIFSA (The Uniform Interstate Family Support Act) from certain foreign countries.

1. The following countries were declared by the U.S. government as foreign reciprocating countries for child support purposes. Please click on a particular country to access the official reference documents.

• Australia
• Canada
  • Alberta
  • British Columbia
  • Manitoba
  • New Brunswick
  • Newfoundland/ Labrador
  • Northwest Territories
  • Nova Scotia
  • Nunavut
  • Ontario
  • Saskatchewan
  • Yukon
• Czech Republic
• El Salvador
• Finland
• Hungary
• Ireland
• Israel
• Netherlands
• Norway
• Poland
• Portugal
• Slovak Republic
• Switzerland
• The United Kingdom of Great Britain and Northern Ireland

2. The US State Department regarding the collection of child support.

The Ohio Legislature in the enactment of SB 337 called the Collateral Sanctions Act has amended Ohio's child support law in Ohio Collateral Sanctions Act ( SB 337) Amends Ohio Child Support Sections As follows:

R.C. 3119.01 ( B) (11)
(11) "Potential income" means both of the following for a parent who the court pursuant to a court support order, or a child support enforcement agency pursuant to an administrative child support order, determines is voluntarily unemployed or voluntarily underemployed:

(a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the following criteria:
(i) The parent's prior employment experience;
(ii) The parent's education;
(iii) The parent's physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which the parent resides;
(v) The prevailing wage and salary levels in the geographic area in which the parent resides;
(vi) The parent's special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn the imputed income;
(viii) The age and special needs of the child for whom child support is being calculated under this section;
(ix) The parent's increased earning capacity because of experience;
(x) The parent's decreased earning capacity because of a felony conviction;

3119.05 (H)(1) amended as follows:

(H) When the court or agency calculates gross income, the court or agency, when appropriate, may average income over a reasonable period of years.

(I) A Unless it would be unjust or inappropriate and therefore not in the best interests of the child, a court or agency shall not determine a parent receiving means-tested public assistance benefits to be voluntarily unemployed or underemployed and shall not impute income to that parent, unless not making such determination and not imputing income would be unjust, inappropriate, and not in the best interest of the child if either of the following conditions exist:

(1) The parent is receiving recurring monetary income from means-tested public assistance benefits, including cash assistance payments under the Ohio works first program established under Chapter 5107. of the Revised Code, financial assistance under the disability financial assistance program established under Chapter 5115. of the Revised Code, supplemental security income, or means-tested veterans' benefits;
(2) The parent is incarcerated or institutionalized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order or an offense under Title XXIX of the Revised Code when the obligee or a child who is the subject of the support order is a victim of the offense.

(J) When a court or agency requires a parent to pay an amount for that parent's failure to support a child for a period of time prior to the date the court modifies or issues a court child support order or an agency modifies or issues an administrative child support order for the current support of the child, the court or agency shall calculate that amount using the basic child support schedule, worksheets, and child support laws in effect, and the incomes of the parents as they existed, for that prior period of time.

(K) A court or agency may disregard a parent's additional income from overtime or additional employment when the court or agency finds that the additional income was generated primarily to support a new or additional family member or members, or under other appropriate circumstances.

(L) If both parents involved in the immediate child support determination have a prior order for support relative to a minor child or children born to both parents, the court or agency shall collect information about the existing order or orders and consider those together with the current calculation for support to ensure that the total of all orders for all children of the parties does not exceed the amount that would have been ordered if all children were addressed in a single judicial or administrative proceeding.

Sec. 3123.58. (A) On receipt of a notice pursuant to section 3123.54 of the Revised Code, the registrar of motor vehicles shall determine whether the individual named in the notice holds or has applied for a driver's license or commercial driver's license, motorcycle operator's license or endorsement, or temporary instruction permit or commercial driver's temporary instruction permit. If the registrar determines that the individual holds or has applied for a license, permit, or endorsement and the individual is the individual named in the notice and does not receive a notice pursuant to section 3123.56 or 3123.57 of the Revised Code, the registrar immediately shall provide notice of the determination to each deputy registrar. The registrar or a deputy registrar may not issue to the individual a driver's or commercial driver's license, motorcycle operator's license or endorsement, or temporary instruction permit or commercial driver's temporary instruction permit and may not renew for the individual a driver's or commercial driver's license, motorcycle operator's license or endorsement, or commercial driver's temporary instruction permit. The registrar or a deputy registrar also shall impose a class F suspension of the license, permit, or endorsement held by the individual under division (B)(6) of section 4510.02 of the Revised Code.

(B)(1) A court may grant an individual whose license, permit, or endorsement is suspended under this section limited driving privileges in accordance with division (B) of section 4510.021 of the Revised Code pursuant to a request made during an action for contempt initiated under section 2705.031 of the Revised Code. Prior to granting privileges under this division, the court shall request the accused to provide the court with a recent noncertified copy of a driver's abstract from the registrar of motor vehicles and shall request the child support enforcement agency that issued the notice pursuant to section 3123.54 of the Revised Code relative to the individual to advise the court, either in person through a representative testifying at a hearing or through a written document, the position of the agency relative to the issue of the granting of privileges to the individual. The court, in determining whether to grant the individual privileges under this division, shall take into consideration the position of the agency, but the court is not bound by the position of the agency.

(2) A court that grants limited driving privileges to a person under division (B)(1) of this section shall deliver to the person a permit card, in a form to be prescribed by the court, setting forth the date on which the limited privileges will become effective, the purposes for which the person may drive, the times and places at which the person may drive, and any other conditions imposed upon the person's use of a motor vehicle.

(3) The court immediately shall notify the registrar, in writing, of a grant of limited driving privileges under division (B)(1) of this section. The notification shall specify the date on which the limited driving privileges will become effective, the purposes for which the person may drive, and any other conditions imposed upon the person's use of a motor vehicle.

(C) If a person who has been granted limited driving privileges under division (B)(1) of this section is convicted of, pleads guilty to, or is adjudicated in juvenile court of having committed a violation of Chapter 4510. of the Revised Code or any similar municipal ordinance during the period of which the person was granted limited driving privileges, the person's limited driving privileges shall be suspended immediately pending a reinstatement hearing.

      In June 2011 The Ohio Legislature enacted a bill which modifies for individuals who are ordered to active duty Ohio's Custody Laws.  Ohio Revised Code 3109.04 (I) effective June 2011 now sets forth procedures for  men and women who are called to active duty and who are involved in an action involving the allocation of parental rights or who have been involved in an action regarding the allocation of parental rights.  In general the new law provides for an expedited process for a determination of parental rights for parents who have been called to active duty. If you are in the military and have questions regarding the new law please contact our office to schedule an appointment to discuss the matter.  

      The newly enacted law ( Ohio Revised Code 3109.04(I) provides as follows:

I)(1) Upon receipt of an order for active military service in the uniformed services, a parent who is subject to an order allocating parental rights and responsibilities or in relation to whom an action to allocate parental rights and responsibilities is pending and who is ordered for active military service shall notify the other parent who is subject to the order or in relation to whom the case is pending of the order for active military service within three days of receiving the military service order.

(2) On receipt of the notice described in division (I)(1) of this section, either parent may apply to the court for a hearing to expedite an allocation or modification proceeding so that the court can issue an order before the parent's active military service begins. The application shall include the date on which the active military service begins.
The court shall schedule a hearing upon receipt of the application and hold the hearing not later than thirty days after receipt of the application, except that the court shall give the case calendar priority and handle the case expeditiously if exigent circumstances exist in the case.
The court shall not modify a prior decree allocating parental rights and responsibilities unless the court determines that there has been a change in circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree, and that modification is necessary to serve the best interest of the child. The court shall not find past, present, or possible future active military service in the uniformed services to constitute a change in circumstances justifying modification of a prior decree pursuant to division (E) of this section. The court shall make specific written findings of fact to support any modification under this division.

(3) Nothing in division (I) of this section shall prevent a court from issuing a temporary order allocating or modifying parental rights and responsibilities for the duration of the parent's active military service. A temporary order shall specify whether the parent's active military service is the basis of the order and shall provide for termination of the temporary order and resumption of the prior order within ten days after receipt of notice pursuant to division (I)(5) of this section, unless the other parent demonstrates that resumption of the prior order is not in the child's best interest.

(4) At the request of a parent who is ordered for active military service in the uniformed services and who is a subject of a proceeding pertaining to a temporary order for the allocation or modification of parental rights and responsibilities, the court shall permit the parent to participate in the proceeding and present evidence by electronic means, including communication by telephone, video, or internet to the extent permitted by the rules of the supreme court of Ohio.

(5) A parent who is ordered for active military service in the uniformed services and who is a subject of a proceeding pertaining to the allocation or modification of parental rights and responsibilities shall provide written notice to the court, child support enforcement agency, and the other parent of the date of termination of the parent's active military service not later than thirty days after the date on which the service ends.