[Cite as Cummin v. Cummin, 2015-Ohio-5482.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
KIMBERLY CUMMIN, : : Case No. 14CA24 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY DAVID CUMMIN, : : Defendant-Appellant. : Released: 12/21/15 _____________________________________________________________ APPEARANCES:
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.
K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellee. _____________________________________________________________
McFarland, A.J.
{¶1} Appellant, David Cummin, appeals the decision of the trial court
issued upon cross motions to modify support. On appeal, Appellant raises
two assignments of error, contending that 1) the trial court erred in
extrapolating his child support obligation beyond the obligation for a
combined income of $150,000.00, and 2) the trial court erred in calculating
his income. Because we find no abuse of discretion in the trial court’s
decision to extrapolate the child support order based upon the parties’ actual
income, rather than capping it at a $150,000.00 income level, we find no
merit to Appellant’s first assignment of error and it is therefore overruled. Hocking App. No. 14CA24 2
Because we find no error or abuse of discretion in the trial court’s
determination that Appellant was voluntarily underemployed and its
decision to impute income, we overrule Appellant’s second assignment of
error, in part. However, because we cannot ascertain from the trial court's
decision the amount of income actually imputed to Appellant, we sustain
Appellant’s second assignment in part and reverse and remand this matter
for further proceedings consistent with this opinion.
FACTS
{¶2} The parties were married on July 18, 1992 and have four
children, all of which are still minors. A divorce decree was issued on
November 4, 2011. As part of the divorce decree, the trial court ordered
shared parenting, ordered Appellant to pay child support based upon the
parties’ full combined annual income, which exceeded $300,000.00, and
also ordered Appellant to pay spousal support to Appellee. Appellant is a
physician and Appellee, at the time of the divorce, had been out of the work
force for several years while raising the parties’ four children. However, at
the time of the divorce, it was anticipated that Appellee would return to
work and the trial court imputed income in the amount of $65,000.00 to Hocking App. No. 14CA24 3
Appellee for purposes of calculating child support.1 No initial direct appeal
was taken from the divorce decree and associated orders.
{¶3} Subsequently, Appellant filed a motion to modify support on
January 7, 2014. Appellee then filed a cross-motion to modify child support,
as well as a motion to modify visitation. A final hearing was held on June
25, 2014, with the parties having already worked out the majority of the
parenting time issues. As such, the hearing primarily focused on financial
issues that pertained to the motions to modify support. Appellant’s new
wife, Crystal Cummin, testified at the hearing. She testified that she and
Appellant had been on several trips, including an Aruba vacation in which
they took Appellant’s children, a honeymoon to Croatia, a cruise to Puerto
Rico, which was paid for by her employer, and a trip to New York. She
testified that she earns approximately $116,000.00 annually working for
Johnson & Johnson.
{¶4} Appellant testified that he earns $25,100.00 annually as the
elected county coroner, most recently had a business net income of
$150,206.00 and also has rental property income. He testified, however, that
although he previously earned $11,000.00 annually as the hospital chief of
staff, he would no longer receive that income because he was term-barred
1 Appellee possesses a Master’s degree and is a trained nutritionist, with experience in hospital administration. Hocking App. No. 14CA24 4
from continuing in that position. He further testified that his rental income
had decreased and would continue to decrease in future years, as he had lost
tenants and did not expect to be able to find new tenants.2 He also testified
that his income had decreased due to the fact that he no longer performed
inpatient hospital work. He testified that inpatient work did not pay well,
and that he had reduced his work load in order to spend more time with his
children. He estimated that he had decreased his weekly working hours
from over one hundred hours to about seventy hours. On cross-examination,
Appellant testified that he completed eighteen hours of continuing medical
education while he was in Croatia for his honeymoon and, as a result, he
deducted those travel expenses from his business income.
{¶5} Appellee also testified during the hearing. She testified that her
annual income was between sixty-eight and sixty-nine thousand dollars, not
including any support payments she receives. She testified that until
recently, she had provided the children’s health insurance benefits, despite
the prior order that Appellant do so. She testified that it was her belief that
Appellant’s current income was $240,000.00 and that he was capable of
earning that much.
2 Appellant testified that the office space he has available for rent may only be rented to physicians and that there were no physicians in town to rent the space to. Hocking App. No. 14CA24 5
{¶6} After considering the testimony of the parties and reviewing tax
returns, the trial court issued its decision finding Appellant to be voluntarily
underemployed. The trial court reduced spousal support by $100.00 a
month, from $2,000.00 per month to $1,900.00, but increased child support
from $832.59 per month to $1,371.83 per month. The trial court noted in its
entry, in connection with its finding that Appellant was voluntarily
underemployed, that “[t]he net results cannot be precisely computed but the
Court has made an effort to develop a reasonable child support calculation.”
The trial court properly attached a child support computation worksheet to
its decision, noting that it had calculated support based upon a $150,000.00
income limit as well as based upon the parties’ actual combined annual
income, which was $320,586.40, and had decided not to cap the support at
the $150,000.00 limit. It is from this decision that Appellant now brings his
timely appeal, setting forth two assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN EXTRAPOLATING DR. CUMMIN’S CHILD SUPPORT OBLIGATION BEYOND THE OBLIGATION FOR A COMBINED INCOME OF $150,000.
II. THE TRIAL COURT ERRED IN CALCULATING DR. CUMMIN’S INCOME.” Hocking App. No. 14CA24 6
ASSIGNMENT OF ERROR I
{¶7} In his first assignment of error, Appellant contends that the trial
court erred in extrapolating his child support obligation beyond the
obligation for a combined income of $150,000.00. Appellee argues that
Appellant’s argument is “nonsensical and just silly.” We begin by
considering the appropriate standard of review for trial court determinations
regarding child support.
{¶8} “[A] trial court's modification of a prior child support order is
within the broad discretion of the trial court and will not be disturbed absent
an abuse of discretion.” Wolfe v. Wolfe, 10th Dist. Franklin No. 04AP-409,
2005-Ohio-2331, ¶ 7; citing Woloch v. Foster, 98 Ohio App.3d 806, 810,
649 N.E.2d 918 (2nd Dist. 1994). Here, the trial court made an initial child
support determination when the parties’ divorce was final in 2011. The
child support worksheet attached to the original divorce decree indicates that
the trial court based the child support on the parties’ actual income, rather
than capping their combined income at $150,000 for purposes of calculating
child support.3 Appellant did not object to the trial court’s use of the
3 In actuality, the trial court used Appellant’s actual income, but imputed income to Appellee in the amount of $65,000.00 as Appellee was a stay at home mother at the time of the divorce. At the time the original divorce decree was issued, the trial court determined the parties' combined annual income was $306,997.50. Hocking App. No. 14CA24 7
“extrapolation method” at that time and no direct appeal was taken from that
decision.4
{¶9} Three years later, the trial court modified its prior award of child
support, once again using the “extrapolation method,” rather than capping
the parties’ combined income at $150,000.00. Because Appellant did not
object to the trial court’s method of calculating support initially, we
conclude it is improper for him to raise that argument for the first time in
this current appeal. However, even if this argument is not waived, both
statutory and case law indicate that it is within the trial court’s discretion to
either cap income at $150,000.00 or use parties’ actual income when crafting
a child support order.
{¶10} Again, we review child support matters under an abuse-of-
discretion standard. See, Booth v. Booth, 44 Ohio St.3d 142, 144, 541
N.E.2d 1028 (1989). An abuse of discretion “connotes more than an error of
law or judgment; rather, it implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). When applying the abuse-of-discretion
standard of review, appellate courts must not substitute their judgment for
that of the trial courts. See, In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 4 "This method takes the applicable percentage under the child support schedules for couples with combined incomes of $150,000 and applies it directly to whatever income the parents make." Lanham v. Mierzwiak, 197 Ohio App.3d 426, 2011-Ohio-6190, 967 N.E.2d 1256, ¶ 17 (6th Dist.). Hocking App. No. 14CA24 8
N.E.2d 1181 (1991). Furthermore, an appellate court must presume that the
findings of the trial court are correct because the finder of fact is best able to
observe the witnesses and to use those observations to weigh witness
credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461
N.E.2d 1273 (1984); see, also, Mahlerwein v. Mahlerwein 160 Ohio App.3d
564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 19 (4th Dist.).
{¶11} R.C. 3119.022 governs the procedure for awarding and
calculating child support. The statute's overriding concern is to ensure the
best interest of the child for whom support is being awarded. Rock v. Cabral,
67 Ohio St.3d 108, 110, 616 N.E.2d 218 (1993). Thus, the statute's
provisions are mandatory in nature and courts must follow the statute
literally and technically in all material aspects. Marker v. Grimm, 65 Ohio
St.3d 139, 601 N.E.2d 496, paragraph two of the syllabus (1992); see, also,
Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, ¶ 7.
If a trial court makes the proper calculations on the applicable worksheet, the
amount shown is “rebuttably presumed” to be the correct amount of child
support due. See Rock at 110; Albright; see, also, R.C. 3119.03.
{¶12} Although we will discuss the trial court's calculation of
Appellant's income more fully below, at this juncture we simply note that
the trial court calculated the parties' combined annual income at the Hocking App. No. 14CA24 9
modification hearing held in 2014, as $320,586.40.5 Thus, as with the
original calculation, the parties' combined income more than doubled the
$150,000.00 income figure limit Appellant argues child support should have
been based upon. R.C. 3119.04, entitled "Determination of obligor's child
support obligation on a case-by-case basis for certain income amounts,"
provides in section (B) as follows:
"If the combined gross income of both parents is greater than
one hundred fifty thousand dollars per year, the court, with
respect to a court child support order, or the child support
enforcement agency, with respect to an administrative child
support order, shall determine the amount of the obligor's child
support obligation on a case-by-case basis and shall consider
the needs and the standard of living of the children who are the
subject of the child support order and of the parents. The court
or agency shall compute a basic combined child support
obligation that is no less than the obligation that would have
been computed under the basic child support schedule and
applicable worksheet for a combined gross income of one
hundred fifty thousand dollars, unless the court or agency 5 This figure represented Appellee's actual income, rather than imputed income as included in the original support order, as well as Appellant's actual income and potential income, as a result of the trial court's finding that Appellant was voluntarily underemployed. Hocking App. No. 14CA24 10
determines that it would be unjust or inappropriate and would
not be in the best interest of the child, obligor, or obligee to
order that amount. If the court or agency makes such a
determination, it shall enter in the journal the figure,
determination, and findings."
{¶13} As such, based upon the foregoing, for parties with combined
incomes exceeding $150,000.00, as is the case here, the trial court shall
determine on a case-by-case basis, taking into consideration the needs and
standard of living of the children, the amount of child support to be paid. A
plain reading of the statute reveals that the only time a trial court is required
to make special findings is when it sets support in an amount less than the
obligation that would have been computed under the basic child support
schedule and applicable worksheet for a combined gross income of
$150,000.00. In that situation, a trial court must find that an award based
upon a higher income amount would be unjust, inappropriate or not in the
best interests of the child.
{¶14} Here, the trial court based the child support award upon the
parties' full combined income amount and expressly included its reasoning
for not capping support based on a $150,000.00 income figure. The trial
court stated as follows: Hocking App. No. 14CA24 11
"The Court agrees that a support modification is now required.
The attached support calculation is the basis for the
modifications. See, Exhibit #1. Note that Exhibit #2 calculates
the result if the Court were to limit the total income to
$150,000.00. The Court finds the combined annual income
figure is $320,586.00 and it would be unfair and not in the best
interests of the children to utilize as the income figure the
limited $150.000.00. See R.C. 3119.04(B)."
The trial court's express language in its order demonstrates that it considered
the best interests of the children and the justness of limiting the award, when
it rejected that approach in setting support. Although Appellant argues the
findings the trial court made were against the manifest weight of the
evidence, we disagree.
{¶15} Again, this was a modification hearing. In setting support when
the parties first divorced, the trial court found that all the children enjoyed
special educational opportunities and that the two youngest children required
some special medical attention. Further, the evidence introduced at the
modification hearing indicated Appellant travels extensively, sometimes
with the children and sometimes without. This evidence is applicable in Hocking App. No. 14CA24 12
considering the needs and standard of living of the children. Based upon the
record before us, we find no abuse of discretion on the part of the trial court.
{¶16} Further, as Appellant himself notes in his brief, although this
Court has not considered the "extrapolation method" of calculating support,
other districts have determined that trial courts must only make special
findings when support is determined in an amount less than the obligation
that would have been computed under the basic child support schedule and
applicable worksheet for a combined gross income of $150,000.00.
Lanham v. Mierzwiak, supra, at ¶ 22 ("the statute does not require any
explanation of its decision unless it awards less than the amount awarded for
combined incomes of $150,000."); See also, Gorman v. Gorman, 7th Dist.
Jefferson No. 12JE23, 2013-Ohio-5643, ¶ 56; Chawla v. Chawla, 10th Dist.
Franklin No. 13AP-399, 2014-Ohio-1188, ¶ 16; quoting Guertin v. Guertin,
10th Dist. Franklin No. 06AP-1101, 2007-Ohio-2008, ¶ 6; quoting Cyr v.
Cyr, 8th Dist. Cuyahoga No. 84255, 2005-Ohio-504, ¶ 56. That situation,
however, is not applicable here. As such, because we can find no abuse of
discretion on the part of the trial court in "extrapolating" child support based
upon the parties' actual combined incomes, Appellant's first assignment of
error is overruled. Hocking App. No. 14CA24 13
ASSIGNMENT OF ERROR II
{¶17} In his second assignment of error, Appellant contends that the
trial court erred in calculating his income. In particular, Appellant contends
that the trial court erred in finding he was voluntarily underemployed and in
imputing income to him. Appellant also contends that the evidence at trial
does not support the gross income that the trial court attributed to him.
Appellee responds by contending that the trial court did not err in calculating
Appellant’s income, and argues that the trial court found Appellant’s
testimony regarding his income not to be credible.
{¶18} In considering Appellant’s argument that the trial court erred in
determining Appellant was voluntarily underemployed and imputing income
to him, we note that “R.C. 3119.01(C)(11)(a) authorizes a court to impute
income to a parent whom the court finds is voluntarily underemployed, for
purposes of calculating child support.” Breedlove v. Breedlove, 4th Dist.
Washington No. 08CA10, 2008-Ohio-4887, ¶ 14. “[W]hether a parent is
voluntarily (i.e. intentionally) unemployed or voluntarily underemployed is a
question of fact for the trial court. Absent an abuse of discretion that factual
determination will not be disturbed on appeal.” Rock v. Cabral at 112. The
term abuse of discretion means more than an error of judgment; it implies Hocking App. No. 14CA24 14
that the court's attitude is unreasonable, arbitrary, or unconscionable. Warner
v. Warner, 4th Dist. Scioto No. 12CA3511, 2013-Ohio-478, ¶ 9.
{¶19} “In calculating child support, a trial court must determine the
annual income of each of parent.” McLaughlin v. Kessler, 12th Dist. Fayette
No. CA2011-09-021, 2012-Ohio-3317, ¶ 13. For an unemployed or
underemployed parent, income is the “sum of the gross income of the parent
and any potential income of the parent.” Id.; R.C. 3119.01(C)(5)(b). R.C.
3119.01(C)(11) provides as follows with regard to the definition of
"potential income":
“ ‘Potential income’ means both of the following for a parent
who the court pursuant to a court support order, or a child
support enforcement agency pursuant to an administrative child
support order, determines is voluntarily unemployed or
voluntarily underemployed:
(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; Hocking App. No. 14CA24 15
(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;
(x) The parent's decreased earning capacity because of a felony conviction;
(xi) Any other relevant factor.
(b) Imputed income from any nonincome-producing assets of a
parent, as determined from the local passbook savings rate or
another appropriate rate as determined by the court or agency,
not to exceed the rate of interest specified in division (A) of
section 1343.03 of the Revised Code, if the income is
significant."
"[B]efore a trial court may impute income to a parent, it must first find that
the parent is voluntarily unemployed or underemployed.” McLaughlin at
¶ 13; R.C. 3119.01(C)(11). Hocking App. No. 14CA24 16
{¶20} In deciding if an individual is voluntarily underemployed “[t]he
test is not only whether the change 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.” Woloch v. Foster, supra, at 811. Moreover, "[a] child support
obligee who claims that the obligor is voluntarily underemployed has the
burden of proof on that issue.” Fischer v. Fischer, 2nd Dist. Clark No.
11CA81, 2012-Ohio-2102, ¶ 24.
{¶21} Appellant contends that the trial court erred and abused its
discretion in finding him to be voluntarily underemployed, arguing that it
was understood during the original divorce proceedings that he intended to
reduce his hours in order to spend more time with the children under the
shared parenting order. Appellant claims he did just that but is now
essentially being penalized for doing so in light of the trial court's finding
that he is voluntarily underemployed. Appellant further contends that
although he reduced his hours from over one hundred per week, he still
works approximately seventy hours per week. He argues that the trial
court's decision was an abuse of discretion based upon these facts. For the
following reasons, however, we disagree. Hocking App. No. 14CA24 17
{¶22} Initially we note that although Appellant argues he reduced his
hours in order to spend more time with his children, which is understandable
and even admirable, Appellant's subjective motivation for reducing his hours
is not a factor in the determination. "The 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." Rock v. Cabral, supra, at 113.
Further, whether a parent is underemployed is more than just an hours-
worked determination. For instance, in Chawla v. Chawla, supra, a trial
court imputed income to a physician parent of $550,000.00 despite the fact
that the parent claimed his actual income was only 200,000.00. The trial
court, however, based its decision upon the parent's earning potential and
work experience, citing the fact the he had been offered, but did not take, a
position earning $550,000.00. Although the parent argued he was unable to
accept the position due to "unmet contingencies," the decision was affirmed
on appeal. Chawla at ¶ 31.
{¶23} Here, the trial court did not exclusively focus on the fact that
Appellant was working less hours. Rather, the trial court stated as follows in
determining Appellant was voluntarily underemployed: Hocking App. No. 14CA24 18
"Defendant's contention that he should have a major reduction
in child support too is not credible. His private practice income
has been reduced by increasing his deductions and reducing
hours. At the same time he was quite willing to place upon
Plaintiff the health, dental, and hospitalization insurance
coverage for the children, until a better option arrived. He has
also allowed some of his investments to become unproductive
to reduce his income and taxes. He cannot expect Plaintiff to
work full time when he wants to decline income opportunities.
Defendant is voluntarily under-employed."
Thus, the trial court considered other issues such as Appellant's hiring of a
new accountant and decision to pursue more aggressive tax deductions. For
instance, the testimony introduced during the hearing also indicated that
Appellant and his new wife honeymooned to Croatia and deducted that
expense as business-related travel for tax purposes because Appellant
completed continuing medical education while he was there.
{¶24} Appellant argues under this assignment of error that the
evidence introduced at trial does not support the gross income that the trial
court attributed to him. More specifically, Appellant argues that the trial
court improperly included income from an expired lease, as well as ordinary Hocking App. No. 14CA24 19
and necessary business expenses in his gross income for self-employment,
for purposes of calculating child support. However, as indicated above, the
trial court rejected Appellant's testimony regarding his business expense
deductions, stating Appellant's testimony was not credible. The trial court
also apparently rejected Appellant's claim that his rental income was
permanently decreased due to losing a tenant in his office space, although it
does appear the trial court did provide somewhat of a deduction on
Appellant's rental income determination. It was within the trial court's
discretion to make credibility determinations with respect to Appellant's
claimed reduction in income. In addition, the trial court had before it for its
review tax returns of the parties for the current year as well as the past three
years.
{¶25} Based upon these facts, it appears that the trial court considered
the appropriate statutory factors in determining Appellant was voluntarily
underemployed. For instance, in making its decision, the trial court was well
aware of Appellant's employment experience, education, availability of work
in his geographic location, as well as Appellant's skills and training and
ability to earn the imputed income. Further, the trial court stated earlier in
its decision with respect to the requested modification of spousal support
that "Defendant's income reduction is self-inflicted and could be altered Hocking App. No. 14CA24 20
again abruptly." For these reasons, we cannot conclude that the trial court
abused its discretion in finding Appellant to be voluntarily underemployed
and determining that income should be imputed to him.
{¶26} However, we do find one area of concern with the trial court's
decision that requires a reversal and remand. The Supreme Court of Ohio
has stated that "an appellate court must be able to ascertain from the trial
court's journal entry the amount of potential income imputed, and the trial
court's reasons for imputing income to a child support obligor." Rock v.
Cabral, supra, at 113. Here, although the record is clear on the reasons the
trial court decided to impute income, we cannot ascertain from the trial
court's journal entry the amount of potential income the trial court actually
imputed to Appellant. The trial court spoke to this problem in the entry,
stating with respect to the voluntary underemployment determination, "[t]he
net results cannot be precisely computed but the Court has made an effort to
develop a reasonable child support calculation." This simply does not
comply with the requirements set forth in Rock.
{¶27} As such, and although we find no abuse of discretion on the
part of the trial court in finding Appellant voluntarily underemployed and
thus imputing income to him, we do find that the record is unclear as to how
much income was imputed. For this reason, this matter is reversed in part Hocking App. No. 14CA24 21
and remanded to the trial court for further proceedings consistent with this
opinion. We affirm the trial court’s decision in all other respects.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Hocking App. No. 14CA24 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and Appellee shall split court costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: _____________________________ Matthew W. McFarland, Administrative 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.