August v. August
2014 Ohio 3986
Ohio Ct. App.2014Background
- Kehly and Joshua August divorced after separation in 2011; one minor child, B.A. Trial court named Joshua residential parent, awarded parenting time to Kehly, ordered Kehly to pay child support, and divided marital assets. Kehly appealed.
- Major factual points influencing custody: B.A. had a close relationship with paternal grandparents/extended family; incidents during/after exchanges (bruising on B.A., attempts by Kehly or her fiancé to take the child by force, contentious exchanges) led to CPS investigation (no finding of abuse) and supervised visits for a time.
- Kehly moved to the Toledo area, quit an 8-year co-manager job at Hobby Lobby (earned $45,230 in 2011) and earned about $1,000 from an internet business; Joshua worked intermittently but obtained full‑time employment at Fastenal (~$24,000 base plus commissions) by trial.
- Magistrate recommended (and trial court adopted) denying shared parenting, naming Joshua residential parent, imputing $30,623 as Kehly’s potential income (finding her voluntarily underemployed), and dividing marital assets nearly equally (Kehly net ~$19,049; Joshua net ~$17,197).
- Procedural history: magistrate decision (Jan 2013), objections overruled (Jul 2013), final decree issued (Aug 2013). Both parties were later found in contempt for parenting-time violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether shared parenting or naming Kehly residential parent was required | Kehly: parties had effectively shared parenting during pendency and could cooperate; shared parenting is in child's best interest | Joshua: opposed shared parenting; cited safety/behavioral concerns, inability to cooperate, child’s relationship with paternal family | Court: Denied shared parenting; named Joshua residential parent — trial court did not abuse discretion given hostility, bruising incidents, failed communication, GAL recommendation against shared parenting |
| Whether court properly considered best-interest factors in allocating parental rights | Kehly: trial court erred in weighing factors (stability, credibility findings) against her | Joshua: factors (child’s ties to paternal family, incidents, inability to cooperate) support award to him | Court: Trial court properly applied R.C. 3109.04(F)(1)/(2); findings supported in record; credibility concerns not reversible error |
| Whether trial court properly calculated child support by imputing income to Kehly | Kehly: court imputed too high potential income without evidence of local job availability or prevailing wages | Joshua: court permissibly imputed income based on Kehly’s prior earnings, experience, skills, and voluntary unemployment | Court: Imputation to $30,623 reasonable and supported by evidence (prior earnings, retail management experience); absence of evidence on certain statutory factors was not reversible when parties presented none |
| Whether property division was inequitable | Kehly: asset division unfair (loan to her mother unlikely repaid; vehicle repossessed; bank account should be split) | Joshua: division produced nearly equal net awards; court accounted for negative vehicle value and awarded bank account to him | Court: Division nearly equal and supported by record; trial court did not abuse discretion |
Key Cases Cited
- Booth v. Booth, 44 Ohio St.3d 142 (Ohio 1989) (abuse-of-discretion standard in domestic relations appeals)
- Neville v. Neville, 99 Ohio St.3d 275 (Ohio 2003) (trial court has broad discretion dividing marital property and may depart from equal division when inequitable)
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (deference to trial court credibility determinations in custody matters)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (appellate standard for reversing factual findings: decision must be unreasonable, arbitrary, or unconscionable)
- Rock v. Cabral, 67 Ohio St.3d 108 (Ohio 1993) (trial court may impute income when parent voluntarily unemployed/underemployed)
- O'Connor v. O'Connor, 184 Ohio App.3d 538 (Ohio Ct. App.) (imputation of income must be supported by consideration of statutory factors)
- Wallace v. Wallace, 195 Ohio App.3d 314 (Ohio Ct. App.) (reversal where record lacked evidence supporting imputed income)