Chandler v. ChandlerChandler v. Chandler
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Plaintiff-Appellant).
John P. Laczko, 3685 Stutz Drive, Suite 100, Canfield, OH 44406 (For Defendant-Appellee).
TIMOTHY P. CANNON, J.
{1} Appеllant, Keith D. Chandler, appeals from a judgment entry of the Trumbull County Court of Common Pleas, Domestic Relations Division, entered on July 19, 2016. For the following reasons, the judgment is affirmed and the matter is remanded to the trial court to issue a nunc pro tunc judgment entry.
{2} Appellant and appellee, Krista D. Chandler, were married in 2005 and have one child together. This matter originated in the trial court in 2010 as a divorce
{3} Relevant to the case sub judice, the parties submitted an Amended Shared Parenting Plan in December 2015, which was approved by the trial court. The parties agreed to equal parenting time, but could not agree on child support. Thus, the plan provided that the trial court was to make the determination as to child support. A hearing was held on this issue before a magistrate on Dеcember 3, 2015.
{4} The magistrate‘s decision found there had been no change in parenting time from the date the divorce was decreed. The magistrate also found that appellant was voluntarily underemployed and, as a result, imputed income to him in the amount of $60,164. Adding this аmount to appellant‘s income from VA benefits and his business, the magistrate calculated appellant‘s gross annual income on the Child Support Computation Worksheet to be $109,000. He determined appellee‘s annual gross income was $37,500. Appellant was ordered to pay child support in the amount of $1012.15 per month.
{6} Appellant asserts two assignments of error for our review from this entry:
[1.] The trial court‘s finding that the appellant was voluntarily unemployed [sic] was against the manifest weight of the evidence.
[2.] The trial court erred and abused its discretion in failing to grant a downward deviation in child support based upon the fact that the parties share equal parenting time.
{7}
In any action in which a court child support order is issued or modified, * * * the court or agency shall calculate the amount of the obligor‘s child support obligation in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of sections 3119.02 to 3119.24 of the Revised Code. The court or agency shall specify the support obligation as a monthly amount due and shall order the support obligation to be paid in periodic increments as it determines to be in the best interest of the children. * * *
{8} Here, the trial court approved an Amended Shared Parenting Plan submitted by the parties.
{9} Under his first assignment of error, appellant challenges the factual finding that appellant is voluntarily underemployed and the decision to impute income in the amount of $60,164 as being against the mаnifest weight of the evidence.
{11} When a trial court determines a pаrent “is voluntarily unemployed or voluntarily underemployed,” “potential income” includes imputed income.
{12} “Whether a parent is ‘voluntarily underemployed’ within the meaning of [the statute], and the amount of ‘potential income’ to be imputed to a child support obligor, arе matters to be determined by the trial court based upon the facts and circumstances of each case.” Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus (referring to the analogous provisions found in former
Nothing in the statute requires proof that an obligor intended to evade a higher support obligation by not obtaining employment commensurate with education, qualifications and ability. The primary design and purpose of [the statute] are to protect and ensure the best interests of children. 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.
Id. at 111 (emphasis sic) (footnote omitted) (internal citation omitted).
{13} “It is well established that an appellate court employs an abuse of discretion standard when reviewing matters concerning child support.” In re Cunningham, 11th Dist. Trumbull No. 2008-T-0006, 2008-Ohio-3737, ¶26, quoting Gordon v. Liberty, 11th Dist. Portage No. 2004-P-0059, 2005-Ohio-2884, ¶14, citing Booth v. Booth, 44 Ohio St.3d 142, 142, 144 (1989); see also Rock, supra, at syllabus. A challenge to the manifest weight of the evidence, however, also requires a review of the evidence presented, including the reasonable inferences and the credibility of the witnesses, to determine whether the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the decision must be reversed. Id. at ¶41, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); see also Smith v. Smith, 11th Dist. Geauga No. 2013-G-3126, 2013-Ohio-4101, ¶42, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.
{14} The magistrate held a hearing in December 2015 on the issue of child support. Appellаnt testified that he receives approximately $23,000 per year in VA benefits. He lost his job at Sims Buick where he earned approximately $109,000 in the year 2013. Appellant agreed this is proof that he has the current ability to earn that same amount. Appellant further testified thаt he started his own business, Storm Service Solutions LLC, in May or June of 2015 and only pays himself a draw of $500
{15} Here, the magistrate found that appellant is voluntarily underemployed based on his testimony that he has the current ability to earn at least $109,000 annually but that he has elected to defer his own income whilе he is building his business. Thus, the magistrate imputed income to appellant in the amount of $60,164. Added to the $26,000 annual income from his business and the $22,836 annual VA benefits, this resulted in an annual gross income of $109,000 on the Child Support Computation Worksheet.
{16} Considering the testimony outlined above, the magistratе‘s finding that appellant is voluntarily underemployed is not against the manifest weight of the evidence. Based on appellant‘s prior employment experience and evidence that he has the ability to earn the imputed income, we cannot say the trial сourt abused its
{17} Appellant‘s first assignment of error is without merit.
{18} Under his second assignment of error, appellant argues the trial court erred by not granting a downward deviation of his child support obligation, even though the parties share equal parenting time. Appellant concedes the parties have shared equal parenting time since the divorce decree was entered in 2012 and that his parenting time has not increased since then. He asserts, however, that the trial court should have considered “extended parenting time” when it issued the current child support order because the parties did not share equal parenting time at the time they entered into the original Shared Parenting Plan.
{19} Under
Owais v. Costandinidis, 2d Dist. Greene No. 2007 CA 89, 2008-Ohio-1615, ¶41. One such factor is “[e]xtended parenting time or extraordinary costs associated with parenting time[.]”
{20} “The decision to deviate from the actual annual obligation is discretionary and will not be reversed absent an abuse of discretion.” Owais, supra, at ¶41; see also Holt v. Holt, 11th Dist. Trumbull No. 2002-T-0147, 2004-Ohio-4536, ¶9-11.
{21} Here, the trial court determined that the Amended Shared Parenting Plan did not significantly alter the parenting time provided for in the original Shared Parenting
{22} Notwithstanding the foregoing conclusion, we find a limited remand is neсessary. Appellant contends the magistrate mistakenly designated appellee as the sole residential parent and legal custodian on the Child Support Computation Worksheet.
{23} The trial court approved the Amended Shared Parenting Plan submitted by the pаrties. That plan sets forth the parties’ agreement that they will share parenting of their child in all respects. On the Child Support Computation Worksheet, the magistrate checked the box for “Mother” as the residential parent and legal custodian, instead of cheсking the box indicating “Shared.”
{24} “[I]n a shared parenting arrangement, neither party is a nonresidential parent. Instead, under
{25} Based on the reasoning set forth above, appellant‘s second assignment of error is overruled insofar as he challenges the trial court‘s decision not to make a downward deviation in his child support obligation. The assignment of error is
{26} The judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, is affirmed. The matter is remanded for further proceedings consistent with this opinion.
CYNTHIA WESTCOTT RICE, P.J.,
DIANE V. GRENDELL, J.,
concur.