Clark v. Clark , 2015 Ohio 3818 ( 2015 )

[Cite as Clark v. Clark, 2015-Ohio-3818.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
TINA M. CLARK KNA DAUGHERTY,
PLAINTIFF-APPELLANT, CASE NO. 7-15-09
v.
DAVID B. CLARK, OPINION
DEFENDANT-APPELLEE.
Appeal from Henry County Common Pleas Court
Domestic Relations Division
Trial Court No. 00DR168
Judgment Affirmed
Date of Decision: September 21, 2015
APPEARANCE:
Tina M. Clark, Appellant
Case No. 7-15-09
ROGERS, P.J.
{¶1} Plaintiff-Appellant, Tina Clark, n.k.a. Tina Daugherty, appeals the
judgment of the Court of Common Pleas of Henry County, Domestic Relations
Division, adopting the Child Support Enforcement Agency’s (“CSEA”)
recommendations, which modified the child support payment of Defendant-
Appellee, David Clark. On appeal, Tina argues that the trial court abused its
discretion by failing to properly impute additional income to David for the 2013
calendar year. For the reasons that follow, we affirm the judgment of the trial
court.
{¶2} Tina and David were married in August 1998 and have one minor
child, A.C. In January 2002, Tina and David divorced. Tina was named the
residential parent and legal custodian of A.C., and David was required to pay child
support in the amount of $227.48 per month.
{¶3} In November 2004, the trial court modified David’s child support
obligation and required him to pay $426.92 per month.
{¶4} In 2008, Tina moved the court to modify David’s child support
obligation. In June 2008, David’s child support obligation was modified to
$554.67 per month.
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{¶5} David’s child support obligation was modified again in May 2009 to
$371.89 per month when health insurance was provided and $341.69 plus cash
medical of $64.58 per month when health insurance was not provided.
{¶6} In July 2012, Tina moved to modify David’s child support obligation
again. Her request was denied as the child support computation resulted in an
amount that was not at least a 10% change from the previous order.
{¶7} In April 2014, an administrative review was conducted to determine
whether David’s obligation would be modified. CSEA initially recommended that
David’s support be modified to $316.16 per month when health insurance was
provided and $285.55 and $77.42 cash medical when health insurance was not
provided. Tina objected to this amount and requested a hearing. After the
hearing, CSEA found that David’s income was approximately $39,479. It then
used the child support worksheet and recommended that David’s obligation be
modified to $448.44 per month when health insurance was provided and $427.35
and $77.42 cash medical when health insurance was not provided. Tina objected
to this finding and appealed to the Henry County Court of Common Pleas. At this
hearing, the following testimony was heard.
{¶8} Tina testified that during the first week of December 2008 she
received a phone call from David. According to Tina, David told her that he was
now unemployed and would not be making $100,000 a year anymore. She
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testified that soon after this phone call, David filed for a child support
modification. Tina also stated that she always believed that David was lying about
his actual income, but had no proof at the time to challenge it.
{¶9} Cheryl McCain was the next witness to testify. McCain testified that
she dated David during 2002-2010. She also stated that she had a civil protection
order in effect against David. She further testified that while she was dating David
she was also an employee of Global Welding Services, LLC, (“Global Welding”)
a business solely owned and operated by David. McCain testified as to David’s
billing rate and said that he would bill $50 an hour for his services. This amount
only included David’s services and did not account for any of the necessary
materials. These were billed separately according to McCain. Further, she
testified that he charged $25 an hour for another employee depending on the job.
{¶10} McCain also testified that she helped gather the necessary
information to hand over to David’s accountant for tax purposes. She stated that
David would charge nearly everything to the business account, and then she would
go back at the end of the year and determine which charges were business
expenses and which were personal expenses. She explained that she would then
turn her determination of David’s yearly income over to David who would then
determine if that amount was too high or too low. McCain stated that if David
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thought the income was too high, then he would tell her to add certain personal
expenses to the business expenses to lower his overall income.
{¶11} On cross-examination, McCain admitted that she had no knowledge
about David’s financial affairs after 2009. McCain testified that up until 2008, she
was paid $9 an hour by Global Welding. But after that, she no longer received any
monetary compensation. She also stated that after 2008, the business really started
to struggle and they did not work as many hours or jobs in the following years.
{¶12} David, by way of cross-examination, was the final witness to testify.
David testified that at his most recent job, he was only being paid $25 an hour
with the employer absorbing the cost of all the supplies. He also stated that he
received unemployment benefits, but did not remember if it was during a time
while he was working. David vehemently denied Tina’s allegation regarding the
December 2008 phone call.
{¶13} On direct examination, David testified that the only “certification” he
had was from a local vocational school. David explained that this “certification”
was meaningless because it was not awarded by the American Welding
Association. To receive a certification through the American Welding
Association, David testified that one must first pay a $5,000 fee to take a test and
then pass the test before receiving a certificate. David stated that there were
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somewhere between 15 to 20 certifications available through the American
Welding Association.
{¶14} David explained that he considered himself a “farm welder.” He
testified that he works for local farmers and fixes gates and fences. He can also
perform concrete work. He testified that he cannot weld pipelines or other similar
projects that produce higher profits because he lacks the certifications to do so.
{¶15} David testified that his breakup with McCain was very heated. The
two were constantly arguing and fighting over money, and during this time he
started dating his current wife.
{¶16} David also testified that due to the nature of his failing business, he
decided to change the name of his company to Global Industrial Maintenance in
order to generate more business. He explained that he had tried different
advertising strategies, but nothing seemed to work. By changing the name, he
hoped to show other people how his business could provide more than just
welding services. Currently, the only employees of the company are David and
his wife. Neither receives a salary or health insurance from the business. David
testified that his only source of income is the net income of Global Industrial
Maintenance. He also stated that sometimes he has to hire subcontractors that
charge for their work.
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{¶17} David testified that his yearly work schedule is never a constant 40
hours a week, 50 weeks a year schedule. Rather, it depends on the amount of
work coming into the business. At the time of the hearing, the only job he had
worked on was his current project, which was to wrap up in the following week.
He explained that there were no other projects lined up in the future.
{¶18} David stated that he currently charges a flat rate of $75 an hour. This
includes any costs associated with the job, including supplies and equipment. He
testified that his current project is located more than two and a half hours from his
residence and, to save money, he stays in a trailer at the worksite with his wife for
the duration of the project.
{¶19} David also authenticated his federal tax returns for the years 2011-
2013, which were entered as exhibits. In 2011, David reported an adjusted gross
income of $21,328. In 2012, David reported an adjusted gross income of $26,024.
In his amended 2013 return, he reported an adjusted gross income of $17,878.1
{¶20} David testified that after the most recent CSEA hearing, the agency
revised his most recent income to $39,479. David stated that he did not agree that
he made that much, but nonetheless chose not to object to the finding.
{¶21} On re-cross-examination, David testified as to how certain charges,
which seemed personal in nature, were business expenses. He confirmed that he
1
David explained that he was forced to amend his 2013 return because his accountant had failed to report
an additional amount of income. He stated that he fired his accountant and hired someone new to file the
amended return.
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charges everything out of his business account, but then removes all personal
expenses for income reporting purposes.
{¶22} In July 2014, the magistrate issued a decision, in which he
determined that the administrative hearing officer’s decision was just and
appropriate. Thus, the magistrate adopted the administrative hearing officer’s
decision in full. Specifically, the magistrate found that it was impossible to find
out exactly how the officer came up with the $39,479 amount, but nonetheless
found the amount to appropriate. The magistrate also found that Tina’s claim that
David’s adjusted gross income was $100,000 was unfounded. It stated that David
had never even come close to earning that much. It also found the testimony of
both Tina and McCain to be unreliable since both had reasons to be angry with
David.
{¶23} On August 15, 2014, Tina filed objections to the magistrate’s
decision. In her filing, Tina argued that the magistrate erred by failing to find the
testimonies of Tina and McCain to be more credible than David’s. Further, she
argued that although she agreed that an imputed income was necessary, she did not
agree with the final figure that was adopted by the magistrate.
{¶24} On August 25, 2014, the trial court reviewed the evidence in the
record, adopted the magistrate’s decision, and overruled Tina’s objections. Tina
filed her notice of appeal on September 23, 2014. On April 13, 2015, we
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dismissed the appeal for lack of a final appealable order. Clark v. Clark, 3d Dist.
Henry No. 7-17-13, 2015-Ohio-1420, ¶ 11. Specifically, we found that the trial
court’s August 25, 2014 entry “failed to set forth a specific child support amount
regarding David’s obligation.” Id. at ¶ 10.
{¶25} The trial court issued an amended judgment entry on May 4, 2015.
In its entry, the trial court ordered that David pay: $448.44 per month for child
support when health insurance is provided; $427.35 per month for child support
when health insurance is not provided; and $77.42 per month for medical support
if health insurance is not provided.
{¶26} Tina filed this timely appeal, presenting the following assignment of
error for our review.
Assignment of Error
THE COURT OF COMMON PLEAS OF HENRY COUNTY,
OHIO ERRED IN FAILING TO IMPUTE AN INCOME TO
DAVID CLARK THAT WAS CONSISTENT WITH HIS
ADMITTED EARNING ABILITY AS ADMITTED AND
SHOWN BY THE EVIDENCE, AFTER DAVID CLARK’S
PRIOR INCOME INFORMATION PROVIDED TO CSEA
WAS INCORRECT AND INCONSISTENT WITH HIS
ACTUAL INCOME
{¶27} In her sole assignment of error, Tina argues that the trial court erred
by adopting the magistrate’s decision. Specifically, she argues that because David
lied about his actual income to CSEA his income should be imputed using his
hourly rate without any deduction for business expenses. We disagree.
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{¶28} A trial court has considerable discretion related to the calculation of
child support, and, absent an abuse of discretion, an appellate court will not disturb
a child support order. Pauly v. Pauly, 80 Ohio St.3d 386, 390 (1997). Likewise, a
trial court's adoption of a magistrate's decision is reviewed under an abuse of
discretion standard. Marchel v. Marchel, 160 Ohio App.3d 240, 243, 2005-Ohio-
1499 (8th Dist.). An abuse of discretion is “more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶29} Before computing child support, the trial court must determine each
parent's income. Drummer v. Drummer, 3d Dist. Putnam No. 12-11-10, 2012-
Ohio-3064, ¶ 24, citing Thacker v. Thacker, 3d Dist. Marion No. 9–10–26, 2010–
Ohio–5675, ¶ 55. Where the calculation of child support involves a parent who is
unemployed or underemployed, the trial court must consider the parent’s gross
income and, relevant to the instant case, the parent’s potential income, R.C.
3119.01(C)(5)(b), which is income the parent would have earned if he or she had
been fully employed. R.C. 3119.01(C)(11)(a). In determining the parent’s
potential income and whether it may impute that income, the trial court must
engage in a two-part analysis. Theurer v. Foster–Theurer, 12th Dist. Warren Nos.
CA2008–06–074, CA2008–06–083, 2009–Ohio–1457, ¶ 83, citing Badovick v.
Badovick, 128 Ohio App.3d 18, 23 (8th Dist.1998). First, the trial court must
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determine whether the parent is voluntarily unemployed or underemployed. Id.;
see also Smart v. Smart, 3d Dist. Shelby No. 17–07–10, 2008–Ohio–1996, ¶ 21. If
the trial court determines that the parent is voluntarily unemployed or
underemployed, then the potential income to be imputed to the parent must be
determined in accordance with the factors enumerated under R.C.
3119.01(C)(11)(a). Theurer at ¶ 83.
{¶30} Under R.C. 3119.01(C)(11)(a):
Imputed income that the court or agency determines the parent
would have earned if fully employed as determined from the
following criteria:
(i) The parent’s prior employment experience;
(ii) The parent’s education;
(iii) The parent’s physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in
which the parent resides;
(v) The prevailing wage and salary levels in the geographic area
in which the parent resides;
(vi) The parent’s special skills and training;
(vii) Whether there is evidence that the parent has the ability to
earn the imputed income;
(viii) The age and special needs of the child for whom child support
is being calculated under this section;
(ix) The parent’s increased earning capacity because of
experience;
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(x) The parent’s decreased earning capacity because of a felony
conviction;
(xi) Any other relevant factor.
{¶31} As an initial matter, we note that Tina’s contention is limited to the
amount of imputed income. Tina does not challenge the finding that David was
underemployed. Accordingly, our review is limited to determining whether the
trial court abused its discretion in finding that $39,479 was a proper amount to be
imputed to David.
{¶32} Here, CSEA calculated David’s income to be $39,479. This amount
was later adopted by both the magistrate and the trial court. While David does not
object to this amount, Tina believes his income to be greater. Specifically, she
contends that the court should have used either the $25 or $50 per hour figure that
David admitted he has charged customers in the past. She states that if you take
these figures and assume David works a 40 hour work week and a 50 work week
calendar, then the proper income amount to be attributed should be between
$50,000 and $100,000. She argues that using his admitted hourly rate is more
relevant given that it is specific to David’s actual job.
{¶33} Both parties seem to agree that the $39,479 figure was based off of
the average hourly salary of a welder in Northwest Ohio, which was
approximately $19 an hour. See R.C. 3119.01(C)(11)(a)(v). Additionally, the
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magistrate found that David possesses no special skills or training since he does
not hold any certificates in welding other than a certificate from a local vocational
school. See R.C. 3119.01(C)(11)(a)(vi). The magistrate also found that he has
never come close to an adjusted gross income of what Tina asserts is the case. See
R.C. 3119.01(C)(11)(a)(i), (vii). Finally, the magistrate found that the testimony
of McCain was unreliable, which is also a relevant factor. See R.C.
3119.01(C)(11)(a)(xi).
{¶34} Since the magistrate based its decision on the relevant factors listed
in R.C. 3119.01(C)(11)(a), we cannot say that the trial court abused its discretion
when it adopted the magistrate’s decision.
{¶35} Accordingly, Tina’s sole assignment of error is overruled.
{¶36} Having found no error prejudicial to Tina in the particulars assigned
and argued, the judgment of the trial court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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