Martindale v. Martindale

[Cite as Martindale v. Martindale, 2019-Ohio-3028.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
LISA ANN MARTINDALE, :
Plaintiff-Appellant, : Case No. 18CA17
vs. :
ERIC JOHN MARTINDALE,
: DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
APPEARANCES:
Sierra Meek, Nelsonville, Ohio, and Micaela C. Deming, Bluffton, Ohio, for appellant.
Eric J. Martindale, Quakertown, Pennsylvania, pro se appellee.1
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-22-19
ABELE, J.
{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment that
granted a divorce between Lisa Ann Martindale, plaintiff below and appellant herein, and Eric
John Martindale, defendant below and appellee herein.
1
Appellee has not filed an appellate brief. When an appellee fails to file an appellate brief, App.R. 18(C)
authorizes us to accept an appellant’s statement of facts and issues as correct, then reverse a trial court’s judgment as
long as the appellant’s brief “reasonably appears to sustain such action.” In other words, an appellate court may
reverse a judgment based solely on consideration of an appellant’s brief. Harper v. Neal, 4th Dist. Hocking No.
15CA25, 2016-Ohio-7179, 2016 WL 5874628, ¶ 14, citing Fed. Ins. Co. v. Fredericks, 2nd Dist., 2015-Ohio-694,
29 N.E.3d 313, 330–31, ¶ 79; Sites v. Sites, 4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748, 2010 WL 2391647, ¶
13; Sprouse v. Miller, Lawrence App. No. 06CA37, 2007-Ohio-4397, 2007 WL 2410894, fn. 1. In the case sub
judice, however, we do not believe that appellant’s brief reasonably appears to support a reversal of the trial court’s
judgment.
ATHENS, 18CA17 2
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY IMPUTING INCOME TO
DEFENDANT AFTER FINDING THAT DEFENDANT WAS
NOT VOLUNTARILY UNDEREMPLOYED.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY FINDING THAT
DEFENDANT WAS NOT VOLUNTARILY
UNDEREMPLOYED.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT CALCULATED
DEFENDANT’S INCOME FOR CHILD AND SPOUSAL
SUPPORT PURPOSES.”
FOURTH ASSIGNMENT OF ERROR:
“THE COURT ERRED BY FAILING TO AWARD SANCTIONS
AND COSTS REIMBURSEMENTS TO PLAINTIFF FOR
DEFENDANT’S FINANCIAL MISCONDUCT, I.E.
CONCEALMENT AND NON-DISCLOSURE, THROUGHOUT
THIS COURT ACTION PURSUANT TO R.C. 3105.171 AND
R.C. 2323.51.”
FIFTH ASSIGNMENT OF ERROR:
“THE COURT ERRED IN DETERMINING THAT A
DOMESTIC VIOLENCE SURVIVOR IS NOT ENTITLED TO
CHILD OR SPOUSAL SUPPORT DUE TO COOPERATION
WITH LAW ENFORCEMENT.”
SIXTH ASSIGNMENT OF ERROR:
“THE COURT ERRED IN FAILING TO PROTECT THE
RECORDS FOR THE CHILDREN DESPITE A COURT
FINDING THAT THE PROTECTION WAS WARRANTED.”
ATHENS, 18CA17 3
I
BACKGROUND
{¶ 3} Appellant and appellee married in March 2011.2 In November 2013, appellant and
the parties’ two young children left the Pennsylvania marital residence and returned to Athens,
appellant’s hometown. At the time, appellee was employed as a Major in the United States
Marine Corps and earned approximately $126,000 per year.
{¶ 4} Once appellant arrived in Ohio, a series of protracted legal proceedings began.
A
DOMESTIC VIOLENCE CIVIL PROTECTION ORDER
{¶ 5} In December 2013, appellant filed a petition for a domestic violence civil protection
order in the Athens County Court of Common Pleas. The trial court granted an ex parte civil
protection order and set the matter for a full hearing. In December 2015, the trial court denied
appellant’s request for a domestic violence civil protection order and terminated the ex parte
order.
{¶ 6} In January 2016, appellant filed a motion for a new trial and asserted that she
recently discovered new evidence relevant to her petition. In particular, appellant claimed that
on December 7, 2015, appellee admitted in a military court proceeding that he had struck
appellant. At that point, the trial court granted appellant’s motion and held a new hearing to
2
The present appeal is the third appeal involving the parties and we used our prior decisions to help formulate the
background facts. Martindale v. Martindale, 4th Dist. No. 17CA5, 2017-Ohio-9266, 102 N.E.3d 19, 2017 WL
6616980 (Martindale II); Martindale v. Martindale, 4th Dist. Athens No. 14CA30, 2016-Ohio-524, 2016 WL
562864 (Martindale I).
ATHENS, 18CA17 4
consider the new evidence.
{¶ 7} At the hearing, appellant introduced appellee’s written stipulation entered in the
military court proceedings. In the stipulation, appellee agreed that in July 2013, “events
escalated into a physical confrontation and [he] struck [appellant] one occasion. As a result of
this altercation [appellant] developed a black eye.” Martindale II at ¶ 27.
{¶ 8} The trial court subsequently granted the civil protection order and set it to expire in
December 2018. Appellee appealed and we affirmed. Id.
B
COMPLAINT FOR LEGAL SEPARATION AND DIVORCE PROCEEDINGS
{¶ 9} In January 2014, appellant filed a complaint for legal separation in the Athens
County Common Pleas Court. Appellee filed a complaint for a divorce in Pennsylvania and a
motion to dismiss appellant’s complaint for legal separation. Appellee claimed that, under the
Uniform Child Custody Jurisdiction and Enforcement Act, the Athens County Common Pleas
Court lacked jurisdiction over appellant’s complaint. In July 2014, the trial court dismissed
appellant’s complaint.
{¶ 10} Around the same time, appellant gave birth to twins. One of the twins was born
with muscular dystrophy and requires extensive medical care.
{¶ 11} Approximately one month after the twins’ birth, appellant appealed the trial
court’s decision that dismissed her complaint for legal separation. In February 2016, we
reversed and remanded the matter to the trial court so that it could consider all of the appropriate
statutory factors regarding whether the Athens County Common Pleas Court is an inconvenient
forum. Martindale I at ¶ 43.
ATHENS, 18CA17 5
{¶ 12} On remand, appellee (1) waived any jurisdictional argument, (2) filed an answer,
(3) filed a counterclaim for divorce and (4) requested genetic testing of the twins. The test
results indicated that appellee is the father of the twins.
C
FINAL HEARING
{¶ 13} In April 2017, the parties reached an agreement on all issues involved in the
divorce proceedings, except appellee’s child and spousal support obligations and the dependency
exemption. The matter proceeded to a final hearing before a magistrate.
{¶ 14} The primary dispute at the hearing concerned the total amount of appellee’s
income for child support purposes. Appellant sought to show that appellee earned income from,
not only his position with the Marine Corps, but also from two businesses that he formed.
Appellant alleged that the trial court should include appellant’s military income and the income
he earned from the two businesses when it calculated his child support obligation. Appellant
claimed that, when combined, the trial court should conclude that appellee’s gross income was
$192,720.95 for 2015, and $470,592.56 for 2016. Appellant arrived at these figures by arguing,
in part, that appellee did not properly substantiate his business expenses.
{¶ 15} At the hearing, appellee testified that he was employed as a Major in the United
States Marine Corps and that he earned $126,339.96 per year. Appellee further explained,
however, that due to military court proceedings arising out of the allegations appellant made in
her domestic violence civil protection order petition, he had to resign from the Marine Corps.
Appellee later learned that his official date of separation from the military would be May 25,
2017.
[Cite as Martindale v. Martindale, 2019-Ohio-3028.]
{¶ 16} Appellee also stated that he currently operates two business: Suburban Street
Trading, LLC aka American Integrity Products, an internet resale business through Amazon.com;
and Legend Soap. Appellee testified that, although his businesses have struggled to make a
profit, he hoped to be able to begin withdrawing an annual salary in the amount of $50,000 by the
middle of 2017.
{¶ 17} Appellee introduced his 2015 American Integrity Products tax return that showed
gross receipts in the amount of $113,093; costs of goods sold in the amount of $62,632; and
gross profit in the amount of $50,462. The tax return showed total expenses in the amount of
$53,868 and itemized each expense by category: advertising; car and truck; mortgage interest;
legal and professional services; office expenses; rent of lease of business property; supplies;
travel; meals and entertainment; tolls; Amazon services; website; phone and iPad; software; and
shipping. Schedule C showed a net loss in the amount of $3,406. A Passive Activity Loss form
showed that Legend Soap had a loss of $4,820.
{¶ 18} Appellee’s 2016 tax return showed that Suburban Street Trading Co. LLC3 had
$312,637 in gross receipts, $203,629 in cost of goods sold, and $109,008 in gross profit. The
expenses totaled $137,698. The return showed a loss of $28,690. Legend Soap again reported
a loss of $4,820.
{¶ 19} Appellee stated that, to obtain the numbers for his tax return, he “count[ed] up all
[his] receipts.” He explained that twice per month he would reconcile his personal and business
expenses on the credit card. Appellee indicated that every time he received his military
paycheck, he reviewed the previous two weeks to locate all of the personal charges on his credit
3
We observe that although the 2015 tax return referred to the entity as American Integrity Products, the 2016 tax
return referred to the entity as Suburban Street Trading Co. LLC.
ATHENS, 18CA17 7
card. He stated that he used his military income to pay for the personal charges and that the rest
of the charges he paid as business expenses with the income received from Amazon.
{¶ 20} Appellee testified that he calculated the cost of goods sold through Amazon’s
sellers central. Appellee related that going through each item was extremely time-consuming, so
he did not calculate each item individually. Appellee explained that he instead took a “cross
selection” to arrive at the cost-of-goods-sold figure. Appellee additionally related that, although
he had not brought any evidence to the hearing to document his claimed business expenses, he
had provided a box of receipts to appellant’s counsel.
{¶ 21} Bryan C. Daulton testified that appellant retained him to help determine appellee’s
total income for child support purposes. Daulton explained that appellee did not follow
generally accepted accounting practices and that the lack of an accounting system left Daulton
unable to accurately determine appellee’s income. Daulton stated that although he could review
the tax returns, he could not explain the source of the numbers that appellee reported on the tax
returns. Daulton did indicate that a business ordinarily would maintain a general ledger or some
other method of tracking expenses. Daulton related that he reviewed the receipts appellee
provided, but Daulton could not determine which receipts were for personal expenses and which
receipts were for business expenses. Daulton testified that based upon the evidence appellee
provided, Daulton could not determine the gross receipts appellee’s businesses generated, the
business expenses, or the cost of goods sold.
{¶ 22} Daulton also explained that he does not know whether appellee arbitrarily reported
the numbers on his tax return or whether appellee had back-up documentation that appellee gave
to the accountant who prepared his tax returns. Daulton stated that he does not believe that
ATHENS, 18CA17 8
appellee’s tax preparer had a duty to audit appellee, but rather, the tax preparer has an obligation
to believe that the data appellee provided is reasonable.
{¶ 23} In sum, Daulton testified that he could not verify appellee’s income based upon
the documentation appellee provided. Daulton reported: “[T]he accounting documents weren’t
provided that would have allowed [him] to verify what [appellee’s] income is.”
{¶ 24} Appellant testified and explained that she is a stay-at-home mother to the parties’
four children: a five-year-old; a four-year-old; and twin two-year-olds. Appellant stated that one
of the twins has been diagnosed with Muscular Dystrophy and that the child requires extensive
and expensive medical care.
{¶ 25} Following the hearing, the magistrate entered a decision that found appellee’s
income to be $126,339.96 through the date of his separation from the military, and $50,000
effective May 26, 2017. The magistrate also determined that appellant had failed to pursue her
claim for spousal support and, thus, did not address spousal support.
{¶ 26} Appellant filed timely objections to the magistrate’s decision. Although she
raised several objections, appellant’s objections primarily centered upon the magistrate’s
calculation of appellee’s income for child support purposes. In particular, appellant objected to
the magistrate’s determination that appellee’s income before he separated from the military did
not include any income from the two businesses that appellee operated. She alleged that
appellee did not produce evidence to substantiate his claimed business expenses and cost of
goods sold and that, without substantiation, the court must allocate the amount of gross receipts
as income.
{¶ 27} Appellant additionally objected to the magistrate’s failure (1) to find that appellee
ATHENS, 18CA17 9
is voluntarily unemployed; (2) to consider whether to award appellant spousal support; (3) to
grant an upward deviation of child support due to the medical expenses incurred on behalf of the
child with muscular dystrophy; (4) to award sanctions and cost reimbursements for appellee’s
purported financial misconduct; and (5) to restrict access to the children’s records. Appellant
further claimed that the magistrate mischaracterized Daulton’s testimony.
{¶ 28} The trial court subsequently overruled all of appellant’s objections, except her
objection to the magistrate’s finding that appellant chose not to pursue her claim for spousal
support. The court determined that appellant did not waive her claim for spousal support and
reviewed appellant’s argument that the court should award spousal support. Subsequently, the
court determined not to award appellant spousal support. In making its determination, the court
first stated that it considered all of the statutory factors set forth in the spousal support statute,
R.C. 3105.18. Additionally, the court observed that the parties were married for a short period
of time (approximately two and one-half years). The court also noted that appellee no longer
has the stability of his military income and that he is self-employed. The court stated that it
considered the parties’ available sources of income, the resources used to litigate the case, the
parties’ education, the parties’ assets, and the tax consequences. The court concluded:
“Considering all the statutory factors including, but not limited to the short period of time the
parties were together, the court finds that [appellant] should not receive spousal support from
[appellee] and that [appellee] shall not pay any amount in spousal support to [appellant] for any
length of time.”
{¶ 29} The trial court also considered appellant’s objection to the magistrate’s failure to
find that appellee is voluntarily unemployed. The court found that appellee’s separation from
ATHENS, 18CA17 10
the military resulted from “an incident” that occurred around the time of the parties’ separation.
The court observed that appellant’s domestic violence allegations resulted in appellee being court
martialed. The court further noted that appellee agreed to a non-judicial punishment on a charge
of disorderly conduct and that appellee’s admission meant that he would have to resign from the
military. The court thus determined that appellee’s separation from the military was involuntary
and explained: “Although it is arguable that [appellee] caused his own discharge from the
military as a result of an incident complained of by [appellant], the court finds that he resigned
from the military over [appellant]’s pursuit of the allegations before a military court. The
‘splitting of hairs’ over whether [appellee] was coerced into forcing to resign to avoid a more
deleterious outcome being imposed upon him does not sit well with the court.” The court thus
determined that appellee failed to establish that appellee’s separation from the military was
voluntary. As such, the court concluded that appellee is not voluntarily underemployed.
{¶ 30} The trial court next considered appellant’s objections regarding the magistrate’s
calculation of appellee’s gross income. The court agreed with the magistrate that appellee’s
annual gross income through the date of his separation from the military is $126,339.96.
{¶ 31} The court determined that appellee’s businesses “have operated at a loss since
their inception.” The court did not believe that appellant introduced any evidence to show that
appellee’s tax returns are unreliable evidence of the businesses’ income. The court observed
that a licensed tax preparer completed the tax returns and, that as appellant’s expert witness
testified, a licensed tax preparer “has an independent duty * * * to be of the opinion that the
information provided on the return is accurate provided that the information provided to the tax
preparer is accurate.” The court concluded that appellee’s “tax returns are an accurate reflection
ATHENS, 18CA17 11
of his annual income at the time.”
{¶ 32} The court also noted appellant’s assertion that appellee provided the information
to the tax preparer and that appellee did not provide accurate numbers. The court nevertheless
concluded that appellee’s testimony is “credible coupled with the other information provided
concerning the operation of the business.” The court specifically found that even though
appellee’s financial records “may not have been exemplary,” appellee’s “business and personal
financial records were of sufficient detail for the court to determine both gross income and
income for purposes of making calculations.” The court also recognized that appellee
commingled funds, but concluded that the amount of personal purchases “were not of such
monetary significance to cause the court any great concern in determining [appellee’s] income.”
{¶ 33} The trial court also overruled appellant’s objection to the magistrate’s failure to
appropriately credit her expert witness’s testimony. The court found that the expert’s testimony
was “of very limited value” and that the magistrate appropriately relied upon appellee’s tax
returns when calculating his income. The court thus determined that it “may reasonably” rely
upon the tax returns as evidence of appellee’s income.
{¶ 34} The trial court further noted that appellee “offered little evidence, if any, to
contradict [appellee]’s assertions but relies more upon argument why the figures should not be
relied upon.” The court concluded that the “child support calculation based upon the evidence
presented at [the] hearing was reasonable.” The court thus overruled appellant’s objection to the
magistrate’s decision not to retroactively modify appellee’s gross income to include
ATHENS, 18CA17 12
self-employment income of $66,380.99.4
{¶ 35} The trial court next determined that appellee’s testimony regarding his business
expenses is credible. The court also credited appellee’s testimony that by the summer of 2017,
he hoped to earn an annual salary of $50,000 from his business. The court thus found that
effective May 26, 2017, appellee’s income is $50,000 per year. The court additionally overruled
appellant’s objection that the magistrate failed to consider appellee’s potential income. The
court stated that “the magistrate properly considered any potential income when coming to the
conclusion that Defendant’s yearly income was imputed to be $50,000.”
{¶ 36} The trial court also reviewed the statutory child support calculation worksheet,
using $50,000 as appellee’s “self-employment income.” The court noted that the worksheet
shows that appellee’s monthly child support obligation is $1,061.33 when health insurance is
provided, and is $1,061.33 plus cash medical support of $179.17 when private health insurance is
not provided. The court determined, however, that an upward deviation is warranted. The
4
We observe that when the trial court overruled appellant’s objection to the magistrate’s determination of appellee’s
gross income, the court’s language could suggest that the court may not have complied with its duty to independently
review the evidence and the magistrate’s decision. The court stated: “this court finds that it is within the sound
discretion of the court to determine [appellee]’s income. The court finds that the Magistrate’s determination is
supported by competent and credible evidence.” We point out, however, that Civ.R. 53(D)(4)(d) requires a trial
court when ruling on objections to “undertake an independent review as to the objected matters to ascertain that the
magistrate properly determined the factual issues and appropriately applied the law.”
Although the court’s statements, when read in isolation, may suggest that the court did not undertake an
independent review, we further observe that “‘[a] presumption of regularity attaches to all judicial proceedings.’”
Faulks v. Flynn, 4th Dist. Scioto No. 13CA3568, 2014-Ohio-1610, 2014 WL 1510155, ¶ 27, quoting State v. Raber,
134 Ohio St. 3d 350, 2012–Ohio–5636, 982 N.E.2d 684, ¶ 19. Appellate courts thus presume that a trial court
independently reviewed a magistrate’s decision. Moreover, the party claiming that the trial court did not
independently review the magistrate’s decision bears the burden of rebutting the presumption. Faulks at ¶ 27. In
the case at bar, appellant did not argue that the trial court failed to comply with its duty to independently review the
magistrate’s decision. We thus will presume the regularity of the trial court’s decision and presume that the trial
court independently reviewed the magistrate’s decision. We also recognize that other parts of the trial court’s
decision indicate that the court recognized its duty to independently review the magistrate’s decision and that the
language used in this instance appears to be an oversight.
ATHENS, 18CA17 13
court noted that the child with muscular dystrophy requires specialized care and that appellant
spends $2,256 annually to provide for some of the child’s special needs. The court thus ordered
an upward deviation in the amount of $188 per month.
{¶ 37} The trial court further overruled appellant’s objection to the magistrate’s decision
declining to grant her request for sanctions and costs reimbursements due to appellee’s alleged
financial misconduct. The court first observed that the magistrate had, in fact, awarded
appellant $720 in sanctions. The court next determined that appellant did not meet her burden
to prove financial misconduct, concealment, or non-disclosure.
{¶ 38} Next, the trial court overruled appellant’s objection to the magistrate’s failure to
restrict access to the children’s records. The court found that appellant failed to show that it
should restrict appellee’s access to the children’s records.
{¶ 39} The court thus granted the parties a divorce and ordered appellee to pay child
support. This appeal followed.
II
{¶ 40} Because appellant’s first two assignments of error involve related issues, for ease
of discussion we review them together.
{¶ 41} In her first assignment of error, appellant asserts that the trial court erred by
imputing income to appellee without also finding that appellee is voluntarily underemployed.
Appellant contends that a trial court cannot impute income to a parent for child support purposes
unless the court first finds the parent voluntarily unemployed or voluntarily underemployed. In
her second assignment of error, appellant argues that the trial court erred by failing to find that
appellee is voluntarily underemployed. Appellant submits that appellee voluntarily chose to
ATHENS, 18CA17 14
engage in acts of domestic violence that ultimately led to his separation from the military.
Appellant thus alleges that appellee’s underemployment resulted from a voluntary decision and
that the trial court, therefore, should have found appellee to be voluntarily underemployed.
A
STANDARD OF REVIEW
{¶ 42} Trial courts possess broad discretion when ruling on child support matters,
including whether a parent is voluntarily unemployed or underemployed. Rock v. Cabral, 67
Ohio St. 3d 108, 112, 616 N.E.2d 218 (1993), citing Booth v. Booth, 44 Ohio St. 3d 142, 144, 541
N.E.2d 1028 (1989). Thus, appellate courts will not reverse trial court decisions relating to child
support matters, unless the trial court abused its discretion. Morrow v. Becker, 138 Ohio St. 3d
11, 2013-Ohio-4542, 3 N.E.3d 144, 2013 WL 5645778, ¶ 9 (2013); Booth v. Booth, 44 Ohio
St.3d 142, 144, 541 N.E.2d 1028 (1989).
{¶ 43} “‘[A]buse of discretion’ [means] an ‘unreasonable, arbitrary, or unconscionable
use of discretion, or * * * a view or action that no conscientious judge could honestly have
taken.’” State v. Kirkland, 140 Ohio St. 3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting
State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “An abuse of
discretion includes a situation in which a trial court did not engage in a ‘“sound reasoning
process.”’” State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34,
quoting State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting
AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St. 3d 157,
161, 553 N.E.2d 597 (1990). The abuse-of-discretion standard is “highly deferential” and does
not permit an appellate court to simply substitute its judgment for that of the trial court. State ex
ATHENS, 18CA17 15
rel. Cincinnati Enquirer v. Hunter, 138 Ohio St. 3d 51, 2013-Ohio-5614, 3 N.E.3d 179, ¶ 29
(explaining that reviewing court “will not lightly substitute [its] interpretation for that of the
issuing court”). Indeed, “[d]iscretion necessarily connotes a wide latitude of freedom of action on
the part of the trial court, and a broad range of more or less tangible or quantifiable factors may
enter into the trial court’s determination. [Thus], two trial courts could reach opposite results on
roughly similar facts and neither be guilty of an abuse of discretion.” McGee v. C & S Lounge,
108 Ohio App. 3d 656, 661, 671 N.E.2d 589 (10th Dist. 1996). Moreover, to find that a trial
court abused its discretion, “the result must be so palpably and grossly violative of fact or logic
that it evidences not the exercise of will but the perversity of will, not the exercise of judgment
but the defiance of judgment, not the exercise of reason but instead passion or bias.” Nakoff v.
Fairview Gen. Hosp., 75 Ohio St. 3d 254, 256, 662 N.E.2d 1 (1996). Accordingly, an appellant
seeking to show that a trial court abused its discretion ordinarily bears a heavy burden.
Eichenlaub v. Eichenlaub, 2018-Ohio-4060, 120 N.E.3d 380, 4th Dist.), ¶ 11.
B
IMPUTED INCOME
{¶ 44} In the case at bar, appellant initially alleges that the trial court incorrectly imputed
income to appellee. She asserts that the trial court did not first find that appellee is voluntarily
underemployed, and, in fact, the court found the opposite. Appellant thus contends that, without
a finding that appellee is voluntarily underemployed, the court could not impute an annual
income of $50,000 to appellee.
{¶ 45} We readily agree with appellant that, before a trial court may impute income to a
parent, it first must find that the parent is voluntarily unemployed or underemployed. Inscoe v.
ATHENS, 18CA17 16
Inscoe, 121 Ohio App. 3d 396, 424, 700 N.E.2d 70 (4th Dist. 1997), citing Rock v. Cabral, 67
Ohio St. 3d 108, 616 N.E.2d 218 (1993), syllabus; R.C. 3119.01(C)(17)(a). As we explain
below, however, we do not agree with appellant that the trial court actually imputed income to
appellee. Instead, the entirety of the trial court’s decision indicates that the court treated the
$50,000 salary appellee wished to begin drawing as “potential cash flow” under R.C.
3119.01(C)(7), and not as “potential income” imputed under R.C. 3119.01(C)(17)(a).
{¶ 46} R.C. 3119.01(C)(9) defines “income” to mean 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)(12) defines “gross income” as follows:
“Gross income” means, except as excluded in division (C)(12) 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. “Gross income” includes
income of members of any branch of the United States armed services or national
guard, including, amounts representing base pay, basic allowance for quarters,
basic allowance for subsistence, supplemental subsistence allowance, cost of
living adjustment, specialty pay, variable housing allowance, and pay for training
or other types of required drills; self-generated income; and potential cash flow
from any source.
{¶ 47} Thus, “‘[t]he statutory definition of income is very broad and includes * * *
ATHENS, 18CA17 17
potential cash flow from any source.’” Corwin v. Hammer, 4th Dist. Highland No. 07CA17,
2008-Ohio-2691, 2008 WL 2308899, ¶ 15, quoting Howell v. Howell, 167 Ohio App. 3d 431,
2006-Ohio-3038, 855 N.E.2d 533 (2d Dist.), ¶ 50. “The definition of ‘income’ is intended to be
both broad and flexible” in order “‘to ensure that the best interests of children, the intended
beneficiaries of child support awards, are protected.’” Murray v. Murray (1999), 128 Ohio
App.3d 662, 666-668, 716 N.E.2d 288 (citation omitted), quoting McQuinn v. McQuinn (1996),
110 Ohio App. 3d 296, 300-301, 673 N.E.2d 1384, 1387.
{¶ 48} In Howell, the Second District Court of Appeals noted that trial courts sometimes
incorrectly identify “potential cash flow” as “imputed income.” Id. at ¶ 54. The Howell court
stated that even though trial courts may “sometimes use the phrase ‘imputed income’ when
referring to potential cash flow, * * * that does not mean they have made a finding of voluntary
unemployment or underemployment under R.C. 3119.01(C)(11).” Id. The court explained that
“[u]sing the word ‘imputed’ is simply one way of describing potential income and does not mean
that a Court has made a finding under R.C. 3119.01(C)(11) that income should be imputed
because the obligor is unemployed or underemployed.” Id.; accord Smart v. Smart, 3rd Dist.
Shelby No. 17-07-10, 2008-Ohio-1996, 2008 WL 1849631, ¶¶ 25-26 (citing Howell and
recognizing that trial court’s incorrect classification of income as “imputed” rather than
“potential cash flow” did not mean that court was required to find parent voluntarily
underemployed).
{¶ 49} In the case at bar, we believe that, although the trial court used the phrase
“imputed income,” a review of the record indicates that the trial court calculated appellee’s
$50,000 annual salary as potential cash flow. Appellee stated that he hoped to begin
ATHENS, 18CA17 18
withdrawing a $50,000 annual salary from his self-employment. Appellee thus identified his
self-employment as generating potential cash flow. The court also recognized that appellee
identified $50,000 as the amount of cash he hoped to withdraw from the business. Although the
trial court did not utter the phrase, “potential cash flow,” the record suggests that the trial court
intended to classify appellee’s $50,000 annual salary as potential cash flow and not as imputed
income. Had the court actually intended to impute income to appellee, then the court would
have stated that appellee is voluntarily underemployed. Instead, the court specifically found that
appellee is not voluntarily underemployed. We therefore believe that the trial court simply made
an error in form, but not in substance, when it classified appellee’s $50,000 annual salary as
imputed income.
{¶ 50} Consequently, we disagree with appellant that the trial court incorrectly imputed
income to appellee.
C
VOLUNTARILY UNDEREMPLOYED
{¶ 51} Appellant next claims that the trial court abused its discretion by failing to
determine that appellee is voluntarily underemployed.
{¶ 52} Whether a parent is voluntarily underemployed, and the amount of any income to
be imputed to the parent, are matters that a trial court must determine based on the particular
facts and circumstances of each case. Rock v. Cabral, 67 Ohio St. 3d 108, 616 N.E.2d 218, 615
N.E.2d 218 (1993), syllabus. Furthermore, a parent claiming that the other parent is voluntarily
underemployed has the burden of proof on the issue. E.g., King v. King, 4th Dist. Jackson No.
12CA2, 2013-Ohio-3426, ¶ 21; accord Ketchum v. Coleman, 2d Dist. Miami No. 2013CA28,
ATHENS, 18CA17 19
2014-Ohio-858, ¶17.
{¶ 53} For purposes of the child support statute, the term “voluntary” means “done by
design or intention, intentional, proposed, intended, or not accidental. Intentionally and without
coercion.” Collins, 2011–Ohio2087, at ¶ 27, quoting Rock, 67 Ohio St. 3d at 111, fn. 2. In
determining whether an individual is voluntarily underemployed, “‘[t]he test is not only whether
the [underemployment] was voluntary, but also whether it 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.’” King v. King, 4th Dist. Jackson No. 12CA2, 2013-Ohio-3426,
¶ 21, quoting Woloch v. Foster, 98 Ohio App. 3d 806, 811, 649 N.E.2d 918 (2d Dist.1994).
Additionally, a trial court need not find that a parent “intended to evade a higher support
obligation by not obtaining employment commensurate with education, qualifications and
ability” before it may find a parent voluntarily underemployed. Rock, 67 Ohio St. 3d at 111.
Instead, the principal “design and purpose” of the imputed income statute “are to protect and
ensure the best interests of children.” Id. Accordingly, “[t]he 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.” Id.
{¶ 54} In the case sub judice, appellant asserts that the trial court abused its discretion by
failing to determine that appellee voluntarily resigned from his high-paying military job and that
he thus is voluntarily underemployed. She contends that appellee chose to resign from the
military in exchange for a non-judicial punishment. Appellant further alleges that appellee’s
resignation ultimately resulted from his voluntary decision to engage in domestic violence. For
these reasons, appellant argues that the trial court should have found appellee to be voluntarily
ATHENS, 18CA17 20
underemployed.
{¶ 55} Some Ohio courts have determined that a parent who engages in an act of
domestic violence or other misdeed that results in the termination of employment to be a
voluntary act that allows a trial court to find the parent voluntarily under- or unemployed.
Courtney v. Courtney, 12th Dist. Warren No. CA2013-09-087, 2014-Ohio-4281, 2014 WL
4802864 (sexual harassment) Hahn v. Hahn, 9th Dist. Medina No. 11CA0064-M,
2012-Ohio-2001, 2012 WL 1581824 (domestic violence); L.B. v. T.B., 2d Dist. Montgomery No.
24441, 2011-Ohio-3418, ¶ 16 (unspecified felony offenses); Heropulos v. Heropulos, 5th Dist.
Stark No. 99CA00236, 2000 WL 700285 (May 8, 2000) (domestic violence); Richardson v.
Ballard, 113 Ohio App. 3d 552, 554, 681 N.E.2d 507 (12th Dist. 1996) (probation violation);
Brockmeier v. Brockmeier, 91 Ohio App. 3d 689, 693, 633 N.E.2d 584 (1st Dist. 1993)
(misappropriation of funds). The underlying reason for finding a parent voluntarily
underemployed or unemployed due to that parent’s criminal conduct or other misdeeds is to
protect the child’s best interest. Brockmeier, 91 Ohio App. 3d at 693–94. Allowing a parent to
evade the parent’s duty of support based upon voluntary criminal conduct or other misdeed
would violate “‘the fundamental and equitable principle that wrongdoers ought not benefit from
their own wrongdoing.’” Id., quoting Williams v. Williams, 10th Dist. Franklin No. 92AP-438,
1992 WL 246020, *1. As the Williams court aptly explained:
A parent cannot, by intentional conduct or mere irresponsibility, seek relief
from this duty of support. Defendant, who by his own wrongful conduct placed
himself in a position that he is no longer available for gainful employment, is not
entitled to relief from his obligation to support his child. Incarceration was a
foreseeable result of his criminal conduct and is thus deemed a voluntary act in
and of itself.
ATHENS, 18CA17 21
Id. at *1.
{¶ 56} In Heropulos, 5th Dist. Stark No. 99CA00236, 2000 WL 700285, for example, the
father, a police officer, was charged and later convicted of domestic violence. After his
conviction, the police department terminated his employment. The father later obtained a
minimum wage job. The trial court determined that the father was voluntarily underemployed
and refused to reduce the amount of his child support payment to account for his minimum wage
job. The father appealed.
{¶ 57} On appeal, the court affirmed. The court noted that it had held in prior cases that
“a violation of the law and subsequent incarceration are voluntary acts, not beyond the control of
a child support obligor.” Id. at *2, citing Stewart v. Clay, Stark App. No.1997CA00161,
unreported (Dec. 15, 1997). Based upon its prior holding, the court thus determined that the
father’s “conviction for domestic violence and his subsequent termination based upon that
conviction [was] a voluntary act.” Id. The court additionally noted that the father “did not
testify to any other specific, significant attempt to gain employment at an appropriate wage.” Id.
The court thus concluded that the trial court did not abuse its discretion by finding the father to
be voluntarily underemployed.
{¶ 58} In Courtney v. Courtney, 12th Dist. Warren No. CA2013-09-087,
2014-Ohio-4281, 2014 WL 4802864, the court likewise determined that the trial court did not
abuse its discretion by finding the parent to be voluntarily underemployed as a result of the
parent’s misdeeds. In Courtney, the father’s employer terminated him after a co-worker alleged
sexual harassment. Before his termination, the father had been employed as general counsel and
earned an annual salary of $161,967. Following his termination, the father’s employer
ATHENS, 18CA17 22
discovered that the father had stolen thousands of dollars from the company and the father later
pleaded guilty to aggravated theft. After his conviction, the father’s law license was suspended.
The father subsequently obtained a job working at a retail store where he earned $10.50 an hour
plus some unemployment compensation.
{¶ 59} In the divorce proceedings, the trial court found the father to be voluntarily
underemployed for child support purposes and imputed income to him in the amount of
$161,967. The father appealed. On appeal, the court affirmed the trial court’s decision that the
father was voluntarily underemployed. The court concluded that the father’s “felony conviction
and suspension from the practice of law can all be attributed to his voluntary and admittedly
illegal acts.” Id. at ¶ 12. The court thus determined that the trial court did not abuse its
discretion by concluding that the father was voluntarily underemployed. The court further
concluded, however, that the trial court had abused its discretion in determining the amount of
income to impute to the father. The court reviewed the factors that a trial court must consider
when determining the amount of income to impute to a parent and concluded that the court’s
decision to impute the same amount of income that the father earned while employed as a
highly-compensated attorney was unreasonable and constituted an abuse of discretion. The
court noted that although the father is highly-educated, his “ability to earn the imputed income
[is] highly unlikely.” Id. at ¶ 15. The court additionally observed that the father’s “earning
capacity is greatly reduced due to his felony conviction for aggravated theft.” The court thus
reversed the trial court’s decision to impute potential income to the father in the amount of
$161,967. Id.
{¶ 60} In Hornbeck v. Hornbeck, 2nd Dist. Clark No. 2018-CA-75, 2019-Ohio-2035,
ATHENS, 18CA17 23
2019 WL 2237041, on the other hand, the court determined that the trial court did not abuse its
discretion by refusing to find a husband voluntarily underemployed for spousal support purposes.
In Hornbeck, a few months before filing for divorce, the husband had been earning $52,000 per
year. The husband, however, was forced to resign after his employer learned that the husband
had not been following company directives. Later, the husband obtained a job that paid $11 per
hour. During the divorce proceedings, the wife argued that the husband was voluntarily
underemployed. The trial court disagreed, and the wife appealed.
{¶ 61} On appeal, the court determined that the trial court did not abuse its discretion by
failing to find that the husband was voluntarily underemployed. The court concluded that the
trial court was free to assess the husband’s credibility when evaluating the husband’s efforts to
locate employment and that the court reasonably could have determined that the husband “was
realizing his full employment capacity.” Hornbeck v. Hornbeck, 2nd Dist. Clark No.
2018-CA-75, 2019-Ohio-2035, 2019 WL 2237041, ¶ 48. Accordingly, the court decided that
the trial court did not abuse its discretion by refusing to find the husband to be voluntarily
underemployed.
{¶ 62} In the case at bar, we, like the Hornbeck court, do not believe that we can
characterize the trial court’s refusal to recognize appellee as voluntarily underemployed as an
abuse of discretion. Instead, the trial court reasonably could have concluded that appellee is not
voluntarily underemployed. Appellee explained that he lost his military job as a result of
agreeing to resign his commission in exchange for receiving a non-judicial punishment for the
disorderly conduct charge. The record shows that, during the military court proceedings,
appellee agreed that on one occasion in 2013, he struck the appellant. Additionally, appellee
ATHENS, 18CA17 24
stated that his military training is specialized and that he could not obtain a similarly high-paying
position in the civilian workforce. Based upon the foregoing evidence, and considering that the
trial court is in the best position to assess each witness’s credibility, we cannot conclude that the
trial court acted unreasonably by refusing to find that appellee is voluntarily underemployed.
{¶ 63} Moreover, even if we might have reached a different conclusion based upon the
facts presented, the abuse-of-discretion standard does not allow us to simply substitute our
judgment for that of the trial court. Rather, to find an abuse of discretion, an appellant must
show that the trial court’s decision is grossly violative of fact or logic. Here, we do not believe
that appellant has demonstrated that the trial court’s decision is grossly violative of fact or logic.
{¶ 64} Although we also recognize that other courts have concluded that a parent’s
voluntary misdeeds warrant a finding of voluntary underemployment, we are unaware of any
Ohio case stating that a parent’s voluntary misdeeds require a finding of voluntary
underemployment. Instead, as the Ohio Supreme Court recognized in Rock v. Cabral, supra, the
ultimate decision whether a parent is voluntarily underemployed rests within the sound discretion
of the trial court to consider, based upon the unique facts and circumstances of each case.
Again, in the case sub judice we do not believe that the trial court abused its discretion when it
evaluated the unique facts and circumstances of this case and concluded that appellee is not
voluntarily underemployed.5
5
We also recognize that R.C. 3119.05(I) sets forth circumstances when a court should not find a parent to be
voluntarily unemployed or underemployed. The statutes 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 any of the following conditions exist:
(1) The parent is receiving recurring monetary income from means-tested public
ATHENS, 18CA17 25
{¶ 65} Accordingly, based upon the foregoing reasons, we overrule appellant’s first and
second assignments of error.
III
{¶ 66} In her third assignment of error, appellant asserts that the trial court failed to
correctly calculate appellee’s income for child and spousal support purposes. In particular, she
contends that the trial court erred by failing to include the income appellee generated from his
self-employed earnings when calculating his gross income. More specifically, appellant argues
that the trial court should not have credited appellee’s testimony regarding his business expenses.
Appellant claims that without supporting documentation, the trial court could not accept
appellee’s testimony and tax returns as evidence of his gross income. Appellee thus submits that
the trial court should have found that between January 1, 2015 and May 25, 2017, appellee
earned $66,380.99 as gross income from self-employment.
{¶ 67} Appellant additionally raises many other issues within her third assignment of
error, including: (1) the trial court “erred by incorrectly finding that ‘[i]n anticipation of his
assistance benefits, including cash assistance payments under the Ohio works first program
established under Chapter 5107. of the Revised Code, general assistance under former Chapter
5113. of the Revised Code, supplemental security income, or means-tested veterans’ benefits;
(2) The parent is approved for social security disability insurance benefits because of a
mental or physical disability, or the court or agency determines that the parent is unable to work
based on medical documentation that includes a physician’s diagnosis and a physician's opinion
regarding the parent’s mental or physical disability and inability to work.
(3) 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.
(4) The parent is complying with court-ordered family reunification efforts in a child
abuse, neglect, or dependency proceeding, to the extent that compliance with those efforts limits
the parent’s ability to earn income.
(5) The parent is incarcerated or institutionalized for a period of twelve months or more
with no other available assets, unless the parent is incarcerated for an offense relating to the abuse
or neglect of a child who is the subject of the support order or an offense under Title XXIX of the
Revised Code against the obligee or a child who is the subject of the support order.
ATHENS, 18CA17 26
separation from the military, [appellee] began to pursue an on-line sales business”; (2) the court
“erroneously concluded that” appellee’s businesses have operated at a loss since inception; (3)
the court mischaracterized her expert witness’s testimony; (4) the court should have found that
appellee is voluntarily underemployed and imputed income in the amount of $192,720.95; and
(5) the court erred by failing to award appellant spousal support.
A
FAILURE TO SEPARATELY ARGUE ASSIGNMENTS OF ERROR
{¶ 68} We initially point out that appellant did not raise the five alleged errors identified
in the preceding paragraph as separate assignments of error. The Appellate Rules require each
assignment of error to be presented separately. Also, App.R. 12(A)(2) allows a court to
“disregard an assignment of error presented for review if the party raising it * * * fails to argue
the assignment separately in the brief, as required under App. R. 16(A).” Moreover, App.R.
16(A)(3) requires an appellant’s brief to include “[a] statement of the assignments of error
presented for review, with reference to the place in the record where each error is reflected.”
We further note that appellate courts determine an appeal “on its merits on the assignment of
error[s]” and not on “mere arguments.” App.R. 12(A)(1)(b); State v. Johnson, 4th Dist. Scioto
No. 17CA3814, 2018-Ohio-4516, 2018 WL 5892659, ¶ 8; State v. Ross, 4th Dist. No.
16CA3771, 2017-Ohio-9400, 103 N.E.3d 81, ¶ 53.
{¶ 69} In the case at bar, we point out that appellant did not raise each error as a separate
assignment of error. Therefore we may disregard any of the issues that appellant did not
separately argue. However, when practical, we will address the issues appellant raises.
B
ATHENS, 18CA17 27
INCOME
{¶ 70} We again observe that we review a trial court judgment in child support matters
for an abuse of discretion. Morrow v. Becker, 138 Ohio St. 3d 11, 2013-Ohio-4542, 3 N.E.3d
144, 2013 WL 5645778, ¶ 9. Thus, we should not disturb a trial court’s decision regarding a
parent’s income, unless the court abused its discretion.
{¶ 71} In calculating child support, a trial court’s starting point is the parent’s “income.”
Morrow v. Becker, 138 Ohio St. 3d 11, 2013-Ohio-4542, 3 N.E.3d 144, 2013 WL 5645778, ¶ 11;
Sweeney v. Sweeney, 1st Dist. Hamilton No. C-180076, 2019-Ohio-1750, 2019 WL 2028714, ¶
24; King v. King, 4th Dist. Jackson No. 12CA2, 2013-Ohio-3426, 2013 WL 4011916, ¶ 20.
“Income” means “either gross income (for those employed to full capacity) or gross income plus
potential income (for those not employed to full capacity).” Id.; R.C. 3119.01(C)(9). As we
previously noted, the statutory definition of “gross income” is expansive and includes “the total
of all earned and unearned income from all sources during a calendar year.” R.C.
3119.01(C)(12). The definition of “gross income” also includes “self-generated income.” Id.
“Self-generated income” means gross receipts received by a parent from
self-employment, proprietorship of a business, joint ownership of a partnership or
closely held corporation, and rents minus ordinary and necessary expenses
incurred by the parent in generating the gross receipts. “Self-generated income”
includes expense reimbursements or in-kind payments received by a parent from
self-employment, the operation of a business, or rents, including company cars,
free housing, reimbursed meals, and other benefits, if the reimbursements are
significant and reduce personal living expenses.
R.C. 3119.01(C)(19). Thus, a trial court that is determining the gross income of a self-employed
parent must deduct “ordinary and necessary expenses incurred by the parent in generating the
gross receipts.” Id.; accord Foster v. Foster, 150 Ohio App. 3d 298, 303, 2002-Ohio-6390.
ATHENS, 18CA17 28
(15)(a) “Ordinary and necessary expenses incurred in generating gross
receipts” means actual cash items expended by the parent or the parent’s business
and includes depreciation expenses of business equipment as shown on the books
of a business entity.
(b) Except as specifically included in “ordinary and necessary expenses
incurred in generating gross receipts” by division (C)(15)(a) of this section,
“ordinary and necessary expenses incurred in generating gross receipts” does not
include depreciation expenses and other noncash items that are allowed as
deductions on any federal tax return of the parent or the parent’s business.
R.C. 3119.01(C)(15).
{¶ 72} Additionally, a court that is calculating the amount of child support must ensure
that the “parents’ current and past income and personal earnings [are] verified by electronic
means or with suitable documents, including, but not limited to, paystubs, employer statements,
receipts and expense vouchers related to self-generated income, tax returns, and all supporting
documentation and schedules for the tax returns.” R.C. 3119.05(A). Testimonial evidence
concerning a parent’s income is generally insufficient to satisfy R.C. 3119.05(A). Basham v.
Basham, 3d Dist. Allen No. 1-02-37, 2002-Ohio-4694, 2002 WL 31007154, ¶ 7; Brose v.
Copeland, 3d Dist. Seneca No. 13–13–08, 2013–Ohio–3399, ¶¶ 15–17; accord Ellis v. Ellis, 7th
Dist. Mahoning No. 08 MA 133, 2009-Ohio-4964, 2009 WL 2999354, ¶ 60 (“[P]ursuant to R.C.
3119.05(A) a trial court is restrained to review documents, not testimony, to establish income.”).
{¶ 73} Ohio courts have held that a trial court abuses its discretion by calculating income
for child support purposes without requiring some form of documentary evidence listed in R.C.
3119.05(A). In re M.C.M., 2018-Ohio-1307, 110 N.E.3d 694 (8th Dist.), ¶ 32 (concluding that
trial court abused its discretion by failing to rely upon sufficient documentary evidence when
calculating parent’s income); In re K.R.B., 2017-Ohio-7071, 95 N.E.3d 799 (8th Dist.), ¶ 26
(finding an abuse of discretion when record failed to contain documentary evidence to support
ATHENS, 18CA17 29
income-calculation); Montgomery v. Montgomery, 3rd Dist. Union No. 14-14-22,
2015-Ohio-2976, 2015 WL 4510904, ¶ 50 (determining that trial court abused its discretion
when fixing income based solely upon parent’s testimony); Rymers v. Rymers, 11th Dist. Lake
No. 2011-L-064, 2012-Ohio-1675, 2012 WL 1288726, ¶ 29 (concluding that trial court abused
its discretion when court failed to verify the parents’ incomes with proper documentation);
Basham v. Basham, 3d Dist. Allen No. 1-02-37, 2002-Ohio-4694, 2002 WL 31007154, at ¶ 8
(finding that trial court abused its discretion when record did not contain sufficient
documentation to verify parent’s income). As the Montgomery court explained: “‘Allowing a
party in a divorce proceeding to reduce his gross income level, and therefore his child support
obligation, by testimony alone, without proper verification as required under R.C. 3119.05(A), is
an abuse of the trial court's discretion.’” Montgomery v. Montgomery, 3rd Dist. Union No.
14-14-22, 2015-Ohio-2976, 2015 WL 4510904, ¶ 51, quoting Ornelas v. Ornelas, 12th Dist.
Warren No CA2011–08–094, 2012–Ohio–4106, ¶ 25.
{¶ 74} Likewise, “[a] party claiming a business expense has the burden of providing
suitable documentation to establish the expense.” Ockunzzi v. Ockunzzi, 8th Dist. Cuyahoga No.
86785, 2006-Ohio-5741, at ¶ 53. We also note that a trial court is not required to “blindly
accept all of the expenses appellant deducted in previous [tax] returns as ordinary and necessary
expenses incurred in generating gross receipts.” Dressler v. Dressler, Warren App. No.
CA2003–05–062, 2004–Ohio–2072; Flege v. Flege, Butler App. No. CA2001–09–225,
2002–Ohio6105; Cutter v. Cutter (Jan. 31, 1994), Butler App. No. CA93–05–091.
{¶ 75} We recognize that some courts require a self-employed parent to “submit
documentation in the form of receipts and expenses” to the trial court to verify the amounts
ATHENS, 18CA17 30
reported on the parent’s tax returns. In re I.A.G., 8th Dist. Cuyahoga No. 98088,
2012-Ohio-4403, 2012 WL 4462875, ¶ 18. The I.A.G. court reasoned that without receipts and
expenses, a trial court cannot possibly “determine if the amounts set forth on the tax documents
are valid.” Id. We note, however, that “[i]t is not the duty of the trial court to ferret out those
expenses that qualify as ordinary and necessary.” In re Sullivan, 11th Dist. No. 2005-G-2641,
167 Ohio App. 3d 458, 2006-Ohio-3206, 855 N.E.2d 554, 2006 WL 1725967, ¶ 25.
Additionally, the Ohio Department of Jobs and Family Services’ Child Support Guideline
Manual states that a trial court may determine self-employed income by examining income and
expenses as reported on Schedule C.6 The Manual does not, however, indicate that a parent
must produce receipts or other documents in order to prove the validity of the expenses reported
on Schedule C. Furthermore, this court previously determined that a trial court does not abuse
its discretion by allowing a parent to establish self-employment income without producing
receipts. Douglass Makni v. Makni, 4th Dist. Pike No. 01CA680, 2002-Ohio-5098, 2002 WL
31131877. In Makni, the parent produced a document entitled, “Occasional Income,” to
establish his self-employment income. The appellant asserted that the trial court could not rely
upon the figures the parent reported in the document and alleged that the parent is required to
submit evidence to illustrate how the parent arrived at the income figures. We did not agree.
We stated: “In the absence of evidence to the contrary except for appellant’s undocumented
assertions, we cannot say that the trial court abused its discretion.” Id. at ¶ 17.
{¶ 76} In the case at bar, we likewise disagree with appellant that the trial court abused its
discretion when it calculated appellee’s self-employment income and deducted the business
6
See http://www.odjfs.state.oh.us/forms/num/JFS07766/pdf/ at 7.
ATHENS, 18CA17 31
expenses he claimed on his 2015 and 2016 tax returns. The trial court acted within its discretion
by relying upon the figures reported on appellee’s tax returns and is not required to dig through
receipts or other documents to determine whether appellee properly reported the figures.
Instead, the court noted that appellee had provided receipts to the accountant who prepared his
tax returns. The court thus determined that appellee’s tax returns accurately reported his
business expenses.
{¶ 77} Moreover, we disagree with appellant that Siferd v. Siferd, 3rd Dist. No. 5-17-04,
2017-Ohio-8624, 100 N.E.3d 915, 2017 WL 5565495, requires us to find that the trial court
abused its discretion when determining that appellee’s businesses had not produced any income
during the years 2015 and 2016. In Siferd, “the extent of the information that [the parent]
provided to the court was one tax return from 2014, one financial disclosure form that recorded
his monthly personal expenses for 2015, and one expense report from 2016.” Id. at ¶ 22. In
contrast, in the case at bar, appellee produced his 2015 and 2016 tax returns, as well as bank
statements and documents obtained from Amazon’s seller services center. We therefore find
Siferd inapposite.
{¶ 78} Consequently, we disagree with appellant that the trial court abused its discretion
by rejecting her request to modify the past child support order and find that appellee had
self-employment income in the amount of $66,380.99.
C
VOLUNTARILY UNDEREMPLOYED
{¶ 79} Within the argument section of her third assignment of error, appellant also asserts
that the trial court erred by failing to find that appellee is voluntarily underemployed. We
ATHENS, 18CA17 32
believe, however, that we adequately addressed the issue earlier in this opinion.7
{¶ 80} Accordingly, based upon the foregoing reasons, we overrule appellant’s third
assignment of error.
IV
{¶ 81} In her fourth assignment of error, appellant asserts that the trial court erred by
failing to award sanctions and cost reimbursements for appellee’s financial misconduct. She
contends that appellee repeatedly failed to comply with discovery requests and states that she
“fully explained her request for sanctions via her Proposed Findings of Facts #42-56 and
reiterates those arguments as if fully re-written herein.” Appellant does not otherwise elaborate
upon her claim of financial misconduct.
{¶ 82} R.C. 3105.171(E)(4) authorizes a trial court to make a distributive or greater
award of marital property to one spouse upon a finding that the other spouse “has engaged in
financial misconduct, including but not limited to, the dissipation, destruction, concealment, or
fraudulent disposition of assets.” The burden of proving financial misconduct is on the
complaining spouse. Jacobs v. Jacobs, 4th Dist. Scioto No. 02CA2846, 2003–Ohio–3466, ¶ 25.
“There must be a clear showing that the offending spouse either profited from the alleged
misconduct or intentionally defeated the other spouse’s distribution of assets.” Id. at ¶ 23, citing
Wideman v. Wideman, 6th Dist. Wood No. WD–02–30, 2003–Ohio–1858, ¶ 34; accord Murphy
v. Murphy, 4th Dist. Lawrence No. 07CA35, 2008–Ohio–6699, 2008 WL 5265673, ¶ 45.
7
Also within her third assignment of error, appellant asserts that the trial court erred by failing to award spousal
support. For ease of discussion, however, we will address the spousal support issue in the context of appellant’s
fifth assignment of error.
ATHENS, 18CA17 33
{¶ 83} We also observe that R.C. 3105.171(E)(5) permits a trial court to make a
distributive award “[i]f a spouse has substantially and willfully failed to disclose marital
property, separate property, or other assets, debts, income, or expenses.”
{¶ 84} Appellate courts will review a trial court’s decision concerning a distributive
award under R.C. 3105.171(E)(4) or (5) for an abuse of discretion. Vulgamore v. Vulgamore,
4th Dist. Pike No. 16CA876, 2017-Ohio-4114, 2017 WL 2427595, ¶ 30. In the case sub judice,
after our review of the evidence we are unable to conclude that the trial court abused its
discretion by denying appellant’s request for a distributive award under R.C. 3105.171(E)(4) or
(5). The trial court was in the best position to evaluate all of the circumstances of the case, and
we are ill-suited to second-guess the trial court’s finding that appellee did not engage in financial
misconduct or substantially and willfully failed to disclose property and other items.
{¶ 85} For similar reasons, we disagree with appellant that the trial court abused its
discretion by failing to award her sanctions beyond the $720 already awarded.
{¶ 86} Accordingly, based upon the foregoing reasons, we overrule appellant’s fourth
assignment of error.
V
{¶ 87} In her fifth assignment of error, appellant challenges the trial court’s failure to
award spousal support. She charges that the court denied her request for spousal support based
upon her decision to report appellee’s domestic violence to law enforcement.
{¶ 88} Trial courts generally have broad discretion and “wide latitude” when evaluating
the appropriateness, reasonableness, and amount of a spousal support award. E.g., Kunkle v.
Kunkle, 51 Ohio St. 3d 64, 67, 554 N.E.2d 83 (1990); Bolinger v. Bolinger, 49 Ohio St. 3d 120,
ATHENS, 18CA17 34
122, 551 N.E.2d 157 (1990); Cherry v. Cherry, 66 Ohio St. 2d 348, 421 N.E.2d 1293 (1981);
Clifford v. Skaggs, 4th Dist. Gallia No. 17CA6, 2017-Ohio-8597, 2017 WL 5513569, ¶ 9.
Consequently, a reviewing court will not reverse a trial court’s spousal support decision absent
an abuse of discretion. Clifford at ¶ 9; e.g., Bechtol v. Bechtol, 49 Ohio St. 3d 21, 24, 550
N.E.2d 178 (1990); Holcomb v. Holcomb, 44 Ohio St. 3d 128, 131, 541 N.E.2d 597 (1989).
{¶ 89} R.C. 3105.18(B) allows trial courts, upon a party’s request and after distributing
property, to award reasonable spousal support. R.C. 3105.18(C)(1) sets forth the factors that a
trial court must consider when “determining whether spousal support is appropriate and
reasonable, and [when] determining the nature, amount, and terms of payment, and duration of
spousal support”:
(a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed under section
3105.171 of the Revised Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the
parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party, because that
party will be custodian of a minor child of the marriage, to seek employment
outside the home;
(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not
limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or earning
ability of the other party, including, but not limited to, any party's contribution to
the acquisition of a professional degree of the other party;
(k) The time and expense necessary for the spouse who is seeking spousal
support to acquire education, training, or job experience so that the spouse will be
qualified to obtain appropriate employment, provided the education, training, or
job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal support;
ATHENS, 18CA17 35
(m) The lost income production capacity of either party that resulted from
that party's marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and
equitable.
{¶ 90} A trial court evaluating the propriety of a spousal support award must consider all
of the statutory factors and not base its determination upon any one factor taken in isolation.
Kaechele v. Kaechele, 35 Ohio St. 3d 93, 518 N.E.2d 1197 (1988), paragraph one of the syllabus.
Additionally, although a trial court possesses broad discretion to determine whether a spousal
support is reasonable and appropriate, it must consider the statutory factors and must indicate the
basis for a spousal support award in sufficient detail to enable a reviewing court to determine that
the award complies with the law. Kaechele at paragraph two of the syllabus. If the record
reflects that the trial court considered the statutory factors, and if the judgment contains details
sufficient for a reviewing court to determine that the support award is fair, equitable, and in
accordance with the law, the reviewing court will uphold the award. Eichenlaub v. Eichenlaub,
2018-Ohio-4060, 120 N.E.3d 380 (4th Dist.), ¶ 13.
{¶ 91} In the case at bar, we do not agree with appellant that the trial court determined
that “due to [appellant] reporting the domestic violence perpetrated by [appellee] to law
enforcement and cooperating with their investigation and subsequent prosecution, she is per se
not entitled to an award of spousal support.” Instead, the trial court’s decision reveals that it
considered the appropriate statutory factors and did not base its decision on any one factor in
isolation. Specifically, the trial court found that appellee “is no longer employed as a Marine
and is self employed” and that “the parties were married a relatively very short period of time.”
The court also explained that it considered the parties’ sources of income, the resources they used
ATHENS, 18CA17 36
to litigate the case, the parties’ education levels, the parties’ assets, and the tax consequences.
The court concluded: “Considering all the statutory factors including, but not limited to the
short period of time the parties were together, the court finds that [appellant] should not receive
spousal support from [appellee].” We therefore disagree with appellant that the trial court
denied her request for spousal support based upon her decision to report appellee’s domestic
violence to law enforcement.
{¶ 92} As an aside, we do not intend to minimize appellant’s position and her assertion
that the trial court’s decision has the effect of denying spousal support to a domestic violence
survivor. Rather, we simply are unable to conclude that the trial court denied appellant spousal
support based upon her decision to report appellee’s domestic violence to law enforcement.
Other evidence adduced during the trial court proceeding supports the trial court’s conclusion.
{¶ 93} Accordingly, based upon the foregoing reasons, we overrule appellant’s fifth
assignment of error.
VI
{¶ 94} In her sixth assignment of error, appellant asserts that the trial court erred by
failing to protect the children’s records. She contends that the court’s failure to protect the
children’s records conflicts with its findings in the domestic violence civil protection order.
{¶ 95} R.C. 3109.051(H)(1) states that a non-residential parent is entitled to access to a
child’s records, “unless the court determines that it would not be in the best interest of the child
for the parent who is not the residential parent to have access to the records under those same
terms and conditions.” As with other parenting issues, we review a trial court’s decision
regarding a parent’s access to a child’s records for an abuse of discretion. Gisslen v. Gisslen,
ATHENS, 18CA17 37
2nd Dist. Montgomery No. 25666, 2013-Ohio-3840, 2013 WL 4782138, ¶ 22 (concluding that
trial court did not abuse its discretion in prohibiting parent from directly contacting school
employees and medical providers).
{¶ 96} In the case at bar, we are unable to conclude that the trial court abused its
discretion by failing to restrict appellee’s access to the children’s records. Although appellant
alleges that restricting appellee’s access is necessary due to his prior domestic violence, appellant
did not provide the court with any evidence that appellee continues to pose a threat to the
children’s welfare. We further note that the civil protection order expired in December 2018.
Martindale II at ¶ 13.
{¶ 97} Accordingly, based upon the foregoing reasons, we overrule appellant’s sixth
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
[Cite as Martindale v. Martindale, 2019-Ohio-3028.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Smith, P.J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.