O‘CONNOR, n.k.a. Rachesky, Appellee, v. O‘CONNOR, Appellant
No. 12-09-04
Court of Appeals of Ohio, Third District, Putnam County
Decided Oct. 13, 2009
184 Ohio App.3d 538, 2009-Ohio-5436
{1 85} Accordingly, we reverse the trial court‘s ruling with respect to Unison, we affirm the trial court‘s ruling in fаvor of Lycoming and Precision, and we remand the matter for further proceedings.
MCMONAGLE and BOYLE, JJ., concur.
Judgment affirmed in part and reversed in part, and cause remanded.
Garth W. Brown, for appellant.
SHAW, Judge.
{1 1} Defendant-appellant Michael Ryan O‘Connor appeals from the May 12, 2009 judgment entry of the Court of Common Pleas of Putnam County, Ohio, modifying a previous child-support order. Michael alleges that the court erred in calculating the revised child-support order because it did not impute the income that plaintiff-appellee, Denise K. O‘Connor, n.k.a. Rachesky, earned prior to leaving her job in November 2008.
{1 2} Michael and Denise had their first child, Chelsea, born February 23, 1992. The couple subsequently married on April 4, 1992. Their second child, Michael, was born January 12, 1994. On August 29, 1994, Denise filed a complaint for divorce. The court granted the divоrce on December 16, 1994, and ordered Michael to pay $476.67 a month for child support and to provide health insurance for their two children.
{1 3} The amount for child support remained the same until January 8, 2009, when the Putnam County Child Support Enforcement Agency (“CSEA“) reсom
{1 4} On May 12, 2009, the court conducted a hearing to review the revised child-support order. Present in court were the director and the attorney for the CSEA, Denise, who was not represented by legal counsel, and Michael‘s attorney. The only evidence offered at the hearing was Denise‘s testimony. While on the stand, Denise stated that prior to leaving her job in November 2008, she worked at Procter and Gamble for 11 1/2 years. She provided earnings statements for 4 of those 11 years that stаted that Denise earned an annual salary of approximately $50,000. She did not provide any financial information about her income for the other 7 1/2 years of employment. In addition, Denise also testified to the personal reasons leading to her dеcision to voluntarily leave her job.
{1 5} Based on Denise‘s testimony, the trial court summarily adopted CSEA‘s recommendations finding its proposals to be “appropriate” and “reasonable under the circumstances” and thereby ordered Michael to bеgin paying the revised amount of child support.
{1 6} Michael now appeals, asserting one assignment of error.
ASSIGNMENT OF ERROR
The trial court abused its discretion by not imputing the appellee‘s previous income when calculating child support since the appеllee voluntarily left her job in November of 2008.
{1 7} In his sole assignment of error, Michael alleges that the trial court erred in adopting CSEA‘s recommendation because it imputed Denise‘s annual income at the minimum-wage level instead of imputing income based on the actual salary she earned from her previous employment. Specifically, Michael alleges that the trial court provided no explanation for a decision that ignored the
{1 8} An appellate court reviews the trial court‘s determination of the amount of income to be imputed in a child-support order under an abuse-of-discretion standard. Rock v. Cabral (1993), 67 Ohio St.3d 108, 616 N.E.2d 218, syllabus. An abuse of discretion impliеs that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
{1 9} The calculation of child support is governed by
{1 10} In the instant case, CSEA completed and calculated the appropriаte worksheet. The first section of the worksheet requires information regarding the income of both parents. This section directs the agency to assess the “[a]nnual income from employment or, when determined appropriate by the court or agеncy, average annual gross income from employment over a reasonable period of years.”
{1 11} At the subsequent court hearing on May 12, 2009, regarding the CSEA order, Michael objected to the amount of $14,248 assigned as Denise‘s imputed income, when the only evidence in the case reflected a three-year income for Denise of over $50,000. Although not explicitly stated, we can glean from the record that CSEA and the trial court determined Denise to be voluntarily unemployed. This is significant because before a trial court may impute income to a parent, it must first determine that the parent is voluntarily unemployed or underemployed. Moore v. Moore, 175 Ohio App.3d 1, 2008-Ohio-255, 884 N.E.2d 1113, ¶ 63, citing Rock v. Cabral (1993), 67 Ohio St.3d 108, 616 N.E.2d 218, syllabus. While the trial court does not specifically address this finding in its judgment entry, it can be inferred from Denise‘s testimony that both the trial court and CSEA found Denise voluntarily unemployed.
{1 13} Upon making this determination, CSEA and the trial court were required to impute Denise‘s potential income on the child-support-order worksheet in compliance with
“Potential income” means * * * the following for a parent who the court pursuant to a court order, оr 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 earnеd 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 abilities, 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 thеre 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 becausе of experience;
(x) Any other relevant factor.
{1 15} During these years, Denise worked as a technician. In this capacity, she operated and maintained heavy machinery used to dispense and bottle liquid laundry detergent. She testified that her annual salary was “plus or minus $50,000 a year,” depending on the amount of mandatory overtime she accrued. Thus, according to her testimony, she earned $54,475 in 2005; $5,000 in 2006; $50,312 in 2007, and she estimated that she earned the same amount in 2008 as she had in 2007.
{1 16} Denise further explained the discrepancy in her 2006 income. During that year she gave birth to her youngest child, whom she concеived with her current husband, Alan Wayne Rachesky. Denise‘s employer granted an unpaid leave of absence to employees who decided to stay home with their newborns until they reached one year old. Thus, she only earned a minimal amount for the limited timе she worked in 2006. However, upon her return, Denise continued to make her previous salary of approximately $50,000 a year. Moreover, she testified that had she continued to be employed as a technician her salary would have remained the same.
{1 17} Previously, this court has stated that the trial court (and CSEA) are required to consider the statutory factors mentioned above when imputing income under
{1 18} Denise‘s testimony demonstrates ample evidence of her prior employment experience, one of the statutory factors. However, the only evidence we have of her prior employment income is her position as a line technician earning around $50,000 annually for the three years discussed previously. In addition, her testimony also revealed evidence that she has the present ability to earn more than thе imputed income of minimum wage, another statutory consideration.
{1 20} In the absence of any explanation in the record for imputing Denise‘s income at the minimum-wage level of $14,248 rather than imputing her income consistently with the statutory factors listed in
{1 21} For all these reasons, the assignment of error is sustained. Accordingly, the decision of the Putnam County Court of Common Pleas is reversed and this cause is remanded for further consideration consistent with this opinion.
Judgment reversed and cause remanded.
PRESTON, P.J., and WILLAMOWSKI, J., concur.