Bruns v. Green , 2019 Ohio 2296 ( 2019 )

[Cite as Bruns v. Green, 2019-Ohio-2296.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kayleigh Bruns, :
Plaintiff-Appellee, :
No. 18AP-259
v. : (C.P.C. No. 13JU-8624)
Marcus Green, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
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 R.C. 3109.04, in which both parties were "designated as the residential
No. 18AP-259 2
parents and legal custodians," appellant was designated as the "school placement parent"
so long as he resided in the Westerville School District, and both parents would exercise
equal parenting time. (Agreed Shared Parenting Plan at 2.) The trial court approved the
Plan and incorporated it into a shared parenting decree.
{¶ 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 R.C. 3109.04(E)(2)(c) or, in the alternative, a modification of the Plan.
Appellant likewise filed a motion to terminate shared parenting plan on September 21,
2015, in which appellant requested the trial court terminate the Plan or, in the alternative,
modify the plan. Each party sought sole legal custody of the child along with an order for
the other party to pay child support. The guardian ad litem for the minor child filed a report
on November 14, 2016 and a supplemental report on April 3, 2017. A hearing on the matter
was held on April 11 and 12, July 13 and 14, September 12 and 13, and November 2, 2017,
where both parties were present during the hearing and represented by counsel.
{¶ 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 R.C. 3109.04(F)(1) and
(2) and parenting time factors listed in R.C. 3109.051(D).
{¶ 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
1 The parties voluntarily dismissed a third assignment of error pursuant to App.R. 28.
No. 18AP-259 3
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 R.C. 3109.04(E)(1)(a). For the following reasons, we disagree.
{¶ 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 R.C. 3109.04(E)(2) without first finding a change in circumstances under R.C.
3109.04(E)(1)(a). Although a trial court has broad discretion in deciding a custody matter,
it "must follow R.C. 3109.04." Myers v. Wade, 10th Dist. No. 16AP-667, 2017-Ohio-8833,
¶ 15. "The question of whether a trial court correctly interpreted and applied a statute is a
question of law, and we review it de novo. Id. at ¶ 8, citing State v. Willig, 10th Dist. No.
09AP-925, 2010-Ohio-2560, ¶ 14.
{¶ 9} R.C. 3109.04 empowers the trial court to allocate the parental rights and
responsibilities for the care of a minor child. R.C. 3109.04(A). Pertinent to this appeal,
either or both parents of a minor child may file a pleading or motion requesting the court
grant both parents shared parental rights and responsibilities for the care of the child and
file a plan for the shared parenting of the child. R.C. 3109.04(G). If the parents jointly
request shared parental rights and jointly file the plan, the trial court must approve the plan
if it is in the best interest of the child. R.C. 3109.04(D)(1)(a)(i). Relevant factors pertaining
to the best interest of the child determination and shared parenting are stated in R.C.
3109.04(F). If an R.C. 3109.04(G) motion and plan are approved by the trial court, the trial
court may allocate the parental rights and responsibilities for the care of the child to both
parents and issue a shared parenting order requiring the parents to share all or some of the
No. 18AP-259 4
aspects of the physical and legal care of the child in accordance with the approved plan for
shared parenting. R.C. 3109.04(A)(2).
{¶ 10} On the other hand, if neither parent files a pleading or motion in accordance
with R.C. 3109.04(G) or if a submitted shared parenting plan is not in the best interest of
the child:
[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.
R.C. 3109.04(A)(1). See Curry v. Curry, 10th Dist. No. 10AP-437, 2010-Ohio-6536, ¶ 16.
{¶ 11} R.C. 3109.04(E) specifies the manner in which parents and the trial court
may "modify" the shared parenting decree and plan or, in the alternative, "terminate" the
shared parenting decree and plan. R.C. 3109.04(E)(1) and (2). In relevant part, R.C.
3109.04(E) states:
(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.
No. 18AP-259 5
(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 R.C. 3109.04(E)(1)(a). Appellant cites to In re James, 113 Ohio
St.3d 420, 2007-Ohio-2335, for the proposition that R.C. 3109.04(E)(1)(a) precludes a trial
court from modifying a prior decree allocating parental rights and responsibilities unless it
finds a change has occurred since the prior decree and a modification is in the best interest
of the child and to highlight the policy considerations of R.C. 3109.04(E)(1)(a) to promote
stability for children. Citing to In re B.H.H., 12th Dist. No. CA2016-10-069, 2017-Ohio-
8359, and N.S. v. C.E., 6th Dist. No. H-17-006, 2017-Ohio-8613, appellant additionally
No. 18AP-259 6
contends "[a] juvenile court must * * * apply R.C. 3109.04(E)(1)(a) in any motion to modify
or terminate a shared parenting agreement between unwed parents in a juvenile court
private custody action." (Appellant's Brief at 15.) Furthermore, for the first time in his reply
brief, appellant contends both the syllabus in Fisher v. Hasenjager, 116 Ohio St.3d 53,
2007-Ohio-5589, ¶ 1, and our holding in Myers, 2017-Ohio-8833, to be dispositive to this
appeal and cites to three additional Fifth District Court of Appeals cases,2 the dissent of a
Seventh District Court of Appeals case,3 and our case Ramsey v. Ramsey, 10th Dist. No.
13AP-840, 2014-Ohio-1921, in support of a requirement to show a change in circumstances
in order to designate a different residential parent and legal custodian.
{¶ 13} Appellee counters the trial court properly terminated the decree and plan
under R.C. 3109.04(E)(2)(c). Doing so, according to appellee, obligated the trial court to
modify the decree under R.C. 3109.04(E)(2)(d), a provision which allows for allocation of
parental rights and responsibilities without regard to the prior shared parenting decree.
Appellee contends this court ruled on this very issue in Lopez v. Lopez, 10th Dist. No. 04AP-
508, 2005-Ohio-1155, and found that where the trial court terminates a shared parenting
plan, R.C. 3109.04(E)(2)(c), rather than R.C. 3109.04(E)(1)(a), controls. In oral argument,
appellee pointed out the lack of opportunity to fully respond to appellant's newly raised
arguments in the reply but believed Fisher would not displace Lopez as precedent since
Fisher's analysis was based on the premise that a modification of the prior shared parenting
decree occurred, and the majority opinion there did not explicitly address terminations of
the decree under R.C. 3109.04(E)(2)(c).
{¶ 14} After careful consideration, we agree with appellee. In Lopez, the mother
argued the trial court failed to comply with the requirements of R.C. 3109.04(E)(1)(a) prior
to reallocating parental rights. Because the trial court terminated the prior shared
parenting decree, this court held R.C. 3109.04(E)(2)(c), not R.C. 3109.04(E)(1)(a), was the
relevant statutory provision for purposes of appellate review. In doing so, we considered
the positions of other appellate courts and agreed with the reasoning of the Seventh District
in finding, "based upon the plain statutory language of R.C. 3109.04(E), the provisions for
modification and termination of parental rights and responsibilities should be viewed as
2 Jagodzinski v. Abdul-Khaliq, 5th Dist. No. 15-CA-31, 2015-Ohio-5510; Hrabovsky v. Axley, 5th Dist. No.
2013CA00156, 2014-Ohio-1168; Wright v. Wright, 5th Dist. No. 2011CA00129, 2012-Ohio-1560.
3 Kougher v. Kougher, 194 Ohio App.3d 703, 2011-Ohio-3411, ¶ 23 (7th Dist.).
No. 18AP-259 7
existing independently." Lopez at ¶ 25, citing Dobran v. Dobran, 7th Dist. No. 97 CA 166
(Sept. 1, 1999) ("R.C. 3109.04(E)(1)(a) only addresses those occasions when a modification
is sought in the existing shared parenting plan."). Consequently, we find Lopez directly on
point with this case.
{¶ 15} The reasoning of Lopez is consistent with the plain language of the statute.
R.C. 3109.04(E)(2) specifically allows termination "[i]n addition to a modification
authorized under division (E)(1)" and, on termination, R.C. 3109.04(E)(2) requires the trial
court to issue a modified decree in accordance with R.C. 3109.04(A)(1) through (3) without
mention of R.C. 3109.04(E)(1). (Emphasis added.) As applicable here, under R.C.
3109.04(A)(1), if a submitted shared parenting plan is not in the best interest of the child,
which is uncontested here, the trial court is obligated to "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 the other
rights and responsibilities for the care of the children between the parents. R.C.
3109.04(A)(1). See, e.g., Curry, 2010-Ohio-6536, ¶ 16, 19 (evaluating, after Lopez and
Fisher, a trial court's termination of a shared parenting decree and reallocation of the
parties' parental rights and responsibilities, including custody, under R.C. 3109.04(E)(2)
and (A)(1) without regard to R.C. 3109.04(E)(1)(a)); Redmond v. Wade, 4th Dist. No.
16CA16, 2017-Ohio-2877, ¶ 59 (finding, in a termination case, the trial court did not abuse
its discretion under R.C. 3109.04(E)(2)(c) "when it evaluated the R.C. 3109.04(F)(1) best
interest factors and designated appellee the child's residential parent"); Sayre v. Furgeson,
3d Dist. No. 17-15-16, 2016-Ohio-3500, ¶ 21 ("[T]wo-step standard of R.C. 3109.04(E)(1)(a)
must be used in all situations except * * * terminating a shared parenting decree that
includes a shared parenting plan.") (emphasis omitted). Whether this statutory scheme
implicates policy concerns is a matter for the legislature, not the judiciary. Athens v. Testa,
10th Dist. No. 18AP-144, 2019-Ohio-277, ¶ 65 ("The judiciary * * * does not appraise
legislative choices.").
{¶ 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
No. 18AP-259 8
the trial court erred by failing to "retain" himself as the "residential parent designated by
the prior shared parenting decree." (Appellant's Brief at 4.) However, appellant's reference
to himself as the residential parent is against the record: the shared parenting plan
designated both parties "residential parents and legal custodians," and appellant was
designated as the "school placement parent" so long as he resided in the Westerville School
District. (Agreed Shared Parenting Plan at 2.)
{¶ 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 R.C. 3109.04(E)(1)(a)," the
termination of a shared parenting plan under R.C. 3109.04(E)(2)(c) does not require a
showing of a change in circumstances. Id., 2017-Ohio-8359, at ¶ 13.
{¶ 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 R.C. 3109.04(E)(1)(a) and R.C.
3109.04(E)(2)(b) with respect to the modification of the designation of residential parent
and legal custodian of a child." Id., 2007-Ohio-5589, at ¶ 10. It is this question the majority
No. 18AP-259 9
opinion expressly answered; the majority opinion makes no mention of R.C.
3109.04(E)(2)(c) beyond noting that section permits the termination of a shared parenting
plan if the court finds that shared parenting is not in the best interest of the child. While
the dissent disagreed as to the majority opinion's characterization of the trial court's actions
and believed sections on termination to control, we cannot say the holding of Fisher
specifically addresses whether R.C. 3109.04(E)(1)(a) must be considered under R.C.
3109.04(E)(2)(c) terminations. Therefore, we do not believe Fisher precludes following
Lopez as precedent here.
{¶ 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 R.C. 3109.04(E)(2), a section which clearly permits the trial court to
allocate parental rights as if no shared parenting plan existed. Curry, 2010-Ohio-6536, at
¶ 16. Considering all the above and following Lopez, we find appellant has not
demonstrated the trial court erred in ultimately designating appellee as legal custodian and
residential guardian without making the determinations in R.C. 3109.04(E)(1)(a).
{¶ 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 R.C. 3119.01(C)(11)."4 (Appellant's Brief at 3.)
{¶ 23} R.C. 3119.01 provides definitions for calculation of child support obligations.
At the time the trial court judgment was issued, R.C. 3119.01(C) stated in pertinent part:
(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.
***
4 R.C. 3119.01 was recently amended, effective March 28, 2019. Former R.C. 3119.01(C)(11) is now
renumbered as R.C. 3119.01(C)(17); the substance of the section did not change.
No. 18AP-259 10
(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;
No. 18AP-259 11
(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 R.C. 3119.01 and assessment of imputed
income the parent would have earned if fully employed is reviewed for an abuse of
discretion. Id.; Dach v. Homewood, 10th Dist. No. 14AP-502, 2015-Ohio-4191, ¶ 59; Misra
v. Mishra, 10th Dist. No. 17AP-306, 2018-Ohio-5139, ¶ 25. A question of law is reviewed
de novo. Dach at ¶ 11 ("When an appellate court considers a trial court's interpretation and
application of a statute, the de novo standard of review applies.").
{¶ 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 R.C.
3119.01(C)(11). (Appellant's Brief at 21.) Appellant explains that $54,241 was based on the
income he made in prior employment working at a juvenile detention center when, at the
time of trial, he was earning much less because he was completing a master's degree in
education and was working as a latchkey teacher in order to position himself for greater
income earning potential in the future. Appellant argues he should not be punished for
sacrificing himself financially by obtaining a job which allowed him to fulfill his obligations
to his child.
{¶ 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.
No. 18AP-259 12
{¶ 27} "Pursuant to R.C 3119.01(C)(11)(a), when imputing income to a parent, the
trial court must consider the enumerated factors." Misra at ¶ 18, citing Meeks v. Meeks,
10th Dist. No. 05AP-315, 2006-Ohio-642, ¶ 37. Regarding the trial court's duty to make an
express finding, in Dach, this court addressed and distinguished Bruno and Apps in holding
a trial court's failure to make an express finding of underemployment is not automatically
reversible error. Specifically, Dach states in pertinent part:
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 under-
employed" 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.
Id. at ¶ 57.
No. 18AP-259 13
{¶ 28} In this case, the record contains evidence from which we can infer the trial
court made the finding that appellant is voluntarily underemployed. The record shows that
appellant held a bachelor's degree in sociology and criminal justice. He was employed as a
correctional supervisor at a juvenile detention center from 2002 to the end of 2016. He
also worked part-time with a city school district as an educational aide sometime in 2014
and 2015. Federal income tax documents and earnings statements in the record show that
from 2012 to 2015, appellant earned between $40,000 to $55,000 each year. He did not
submit financial documents for 2016. We note that, contrary to his argument, appellant
did not testify that the reason he left his higher paying position was to pursue his Master's
degree.5 Rather, appellant testified that in January 2017, he left his position to become a
part-time latch key teacher in order to spend more time with his child and increase the
likelihood he would be offered a full-time teaching position with that city school district.
The latchkey position paid $31.85 per hour. Appellant further testified that he was
completing his Master's Degree within days of the July 2017 hearing, and would be able to
work as a teacher in December of that year.
{¶ 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.
_____________
5 Appellant provides no legal authority as to how pursuit of an advanced degree impacts the voluntary
abandonment of employment determination. As previously noted, appellant's subjective reasons for
voluntarily abandoning employment are irrelevant to whether potential income should be imputed to a
parent. Rock.