Huth v. Huth , 2019 Ohio 2970 ( 2019 )

[Cite as Huth v. Huth, 2019-Ohio-2970.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
KRESNT D. HUTH, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-P-0084
- vs - :
ROBERT J. HUTH, :
Defendant-Appellant. :
Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
Division, Case No. 2007 DR 00548.
Judgment: Affirmed in part and reversed in part; remanded.
Eric R. Fink, 11 River Street, Kent, OH 44240 (For Plaintiff-Appellee).
David M. Leneghan and K. Scott Carter, 200 Treeworth Boulevard, Suite 200, Broadview
Heights, OH 44147 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Robert J. Huth, appeals from a judgment entered by the Portage
County Court of Common Pleas, Domestic Relations Division, on October 10, 2018. The
judgment is affirmed in part and reversed in part, and the matter is remanded for further
proceedings consistent with this opinion.
{¶2} This matter originated in the trial court as a divorce action between appellant
(“Father”) and appellee, Kresnt D. Huth (“Mother”), in 2007. The parties were granted a
divorce on June 3, 2008, and the trial court implemented a Shared Parenting Plan for the
three minor children born during the marriage. With regard to child support, the Shared
Parenting Plan provided:
Father shall pay to Mother for support of the minor children the sum
of $300.00 per month, plus 2% processing charge commencing April
25, 2008. An upward deviation in child support is warranted because
of the time the children spend with each parent and to equalize the
parties’ income. If not for the upward deviation in child support,
Father shall pay to Mother for the support of the minor children the
sum of $78.87 per month plus 2% processing charge for a total of
$80.45 per month pursuant to the attached Child Support Calculation
Worksheet.
The Shared Parenting Plan additionally provided that “all cost [sic] of school lunches,
school fees, extracurricular activities, sports equipment, lessons, school supplies,
yearbooks, school clothes, etc. shall be split equally between the parties.”
{¶3} Father failed to pay child support to Mother, which resulted in contempt
proceedings. In 2010, Father filed a Motion for Modification of Child Support “based upon
a change in the parties’ financial conditions.” The parties entered into an Agreed
Judgment Entry on July 14, 2010, in which Mother agreed to waive the past due child
support, and Father’s current child support obligation was deviated to zero. Father
remained obligated to pay an amount towards the children’s medical care.
{¶4} On July 21, 2014, Father filed a Motion for Reallocation of Parental Rights
and Responsibilities, in which he requested to be named residential parent of two of the
parties’ three children. In a Motion for In-Camera Interview, Father stated that “time is of
the essence in this matter as [Father] will be relocating to the State of Florida and desires
to enroll the children in school in a timely fashion if possible for the upcoming school
year[.]”
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{¶5} On August 28, 2015, Mother filed a Motion to Modify Child Support based
upon a change in circumstances. “Specifically,” she stated, “Father has changed
addresses, is no longer evenly dividing any expenses, and therefore has not paid any
child support in over six (6) months.”
{¶6} A hearing was held February 3, 2016, a transcript of which has not been
provided on appeal. It appears undisputed, however, that Father did not attend the
hearing. Father’s counsel appeared, as did Mother and her counsel.
{¶7} On February 24, 2016, the trial court issued a Judgment Entry, in which it
declared the parties had agreed to be bound by the attached Amended Shared Parenting
Plan and had agreed to dismiss all outstanding motions. According to the Amended
Shared Parenting Plan, Father was to pay Mother $600.00 to settle her claim for prior
child support and a deviated amount of $625.00 per month, commencing retroactively on
November 1, 2015.
{¶8} Father again failed to pay child support, and contempt proceedings were
initiated in 2017.
{¶9} On February 12, 2018, Father filed a Motion to Modify Child Support,
alleging a change of circumstances: “Before [the February 24, 2016] Order the parties
had equal parenting time, but Defendant moved to Florida. Defendant has returned from
Florida and the parties are back implementing equal parenting time.”
{¶10} The trial court held an evidentiary hearing on April 9, 2018, a transcript of
which has not been provided on appeal. It is apparent from the record, however, that
Father disputed that the February 24, 2016 order was valid because he had not agreed
to the Amended Shared Parenting Plan.
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{¶11} By judgment entry issued June 13, 2018, the trial court vacated its February
24, 2016 order and the Amended Shared Parenting Plan. The court explained as follows:
[At the hearing on April 9, 2018,] the parties stipulated as to the
calculations and accounting performed by CSEA regarding
payments and arrearages subject to and conditioned upon a finding
that the order of February 24, 2016, is a valid and binding order.
[Father] disputed that the February order is valid.
The first witness, Ms. Judy Rice from CSEA, testified that [Father]
contacted CSEA on July 26, 2016; August 19, 2016; October 20,
2016; and December 5, 2016. On each occasion [Father] denied
that there was any child support order.
There is no dispute that a hearing was held on February 3, 2016.
[Mother] and counsel were present and counsel for [Father] was
present. [Father] testified that he knew of the hearing, but knowingly
elected not to attend that hearing.
The parties had been following a Shared Parenting Plan. Under the
terms of that Shared Parenting Plan, neither party was ordered to
pay child support. [Father], however, indicated that he was moving
to Florida and the Shared Parenting Plan would be impossible to
follow. The purpose of the February 3, 2016 hearing was to establish
child support.
[Father] has now returned to the area and wishes to resume
operating under a Shared Parenting Plan where he would pay no
child support. A new Shared Parenting Plan has not been adopted
by the Court.
There is no dispute that [Father] owes some child support for the time
he was living in Florida. He has, however, not paid any child support.
Although the order of February 24, 2016 was called an Agreed Entry,
it was not signed by [Father] or his counsel. The Court, with
reluctance, feels obligated to vacate that February 24, 2016 order.
* * * Counsel for the parties are ordered to contact the Court forthwith
and schedule a hearing date to establish child support. The start
date for said order shall be February 1, 2016.
{¶12} An evidentiary hearing was held August 13, 2018, at which both Mother and
Father testified. Both parties were represented by counsel. A representative of the Child
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Support Enforcement Agency (“CSEA”) was also present. The trial court permitted the
parties to file briefs in lieu of closing arguments.
{¶13} On October 10, 2018, the trial court issued a judgment entry, in which it
stated it was ruling on Mother’s August 28, 2015 Motion to Modify Child Support because
the February 24, 2016 “agreed” entry had been vacated.
{¶14} The trial court found that Father’s move to Florida had “resulted in a de facto
termination of the Shared Parenting Plan”; the three children reside full time with Mother,
who is employed and has been paying all of the children’s medical expenses, insurance,
and day-to-day living expenses; Father visits the children sporadically; Father voluntarily
elects to remain underemployed and has only ever made one child support payment.
{¶15} The trial court determined Mother’s annual income to be $38,000.00 and
imputed an annual income to Father in the amount of $54,154.30. The court ordered
Father to pay child support in the sum of $992.75 per month when health insurance is
provided, and $789.60 plus $221.13 in medical support per month when health insurance
is not provided. The modified child support order was ordered effective, retroactively,
from September 1, 2015.
{¶16} All other pending motions were overruled and dismissed without prejudice.
{¶17} Father noticed an appeal from this entry and asserts the following four
assignments of error for our review:
[1.] The trial court lacked jurisdiction to terminate the shared
parenting plan making the judgment void.
[2.] The trial court abused its discretion in terminating the shared
parenting plan.
[3.] The trial court abused its discretion when it found appellant
under-employed and then imputed income.
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[4.] The trial court abused its discretion in relating the modification
back to the filing of the motion to modify.
{¶18} Father’s first two assignments of error relate to the trial court’s finding that
there has been a “de facto” termination of the Shared Parenting Plan. Father argues the
trial court was without jurisdiction to terminate the Shared Parenting Plan on its own
motion, rendering the judgment void. Alternatively, Father argues the trial court abused
its discretion in terminating the Shared Parenting Plan because there was no change in
circumstances and the court did not undertake a best interest analysis with regard to the
children.
{¶19} Mother responds that the trial court had jurisdiction to terminate the Shared
Parenting Plan on its own motion, pursuant to R.C. 3109.04(E)(2)(c). Mother alternatively
asserts that Father invoked the trial court’s jurisdiction to terminate the Shared Parenting
Plan when he filed his Motion for Reallocation of Parental Rights and Responsibilities on
July 21, 2014.
{¶20} We find both parties’ arguments without merit, as they are based on a false
premise. The trial court did not terminate the Shared Parenting Plan. It merely observed
the following: “At one time the children were subject to a Shared Parenting Plan. The
Defendant then moved to Florida, which resulted in a de facto termination of the Shared
Parenting Plan.” This observation of the trial court did not, however, effectively terminate
the Shared Parenting Plan. There is, in fact, no order that demonstrably terminated the
Shared Parenting Plan. In support of our determination that it was not the trial court’s
intention to terminate the Shared Parenting Plan, we note the Child Support Computation
Worksheet attached to the trial court’s order indicates it is a Shared Parenting Order
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worksheet. Further, if the trial court had terminated the parties’ Shared Parenting Plan, it
would have issued a modified decree for the allocation of parental rights and
responsibilities for the care of the children, pursuant to R.C. 3109.04(E)(2)(d). It did not
do so. Finally, in order to terminate the parties’ Shared Parenting Plan upon its own
motion, the trial court was required to find that shared parenting is not in the best interest
of the children. See Larbig v. Larbig, 11th Dist. Ashtabula No. 2016-A-0070, 2017-Ohio-
7288, ¶14, citing R.C. 3109.04(F)(1). No such finding was made.
{¶21} Accordingly, Father’s first and second assignments of error are without
merit.
{¶22} The remaining two assignments of error relate to the trial court’s
modification of child support. In his third assignment of error, Father argues the trial court
abused its discretion by imputing income to him in the absence of any evidence
establishing he is voluntarily underemployed.
{¶23} At the time of the trial court’s order, R.C. 3119.02 provided, in pertinent part:
In any action in which a court child support order is issued or
modified, [or] in any other proceeding in which the court determines
the amount of child support that will be ordered to be paid pursuant
to a child support order, * * * the court * * * 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 * * * 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.
***
{¶24} To calculate the amount of child support owed, the trial court must first
determine the annual income of each parent. “Income” in a child support case is defined
as either of the following: “(a) For a parent who is employed to full capacity, the gross
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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.” R.C.
3119.01(C)(9) (formerly (C)(5)). When a trial court determines a parent “is voluntarily
unemployed or voluntarily underemployed,” “potential income” includes “imputed
income.” R.C. 3119.01(C)(17)(a) (formerly (C)(11)(a)).
{¶25} The income to be imputed by the trial court is the income the voluntarily
unemployed or underemployed parent would have earned if fully employed, as
determined by the factors listed in R.C. 3119.01(C)(17)(a)(i)–(xi). Those factors include
the parent’s prior employment experience; education; physical and mental disabilities, if
any; the availability of employment and the prevailing wage and salary levels in the
geographic area in which the parent resides; special skills and training; whether there is
evidence that the parent has the ability to earn the imputed income; the age and special
needs of the child; the parent’s increased earning capacity because of experience; the
parent’s decreased earning capacity due to a felony conviction; and any other relevant
factor. R.C. 3119.01(C)(17)(a) (formerly (C)(11)(a)). See Hammonds v. Eggett, 11th
Dist. Geauga No. 2010-G-2980, 2011-Ohio-6510, ¶17.
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.
Rock v. Cabral, 67 Ohio St.3d 108, 111 (1993) (emphasis sic) (footnote and internal
citation omitted) (referring to the analogous provisions found in former R.C. 3113.215).
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{¶26} “Thus, the potential income to be imputed to a voluntarily unemployed or
underemployed parent is based upon the amount the parent would have earned if he or
she had been fully employed. The imputed amount of income, in turn, is determined” by
applying R.C. 3119.01(C)(17)(a). Fields v. Fields, 11th Dist. Ashtabula No. 97-A-0073,
1998 WL 964543, *4 (Dec. 31, 1998) (applying former R.C. 3113.215).
{¶27} “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, are
matters to be determined by the trial court based upon the facts and circumstances of
each case.” Rock, supra, at syllabus. Thus, absent an abuse of discretion, the trial court’s
determinations in this regard will not be disturbed on appeal. Id. at 112, citing Booth v.
Booth, 44 Ohio St.3d 142, 144 (1989).
{¶28} The trial court found that Father “works as a subcontracting concrete
finisher on a seasonal basis and voluntarily elects to remain underemployed.” The trial
court found that Father’s actual income for 2017, the year prior to the evidentiary hearing,
was $47,824.00:
Based upon [Father’s] testimony, using figures most favorable to
[Father], [Father’s] income was $6,800 for the first three months of
2017, $20,512 for the last four and a half months of the year, and
one could extrapolate that his income from April to August is the
same as the last four and a half months of the year, $20,512. This
would result in annual income of $47,824.
{¶29} The trial court then determined Father’s annual potential income is
$54,154.30. In making this determination, the trial court made the following findings:
[Mother] believes the most accurate calculation of [Father’s] income
is to differentiate between his regular season and off-season income.
[Father] has proven that he is completely capable of working in the
off-season and, based upon his earnings from January to March of
2018, he is fully capable of earning $2,266.67 per month in the off-
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season ($6,800 for 3 months). At $25 per hour, this is only about 90
hours a month (i.e., working less than half of each month). Similarly,
based upon 2017, [Father] is capable of earning $5,860.57 in the
busy months (the three and a half months from mid-August through
November of 2017). Therefore, [Father’s] annual income would be
calculated by treating January through half of April as off-season,
half of April through November as regular season, and December as
off-season. This results in an annual projected income of $2,266.67
(January) plus $2,266.67 (February) plus $2,266.67 (March) plus
$1,133.34 (first half of April) plus $2,930.29 (second half of April) plus
$5,860.57 (May) plus $5,860.57 (June) plus $5,860.57 (July) plus
$5,860.57 (August) plus $5,860.57 (September) plus $5,860.57
(October) plus $5,860.57 (November) plus $2,266.67 (December)
equaling $54,154.30.
{¶30} Finally, the trial court imputed the entire amount of potential income to
Father: “It is hereby ordered, adjudged and decreed that the income to be imputed to the
Defendant is $54,154.30.”
{¶31} The trial court did not reference what facts and circumstances it relied on in
finding Father voluntarily underemployed. Nevertheless, based on Father’s testimony at
the evidentiary hearing, we conclude the trial court did not abuse its discretion in making
this finding. For instance, Father testified that he was not disabled or injured, he was able
to feed his three children on only $50-$60 for the three days he used to have them each
week, and he was overqualified for some jobs (e.g., McDonald’s) that may be available
to him during the “off-season” of his usual concrete-related employment.
{¶32} The trial court did not, however, reference any factors in R.C.
3119.01(C)(17)(a), or any other relevant fact or circumstance, in support of its conclusion
that $54,154.30 should be imputed to Father for child support purposes.
{¶33} “Courts have consistently held that consideration of these factors is a
necessary requirement to imputing income, even after a determination that the parent’s
unemployed or underemployed status is voluntary.” Marek v. Marek, 9th Dist. Summit
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No. 21886, 2004-Ohio-5556, ¶19 (citations omitted); see also Misra v. Mishra, 10th Dist.
Franklin No. 17AP-306, 2018-Ohio-5139, ¶18, citing Meeks v. Meeks, 10th Dist. Franklin
No. 05AP-315, 2006-Ohio-642, ¶37 (“when imputing income to a parent, the trial court
must consider the enumerated factors”) (emphasis added).
{¶34} Accordingly, we conclude that imputing income for the purpose of
calculating Father’s child support obligation, without any indication on the record that the
court considered and followed the statutory guidelines, was an abuse of discretion. See
Marek, supra, at ¶24. This matter must be remanded for the trial court to revisit the issue
of imputing income to Father, in compliance with R.C. 3119.01(C)(17)(a).
{¶35} Father’s third assignment of error has merit to the extent indicated.
{¶36} In his final assignment of error, Father argues the trial court erred in relating
the child support modification back to September 1, 2015. Mother has not responded to
this assignment of error.
{¶37} “‘Whether to make a modification of support retroactive to the date of the
motion is a question left to the sound discretion of the trial court.’” Nichols v. Nichols,
10th Dist. Franklin No. 13AP-13, 2013-Ohio-3927, ¶20, quoting Lightle v. Lightle, 2d Dist.
Champaign No. 2012 CA 8, 2012-Ohio-3284, ¶8. “While it may ‘often be equitable to
apply a modification retroactively to the date of the motion, * * * a substantial arrearage
or overage created by a retroactive modification can create a hardship to one of the
parties.’” Id., quoting Lightle.
{¶38} “The general rule in Ohio is that when a court modifies a child support
award, that modification is made retroactive to the date on which the motion to modify the
award is made.” Zamos v. Zamos, 11th Dist. Portage No. 2002-P-0085, 2004-Ohio-2310,
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¶13 (citations omitted). “The general rule is based on equitable principles in recognition
of ‘the substantial time it frequently takes to dispose of motions to modify child support
obligations.’” Id., quoting Hamilton v. Hamilton, 107 Ohio App.3d 132, 139-140 (6th
Dist.1995). “‘[A]bsent some special circumstance, an order of a trial court modifying child
support should be retroactive to the date such modification was first requested.’” Id.,quoting State ex rel. Draiss v. Draiss, 70 Ohio App.3d 418, 421 (9th Dist.1990); see also
Sandel v. Choma, 9th Dist. Summit No. 25995, 2012-Ohio-3781, ¶5 (characterizing the
rule as a “presumption of retroactivity” that may be “overcome” by facts in the record that
demonstrate “special circumstances”).
{¶39} Here, we do not find that the trial court abused its discretion in ordering the
modification of child support retroactive to when Mother first requested the modification.
Father has not directed us to facts in the record demonstrating special circumstances that
overcome the presumption of retroactivity.
{¶40} Father’s fourth assignment of error is without merit.
{¶41} The judgment of the Portage County Court of Common Pleas, Domestic
Relations Division, is affirmed in part and reversed in part. This matter is remanded to
the trial court to clarify that it has considered the statutory factors and engaged in an
imputed income analysis based on those factors with regard to the modification of child
support.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
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