2020 Ohio 1086
Ohio Ct. App.2020Background
- Mother (Tasha Hines) and Father (Michael Tucker) are unmarried parents of three children (ages 5, 6, 11 at trial). An administrative child support order (2012) required Father to pay support; Father later lost his police job.
- Father was terminated as a Columbus police officer (prior annual pay ~$78,388). At trial he was employed by Sherwin‑Williams (~$33,200/yr); Mother worked for COTA (~$58,593/yr).
- Father filed for allocation of parental rights and responsibilities (Oct. 2015); hearings before a magistrate occurred Jan–Jun 2017; magistrate issued decision May 18, 2018.
- Magistrate awarded shared parenting, named Father school‑placement parent, found a change in circumstances based on Father’s decreased income, and ordered Mother (higher earner) to pay child support to Father (with downward deviations for equal shared parenting time).
- Neither party filed objections to the magistrate’s decision; the trial court adopted it. Mother appealed, but because she failed to object below she is limited to plain‑error review and the appellate court may not consider a transcript filed only on appeal.
Issues
| Issue | Plaintiff's Argument (Hines) | Defendant's Argument (Tucker) | Held |
|---|---|---|---|
| Whether trial court erred by failing to find Father voluntarily underemployed | Father’s termination was misconduct but court should impute prior income; Father is voluntarily underemployed | Father’s current earnings reflect actual employment; no basis in magistrate decision to find voluntary underemployment | No plain error; record/magistrate decision lacks factual findings to disturb income determination |
| Whether trial court should have imputed Father’s prior $78,388 income | Income prior to termination should be imputed for support calculation | Magistrate used Father’s current Sherwin‑Williams income; no evidence in decision to impute prior income for period of employment there | No plain error; magistrate’s computation stands and appellate court cannot consider omitted transcript |
| Whether Father’s income change is a proper change in circumstances to modify support | A decrease caused by voluntary underemployment should not permit modification | Magistrate found change in circumstances based on decreased income | No plain error; modification upheld given magistrate’s finding and absence of objections/factual basis to reverse |
| Whether court erred by interviewing only the oldest child and not making required inquiry about younger children’s reasoning ability | Court must inquire into reasoning ability for each child and interview all three when requested | Trial court has discretion under R.C. 3109.04(B)(1); record does not show preservation of error and GAL represented children | No plain error; appellate record incomplete, issue possibly waived, and GAL represented children so no prejudice |
Key Cases Cited
- State v. Tichon, 102 Ohio App.3d 758 (9th Dist. 1995) (plain‑error requires error obvious on the record)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (plain‑error standard in civil appeals requires serious effect on fairness/integrity)
- State v. Phillips, 74 Ohio St.3d 72 (Ohio 1995) (notice on plain error to be taken with utmost caution)
- Wallace v. Mantych Metalworking, 189 Ohio App.3d 25 (Ohio App. 2010) (appellate review limited to the record as it existed when trial court rendered judgment)
- State v. Ishmail, 54 Ohio St.2d 402 (Ohio 1978) (appellate court cannot add matter to the record absent being part of trial proceedings)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (Ohio 1980) (when transcript portions necessary for resolution are omitted, reviewing court presumes regularity and affirms)