Irish v. IrishIrish v. Irish
Dated: February 8, 2010
BELFANCE, Judge.
{¶1} Plaintiff-Appellant, Crystal Irish has appealed the judgment of the trial court dated April 2, 2009 denying her motion to modify child support and the judgment of the trial court dated April 17, 2009 denying her motion to vacate the judgment entered on May 20, 2008. For the following reasons, we reverse and remand.
FACTS
{¶2} Plaintiff-Appellant, Crystal Irish (“Mother“) and Defendant-Appellee, George Irish, Jr. (“Father“) were granted an uncontested divorce on April 2, 2004. The parties have three unemancipated children. Pursuant to the decree of divorce, the trial court adopted a shared parenting plan and, subject to further order of the court, no child support was ordered to be paid to either party. The reasons stated in the divorce decree for the nonpayment of child support included, the parties’ equal possession time with the children, Father‘s obligation to pay the cost
{¶3} On June 20, 2007, Father filed a motion to terminate shared parenting and for custody. Father‘s motion was resolved by agreement of the parties on May 20, 2008. Pursuant to this agreement, the parties altered their possession schedule to a rotating two-month schedule during the school year and alternating weeks during the summer. In addition, the parties agreed that Father would pay Mother $158.14 in monthly child support which represented an 80% deviation from the child support guidelines. Father‘s annual income was $45,054 and Mother‘s was $26,000. All matters resolved by the parties were subject to further order of the court.
{¶4} Several months later, Mother filed a motion for contempt in which she alleged that Father had failed to pay the child support as agreed and had failed to perform other financial obligations. On September 5, 2008, Mother filed a motion to modify child support and for clarification of ambiguities in the parties’ shared parenting plan. In her motion, Mother alleged that there had been a change in circumstances and that a deviation from the child support guidelines was no longer appropriate. While Mother‘s motion was pending and prior to the hearing before the magistrate, Mother lost her employment. At the time of the hearing, Mother was receiving unemployment compensation in the amount of $187 per week and Father‘s earnings had increased from $45,054 to $51,000.
{¶5} Upon consideration of the evidence, the magistrate found the requisite 10% variance pursuant to
{¶6} On January 26, 2009, Mother filed a motion pursuant to Civil Rule 60(B) to vacate the May 20, 2008 judgment. The trial court overruled Mother‘s motion. Mother appealed both the judgment as to child support and the judgment overruling her
IMPUTATION OF INCOME
{¶7} In her first assignment of error, Mother contends that the trial court erred in imputing income to her when it ruled on her motion to modify child support. We agree.
{¶8} Generally, we review an order addressing child support for an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. “In so doing, we consider the trial court‘s action with reference to the nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, at ¶18.
{¶9} A trial court may impute income to a parent for purposes of calculating child support if it first makes the required finding that the parent to whom income is imputed is either voluntarily unemployed or voluntarily underemployed. Misleh v. Badwan, 9th Dist. No. 24693, 2009-Ohio-6949, at ¶7. See, also, Ramskogler v. Falkner, 9th Dist. No. 22886, 2006-Ohio-1556, at ¶13. (stating that the Supreme Court of Ohio has determined that
{¶10} Here, the magistrate stated that she “considers [Mother] to be voluntarily unemployed[.]” However, the trial court found “[t]hat the Magistrate did not err in finding [Mother] to be voluntarily underemployed[.]” While the implication of the trial court‘s statement is that it is finding Mother to be voluntarily underemployed, the statement nonetheless falls short of the explicit finding required by this Court‘s jurisprudence. See, e.g., Misleh v. Badwan, 9th Dist. No. 24185, 2009-Ohio-842, at ¶¶6-8; Musci v. Musci, 9th Dist. No. 23088, 2006-Ohio-5882, at ¶17. A statement that the magistrate did not commit a legal error is not equivalent to making a specific factual finding. Musci at ¶17. Accordingly, we determine that the trial court committed reversible error because it incorrectly applied the law when it failed to make the express finding that Mother was voluntarily unemployed. Mother‘s first assignment of error is sustained.
DEVIATION FROM CHILD SUPPORT GUIDELINES
{¶11} Mother argues in her second assignment of error that upon recalculating the amount of child support due, the trial court erred in deviating 80% from the child support guidelines. We agree.
{¶12} As above, we generally review the trial court‘s decision concerning child support for an abuse of discretion, Booth, 44 Ohio St.3d at 144, though we examine the trial court‘s determination with reference to the nature of the underlying matter. Tabatabai at ¶18. When modifying an existing child support order, the trial court must complete a child support worksheet and schedule.
“(A) Special and unusual needs of the children;
“(B) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination;
“(C) Other court-ordered payments;
“(D) Extended parenting time or extraordinary costs associated with parenting time, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet, through the line establishing the actual annual obligation, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of parenting time granted by court order;
“(E) The obligor obtaining additional employment after a child support order is issued in order to support a second family;
“(F) The financial resources and the earning ability of the child;
“(G) Disparity in income between parties or households;
“(H) Benefits that either parent receives from remarriage or sharing living expenses with another person;
“(I) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents;
“(J) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing;
“(K) The relative financial resources, other assets and resources, and needs of each parent;
“(L) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married;
“(M) The physical and emotional condition and needs of the child;
“(N) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen;
“(O) The responsibility of each parent for the support of others;
“(P) Any other relevant factor.”
R.C. 3119.23 .
The trial court has discretion when considering the evidence presented relative to the above statutory factors. However, because the trial court does not have the discretion to ignore those factors, it commits an error of law if it fails to consider the factors enumerated in
{¶13} After determining that there was a change in circumstances warranting a modification of child support and the revised amount of child support payable to Mother pursuant to the child support guidelines, the court was then required to consider the above statutory factors in determining whether deviation from the presumptive guideline support was appropriate.
{¶14} The record reflects that evidence was offered concerning numerous statutory considerations, including: (1) extended parenting time or extraordinary costs associated with parenting time; (2) disparity in income between parties or households; (3) benefits that either parent receives from remarriage or sharing living expenses with another person; (4) significant in-kind contributions from a parent; (5) the relative financial resources, other assets and resources, and needs of each parent; (6) the standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married. See
{¶15} Mother provided unrebutted evidence that she had lost her job and was receiving unemployment compensation. Pursuant to the child support guideline worksheet, Mother‘s annual unemployment income placed her at the federal poverty level. By contrast, Father‘s income had increased. In addition, Father had remarried and his spouse was also employed and
{¶16} Although extended parenting time is one factor that the trial court must consider in evaluating whether guideline support is unjust, inappropriate, and not in the children‘s best interest, we conclude that the trial court‘s reasoning was flawed. Instead of considering extended parenting time in conjunction with the other enumerated factors, the trial court focused upon the parties’ prior agreement to deviate, in essence finding that because the parties had a prior agreement to deviate that was purportedly based upon equalized parenting time, it should hold the parties to their agreement. However, in focusing on the parties’ prior agreement and prior circumstances, the trial court failed to consider the parties’ present circumstances in conjunction with the statutory factors. Whether the parties have a prior contractual obligation to deviate is not among the specific factors set forth in
{¶17} We acknowledge that in addition to the primary emphasis upon the parties’ prior agreement to deviate, the trial court made reference to additional expenses incurred by the Father. While these expenses can appropriately factor into the court‘s analysis, we find that the court considered the prior deviation agreement and Father‘s expenses to the exclusion of other specifically enumerated factors for which evidence was produced at trial. We further observe that the evidence adduced at the hearing revealed that both Mother and Father were making additional financial contributions to the children such as the purchase of uniforms or payment of extracurricular activities. For example, Mother testified that she had paid or would be paying fees for basketball, Cub Scouts, and band. Father also testified that he has paid some amounts
{¶18} We emphasize that absent a request for findings of fact and conclusions of law, we are not suggesting that a trial court must separately discuss each statutory factor in its judgment entry; nor must it address those for which no evidence is adduced at the hearing. However, the language of the judgment entry in this case indicates that the trial court focused almost solely on the parties’ prior agreement to deviate from the child support guidelines to the exclusion of the factors it was required to consider under
MOTION FOR RELIEF FROM JUDGMENT
{¶19} In her final assignment of error, Mother argues that the trial court erred when it denied her motion for relief from judgment concerning the May 2008 agreement. Mother contends that due to her unanticipated loss of employment, it has become inequitable to continue
CONCLUSION
{¶20} In light of the above, we sustain Mother‘s first and second assignments of error concerning the trial court‘s ruling on her motion to modify the child support order. We conclude that Mother‘s third assignment of error with respect to the trial court‘s ruling on her motion for relief from judgment is moot and we decline to address it.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
EVE V. BELFANCE
FOR THE COURT
DICKINSON, P. J. CONCURS
CARR, J. CONCURS IN PART, AND DISSENTS IN PART, SAYING:
{¶21} I concur with the majority‘s resolution of the first assignment of error, but I respectfully dissent in regard to the second and third assignments of error.
{¶22} I would not reach the issue whether the trial court erred in deviating from the child support guidelines when it recalculated the amount of child support because our resolution of the first assignment of error reverses the trial court‘s child support award and therefore renders the second assignment of error moot.
{¶23} In regard to the third assignment of error, I would vacate the judgment appealed in case number 09CA009578 because it is a nullity, as the trial court lacked jurisdiction to issue the judgment. Mother‘s purported motion for relief from judgment was filed prior to the trial court‘s ruling on her objections, therefore, no final order yet existed to vacate. Accordingly, the motion for relief from judgment was effectively nothing more than a brief in support of her objections. The trial court‘s subsequent ruling on the motion is a nullity because it was an attempt to modify or supplement a final judgment.
APPEARANCES:
PAULETTE J. LILLY, Attorney at Law, for Appellant.
PATRICK D. RILEY, Attorney at Law, for Appellee.