Miller v. Miller

[Cite as Miller v. Miller, 2022-Ohio-1515.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JENNIFER L. MILLER, : APPEAL NO. C-210414
TRIAL NO. DR-1500315
Plaintiff-Appellee, :
vs. : O P I N I O N.
JOHN TROY MILLER, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 6, 2022
Michaela Stagnaro, for Plaintiff-Appellee,
Robbins, Kelly, Patterson & Tucker, L.P.A., and Barry Spaeth, for Defendant-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Defendant-appellant John Troy Miller (“father”) brings this appeal
from the judgment of the Hamilton County Court of Common Pleas, Domestic
Relations Division, which modified his child-support obligation. For the reasons set
forth below, the judgment of the trial court is affirmed.
Procedural History
{¶2} Father and plaintiff-appellee Jennifer L. Miller (“mother”) were
married in 2006. The parties’ marriage was terminated by decree of divorce in July
2016. Under the terms of the divorce decree, the parties were to share custody of the
parties’ two children and father was ordered to pay child support. A decree of shared
parenting was also entered at the time of the divorce decree. In October of 2019,
father’s child-support obligation was modified, pursuant to agreed amendments to the
shared-parenting plan, to $2,953.20 per month, based on an annual gross income for
father of $393,960.
{¶3} On May 13, 2020, father filed a motion to modify his child-support
obligation based on a “substantial and involuntary” decrease in income. On July 7,
2020, father filed a motion for an emergency hearing to temporarily modify his child-
support obligation, claiming he paid over 51 percent of his gross monthly income in
child support when the children spent approximately 50 percent of their time residing
with him. A hearing on both motions was held before a magistrate on August 21, 2020.
Before a decision on the motions was entered by the magistrate, father filed another
motion, on September 16, 2020, for an emergency hearing to further modify his child-
support obligation, claiming that his employment had been terminated. A hearing was
held on this motion on October 27, 2020.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The magistrate entered a decision on all three motions on May 3, 2021.
The magistrate granted the motions to reduce father’s child-support obligation, and
ordered that he pay $1,934.10 per month. In doing so, the magistrate found father to
be voluntarily underemployed and imputed to father the annual income of his latest
position of employment. The magistrate’s order expressly did not deviate from the
child-support amount computed on the applicable worksheet. Father timely filed
objections to the magistrate’s decision, but the trial court overruled the objections on
June 29, 2021, and adopted the magistrate’s decision. Of importance, the trial court
stated, “The magistrate considered the effect the COVID pandemic has had on
[father’s] employment, but [father] did not provide convincing evidence that he is
unable or will be unable to make the amount of income that he was imputed at in the
Magistrate’s decision, especially considering his sales experience and previous
success.” Father timely filed a notice of appeal from the trial court’s decision and now
raises a sole assignment of error for our review, arguing that the trial court abused its
discretion in denying his motions to modify his child-support obligation.
Factual Background
First Change in Circumstance
{¶5} Father testified that, prior to May 2020, he had a small boutique media
agency called Division One Sports. With this agency, he was paid commissions for
brokering media deals on behalf of advertisers, mainly for “in-venue signage.” For
many years, Geico was his largest client until Geico decided to take its sports
marketing in-house in March of 2018. Father testified that he entered into a
settlement agreement with Geico, which agreed to pay him for deals he still “had in
the pipeline.” However, he was no longer able to negotiate on behalf of Geico. He also
lost income when another client, Kumho Tire, cut its budget for the 2018-2019 season.
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OHIO FIRST DISTRICT COURT OF APPEALS
Father testified that 80 percent of his total gross income was attributable to these two
advertisers. Father also worked as a commission sales consultant for Access Sports
Media, which was ultimately absorbed by ISM Connect (“ISM”) during the COVID-19
pandemic.
{¶6} Father averred that the sports marketing business “became null and
void” when the pandemic hit because no fans were in the arenas. In an effort to earn
more income, he brokered a deal with a “CBD” company out of Baltimore to do
advertisements on a subscription-based platform, FloSports. The deal only made a
total of $2,300 in sales, of which he earned about ten percent. Father testified that the
possibly of this deal generating money was “not looking very good at all.” He was able
to use his contacts to obtain a position at ISM after it acquired Access Sports Media.
He started this position on May 11, 2020. His salary at ISM was $96,000, plus ten
percent net commissions. Leo John Naioti, the senior director of human resources for
ISM, testified that father’s position was senior director of sales. With this position,
father was responsible for acquiring advertising media sales.
{¶7} Father asserted, and Naioti confirmed, that he had not earned any
commissions in connection with his employment at ISM. Naioti denied observing any
behavior that would indicate father was not exerting his best efforts to obtain sales for
the company. Naioti testified that he could not guarantee that father’s position was
secure going forward due to the impact the pandemic had on the security of sales
positions in the business. Father indicated his position was in “more of a 2021
planning stage” in the hopes that people would be back to the arenas.
{¶8} Father denied receiving any income aside from his salary at ISM and
denied having any other source of income in the future. He asserted that it was
unlikely he would receive the last two quarterly payments that he was scheduled to
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OHIO FIRST DISTRICT COURT OF APPEALS
receive in 2020 under the Geico settlement agreement. He believed that, under the
terms of the agreement, Geico could elect to opt out of the underlying agreements
requiring him to be paid; however, he denied receiving any written documentation
from Geico “to that effect.” Father denied being aware of anything else he could be
doing to earn more than his salary at ISM. His business, Division One Sports, was still
operational; however, father testified that there was “no business there.” He agreed
he still had the capability to work through this business but opined that he would have
to leave his current position at ISM because it would create a conflict of interest.
Second Change in Circumstance
{¶9} Father was let go from his position at ISM on September 16, 2020, after
his position was eliminated. He received payment from ISM through the end of
September pursuant to a separation agreement. He applied for unemployment
compensation, but his claim was denied due to lack of qualifying employment.
Regarding his efforts to obtain new employment, father testified that he reached out
via phone, email, and LinkedIn to people in the industry to find a position. He averred
that he was not qualified for a majority of the jobs that were available. He additionally
asserted that almost everyone he spoke within his industry was either furloughed or
laid off. He applied for a position in sales, outside the “sports world,” at NetJets but
was told that he was not qualified based on his background. He claimed he did not
have any clients right now at his business, Division One Sports, but asserted that he
had been looking for potential clients. He agreed that he is going to continue to search
for employment until he is successful. He denied utilizing any other platform, other
than LinkedIn, to look for positions. Father submitted a list of 20 people or entities
that he contacted to see if a position was available.
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{¶10} Mother lost her income due to undergoing treatment for metastatic
breast cancer. She testified that she used the child-support payments to pay for the
children’s expenses. She averred that father’s testimony about his sales experience
was inaccurate. She testified that, based on her experience during their marriage of
20 years, father had the ability to supplement his income and find money when he
needed to. She claimed that father had a client, DeSantis, that he would do promotions
and parties for. She opined that father “made a good half a million dollars that time
alone.” She claimed that father’s experience was not just in sales and stated that it was
her opinion that father was not looking for employment.
Law and Analysis
Standard of Review
{¶11} Decisions regarding child-support obligations are within the discretion
of the trial court and will not be disturbed absent an abuse of discretion. Morrow v.
Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, ¶ 9, citing Pauly v. Pauly,
80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997). A finding of abuse of discretion
requires more than just mere error; it requires that the court’s decision be
unreasonable, arbitrary, or unconscionable. Id., citing State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980).
Child-Support Modification
{¶12} In any action in which a child-support order is modified, the court must
“calculate the amount of the parents’ child support and cash medical support in
accordance with the basic child support schedule, the applicable worksheet, and other
provisions of Chapter 3119. of the Revised Code.” R.C. 3119.02; see R.C. 3119.021; R.C.
3119.022; Ohio Adm.Code 2101:12-1-17. In doing so, the court must first determine
the annual income of each parent. Sweeney v. Sweeny, 2019-Ohio-1750, 135 N.E.3d
6OHIO FIRST DISTRICT COURT OF APPEALS
1189, ¶ 23 (1st Dist.), citing Cwik v. Cwik, 1st Dist. Hamilton No. C-090843, 2011-
Ohio-463, ¶ 89. “ ‘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.” R.C. 3119.01(C)(9). “ Gross income” means “the total
of all earned and unearned income from all sources during a calendar year, whether
or not the income is taxable * * *.” R.C. 3119.01(C)(12). “Potential income” for a parent
who is voluntarily unemployed or underemployed means “imputed income that the
court * * * determines the parent would have earned if fully employed * * *,” and
“imputed income from any nonincome-producing assets of a parent * * *.” R.C.
3119.01(C)(17).
{¶13} “The court may order an amount of child support that deviates from the
amount of child support that would otherwise result from use of the basic child
support schedule and the applicable worksheet if, after considering the factors and
criteria set forth in section 3119.23 of the Revised Code, the court determines that the
amount calculated pursuant to the basic child support schedule and the applicable
worksheet would be unjust or inappropriate and therefore not in the best interest of
the child.” (Emphasis added.) R.C. 3119.22. “If the court deviates, the court must
enter in the journal the amount of child support calculated pursuant to the basic child-
support schedule and the applicable worksheet, its determination that the amount
would be unjust or inappropriate and therefore not in the best interest of the child,
and findings of fact supporting that determination.” Id.Voluntary Underemployment
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Father argues that the trial court abused its discretion in determining
that he was voluntarily underemployed. Whether a parent is voluntarily
underemployed and the amount of “potential income” to be imputed to a parent are
matters to be decided by the trial court based upon the facts and circumstances of each
case. Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993), syllabus.
“Voluntarily” is defined as “ ‘[d]one by design or intention, intentional, proposed,
intended, or not accidental. Intentionally or without coercion.’ ” Id. at fn. 2. The test
for determining whether a parent is voluntarily underemployed is not limited to
whether the change was voluntary; the test also includes whether the change “ ‘was
made with due regard to the obligor’s income-producing abilities and her or his duty
to provide for the continuing needs of the child or children concerned.’ ” Martindale
v. Martindale, 4th Dist. Athens No. 18CA17, 2019-Ohio-3028, ¶ 53, quoting King v.
King, 4th Dist. Jackson No. 12CA2, 2013-Ohio-3426, ¶ 21. The ultimate “design and
purpose” is to protect and ensure the best interests of the child or children involved.
Rock at 111.
{¶15} “Unless it would be unjust or inappropriate and therefore not in the best
interests of the child, a court * * * shall not determine a parent to be voluntarily
unemployed or underemployed and shall not impute income to that parent if * * * the
parent has proven that the parent has made continuous and diligent efforts without
success to find and accept employment, including temporary employment, part-time
employment, or employment at less than the parent’s previous salary or wage.” R.C.
3119.05(I)(3).
{¶16} Here, the trial court found that father did not provide convincing
evidence that he was unable to obtain new employment similar in pay to the position
he was recently let go from and imputed income to him accordingly. The evidence
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OHIO FIRST DISTRICT COURT OF APPEALS
submitted by father was his own testimony, an email from father to his counsel listing
20 people or entities he had reached out to, three emails showing his communication
to three of those people or entities, and an email showing he was rejected for a position
with one of those entities.
{¶17} Father cites to English v. Rubino, 8th Dist. Cuyahoga No. 68901, 1996
Ohio App. LEXIS 1415 (April 4, 1996), and argues that this evidence does not support
a determination that he voluntarily failed to look for work. In Rubino, the child-
support obligor was terminated from his position as the vice president of a bank on
August 1, 1991. Id. at *3. He was denied unemployment compensation after a finding
that he was terminated for just cause. Id. The obligor testified that he made diligent
efforts to look for work but limited his search to jobs in the field of banking and law.
Id. He also applied for a few jobs outside of these fields, such as a convenience store
clerk and gas station attendant. Id. The obligor graduated from law school in the
summer of 1991 and passed the bar examination in May of 1992. Id. The referee found
him to be voluntarily underemployed and capable of working as an attorney, and
accordingly imputed income to him similar to what he was making at the bank. Id. at
*3-4. The trial court adopted the decision of the referee. Id. at *4. The court of appeals
reversed this decision, finding that the trial court abused its discretion. Id. at *5. The
court stated,
Appellant testified he made every effort to find work in the fields
of banking and law, and also applied for a few other types of work. This
testimony was uncontradicted and the referee’s report did not state
that this testimony was not credible. * * * The fact that appellant had
not found any work in ten months is insufficient by itself to show
appellant did not make diligent efforts to look for work, without any
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence of available job opportunities. The evidence does not support
a determination that appellant voluntarily failed to look for work.
(Emphasis added.) (Citation omitted.) Id.
{¶18} The case at bar is distinguishable from Rubino. First, the trial court
expressly found that father did not provide “convincing evidence.” The trial court was
in the best position to determine credibility and weigh the evidence. See Getreu v.
Getreu, 5th Dist. Licking No. 2020 CA 00083, 2021-Ohio-2761, ¶ 35 (“Issues relating
to the credibility of the witnesses and the weight to be given the evidence are primarily
for the trier of fact.”); Cummin v. Cummin, 2015-Ohio-5482, 55 N.E.3d 467, ¶ 24 (4th
Dist.) (“It was within the trial court’s discretion to make credibility determinations
with respect to appellant’s claimed reduction in income.”). Additionally, mother
contradicted father’s assertions and testified that, based on her history of 20 years of
marriage to father, she knew he was capable of finding work when he needed to and
believed that he was not looking for employment.
{¶19} Father was only found to be voluntarily underemployed after his
position was eliminated at ISM. Outside of father’s own assertions, the only evidence
in the record of any efforts to find new employment was four emails: three emails
showing that father reached out to connections to let them know that he was seeking
employment and one email that showed he had applied for an open position. Based
on the foregoing, we cannot determine that the trial court abused its discretion in
finding the evidence insufficient to prove that father made “continuous and diligent”
efforts to find and accept employment since he lost his position at ISM. Therefore, we
cannot determine the trial court abused its discretion in finding father to be voluntarily
underemployed. See R.C. 3119.05(I)(3).
Imputed Income
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Father next argues that the trial court abused its discretion in imputing
income to him in an amount not supported by the record. When a court determines
that a parent is voluntarily unemployed or voluntarily underemployed, any “potential
income” to be imputed, based on what a parent would have earned if fully employed,
must be determined from the criteria listed in R.C. 3119.01(C)(17)(a)(i)-(xi). This
includes: (1) the parent’s prior employment experience; (2) the parent’s education; (3)
the parent’s physical and mental disabilities, if any; (4) the availability of employment
in the geographic area in which the parent resides; (5) the prevailing wage and salary
levels in the geographic area in which the parent resides; (6) the parent’s special skills
and training; (7) whether there is evidence that the parent has the ability to earn the
imputed income; (8) the age and special needs of the child for whom child support is
being calculated; (9) the parent’s increased earning capacity because of experience;
(10) the parent’s decreased earning capacity because of a felony conviction; and (11)
any other relevant factor. R.C. 3119.01(C)(17)(a)(i)-(xi).
{¶21} Consideration of the relevant factors in the statute is mandatory;
however, “the trial court is required neither to hear evidence on each factor nor discuss
each factor in its analysis.” McFarland v. McFarland, 12th Dist. Butler No. CA2018-
05-098, 2019-Ohio-2673, ¶ 12, citing Justice v. Justice, 12th Dist. Warren No.
CA2006-11-134, 2007-Ohio-5186, ¶ 13. Thus, a trial court does not abuse its discretion
in limiting its determination to the evidence presented, even when this results in the
trial court not considering every statutory factor. See Rice v. Rice, 11th Dist. Geauga
Nos. 2006-G-2716 and 2006-G-2717, 2007-Ohio-2056, ¶ 54-56.
{¶22} In the magistrate’s decision, adopted by the trial court, the magistrate
found that father had historically earned between $250,000 to $350,000, had
historically been successful in his business, and had consistently worked full-time.
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OHIO FIRST DISTRICT COURT OF APPEALS
Additionally, the magistrate found that no evidence was presented to indicate that
father was unable to work “medically or otherwise.” Finally, the magistrate found that
father was able to find a position earning $96,000 plus commission during the
pandemic and noted that father had experience in sales and previous success. While
not every factor was explicitly discussed, it is clear that the trial court considered the
relevant factors.
{¶23} Father argues that the trial court erred in finding that his total income
for 2020 was $193,891, because this amount is “far beyond” what father actually made
in 2020. In determining father’s gross income, the magistrate included his $96,000
annual salary from his employment at ISM, his latest employer, and $97,891 in self-
employment income. The magistrate’s calculation of self-employment income was
based on the settlement and release agreement between father, as Division One Sports,
LLC, and Geico. The agreement reflects that father will be paid quarterly commissions
in accordance with the exhibit attached to the agreement. Pursuant to the exhibit,
father was to receive a total of $97,891, in quarterly increments, from Geico in 2020.
Evidence was presented that father had already received the first payment of $63,483.
While the agreement does contain language that would allow future payments to
father to cease if any of the underlying agreements which formed the basis for the
commissions were terminated, the agreement also reflects that Geico must notify
father “regarding its election to opt-out of any of the aforementioned agreements
reflected” in the exhibit attached to the agreement. Father testified at the initial
hearing that he had not received any communication “to that effect.” Thus, the
evidence supports the trial court’s finding that father was still entitled to receive the
remaining amount from Geico. Additionally, although the magistrate stated that the
future Geico payments would be “imputed” to father, the record indicates that the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court was more likely attributing the future payments to father as “potential cash flow”
under R.C. 3119.01(C)(12), rather than “potential income” under R.C. 3119.01 (C)(17).
See Misra v. Mishra, 2018-Ohio-5139, 126 N.E.3d 367, ¶ 35 (10th Dist.), citing Smart
v. Smart, 3d Dist. Shelby No. 17-07-10, 2008-Ohio-1996, ¶ 19. Potential cash flow
may be included in the determination of gross income without a finding of voluntary
underemployment. Id.{¶24} Therefore, the only income actually “imputed” to father was income
equivalent to his annual salary at ISM for the period after his position was eliminated.
The magistrate used father’s salary at ISM as evidence of the type of employment
currently available to father as father was able to obtain this position at this salary level
in his career field during the pandemic. The evidence in the record regarding father’s
annual salary with ISM included an email and testimony of Leo Naioti, as well as
father’s own testimony and earning statements from ISM. Thus, the magistrate’s
income determination, adopted by the trial court, is supported by evidence in the
record. Accordingly, we cannot determine that the trial court abused its discretion in
imputing $96,000 in income to the father for the period after his position was
eliminated.
Extended Parenting-Time Deviation
{¶25} Father further argues that the trial court abused its discretion by not
granting a deviation due to his “extended” parenting time with the parties’ son.
Father’s argument appears to be derivative of the trial court’s authority to grant a
deviation under R.C. 3119.22, which provides that a trial court may order a deviation
from the applicable worksheet if, after considering the factors in R.C. 3119.23, the
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OHIO FIRST DISTRICT COURT OF APPEALS
court determines that the amount calculated would be “unjust or inappropriate” and
therefore not in the best interest of the children. See R.C. 3119.22. Under the plain
language of R.C. 3119.22, a trial court is not obligated to order a deviation. See In re
Custody of Harris, 168 Ohio App.3d 1, 2006-Ohio-3649, 857 N.E.2d 1235, ¶ 60, citing
Coleman v. Campbell, 11th Dist. Geauga No. 2001-G-2401, 2002-Ohio-3841, ¶ 16
(Finding that a deviation under R.C. 3119.22 is not mandatory and “clearly
discretionary.”); Zeitler v. Zeitler, 9th Dist. Lorain No. 04CA008444, 2004-Ohio-
5551, ¶ 14 (Finding that, under R.C. 3119.22, a trial court is “under no obligation to
deviate, no matter what its findings may be.”). Father points to no authority which
states otherwise. The magistrate’s decision, adopted by the trial court, expressly
declined to deviate from the determination on the child-support worksheet and we
cannot determine this was an abuse of discretion as the trial court was under no
obligation to grant a deviation.
Separate Rulings
{¶26} Father finally argues that the trial court abused its discretion when it
entered an order with findings that one annual income should be imputed to him for
all of 2020, despite two “separate and significant” changes in circumstances. Father
cites to Cooper v. Cooper, 12th Dist. Clermont No. CA2003-05-038, 2004-Ohio-1368,
¶ 20-22, overruled in part on other grounds, Brandner v. Brandner, 12th Dist. Butler
No. CA2011-07-136, 2012-Ohio-3043, ¶ 22, for the proposition that a period of
unemployment followed by a subsequent change in employment results in separate
changes of circumstances to warrant an additional modification of support. However,
in Cooper, the obligor had two distinct periods where his income was different. See
id. at ¶ 4, 6. Here, the trial court, in essence, determined that father’s income was the
same for both periods.
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{¶27} The magistrate’s decision, adopted by the trial court, reflects that the
court considered both changes in circumstances but rejected any further
modification–beyond the modification warranted by the first change in circumstance–
because it found father to be voluntarily underemployed at the time of the final
hearing. It accordingly imputed a salary to father equivalent to his salary at ISM,
which was the basis for the initial modification. Thus, after imputing this salary to
father, the income determination based on the second change in circumstance would
be the same as the determination made under the initial motions for the first change
in circumstance. Consequently, it was unnecessary for the trial court to make “two
separate and distinct” orders as it essentially denied father’s request for any further
modification to the child-support obligation, beyond what it was already granting
under the first two motions. Instead, the trial court entered one order, effective the
date that the first motion was filed. We cannot determine this was an abuse of
discretion.
Conclusion
{¶28} Having reviewed all of father’s issues presented for review and finding
no merit to any of father’s arguments, we overrule the sole assignment of error.
Accordingly, we affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
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