Gibson v. Arroyo

[Cite as Gibson v. Arroyo, 2017-Ohio-333.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
DEBORAH GIBSON, :
Plaintiff-Appellee, : CASE NO. CA2015-12-114
: OPINION
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:
ANTONIO ARTHUR ARROYO, :
Defendant-Appellant. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 93-36142
Deborah Gibson, 5608 Zoar Road, Lot 37, Morrow, Ohio 45152, plaintiff, pro se
Antonio Arthur Arroyo, P.O. Box 861, Trenton, NJ 08625, appellant, pro se
David P. Fornshell, Warren County Prosecuting Attorney, Megan M. Davenport, 520 Justice
Drive, Lebanon, Ohio 45036, for Warren County Child Support Enforcement Agency
PIPER, P.J.
{¶ 1} Defendant-appellant, Antonio Arroyo, appeals a decision of the Warren County
Court of Common Pleas, Juvenile Division, denying his request to modify his child support
obligation.
{¶ 2} Arroyo has a child with plaintiff-appellee, Deborah Gibson, and was ordered to
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pay child support after his parentage was established by the juvenile court in 1994. Arroyo is
currently an inmate at a prison in New Jersey serving a 30-year sentence for murder. The
record does not indicate when Arroyo's incarceration began, or when he is to be released,
though the record indicates that Arroyo was incarcerated at the time his parentage was
established.
{¶ 3} In 2006, the Child Support Enforcement Agency ("CSEA") conducted an
investigation into Arroyo's child support account status. CSEA determined that Arroyo was in
arrears, and recommended a payment of $34.60 per month to satisfy the arrearage amount.
CSEA also recommended that Arroyo pay $172.99 per month in child support. In total, and
taking into account the arrearage amount, the monthly child support order, and a two percent
processing charge, the trial court ordered Arroyo to pay $211.74 per month. However, the
total arrearage amount was not included in the trial court's order, nor was there any indication
at what point the arrearage payment of $34.60 per month would cease.
{¶ 4} In 2011, Arroyo's child was emancipated, and the trial court adopted a
recommendation from CSEA that Arroyo's child support obligation terminate. However, it
appears that Arroyo's arrearage amount had not been satisfied, and he continued to have
monthly payments deducted from his prison income. The record indicates that Arroyo's
income from his inmate job assignment is $90 per month, $75 of which is deducted to pay his
court-ordered arrearage payment. The other $15 of Arroyo's income is made available to
Arroyo by the prison as a discretionary spending reserve.
{¶ 5} In 2015, Arroyo moved the juvenile court to reduce/suspend his arrearage
payment until he is released from prison, claiming he is unable to live on $15 per month. The
juvenile court denied Arroyo's motion, finding that reducing/suspending Arroyo's child support
obligation until his release would be unjust and not within the best interest of Arroyo's child.
Within its entry, the juvenile court noted that Arroyo's monthly payment of $211.74 is an
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"arrearage only child support order." Arroyo now appeals, pro se, the juvenile court's
decision, raising the following assignment of error.
{¶ 6} THE COURT FAILED TO CONSIDER IF DEFENDANT-APPELLANT ANTONIO
ARTHUR ARROYO COULD SURVIVE ON $15.00.
{¶ 7} Arroyo argues in his assignment of error that the juvenile court erred in not
granting his motion to decrease or suspend his child support obligation until he is released
from prison.
{¶ 8} A trial court's decision on a motion to modify child support will not be reversed
absent an abuse of discretion. Groves v. Groves, 12th Dist. Clermont No. CA2008-06-059,
2009-Ohio-931, ¶ 4. An abuse of discretion implies that the court's decision was
unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 9} The modification of a child support order is governed by the requirements of
R.C. 3119.79. Banfield v. Banfield, 12th Dist. Clermont Nos. CA2010-09-066 and CA2010-
09-068, 2011-Ohio-3638, ¶ 18. In order to justify the modification of an existing support
order, the moving party must demonstrate a substantial change in circumstances that
"render[s] unreasonable an order which once was reasonable." Id.
{¶ 10} Where the child support calculation involves a parent who is unemployed or
underemployed, the trial court must consider the parent's gross income and "potential
income." R.C. 3119.01(C)(5)(b). "Potential income" is income the parent would have earned
if he or she had been fully employed. R.C. 3119.01(C)(11). In determining the parent's
potential income, the court must first determine whether the parent is voluntarily unemployed
or underemployed. Id. The court then may impute the potential income to the parent in
accordance with the factors enumerated in R.C. 3119.01(C)(11)(a). Justice v. Justice, 12th
Dist. Warren No. CA2006-11-134, 2007-Ohio-5186, ¶ 8.
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{¶ 11} R.C. 3119.05(I) addresses the imputation of income for imprisoned parents,
and provides,
(I) Unless it would be unjust or inappropriate and therefore not in
the best interests of the child, a court or agency shall not
determine a parent to be voluntarily unemployed or
underemployed and shall not impute income to that parent if
either of the following conditions exist:
***
(2) The parent is incarcerated or institutionalized for a period of
twelve months or more with no other available assets * * *.
{¶ 11} As such, R.C. 3119.05(I)(2) clearly prohibits trial courts from determining that a
parent is voluntarily unemployed and imputing income to that parent if the parent is
imprisoned for a period of 12 months or more with no other available assets. However, the
statute allows an exception when not imputing income "would be unjust or inappropriate and
therefore not in the best interests of the child."
{¶ 12} The record clearly indicates that the juvenile court made a finding that not
imputing income to Arroyo for purposes of his child support modification motion would be
unjust and not within the best interest of Arroyo's child. The juvenile court determined that
not imputing income to Arroyo would reward him for his criminal conduct and would otherwise
deprive Arroyo's child of "valuable financial support." The juvenile court further found that it
was in the best interest of Arroyo's child that Arroyo pay down his child support arrearage
within a reasonable time, rather than wait years until Arroyo is released from prison. While
we find no abuse of discretion in the juvenile court's determination that not imputing income
to Arroyo would be unjust, we find that the juvenile court's order must be reversed because it
is unsupported by the current record.
{¶ 13} As previously stated, the limited amount of facts in the record establish that in
2006, Arroyo was ordered to pay $211.74 per month for arrearages, ongoing child support,
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and a processing fee. However, and according to the juvenile court's entry, only $34.60 of
that amount was ordered to satisfy Arroyo's arrearages. The other $172.99 and processing
fee were specific to Arroyo's ongoing child support obligation. That obligation terminated in
2011 when Arroyo's child was emancipated. Since 2011, there is no indication in the record
regarding the amount of arrearages Arroyo still owes. Nor is there any indication that the
juvenile court ordered Arroyo to continue payment obligations of $211.74 per month for only
the arrearage amount as referenced in the juvenile court's entry denying Arroyo's motion to
modify his child support obligation.
{¶ 14} On remand, the juvenile court must determine the proper amount of
arrearages owed by Arroyo, as well as a proper payment amount based on Arroyo's current
income or income the juvenile court finds appropriate to impute to him. Arroyo's sole
assignment of error is therefore, sustained.
{¶ 15} Judgment reversed and the matter is remanded for further proceedings
consistent with this opinion.
S. POWELL and RINGLAND, JJ., concur.
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