{¶ 2} David and Cindy were divorced in February of 1999. They have three minor children, Bradley (12), Emma (14) and Laura (17), as of the date of the second and last hearing held on June 16, 2005. Both parties have since remarried. At the hearings, David presented evidence of his substantially lower income since the date of the divorce. At the time of the divorce, David made $165,000 per year. When he filed his first Motion on December 6, 2004, to change his support obligations his income was $118,000 per year. Then he filed a second Motion on May 17, 2005, stating his income was $95,000 per year. Cindy works as an operating-room registered nurse and makes approximately $30,000 per year. She works twenty-four hours a week, although she testified that she will occasionally pick up extra shifts or additional time. She testified that full-time employment is not available at her current place of employment. She testified at the hearing that she has worked part-time since the children were born because it permits her time home with them to attend school functions, parties, etc. (T. 21). She admitted she once turned down full-time employment.
{¶ 3} David has the two youngest children fifty percent (50%) of the time. The oldest child spends all of her time with her mother, Cindy. David testified to in-kind contributions for his children, including a college fund, Bible camp, school and sports fees, clothing expenses, and money for social activities. David testified he has also set aside three thousand dollars so that the middle child can purchase a car when she turns sixteen.
{¶ 4} In refusing to impute additional income to Cindy, the trial court noted that she is currently working twenty-four (24) hours per week and is caring for three children. The court did note that David has two of the parties' children fifty percent (50%) of the time as of August 31, 2005, and the trial court granted David a ten percent (10%) deviation from the child-support guidelines. Effective the date of the court's last hearing, the court ordered David to pay $4,601.03 for certain uninsured medical expenses within 180 days of the court's entry.
{¶ 6} "Per R.C.
{¶ 7} `(i) The parent's prior employment experience;
{¶ 8} `(ii) The parent's education;
{¶ 9} `(iii) The parent's physical and mental disabilities, if any;
{¶ 10} `(iv) The availability of employment in the geographic area in which the parent resides;
{¶ 11} `(v) The prevailing wage and salary levels in the geographic area in which the parent resides;
{¶ 12} `(vi) The parent's special skills and training;
{¶ 13} `(vii) Whether there is evidence that the parent has the ability to earn the imputed income;
{¶ 14} `(viii) The age and special needs of the child for whom child support is being calculated under this section;
{¶ 15} `(ix) The parent's increased earning capacity because of experience;
{¶ 16} `(x) Any other relevant factor.'"
Robinson v. Robinson, Ohio App.3d, 2006 ___ Ohio ___ 4282, ¶ 30-40.
{¶ 17} David argues that the trial court failed to make the necessary findings that would justify its legal conclusion that Cindy was "fully employed." David argues that Cindy works only three days a week because she chooses to, although she could earn at least $18,000 per year more should she work full time as an operating room registered nurse. David notes that the record indicates that Cindy turned down a full-time job which would have paid at least $11,000 more than she is currently receiving. He argues Cindy's admission corroborates evidence he presented that surgical nurses make $48,000 to $50,000 full time. He argues we should reverse the trial court's decision because the trial court failed to consider prevailing job opportunities and salary levels in the area per R.C.
{¶ 18} For her part Cindy argues the trial court did not abuse its discretion because she has always worked part time throughout her children's lives and David never objected until just recently. She notes she still has three minor children in her care, and there was no evidence she could earn significantly more money than her part-time income.
{¶ 19} In Thomas v. Thomas, (Mar. 31, 1995) Greene App. 94-CA-18, we found no abuse of discretion in the award of spousal support to the wife for five years. The parties had four children ages six to ten at the time of the divorce. At the birth of the third child, the parties had agreed Mrs. Thomas would stay at home with the children and not work. She had worked part time as a registered nurse. The husband was a military physician at the time of the divorce in 1992. He argued in the trial court that his wife was voluntarily unemployed because she was a registered nurse capable of earning $25,00 to $30,000 annually. He contended the trial court abused its discretion in not imputing income to her. The trial court found that Mrs. Thomas would require retraining in her speciality, she had been the primary caretaker of all the children under ten, and Dr. Thomas' earning abilities far exceeded Mrs. Thomas' even if she worked full time. We held the court did not abuse its discretion because the five years of spousal support would see the youngest child through elementary school, and in lieu of Dr. Thomas' earning ability, it would not be unreasonable to expect Mrs. Thomas to remain a full-time mother until the youngest child finished the sixth grade.
{¶ 20} In Goode v. Goode (1991),
{¶ 21} We agree with David that the trial court abused its discretion in not finding that Cindy was voluntarily underemployed. The trial court merely found that the parties' children are "in her care" as they were when the parties were divorced in 1999. In the interim, David has had a substantial reduction in income and the children have gotten older and more mature. Laura is now an adult, Emma is nearly sixteen, and Bradley is thirteen years of age. David is now expecting even more visitation with the children under the shared-parenting arrangement agreed to by the parties. There is little doubt that registered nurses are in high demand and Cindy could earn additional income. The trial court failed to address these changes in the parties' family situation. Upon remand, the trial court should determine how much income to impute to Cindy. The court is not required to impute a forty-hour work week nor to impute the income as of the date of David's motion. The first assignment of error is sustained.
{¶ 23} David argues that the trial court failed to meet the second prong of R.C.
{¶ 24} R.C.
{¶ 25} This Court also finds that some of the other factors do not apply in this case. David and Cindy have not obtained additional employment after a child support order was issued in order to support a second family; R.C.
{¶ 26} Of the factors that do apply, David first argues that he has the children 50% of the time and that R.C.
{¶ 27} David next asserts that there is no disparity between incomes between the households. R.C.
{¶ 28} David argues that he has made significant in-kind contributions and the trial court did not take that into consideration. R.C.
{¶ 29} After a thorough review of the factors and David's arguments, the 10% amount is a reasonable deviation when considering the factors of the disparity of the parties' income, the amount of extra time the two children spend with their father, and the in-kind contributions. Because a deviation was reasonable, the trial court did not abuse its discretion when it failed to state that the worksheet amount was unjust or inappropriate. David's second assignment of error is overruled.
Judgment Affirmed in part, Reversed in part and Remanded for further proceedings.
Wolff, J., and Walters, J., concur.
(Hon. Sumner E. Walters, retired from the Third Appellate District, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).