[Cite as Hoch v. Carr, 2012-Ohio-1445.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
ALLISON HOCH C.A. No. 26097
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE BRYAN H. CARR COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. 2007-12-3926
DECISION AND JOURNAL ENTRY
Dated: March 30, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Allison Hoch and Bryan Carr divorced in January 2008 after seven years of
marriage. They have two minor children, one born in January 2003 and the other in April 2005.
In March 2009, Mr. Carr moved to modify the child support order. The parties agreed to submit
the issue to the trial court on written briefs and, in August 2010, a magistrate entered a decision
reducing Mr. Carr’s child support obligation from $1079 to $600. Ms. Hoch objected to the
magistrate’s decision, and, in August 2011, the trial court determined that Mr. Carr should pay
$882 per month in child support, retroactive to the date of his motion. Mr. Carr has appealed,
arguing that the trial court incorrectly failed to find that Ms. Hoch is voluntarily underemployed,
incorrectly cited facts not in evidence, and incorrectly failed to deviate from the child support
guidelines. We affirm because whether Ms. Hoch is voluntarily underemployed is an issue that
Mr. Carr could have raised at the time of the parties’ divorce and the trial court exercised proper 2
discretion when it determined that a downward deviation in child support was not appropriate
under the facts of this case.
VOLUNTARILY UNDEREMPLOYED
{¶2} Mr. Carr’s first assignment of error is that the trial court incorrectly failed to find
that Ms. Hoch is voluntarily underemployed and, thus, impute income to her for purposes of the
court’s child support calculation. Under Section 3119.01(C)(5)(b) of the Ohio Revised Code, the
“[i]ncome” of a parent who is unemployed or underemployed is “the sum of the gross income of
the parent and any potential income of the parent.” “Whether a parent is ‘voluntarily
underemployed’ . . . and the amount of ‘potential income’ to be imputed to [her], are matters to
be determined by the trial court based upon the facts and circumstances of each case.” Rock v.
Cabral, 67 Ohio St. 3d 108, syllabus (1993). Whether a parent is voluntarily underemployed is a
question of fact that this Court reviews “for some competent, credible evidence.” Knouff v.
Walsh-Stewart, 9th Dist. No. 09CA0075, 2010-Ohio-4063, at ¶ 27. “The burden of proof is on
the parent who is claiming that the other is voluntarily underemployed.” Id.
{¶3} According to Mr. Carr, Ms. Hoch has been employed as a registered nurse for 10
years. He has asserted that, instead of seeking a full-time job, she works only 21.8 hours per
week, mainly from home. He has argued that, based on the high demand for registered nurses in
the area, she could be earning $61,000 or even $73,000 instead of $40,000, which is what she
earned in 2009. He has argued that the evidence that he submitted with his trial court brief
established that she is voluntarily underemployed.
{¶4} The doctrine of res judicata prevents this Court from considering an argument that
could have been, but was not, raised in prior litigation between the parties. Grava v. Parkman
Twp., 73 Ohio St. 3d 379, 382 (1995). Ms. Hoch presented evidence that was not disputed by 3
Mr. Carr that she has been at her current position since 2005. The parties jointly filed for divorce
in 2007. Mr. Carr did not argue that Ms. Hoch was voluntarily underemployed at the time of
their divorce.
{¶5} Res judicata does not apply to the issue of voluntary underemployment if there
has been a change in circumstances regarding the parties’ ability to work. Woods v. Woods, 9th
Dist. No. 17935, 1997 WL 303660 at *7 (May 21, 1997) (concluding that res judicata did not
apply to voluntarily unemployed determination because father “was no longer precluded from
working due to his injured knee.”). In his brief to the trial court, Mr. Carr asserted that Ms. Hoch
accepted her current position with the reduced hours “[u]pon the birth of [their] second child.”
He argued, however, that, as of August 2010, “both children will attend school on a full time
basis.” He also relied on Justice v. Justice, 12th Dist. No. CA2006-11-134, 2007-Ohio-5186, a
case in which the Twelfth District Court of Appeals upheld the trial court’s determination that
Maureen Justice was voluntarily underemployed because she did not seek full-time employment
after the parties’ children started going to school full-time. Id. at ¶ 10.
{¶6} This Court has held that, “[if] a party moves to modify an existing child-support
order, . . . the trial court is limited to determining the child support obligation as of the time the
motion was filed.” Berthelot v. Berthelot, 154 Ohio App. 3d 101, 2003-Ohio-4519, ¶ 10 (9th
Dist.). Mr. Carr moved to modify the child support order in March 2009. At the time of his
motion, the parties’ youngest child was only 3 years old, still approximately 18 months away
from starting all-day kindergarten. We, therefore, conclude that, at the time Mr. Carr moved to
modify the support order, there had not been a change in circumstances sufficient to prevent the
doctrine of res judicata from applying to his claim that Ms. Hoch was voluntarily
underemployed. Upon review of the record, we conclude that, because Mr. Carr could have 4
argued that Ms. Hoch was voluntarily underemployed at the time that the parties filed for divorce
and because there had not been a change of circumstances in the parties’ ability to work at the
time he filed his motion, Mr. Carr’s argument is barred by the doctrine of res judicata. See
Cramblett v. Cramblett, 7th Dist. No. 05 HA 581, 2006-Ohio-4615, at ¶ 36 (concluding that
doctrine of res judicata barred father’s argument that wife was voluntarily underemployed);
Petralia v. Petralia, 11th Dist. No. 2002-L-047, 2003-Ohio-3867, at ¶ 18 (similar). Mr. Carr’s
first assignment of error is overruled.
IMPROPER FACTS
{¶7} Mr. Carr’s second assignment of error is that the trial court incorrectly considered
facts not in evidence when it determined whether Ms. Hoch was voluntarily underemployed.
Because Mr. Carr’s voluntary underemployment argument was barred by the doctrine of res
judicata, we conclude that any reference by the trial court to facts not in evidence regarding its
determination of that issue was harmless error. Civ. R. 61. Mr. Carr’s second assignment of
error is overruled.
CHILD SUPPORT DEVIATION
{¶8} Mr. Carr’s third assignment of error is that the trial court incorrectly failed to
order a deviation in child support. He has argued that it was appropriate for the court to deviate
from the worksheet calculation because he has equal parenting time with Ms. Hoch, including
50% of the time that the children are awake each week, every other weekend, and 50% of the
summer. He has also argued that he bears an equal financial responsibility for the day-to-day
costs of raising the children, including the cost of a home, meals, medical expenses, dental
expenses, entertainment, and enrichment activities. He has further argued that he is responsible
for maintaining separate clothing and necessities for the children. 5
{¶9} At the time the parties divorced, they agreed to shared parenting. If a court that
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[Cite as Hoch v. Carr, 2012-Ohio-1445.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
ALLISON HOCH C.A. No. 26097
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE BRYAN H. CARR COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. 2007-12-3926
DECISION AND JOURNAL ENTRY
Dated: March 30, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Allison Hoch and Bryan Carr divorced in January 2008 after seven years of
marriage. They have two minor children, one born in January 2003 and the other in April 2005.
In March 2009, Mr. Carr moved to modify the child support order. The parties agreed to submit
the issue to the trial court on written briefs and, in August 2010, a magistrate entered a decision
reducing Mr. Carr’s child support obligation from $1079 to $600. Ms. Hoch objected to the
magistrate’s decision, and, in August 2011, the trial court determined that Mr. Carr should pay
$882 per month in child support, retroactive to the date of his motion. Mr. Carr has appealed,
arguing that the trial court incorrectly failed to find that Ms. Hoch is voluntarily underemployed,
incorrectly cited facts not in evidence, and incorrectly failed to deviate from the child support
guidelines. We affirm because whether Ms. Hoch is voluntarily underemployed is an issue that
Mr. Carr could have raised at the time of the parties’ divorce and the trial court exercised proper 2
discretion when it determined that a downward deviation in child support was not appropriate
under the facts of this case.
VOLUNTARILY UNDEREMPLOYED
{¶2} Mr. Carr’s first assignment of error is that the trial court incorrectly failed to find
that Ms. Hoch is voluntarily underemployed and, thus, impute income to her for purposes of the
court’s child support calculation. Under Section 3119.01(C)(5)(b) of the Ohio Revised Code, the
“[i]ncome” of a parent who is unemployed or underemployed is “the sum of the gross income of
the parent and any potential income of the parent.” “Whether a parent is ‘voluntarily
underemployed’ . . . and the amount of ‘potential income’ to be imputed to [her], are matters to
be determined by the trial court based upon the facts and circumstances of each case.” Rock v.
Cabral, 67 Ohio St. 3d 108, syllabus (1993). Whether a parent is voluntarily underemployed is a
question of fact that this Court reviews “for some competent, credible evidence.” Knouff v.
Walsh-Stewart, 9th Dist. No. 09CA0075, 2010-Ohio-4063, at ¶ 27. “The burden of proof is on
the parent who is claiming that the other is voluntarily underemployed.” Id.
{¶3} According to Mr. Carr, Ms. Hoch has been employed as a registered nurse for 10
years. He has asserted that, instead of seeking a full-time job, she works only 21.8 hours per
week, mainly from home. He has argued that, based on the high demand for registered nurses in
the area, she could be earning $61,000 or even $73,000 instead of $40,000, which is what she
earned in 2009. He has argued that the evidence that he submitted with his trial court brief
established that she is voluntarily underemployed.
{¶4} The doctrine of res judicata prevents this Court from considering an argument that
could have been, but was not, raised in prior litigation between the parties. Grava v. Parkman
Twp., 73 Ohio St. 3d 379, 382 (1995). Ms. Hoch presented evidence that was not disputed by 3
Mr. Carr that she has been at her current position since 2005. The parties jointly filed for divorce
in 2007. Mr. Carr did not argue that Ms. Hoch was voluntarily underemployed at the time of
their divorce.
{¶5} Res judicata does not apply to the issue of voluntary underemployment if there
has been a change in circumstances regarding the parties’ ability to work. Woods v. Woods, 9th
Dist. No. 17935, 1997 WL 303660 at *7 (May 21, 1997) (concluding that res judicata did not
apply to voluntarily unemployed determination because father “was no longer precluded from
working due to his injured knee.”). In his brief to the trial court, Mr. Carr asserted that Ms. Hoch
accepted her current position with the reduced hours “[u]pon the birth of [their] second child.”
He argued, however, that, as of August 2010, “both children will attend school on a full time
basis.” He also relied on Justice v. Justice, 12th Dist. No. CA2006-11-134, 2007-Ohio-5186, a
case in which the Twelfth District Court of Appeals upheld the trial court’s determination that
Maureen Justice was voluntarily underemployed because she did not seek full-time employment
after the parties’ children started going to school full-time. Id. at ¶ 10.
{¶6} This Court has held that, “[if] a party moves to modify an existing child-support
order, . . . the trial court is limited to determining the child support obligation as of the time the
motion was filed.” Berthelot v. Berthelot, 154 Ohio App. 3d 101, 2003-Ohio-4519, ¶ 10 (9th
Dist.). Mr. Carr moved to modify the child support order in March 2009. At the time of his
motion, the parties’ youngest child was only 3 years old, still approximately 18 months away
from starting all-day kindergarten. We, therefore, conclude that, at the time Mr. Carr moved to
modify the support order, there had not been a change in circumstances sufficient to prevent the
doctrine of res judicata from applying to his claim that Ms. Hoch was voluntarily
underemployed. Upon review of the record, we conclude that, because Mr. Carr could have 4
argued that Ms. Hoch was voluntarily underemployed at the time that the parties filed for divorce
and because there had not been a change of circumstances in the parties’ ability to work at the
time he filed his motion, Mr. Carr’s argument is barred by the doctrine of res judicata. See
Cramblett v. Cramblett, 7th Dist. No. 05 HA 581, 2006-Ohio-4615, at ¶ 36 (concluding that
doctrine of res judicata barred father’s argument that wife was voluntarily underemployed);
Petralia v. Petralia, 11th Dist. No. 2002-L-047, 2003-Ohio-3867, at ¶ 18 (similar). Mr. Carr’s
first assignment of error is overruled.
IMPROPER FACTS
{¶7} Mr. Carr’s second assignment of error is that the trial court incorrectly considered
facts not in evidence when it determined whether Ms. Hoch was voluntarily underemployed.
Because Mr. Carr’s voluntary underemployment argument was barred by the doctrine of res
judicata, we conclude that any reference by the trial court to facts not in evidence regarding its
determination of that issue was harmless error. Civ. R. 61. Mr. Carr’s second assignment of
error is overruled.
CHILD SUPPORT DEVIATION
{¶8} Mr. Carr’s third assignment of error is that the trial court incorrectly failed to
order a deviation in child support. He has argued that it was appropriate for the court to deviate
from the worksheet calculation because he has equal parenting time with Ms. Hoch, including
50% of the time that the children are awake each week, every other weekend, and 50% of the
summer. He has also argued that he bears an equal financial responsibility for the day-to-day
costs of raising the children, including the cost of a home, meals, medical expenses, dental
expenses, entertainment, and enrichment activities. He has further argued that he is responsible
for maintaining separate clothing and necessities for the children. 5
{¶9} At the time the parties divorced, they agreed to shared parenting. If a court that
has issued a shared parenting order concludes that a child support order based on a calculation
under the standard schedule and worksheet “would be unjust or inappropriate to the children or
either parent and would not be in the best interest of the child because of the extraordinary
circumstances of the parents or because of any other factors or criteria set forth in section
3119.23 of the Revised Code, the court may deviate from that amount.” R.C. 3119.24(A). “For
the purposes of [Section 3119.24(A)], ‘extraordinary circumstances of the parents’ includes all of
the following: (1) [t]he amount of time the children spend with each parent; (2) [t]he ability of
each parent to maintain adequate housing for the children; (3) [e]ach parent’s expenses,
including child care expenses, school tuition, medical expenses, dental expenses, and any other
expenses the court considers relevant; [and] (4) [a]ny other circumstances the court considers
relevant.” R.C. 3119.24(B). This Court has held that, although Section 3119.24(A) gives a court
discretion to deviate from the amount of child support calculated by the schedule and worksheet,
it must consider the circumstances listed in Section 3119.24(B) before it may do so. Irish v.
Irish, 9th Dist. No. 10CA009810, 2011-Ohio-3111, ¶ 17. It may also consider the factors listed
in Section 3119.23. Id. at ¶ 18.
{¶10} The trial court noted that Mr. Carr has companionship time with the parties’
children in accordance with the standard parenting time schedule except that he has two
midweek evening visits instead of one and has the children for half of their summer break instead
of four weeks. It found that, although that was more time than usual, the increase did not
constitute an equal distribution of the children’s time to each parent. It also found that, given the
disparity in the parties’ income, a downward deviation in child support was not warranted. 6
{¶11} Mr. Carr has argued that, if you do not include the time that the parties’ children
are sleeping or are in school, he has almost equal parenting time to Ms. Hoch. He has ignored
the fact that, at the time he moved to modify the support order, one of the children was not in
school. We also note that, according to the trial court’s child support worksheet, Mr. Carr’s
adjusted gross income was approximately $26,500 more than Ms. Hoch’s. After adjusting for
child support and taxes, the worksheet indicated that Mr. Carr’s cash to meet living expenses was
$44,419 and Ms. Hoch’s was $44,903, a monthly difference of $40. Considering that Ms. Hoch
has the children for a longer period of time each month than Mr. Carr, we conclude that the trial
court exercised proper discretion when it determined that the facts of this case did not present
extraordinary circumstances such that it would be unjust to order support under the standard
schedule and worksheet. Mr. Carr’s third assignment of error is overruled.
CONCLUSION
{¶12} Mr. Carr’s argument that Ms. Hoch is voluntarily underemployed is barred by the
doctrine of res judicata. The trial court exercised proper discretion by refusing to deviate
downward when it ordered child support. The judgment of the Summit County Common Pleas
Court, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 7
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON FOR THE COURT
WHITMORE, P. J. BELFANCE, J. CONCUR
APPEARANCES:
MARY E. RANDAZZO, Attorney at Law, for Appellant.
EMILY M. HETE, Attorney at Law, for Appellee.