Raymont v. Raymont

[Cite as Raymont v. Raymont, 2022-Ohio-2389.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ERIC G. RAYMONT, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
TRISHA R. RAYMONT, : Case No. 2021CA0029
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County
Court of Common Pleas, Case
No. 2017 DV 0022
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 11, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTINE M. L. THORNSLEY ROBERT E. WEIR
309 Main Street 305 Main Street
Coshocton, Ohio 43812 Coshocton, Ohio 43812
Coshocton County, Case No. 2021CA0029 2
Baldwin, J.
{¶1} Appellant, Trisha Raymont, appeals the Coshocton County Court of
Common Pleas decision modifying the obligation of Eric Raymont to pay spousal and child
support.
STATEMENT OF THE CASE AND THE FACTS
{¶2} This case was before this court in 2021 as Raymont v. Raymont, 5th Dist.
Coshocton No. 2020CA0019, 2021-Ohio-3022 (Raymont I). We sustained two of the
assignments of error in that case and remanded the matter for further proceedings
consistent with our opinion. The trial court considered our remand and issued a new
decision to which appellant, Trisha Raymont takes exception and appeals. The facts,
remaining unchanged, are incorporated from our opinion in Raymont I.
{¶3} The parties’ marriage was terminated via magistrate's decision filed
November 3, 2017, which was approved and adopted by the trial court via judgment entry
filed November 20, 2017. Pursuant to the November 20, 2017 Judgment Entry, Appellee
was ordered to pay spousal support in the amount of $2,000.00/month, and child support
in the amount of $606.91/month. At the time of the divorce trial, Appellee was employed
by AK Steel and earned a yearly salary of approximately $88,088.00, plus $3,618.24 in
overtime and bonuses.
{¶4} The Coshocton County Child Support Enforcement Agency (“CSEA”) filed
a motion to modify child support on May 15, 2018, seeking a reduction in Appellee's child
support obligation due to his unemployment. The trial court granted the motion on the
same day. On August 20, 2018, Appellant filed a motion for contempt, alleging Appellee
failed to meet various financial obligations. Appellant subsequently filed an amended
Coshocton County, Case No. 2021CA0029 3
motion for contempt, which included additional financial obligations Appellee failed to
satisfy. On January 9, 2019, the trial court found Appellee in contempt for failing to pay his
spousal and child support obligations.
{¶5} CSEA filed a motion to modify child support on November 20, 2018, seeking
an increase in Appellee's child support obligation after an administrative hearing officer
found Appellee's unemployment “was not beyond his control.” The trial court granted the
motion on the same day. On September 3, 2019, Appellant filed a motion requesting
Appellee's retirement benefits be used to pay his arrearages and other financial
obligations. The trial court granted the motion via entry filed on February 14, 2020.
{¶6} Appellee filed a pro se motion to modify spousal support on February 10,
2020. Appellant filed a motion for attorney fees incurred in defending Appellee's motion to
modify. The trial court conducted a hearing on the motions on February 25, 2020. At the
hearing, the trial court dismissed Appellee's motion due to his failure to present evidence
in support thereof. Via Entry filed February 28, 2020, the trial court awarded attorney fees
to Appellant in the amount of $1,125.00. On April 6, 2020, Appellant filed a motion for
contempt based upon Appellant's failure to pay her attorney fees.
{¶7} Appellee filed a motion to modify/terminate spousal support on July 31,
2020. CSEA filed a motion for hearing to modify child support on August 11, 2020. Prior
to the filing of the motion for hearing, on June 26, 2020, CSEA filed an administrative
recommendation, recommending Appellee's child support obligation be modified from the
current obligation of $711.44/month/child to $118.33/month/child based upon a change in
Appellee's circumstances, specifically, a change in income. On September 8, 2020, the
Coshocton County, Case No. 2021CA0029 4
trial court conducted a hearing on Appellant's motion for contempt, Appellee's motion to
modify/terminate spousal support, and CSEA's motion.
{¶8} At the hearing, Appellee testified, after almost 20 years, he was terminated
for cause from AK Steel in January, 2018. Appellee explained he had made an off-handed
comment to a female co-worker. As a result, the co-worker made a complaint to the human
resources department. Appellant did not deny making the comment, but stated the
individual to whom he made the comment was a co-worker he had known for 15 years and
was someone with whom he could joke around.
{¶9} Immediately following his termination, Appellee sought other employment,
stating he had applied for “[w]ell over 500 positions, and I still do continue to apply.” Tr.
Sept. 8, 2020 Hearing at 12. Appellee prepared his resume and sent out applications. In
addition, Appellee utilized online resources, attended job fairs, and contacted Job and
Family Services. His boss at AK Steel wrote a positive letter of recommendation. Appellee
explained he worked as a metallurgist, which is a very specialized field. Appellee did not
obtain alternate employment for almost a year. Appellee eventually sought any type of
employment. He even began training for Macy's call center.
{¶10} He is currently employed by Source 1 Alloys, earning an annual salary of
$41,600.00, with no overtime or bonuses.
{¶11} At the time of the divorce hearing, Appellant was earning approximately
$14,700/year. The record shows that, at the time of the September 8, 2020 hearing,
Appellant was employed by East Coast Risk Management, LLC, and earned an annual
salary of $27,716.00.
Coshocton County, Case No. 2021CA0029 5
{¶12} The trial court ordered the parties to submit proposed findings of fact and
conclusions of law by October 8, 2020, but subsequently provided the parties with
additional time to do so. On November 5, 2020, the parties filed their respective proposed
findings of fact and conclusions of law. Via Judgment Entry filed November 19, 2020, the
trial court denied Appellee's motion to modify/terminate. The trial court found there was no
substantial change in circumstances necessary for the modification of child and/or spousal
support as Appellee's “misconduct and resulting reduction in income are considered
voluntary underemployment and discharge.” Id. at 4.
{¶13} Appellee filed an appeal, raising the following assignments of error:
{¶14} “I. THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLANT
WAS VOLUNTARILY UNDEREMPLOYED.”
{¶15} “II. THE TRIAL COURT ERRED WHEN IT FOUND THERE WAS NOT A
SUBSTANTIAL CHANGE IN CIRCUMSTANCES WARRANTING A MODIFICATION OF
APPELLANT'S SPOUSAL AND CHILD SUPPORT OBLIGATIONS.”
{¶16} “III. THE TRIAL COURT DID NOT TAKE INTO CONSIDERATION THE
INCREASE IN APPELLEE'S INCOME IN HIS DETERMINATION THAT THERE WAS
NOT A CHANGE IN CIRCUMSTANCES.”
{¶17} We found that “the trial court did not err in finding [Appellee] was voluntarily
underemployed as [Appellee's] own actions caused his termination” Raymont I at ¶ 16 but
we sustained the second and third assignments of error holding that:
Although [Appellee] was voluntarily underemployed due to his own
actions, we find consideration of his inability to regain employment at the
level enjoyed before the divorce is both relevant and equitable in
Coshocton County, Case No. 2021CA0029 6
determining whether there was a substantial change in circumstances. See
Gibson v. Gibson, 2d Dist. Montgomery No. 28171, 2019-Ohio-1799(regarding ex-husband's employability after felony conviction and efforts to
find comparable jobs); Courtney v. Courtney, 12th Dist. Warren No.
CA2013-09-087, 2014-Ohio-4281 (trial court abused its discretion in failing
to consider reduction in father's earning capacity after law license was
suspended due to felony conviction for aggravated theft). In determining
whether there was a change in circumstances, the trial court should have
considered the fact [Appellee] was terminated for a non-criminal offense,
made legitimate and diligent efforts to gain comparable employment, and
[Appellant's] income increased approximately 50% since the time of the
original divorce hearing.
Raymont I at ¶ 21.
{¶18} Upon remand, the trial court considered the record before it in accordance
with our opinion and granted appellee’s motion to terminate spousal support. The trial
court held that:
Therefore, the Court determines that a modification of spousal
support is appropriate because the circumstances of the parties have
changed and the change is so substantial that it makes the existing award
of spousal support no longer reasonable and appropriate. R.C. 3105.18(E).
Specifically, the court finds that there has been an involuntary decrease in
the Plaintiff/Husband’s wages as noted above. R.C. 3105.18(F). The court
further finds that the change of circumstances is substantial, not purposely
Coshocton County, Case No. 2021CA0029 7
brought about by the moving party, and not contemplated at the time the
parties entered into the prior agreement. Waters vs. Boney, 2009-Ohio-574(5th Dist., Stark); Weddington v. Weddington, 2010-Ohio-4967 (5th Dist.,
Licking).
{¶19} The trial court also approved recommendation submitted by CSEA to modify
child support.
{¶20} Appellant filed a notice of appeal and submitted two assignments of
error:
{¶21} “I. THE TRIAL COURT BY VIOLATING O.R.C. § 3105.18(F) ERRED AS A
MATTER OF LAW WHEN IT RULED THAT VOLUNTARY UNDEREMPLOYMENT (I.E.,
TERMINATION FROM EMPLOYMENT FOR JUST CAUSE FOR INAPPROPRIATE
SEXUAL BEHAVIOR) IS A SUBSTANTIAL CHANGE IN CIRCUMSTANCES, CAUSING
A TERMINATION OF APPELLEE'S SPOUSAL SUPPORT ORDER AND A
MODIFICATON OF APPELEE'S (SIC) CHILD SUPPORT ORDER.”
{¶22} “II. THE TRIAL COURT ABUSED ITS DISCRETION WITH TERMINATING
APPELLEE'S SPOUSAL SUPPORT ORDER AND MODIFYING APPELLEE'S CHILD
SUPPORT ORDER.”
STANDARD OF REVIEW
{¶23} The appellant’s assignments of error arise from the trial court’s decision
regarding spousal and child support. Decisions regarding the modification of spousal
support and child support are reviewed under an abuse of discretion standard. Boron v.
Boron, 5th Dist. Stark No. 2018CA00080, 2019-Ohio-714, ¶ 26; G.P. v. L.P., 5th Dist.
Morrow No. 2021 CA 0011, 2022-Ohio-1373, ¶ 74 on reconsideration, 5th Dist. Morrow
Coshocton County, Case No. 2021CA0029 8
No. 2021 CA 00112022-Ohio-2156, ¶ 74. An abuse of discretion occurs only when the
trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Further, as an appellate court, we
are not the trier of fact. Our role is to determine whether there is relevant, competent, and
credible evidence upon which the factfinder could base his or her judgment. Tennant v.
Martin-Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, 936 N.E.2d 1013, ¶ 16 (5th Dist.),
citing Cross Truck v. Jeffries, Stark App. No. CA-5758, 1982 WL 2911 (Feb. 10, 1982).
ANALYSIS
{¶24} Appellant submits two assignments of error, but the foundation of her
argument is the contention that appellee was voluntarily underemployed because he was
terminated from his employment when a co-worker reported an inappropriate comment
made to her during the workday. Appellee relies upon our decision in Boron v. Boron, 5th
Dist. Stark No. 2018-CA-00080, 2019-Ohio-714 to support her conclusion that “a voluntary
underemployment which results in a decrease in income is not an involuntary decrease in
income required pursuant to O.R.C. § 3105.18(F).” In Raymont I, we found that the trial
court's reliance on this Court's opinion in Boron to support the conclusion that Eric
Raymont was underemployed to be misplaced. We found that Boron was factually
distinguishable and our conclusion remains the same. Raymont I, supra, ¶ 16. The Boron
decision is inapposite.
{¶25} In Raymont I we concluded that: “* * * the decrease in Appellant's income
was not purposely brought about by him” and we held that:
consideration of his inability to regain employment at the level enjoyed before the
divorce is both relevant and equitable in determining whether there was a
Coshocton County, Case No. 2021CA0029 9
substantial change in circumstances. * * * In determining whether there was a
change in circumstances, the trial court should have considered the fact Appellant
was terminated for a non-criminal offense, made legitimate and diligent efforts to
gain comparable employment, and Appellee's income increased approximately
50% since the time of the original divorce hearing.
Raymont I, supra, ¶ 20-21.
{¶26} The trial court complied with our instructions and concluded that there was
a substantial change of circumstances, not brought on by appellee and not contemplated
at the time of the original agreement. The record supports the court’s factual finding that
appellee’s testimony that, after his discharge, he applied to over 500 positions and
investigated several resources to replace his income and found the highest level of
employment available to him. As a result, his income was reduced by over fifty percent.
{¶27} Appellant insists that the trial court abused its discretion because it is
rewarding appellant for “abhorrent behavior” and “will only lead to more disrespectful,
sexist pigs, looking for a free handout.” Appellant focuses on the behavior that led to
appellees discharge and argues that because his unemployment was the result of a
voluntary act, his request for a modification of spousal support must be rejected. In
Raymont I we found “that the trial court did not err in finding Appellant was voluntarily
underemployed as Appellant's own actions caused his termination,” but that finding is not
the end of the analysis. Raymont I, supra, ¶ 16. We also held that “[i]n determining
whether there was a change in circumstances, the trial court should have considered the
fact Appellant was terminated for a non-criminal offense, made legitimate and diligent
Coshocton County, Case No. 2021CA0029 10
efforts to gain comparable employment, and Appellee's income increased approximately
50% since the time of the original divorce hearing. Id. at ¶ 21.
{¶28} The facts in this case are analogous to the facts in Gibson v. Gibson, 2nd
Dist. Montgomery No. 28171, 2019-Ohio-1799, ¶ 52, where the court relied upon
testimony that the obligor “was unable to find work comparable to his prior employment”
after he was terminated and that he made repeated efforts to find employment and found
only lower paying jobs. In the case before us, the record contains unrebutted evidence of
the appellee’s exhaustive attempts to replace the income from his former position. The
Gibson Court found that, given the obligor’s change in circumstances, the trial court did
not abuse its discretion by reducing the spousal support obligation. We find that the same
analysis and conclusion applies to this case.
{¶29} We find further support for our holding in Courtney v. Courtney, 12th Dist.
Warren No. CA2013-09-087, 2014-Ohio-4281, ¶ 13 where the Twelfth District Court of
Appeals held that “if the trial court finds that a parent is voluntarily underemployed, such
as the case here, “then it must consider the nonexclusive list of criteria set forth in R.C.
3119.01(C)(11)(a)1 to determine the amount of potential income to impute to the parent.”
(Citations omitted.) The criteria relevant to this case include: The availability of
employment in the geographic area in which the parent resides; The prevailing wage and
salary levels in the geographic area in which the parent resides; The parent's special skills
and training; Whether there is evidence that the parent has the ability to earn the imputed
income; and any other relevant factor. R.C. 3119.01(C)(17)(a)(iv)-(vii), (xi).
1
R.C. 3119.01(C)(11)(a) has been renumbered R.C. 3119.01(C)(17)(a).
Coshocton County, Case No. 2021CA0029 11
{¶30} These criteria support a conclusion that no income should be imputed to
appellee. The appellee was a metallurgist with very specialized skills that were not in great
demand in the geographic area in which he resided. The record contains no evidence that
he was able to earn the imputed income or that he was earning less than the prevailing
wage for the employment he found. Further, appellee’s testimony that his search for
similar employment was thorough was unrebutted. The appellant presented no evidence
to contradict appellee’s testimony and relied on the argument that appellee was voluntarily
underemployed. Appellant’s analysis is incomplete as it failed to consider the facts and
circumstances that we directed the trial court to consider in our opinion in Raymont I.
{¶31} The trial court found the appellee’s conduct that led to his termination was
“reprehensible” and this opinion should not be interpreted to condone his actions. The trial
court’s review is not, however, limited to that incident and must consider his subsequent
behavior and his actions to remedy the problem that arose from his behavior. The record
supports a conclusion that appellee’s search for adequate employment was exhaustive
and appellee offered no criticism of his efforts. While we agree with the trial court that
appellee’s behavior was reprehensible, we also find that the applicable law encourages
parties such as appellee to seek replacement employment.
Coshocton County, Case No. 2021CA0029 12
{¶32} We find that the trial court did not abuse its discretion by modifying the
spousal support and child support orders. Appellant’s assignment of error is denied and
the decision of the Coshocton County Court of Common Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.