Kayleigh Bruns v. Marcus Green
No. 18AP-259
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
June 11, 2019
2019-Ohio-2296
SADLER, J.; KLATT, P.J., and DORRIAN, J., concur.
C.P.C. No. 13JU-8624; REGULAR CALENDAR
Rendered on June 11, 2019
On brief: Plymale & Dingus, LLC, and M. Shawn Dingus, for appellee. Argued: M. Shawn Dingus.
On brief: Randy S. Kurek, for appellant. Argued: Randy S. Kurek.
APPEAL from the Franklin County Court of Common Pleas, Domestic Relations, Juvenile Branch
SADLER, J.
{¶ 1} Defendant-appellant, Marcus Green, appeals the March 2, 2018 judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which terminated a prior shared parenting decree and plan and allocated the parental rights and responsibilities of appellant and plaintiff-appellee, Kayleigh Bruns. For the following reasons, we affirm the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee are the biological parents of one minor child born in 2012. On October 10, 2014, the parties entered into an Agreed Shared Parenting Plan (“the Plan“) pursuant to
{¶ 3} On June 3, 2015, appellant filed a motion for change of parental rights and responsibilities requesting full custody of the child. Thereafter, appellee filed a “Motion to Terminate Shared Parenting and to Reallocate Parental Rights and Responsibilities” on August 27, 2015, in which appellee requested the trial court order termination of the Plan pursuant to
{¶ 4} On March 2, 2018, the trial court entered judgment that decreed the “parties’ Joint Shared Parenting Plan terminated,” designating appellee as the sole legal custodian and residential parent of the minor child stating a parenting schedule for the minor child both prior to and after the commencement of kindergarten. (Emphasis sic.) (Trial Ct. Jgmt. at 11.) The trial court modified the current order of child support from $0 to $322.26 to $376.95, depending on whether private health insurance is in effect. In doing so, the trial court considered the “best interest of a child” factors listed in
{¶ 5} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant assigns the following as trial court error:1
[1.] The trial court committed reversable [sic] error in changing the minor child‘s residential parent without any determination of a substantial change in circumstances and that either (i) both parties agreed to the change; (ii) both
parties have consented to the integration of the minor child into Appellee‘s family; or (iii) that the harm likely to be caused to the minor child by the change of environment is outweighed by the advantages of the change of environment, as is mandated by ORC 3109.04(E)(1)(a) .[2.] The trial court committed reversable [sic] error in basing it‘s [sic] child support calculations on Appellant‘s prior employment without any determination that Appellant was underemployed or that income should be imputed to Appellant as mandated by
R.C. 3119.01(C)(11) .
III. LEGAL ANALYSIS
A. Appellant‘s First Assignment of Error
{¶ 7} In his first assignment of error, appellant contends the trial court committed reversible error in changing the residential parent of the child without making the determinations required by
{¶ 8} The core dispute in this case is whether the trial court may terminate a shared parenting plan and decree and subsequently modify the parental rights and responsibilities under
{¶ 9}
{¶ 10} On the other hand, if neither parent files a pleading or motion in accordance with
[T]he court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the parent who is not the residential parent to have continuing contact with the children.
{¶ 11}
(1)(a) The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
* * *
(2) In addition to a modification authorized under division (E)(1) of this section:
(a) Both parents * * * may modify the terms of the plan [subject to the court‘s review of the best interest of the child].
(b) The court may modify the terms of the plan * * * upon its own motion at any time if the court determines that the modifications are in the best interest of the child * * *.
(c) The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children. * * * If modification of the terms of the plan for shared parenting approved by the court and incorporated by it into the final shared parenting decree is attempted under division (E)(2)(a) of this section and the court rejects the modifications, it may terminate the final shared parenting decree if it determines that shared parenting is not in the best interest of the children.
(d) Upon the termination of a prior final shared parenting decree under division (E)(2)(c) of this section, the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B), and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.
{¶ 12} Appellant argues the trial court erred in terminating the shared parenting plan and not retaining him as the residential parent without finding a change in circumstances pursuant to
{¶ 13} Appellee counters the trial court properly terminated the decree and plan under
{¶ 14} After careful consideration, we agree with appellee. In Lopez, the mother argued the trial court failed to comply with the requirements of
{¶ 15} The reasoning of Lopez is consistent with the plain language of the statute.
{¶ 16} Moreover, appellant has not met his burden of demonstrating error on appeal. State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an appellant bears the burden of affirmatively demonstrating error on appeal); App.R. 16(A)(7). First, as a preliminary matter, we note that appellant asks us to evaluate whether
{¶ 17} Second, the cases referenced in appellant‘s principal brief, In re James, In re B.H.H., and N.S. v. C.E., concern modifications of the shared parenting plan rather than terminations and are therefore not determinative of this case. In fact, In re B.H.H. cuts against appellant‘s argument, stating “[i]n contrast to the modification of a prior decree allocating parental rights and responsibilities under
{¶ 18} Third, “[a]ppellate courts generally will not consider a new issue presented for the first time in a reply brief.” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 18. Doing so “effectively den[ies] the appellee an opportunity to respond to it.” (Internal quotations omitted.) Mitchell v. Holzer Med. Ctr., 4th Dist. No. 16CA20, 2017-Ohio-8244, ¶ 22. In the case at bar, appellant did not raise in his initial appellate brief the argument that Fisher applies to terminations in addition to modifications. Rather, he raised it for the first time in his reply brief. By failing to raise it in his initial brief, appellant deprived appellee of the opportunity to fully respond to the issue.
{¶ 19} Nevertheless, even had this argument been properly raised, we do not believe Fisher or the additional cases cited by appellant control the outcome of this case. Unlike in the instant case, Fisher involved some controversy as to whether the actions of the trial court constituted a modification or a termination. The trial court considered its own actions to be a termination, but the appellate court treated the trial court‘s action as a modification and found its opinion to be in conflict with another appellate court on that specific basis. The Supreme Court of Ohio likewise accepted the appeal and certified a conflict among the two districts on the question of “the proper application of
{¶ 20} In this case, neither party disputes that the trial court terminated the shared parenting decree and plan, a result both parties sought. This case firmly involves a termination under
{¶ 21} Accordingly, appellant‘s first assignment of error is overruled.
B. Appellant‘s Second Assignment of Error
{¶ 22} In his second assignment of error, appellant argues the trial court committed reversible error in basing its child support calculations on his prior employment without any determination that he was underemployed or that income should be imputed to him “as mandated by
{¶ 23}
(5) “Income” means either of the following:
(a) For a parent who is employed to full capacity, the gross income of the parent;
(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent.
* * *
(7)(a) “Gross income” means, except as excluded in division (C)(7) of this section, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses to the extent described in division (D) of section 3119.05 of the Revised Code; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; benefits that are not means-tested and that are received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a program or law administered by the United States department of veterans’ affairs or veterans’ administration; spousal support actually received; and all other sources of income.
* * *
(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;
(xi) Any other relevant factor.
“The parent‘s subjective motivations for being voluntarily unemployed or underemployed play no part in the determination whether potential income is to be imputed to that parent in calculating his or her support obligation.” (Emphasis sic.) Rock v. Cabral, 67 Ohio St.3d 108, 111 (1993).
{¶ 24} A trial court‘s determination that a parent is voluntarily underemployed for purposes of calculating child support under
{¶ 25} Appellant argues the trial court committed reversible error by finding he was “capable of earning $54,241.00 per year” without any other findings or consideration. (Trial Ct. Decision at 10.) Specifically, appellant contends that under Apps v. Apps, 10th Dist. No. 02AP-1072, 2003-Ohio-7154, ¶ 48, and Bruno v. Bruno, 10th Dist. No. 04AP-1381, 2005-Ohio-3812, the trial court, in its decision to impute income to him, should have made a finding that he was “underemployed” and considered the factors set forth in
{¶ 26} Appellee argues that under Dach, a trial court does not commit reversible error in failing to make an express finding that a parent is underemployed for purposes of imputing income when the reviewing court is capable of inferring such a finding from the record. Id. at ¶ 57. Appellee contends the record here has sufficient evidence to do so.
This court has held that before a trial court may impute income to a parent, the court must make a finding that the parent is voluntarily unemployed or underemployed. Bruno v. Bruno, 10th Dist, No. 04AP-1381, 2005-Ohio-3812, citing Apps v. Apps, 10th Dist. No. 02AP-1072, 2003-Ohio-7154, ¶ 48. However, more recently, this court has distinguished those cases. In Chawla v. Chawla, 10th Dist. No. 13AP-399, 2014-Ohio-1188, finding that when the trial court considered the
R.C. 3119.01(C)(11) factors, provided rationale for its imputed income and the record demonstrated evidence to support a finding of voluntary underemployment, this court found no abuse of discretion in calculating the child support obligation. See also, Thaher v. Hamed, 10th Dist. No. 09AP-970, 2010-Ohio-5257 (specific words “voluntarily underemployed” not required where it is clear the trial court concluded that, based on the evidence, the obligor was voluntarily underemployed); Snyder v. Snyder, 5th Dist. No. 2008CA00219, 2009-Ohio-5292 (no magic language requirement in deciding whether one is voluntarily underemployed or unemployed); Winkelman v. Winkelman, 11th Dist. No. 2008-G-2834, 2008-Ohio-6557 (no magic language required in making a finding of voluntary unemployment or underemployment and implicit in the trial court‘s decision was that the parent was voluntarily unemployed); Drummer [v. Drummer, 3d Dist. No. 12-11-10, 2012-Ohio-3064] (while the better practice would be to expressly find a parent unemployed or underemployed, it is not reversible error to fail to make an express finding for purposes of imputing income to the parent when the reviewing court is capable of inferring such a finding from the record). See also O‘Connor v. O‘Connor, 184 Ohio App.3d 538, 2009-Ohio-5436, 921 N.E.2d 700 (3d Dist. 2009); Wheeler v. Wheeler, 6th Dist. No. OT-04-025, 2005-Ohio-1025, ¶ 26.
{¶ 29} Considering the above, the record contains evidence to support a finding of voluntary underemployment. Therefore, despite the trial court failing to make an express finding of voluntary underemployment, pursuant to Dach, we find appellant has not provided an evidentiary basis to demonstrate that the trial court committed reversible error or abused its discretion in imputing income to him based upon his prior employment.
{¶ 30} Accordingly, appellant‘s second assignment of error is overruled.
IV. CONCLUSION
{¶ 31} Having overruled appellant‘s two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
KLATT, P.J., and DORRIAN, J., concur.