[Cite as N.T. v. J.W., 2024-Ohio-1513.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
N.T. Court of Appeals No. E-23-021
Appellant Trial Court No. 2016SU00138
v.
J.W. DECISION AND JUDGMENT
Appellee Decided: April 19, 2024
*****
Mark P. Smith, for appellant.
Michele A. Smith, for appellee.
DUHART, J.
{¶ 1} This is an appeal from the February 17, 2023 judgment of the Erie County
Court of Common Pleas, Juvenile Division, by appellant, N.T., the biological father of
the minor child, I.W. In its judgment, the juvenile court denied father’s objection to the
magistrate’s decision, and denied his request for a hearing. For the reasons that follow,
we affirm the judgment.
{¶ 2} Father sets forth two assignments of error:
A. The Trial Court Erred in Admitting Hearsay Evidence Over Objection[.] B. The Trial Court Erred in Imputing Defendant’s Income and Failing to
Impute Plaintiff’s Income[.]
Background
{¶ 3} In July 2016, appellee, J.W., gave birth to I.W. Mother and father were not
married to each other, although father was married to another woman (“wife”) at the time
of I.W.’s conception, and throughout this case. In September 2016, the Erie County
Child Support Enforcement Agency (“CSEA”) established I.W.’s paternity through DNA
testing.
{¶ 4} In November 2016, CSEA issued an administrative order for child support
and medical support for I.W. Father was ordered to pay $285.69 monthly for support,
plus a processing fee,1 when he provided health insurance for I.W., or $268.30 monthly
for support and $77.75 monthly for cash medical support when he did not provide health
insurance. Father filed, in juvenile court, an appeal to the administrative order.
{¶ 5} On June 5, 2017, an evidentiary trial on father’s appeal of CSEA’s
administrative order was held before a juvenile court magistrate. A CSEA hearing officer
testified, as did mother and father.
{¶ 6} On August 28, 2017, the magistrate’s decision was issued, in which the
magistrate recommended, inter alia, that: mother’s 2016 income of $7,538.86 should be
1 All monthly support payments referenced herein include a processing fee.
2. used for child support purposes, as she was voluntarily unemployed; and, father’s 2016
actual income of $22,640 should be used for child support purposes.
{¶ 7} Neither parent filed objections to the magistrate’s decision.
{¶ 8} On September 19, 2017, the juvenile court issued a judgment entry in which
it adopted the magistrate’s decision, and ordered, inter alia, that father pay child support
for I.W. in the amounts set forth in that decision.
Child Support Enforcement Agency Administrative Proceedings and Record
{¶ 9} On November 12, 2020, mother filed with CSEA a request for
administrative review and adjustment of the child support order. Neither parent
requested a hearing.
{¶ 10} On December 14, 2020, mother filed her child support financial affidavit
with CSEA, and two days later, father filed his child support financial affidavit with
CSEA.
2020-2021
{¶ 11} From December 17, 2020 through January 6, 2021, an administrative
review of the parents’ child support obligations was held by Lynne Weaver, a CSEA
modification specialist (“CSEA specialist”) using the modification packet (“the packet”)
she created.
{¶ 12} In the administrative adjustment recommendation, dated January 27, 2021,
Weaver recommended that imputed annual income of $42,350 be used for father,
3. mother’s actual income of $13,440 be used, and effective January 1, 2021, father pay
$503.07 monthly for current child support, $23.70 monthly for cash medical support, $50
monthly as payment on arrears and 73.16% of the cost of uninsured medical expenses for
I.W. that exceeds cash medical support payments, and mother pay 26.84% of the cost of
uninsured medical expenses for I.W. which exceeds cash medical support payments and
provide health insurance for I.W.
{¶ 13} Father then requested an administrative review hearing of Weaver’s
recommendation, and filed an objection letter asking that his actual income be used in
calculating his child support obligation. Thereafter, the hearing was held before a CSEA
administrative hearing officer (“the hearing officer”).
{¶ 14} On June 9, 2021, the hearing officer issued the administrative hearing
decision, finding father’s objection to Weaver’s administrative adjustment
recommendation not well-taken and denied.
Juvenile Court Proceedings and Record
2021 (continued)
{¶ 15} On June 22, 2021, father filed, with the juvenile court, his appeal of the
hearing officer’s administrative hearing decision, and a motion to modify child support.
{¶ 16} Also in 2021, CSEA filed with the court a motion for order to show cause,
which alleged father failed to make child support payments as ordered by the court on
September 19, 2017. Subsequently CSEA voluntarily dismissed its motion on the ground
that father had been in recent compliance with the order to pay support for I.W.
4. 2022 - Proceedings Before the Juvenile Court Magistrate
{¶ 17} On April 26, 2022, a hearing was held before a magistrate in juvenile court
on father’s appeal of the administrative hearing decision, and motion to modify support.
{¶ 18} On August 18, 2022, the magistrate’s decision was filed, in which the
magistrate recommended that father’s appeal of the administrative hearing decision be
denied, father’s motion to modify be denied, and the hearing officer’s administrative
hearing decision be adopted as a court order.
{¶ 19} On August 29, 2022, father filed an objection to the magistrate’s decision,
and requested a hearing on the magistrate’s decision and father’s objection thereto.
2023 - Juvenile Court’s Judgment Entry
{¶ 20} On February 17, 2023, the juvenile court issued its judgment entry, in
which it noted that the matter before it was the magistrate’s decision and father’s
objection, as mother did not respond to father’s objection. The court stated it reviewed
“the pleadings in this matter as well as the Magistrate’s Decision. No transcript [of the
hearing before the magistrate] or alternative was provided by Father.”
{¶ 21} The court ordered that father’s objection to the magistrate’s decision and
request for hearing be denied and dismissed. The court further ordered, inter alia, that
father pay child support for I.W. in substantially the same amounts set forth in CSEA
specialist’s January 27, 2021 administrative adjustment recommendation (which the
magistrate then recommended that the juvenile court adopt).
5. {¶ 22} On March 16, 2023, father filed his notice of appeal with this court
requesting that we reverse the juvenile court’s February 17, 2023 judgment, and remand
the matter to the juvenile court for its determination of child support based on the parties’
actual income figures, or for the juvenile court to impute both parties’ incomes at the
appropriate amount for child support calculation purposes.
{¶ 23} On April 24, 2023, father filed, in juvenile court, the transcript of the
hearing before the magistrate (“the transcript”).
{¶ 24} On April 25, 2023, father filed the transcript in this court.
First Assignment of Error
{¶ 25} Father presents two arguments: the trial court erred when it admitted
hearsay evidence, over his objection; and, CSEA failed to meet the business records
exception under Evid.R. 803(6).
{¶ 26} Father argues the packet prepared by CSEA specialist Weaver consists of
double hearsay because the packet used “out of court figures which cannot be verified as
to the accuracy, timeliness, or any other measurable criteria of how O-NET compiles or
creates its records database.” Father contends O-NET and its records “as well as
[CSEA’s] recitation of the Administrative Review Hearing, its content and overall
findings, constitute the first layer of hearsay.” Father asserts the second layer of hearsay
occurred when Weaver testified that she compiled the figures into her report, and also
testified “to the contents therein, thus, [CSEA] prepared the report adopting unverifiable
hearsay, and herein proffered the same into the record.”
6. {¶ 27} Father argues Weaver did not properly authenticate the documents in the
packet, as she never testified when the packet was created or recorded, and father
objected to the admission of the packet for that reason. Father further submits Weaver
“cannot testify to the accuracy of the records contained or used by O-NET, as [she] has
no personal knowledge regarding the accuracy, timeliness, or business practices of O-
NET, nor has there been any testimony that O-NET falls under any one of the reliable
exceptions found in the Ohio Rules of Evidence.” In addition, father claims CSEA failed
to meet the business records exception under Evid.R. 803(6), so the packet “cannot, as a
matter of law, be admitted and considered as evidence by the Court.”
{¶ 28} We will examine father’s two arguments together.
Standards of Review
{¶ 29} A trial court typically has broad discretion as to the admissibility of
evidence in a particular case, “so long as such discretion is exercised in line with the rules
of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991). “‘On
appeal, challenged hearsay is subject to de novo review under the applicable hearsay rule,
rather than the more deferential review employed for discretionary rulings.’ State v.
Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442 (6th Dist.), ¶ 32.”
State v. Kanable, 2020-Ohio-4335, ¶ 19 (6th Dist.).
7. Preliminary Matter
{¶ 30} As noted by the juvenile court in its judgment father did not file the
transcript with the juvenile court. However, the record reflects that after father filed his
appeal of the court’s judgment, he filed the transcript in the juvenile court and this court.
Juvenile Court Record and Appellate Court Record
{¶ 31} Juv.R. 40(D)(3)(b) “Objections to Magistrate’s Decision” provides in
pertinent part:
(i) Time for Filing. A party may file written objections to a magistrate’s
decision within fourteen days of the filing of the decision[.]
...
(iii) Objection to Magistrate’s Factual Finding; Transcript or Affidavit. An
objection to a factual finding, whether or not specifically designated as a
finding of fact . . ., shall be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding or an affidavit of that
evidence if a transcript is not available. . . . The objecting party shall file the
transcript or affidavit with the court within thirty days after filing
objections unless the court extends the time in writing for preparation of the
transcript or other good cause.
{¶ 32} Since father did not file the transcript with the juvenile court within 30 days
after he filed his objection to the magistrate’s factual findings, as required by Juv.R.
40(D), the transcript could not be considered by the court when it ruled on father’s
8. objection. Thus, we find that the transcript was not a part of the record before the
juvenile court.
{¶ 33} On appeal, our review is limited to the record which was before the
juvenile court. App.R. 9(A)(1) prescribes that the record on appeal consists of “[t]he
original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if
any, including exhibits, and a certified copy of the docket and journal entries prepared by
the clerk of the trial court[.]” Moreover, in State v. Terrell, 2022-Ohio-4312, ¶ 20 (6th
Dist.), we stated that “[t]he duty to provide a transcript for appellate review falls upon the
appellant because it is the appellant who bears the burden of showing error by reference
to matters in the record. Knapp v. Edwards Lab[oratories], 61 Ohio St.2d 197, 199, 400
N.E.2d 384 (1980); see also App.R. 9(B).”
{¶ 34} Given that the transcript was not a part of the record before the juvenile
court, the transcript is not a part of the appellate record. “A reviewing court cannot add
matter to the record before it, which was not a part of the trial court’s proceedings, and
then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d
402, paragraph one of the syllabus (1978). When a “transcript necessary for resolution of
assigned errors [is] omitted from the record, the reviewing court has nothing to pass upon
and thus, as to those assigned errors, the court has no choice but to presume the validity
of the lower court’s proceedings, and affirm.” Knapp at 199. However, an appellate
court can evaluate the legal conclusions reached by a trial court based upon the trial
9. court’s factual findings. Fifth Third Mtge. Co. v. Berman, 2019-Ohio-1068, ¶ 16 (10th
Dist.).
Appellate Record
{¶ 35} In the record before us, the following is relevant to father’s first assigned
error.
The Packet, Prepared by CSEA Specialist Weaver
{¶ 36} Upon review, the packet included the following with respect to mother
and/or I.W.: mother’s 2019 W2; Medicaid health insurance cards for mother and I.W.;
Metro housing change in housing assistance payment document; mother’s financial
affidavit - she is currently unemployed due to day care closing from COVID-19. As to
father, the packet included: father’s financial affidavit; 2017, 2018 and 2019 tax forms
for father and/or his wife and/or TCC (an S Corporation).
{¶ 37} Also in the packet was Weaver’s case narrative, relating to the modification
review, which provided, inter alia, that: she reviewed father’s paperwork; per his W2s his
individual total gross income was $8,640, which is under the average earnings for the
area and indicates he makes $2.96 an hour; after reviewing his profession (he is classified
as a carpenter), the bureau of labor statistics and O Net had the best matching description
of his type of work; using the Northeastern Ohio nonmetropolitan area, median income is
$42,350 yearly, which is going to be his imputed total gross income; he has two other
minor children not a party to this case for which he received credit; and, she used
mother’s 2019 income from Discount Drug-Mart Pharmacy, for total gross earnings of
10. $13,440. Weaver “ran guidelines and the new recommendations” for father’s child
support payments, eff. 1/1/2021, were: $537.31 monthly; arrears $50 monthly. Weaver
“[p]repared recommendations . . . [m]ailed out mod packets.”
Administrative Hearing Decision
{¶ 38} In his June 9, 2021 administrative hearing decision, the hearing officer set
forth, inter alia:
[CSEA] . . . issued an Administrative Adjustment Recommendation
amending [upwards, father’s] child support obligation[.] . . . [CSEA] found
. . . that [father] is capable of earning . . . the average income for a carpenter
in Northeastern Ohio nonmetropolitan area as reported on the O-Net online
website.
. . . [Father] submitted his timely objection . . . indicating that his income
has not increased over the last three years and that there is a decline in the
construction industry due to COVID and rising material costs.
[Father] attended the Administrative Modification hearing by telephone
with his counsel . . . [and] . . . reiterated . . . that he only earns the amount
provided in his taxes based on a lack of work and the cost of doing
business. This Hearing officer inquired of [father] to his current expenses.
[Father] indicated that his current house payment is $787/month ($9444
annually), he pays approximately $250 per month in water and electric and
$90 per month in natural gas for a monthly utility expense of $340 per
11. month ($4080 annually). [Father] shares his home with his wife, two minor
children and [an] adult child who is attending college. [Father] also has a
truck payment for a 2020 Dodge Ram in the amount of $600 per month
which is paid for out of the busines[s]. [His] wife is also employed by
[TCC] and [he] reported she earned $5160 in 2019. [Father] stated at the
hearing and put in his Child Support Financial Affidavit that he pays
himself $12.00 per hour . . . and works approximately 20-30 hours per
week. When annualized, even this amount would be $15,600 per year of
income at 25 hours per week.
[Mother’s] income was placed at $13,400 per year based on her
employment for 2019. [Her] income was not an issue for purposes of this
hearing.
After consideration of the objection by [father] as well as the
testimony presented at the Hearing on this matter, this Hearing officer finds
that the amount of income attributed to [father] is reasonable and
appropriate and in the best interests of the child herein. [Father] is not
disabled or otherwise incapable of working. An income of $5983 is not
reasonable or believable for a person of [father’s] abilities. In an era where
fast food workers in the area are earning between $13-$17 per hour, it is not
fair or equitable to place [father’s] income at $5893 annually. Further,
when the living expense[s] that were testified to by [father] are added into
12. the equation, it becomes a mathematical impossibility that [he] can
maintain his household on his reported income - even when the income of
[his] spouse earned from the same business is taken into consideration. In
conducting its review[,] [CSEA] placed [father] at an income that is based
on the average income for persons with his occupation in his geographic
area. This Hearing Officer finds the imputation to be reasonable and based
on reliable and available data.
Therefore, [father’s] objection [to] the Administrative Adjustment
Determination is found not well taken and is hereby denied.
Magistrate’s Decision
{¶ 39} In the August 18, 2022 magistrate’s decision, the magistrate provided a
synopsis of the testimony given by the witnesses at the hearing held before the
magistrate. The relevant information from the synopsis of Weaver includes:
Lynne Weaver testified she is a modification specialist, case worker for . . .
CSEA . . . [and] [s]he had worked [there] for almost four years. . . . [W]hen
a document gets produced it is scanned into [CSEA’s] database and noted
in the SETS system . . . [which] is the records for [CSEA] . . . [and which]
keeps track of all (child support) payments. She . . . has access to SETS
and she is a records keeper for [CSEA]. . . . She created [the packet, which]
contains all the documents concerning a child support modification. It
contains any documents submitted by the parties . . . [and] the packet was . .
13. . scanned into [CSEA’s] system and is a business record of the CSEA. . . .
[A]s her job as a . . . Specialist she does (child support) modification every
day. [CSEA] moved that [the packet] be admitted into evidence. . . .
[Father’s] objection was overruled and [the packet] was admitted into
evidence. . . .
[Weaver] was assigned to do the modification for [the parents]. She
gathered information . . . [and] . . . requested information from the parties.
She has access to a state wage database and the Work Number, so
sometimes she can verify information if it’s reported. . . . [A]fter compiling
wage information on the parties she analyzes it and comes up figures for
the child support modification. She also has to determine whether to use
actual wages or imputed wages. . . . She . . . used imputed wages for
[father], but not for [mother]. . . . [F]or [father’s] income she reviewed the
documents he sent in; looked at his employer verifications; and then got
imputed income from the US Labor Department. She imputed him income
based upon ‘carpenter[.]’ She is aware [father] owns [TCC]. She used
wages for a carpenter who does not own his own business. She used
O*NET OnLine to get that wage information and O*NET gets its
information from the US Department of Labor. She got the figures from
O*NET in December of 2020. . . . [CSEA] do[es] impute income for
individuals when . . . [the] income is less than minimum wage. . . . [S]he
14. did not look at imputed wages for [mother] because [her income] was
above the threshold[.] [I]t is standard practice by [CSEA] to use O*NET as
a resource for wage information. . . . [S]he thought it was appropriate to
impute income to [father]. The figure from O*NET is based on location.
You put in a zip code and it gave her a recommendation for Northeastern
Ohio non-metropolitan areas.
{¶ 40} In the “Decision” section of the magistrate’s decision, the magistrate found,
inter alia:
[M]other “requested a review of the September 17, 2017 [child support] . . .
[and] [a]cting in accordance with OAC Ann. 5101:12-60-05.3(G) [which
controls the administrative review process for the CSEA][,] the CSEA
gathered information and documents for both parties[.] The administrative
review began on December 17, 2020[,] and the Administrative Adjustment
Recommendation, dated January 27, 2021, . . . complied with R.C.
§3119.02 and OAC Ann. 5101:12-45-10[.]
Judgment Entry
{¶ 41} In the juvenile court’s February 17, 2023 judgment entry, the court
addressed father’s objection to the magistrate’s decision that, inter alia, the magistrate
erred in admitting the packet (which consisted of the documentation that CSEA used to
arrive at its review decision). The juvenile court set forth:
15. As noted above, no transcript of the proceeding was provided so
review of the record surrounding the admission and Father’s objection
cannot be made. . . . Father specifically argues that . . . Weaver failed to
testify as to when [the packet] was created or recorded. Without testimony
about when the [packet] was created, the [packet] should not have been
admitted according to the objection. However, the Magistrate’s Decision,
in the section titled ‘Testimony,’ clearly outlines how the [packet] was
created by the witness in fulfillment of her duties. Embedded in that
testimony and the [packet] are the timeframes that the documents [in the
packet] were submitted or created, starting with the Mother’s request for
review and culminating with Father’s Appeal of CSEA’s determination.
The documents organized in the [packet] were recorded and entered into the
CSEA system as records of regularly conducted business activity,
according to the testimony[, and] [t]he documents . . . were required to be
requested, created and recorded by statute and regulation. See R.C.
§3119.66 and OAC Ann. 5101:12-60-05.6 (N) which requires CSEA to
submit the Administrative Adjustment Recommendation, the
Administrative Adjustment hearing Decision, and any attachments. Also,
‘CSEA shall present to the court the facts from the administrative
adjustment review and hearing to assure that the guidelines were correctly
applied and to explain the JFS 07724.’ OAC Ann. 5101:12-60-05.6(O).
16. Based on the above, the objection that there was no establishment of the
creation or recording of the records is, therefore, without merit.
Father does not contest the [packet’s] other foundational elements,
i.e. regularly recorded in a regularly conducted activity, etc... and based on
this and above, this objection fails and is denied.
[Weaver] testified that when a person, who is able bodied and does
not earn minimum wage or work full-time, she investigates to determine
what skills they have and makes an imputation of income, when
appropriate. Specifically here, since Father had a long history of working
as skilled labor she investigated what that type of employment would make
in our area of the country. . . . After obtaining that information, the
investigator found that imputing $42,350 was reasonable. Father objects to
the Court considering this because the information was obtained from
O*NET which reports wage information from the U.S. Department of
Labor.
Since [Weaver] didn’t create that website and compile the data,
Father argues that its use is not permitted. However, the testimony
explained that using O*NET is standard practice in her field. Again, the
record and its[] source are regularly used in the course of CSEA’s regular
business and it’s required to be provided to the Court by statute and
17. regulation as stated above to explain their determinations. CSEA’s use of
an employee carpenter’s wage, as opposed to a carpenter owner, seems
reasonable and could be argued to be generous under the circumstances of
this case.
Law
Rules of Evidence
{¶ 42} Evid.R. 801(A) provides that a statement is “(1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”
{¶ 43} Evid.R. 801(C) sets forth that hearsay is “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted in the statement.”
{¶ 44} Evid.R. 802 states that “[h]earsay is not admissible except as otherwise
provided by . . . these rules, or by other rules prescribed by the Supreme Court of Ohio.”
{¶ 45} Evid.R. 803 sets forth exceptions to the hearsay rule and states, in relevant
part:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(6) Records of regularly conducted activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, or conditions,
made at or near the time by, or from information transmitted by, a person
18. with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness . . . unless the source
of information or the method or circumstances of preparation indicate lack
of trustworthiness. The term ‘business’ as used in this paragraph includes
business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
Case Law
{¶ 46} In State v. Davis, 2008-Ohio-2, ¶ 171 (“the Davis case”), the Supreme
Court of Ohio set forth four elements which must be established in order for evidence to
qualify, and be admitted, as a business record under Evid.R. 803(6): (1) the record must
be one regularly recorded in a regularly conducted activity; (2) the record must have been
entered by a person with knowledge of the act, event or condition; (3) the record must
have been recorded at or near the time of the transaction; and, (4) a foundation of
authenticity must be laid by the custodian of the record or some other qualified witness.
The court further set forth that [[e]ven after these elements are established, however, a
business record may be excluded from evidence if ‘the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.’ Evid.R.
803(6).”
19. {¶ 47} In order to lay a proper foundation, “‘the testifying witness must possess a
working knowledge of the specific record-keeping system that produced the document.’
State v. Davis, 62 Ohio St.3d 326, 342, 581 N.E.2d 1362 (1991).” LaBounty v. Big 3
Automotive, 2019-Ohio-1919, ¶ 52 (6th Dist.).
Analysis
{¶ 48} In our de novo review of the record before us, we apply the four elements
of the Davis case to the evidence in the record in order to determine whether the packet
qualifies as a business record under Evid.R. 803(6).
The Davis Case - First and Second Elements
{¶ 49} Upon review, we find that the record before us includes evidence that the
packet is regularly recorded in a regularly conducted activity of CSEA, when a parent
seeks a modification of child support. Also in the record is evidence that the packet and
its documents were entered by CSEA specialist Weaver, who had knowledge of the act,
event or condition.
{¶ 50} As mentioned above, the juvenile court’s judgment entry and the
magistrate’s decision set forth Weaver’s summarized testimony that she created the
packet in fulfillment of her duties as a CSEA specialist, CSEA imputes income for
parents whose income is less than minimum wage, the use of O-NET is standard practice
in her field, O-NET gets its information from the U.S. Department of Labor, she used O-
NET and received wage information for a carpenter, she imputed income to father, and
20. being a records keeper for CSEA, she recorded and entered the documents in the packet
into CSEA’s system as records of regularly conducted business activity.
The Davis Case - Third Element
{¶ 51} In the record is evidence that Weaver recorded the packet at near the time
she created it. As stated above, the juvenile court’s judgment entry and the magistrate’s
decision conveyed that Weaver obtained figures from O-NET in December 2020, and
began the administrative review on December 17, 2020. Weaver’s case narrative, in the
packet, also shows that the administrative review of the parents’ child support obligations
was scheduled December 17, 2020, and the review was completed by January 6, 2021.
The Davis Case - Fourth Element
{¶ 52} Included in the record is evidence that Weaver, a record keeper for CSEA,
laid a foundation of authenticity of the packet, its documents and the sources of the
documents, which showed that as a modification specialist she generated the packet,
using CSEA’s standard practices, in the regular course of CSEA’s business of reviewing
child support orders and providing modifications to those orders. Weaver also provided
evidence that the packet was kept in the regular course of CSEA’s business.
The Davis Case - Trustworthy Element
{¶ 53} The appellate record reflects that father failed to present evidence that the
source of information in the packet and/or the method or circumstances of the preparation
of the packet were not trustworthy.
21. Conclusion
{¶ 54} Based upon the foregoing, we conclude the packet falls under the Evid.R.
803(6) business records exception, and the juvenile court did not err when it admitted the
packet into evidence. Accordingly, we find father’s first assignment of error not well-
taken.
Second Assignment of Error
Father’s Arguments
{¶ 55} Father argues the juvenile court erred in imputing his income and failing to
impute mother’s income. He asserts CSEA imputed his income based on the faulty
premise that he “operates as a carpenter in nonmetropolitan northeastern Ohio, despite
failing to inquire as to the actual nature of Father’s employment.” In addition, father
contends CSEA failed to take into consideration mother’s degree in medical
administrative assisting or her certification as a pharmacy technician when calculating
her income.
{¶ 56} Father maintains CSEA acted in a manner that was arbitrary, capricious,
and against the manifest weight of the evidence when it arbitrarily determined to impute
income to him “in a field in which he is not, has not, and has never been employed.” He
also claims CSEA acted in a similarly arbitrary manner when it decided not to impute
income to mother “even at minimum wage, despite her having numerous credentials.
Likewise, [CSEA] failed to consider Mother’s voluntary underemployment or
unemployment entirely, as did the court.”
22. {¶ 57} Father submits that “it is a matter of fundamental fairness that what’s good
for the goose is good for the gander; if Father’s income should be imputed then so should
Mother’s; especially given the evidence provided to the trial court of Mother’s lack of
effort into securing substantive employment or utilizing her credentials in any fashion
whatsoever, as well as deliberately avoiding seeking alternative or even the same prior
childcare provider to enable fulltime employment.”
{¶ 58} Father observes “the trial court’s decision in 2017 held that, as a matter of
fundamental fairness, that using Mother’s actual income figures, despite her being
voluntarily unemployed, that Father’s actual income figures should be used as well.”
Father argues that “[d]espite this precedent reached by the same trial court a mere three
years prior, the trial court failed to identify the basis for the change in position.”
Law (set forth by Father)
{¶ 59} According to father, “[w]hen calculating the amount of child support owed,
the trial court must first determine the annual income of each parent. R.C.
3119.021(A).”2 Father notes ‘[i]ncome’ for child support purposes includes ‘gross
income’ and ‘potential income’ of a parent who is unemployed or underemployed,
regardless if the situation is voluntary or involuntary. R.C. 3119.01(C)(9)(b).” 3 He
2 R.C. 3119.021, effective March 28, 2019, is the applicable version of this statute, and it is still in effect today. 3 The version of R.C. 3119.01, effective September 30, 2021, cited by father was in effect at the time of the April 26, 2022 evidentiary trial in front of the magistrate, through the time when the juvenile court rendered its judgment. Thus, that is the version of R.C. 3119.01 which is applicable to this case.
23. observes ‘[g]ross income’ is defined by R.C. 3119.01(C)(12) as, generally, all earned and
unearned income from all sources, with seven exceptions not applicable here[, and] [i]f
the trial court finds a parent is voluntarily unemployed or underemployed, the trial court
must consider that parent’s ‘potential income’ by reviewing the factors mandated by R.C.
3119.01(C)(17)(a)(b). . . .
{¶ 60} Father mentions that ‘[p]otential income’ is defined by R.C.
3119.01(C)(17)(a) and (b) as imputed income that the court determines the voluntarily-
unemployed-or-underemployed parent would have earned if fully employed after
considering 11 criteria, including “any other relevant factor,” plus imputed income from
certain non-income-producing assets. He also sets forth “R.C. 3119.01(C)(17) does not
require the trial court to expressly find appellant is voluntarily unemployed or
underemployed, and it is sufficiently implied where the record reflects the trial court
considered the factors to determine appellant's ‘potential income’ for child support
purposes.”
Standard of Review
{¶ 61} Abuse of discretion is the appropriate standard of review in matters
concerning child support. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). See also
Marlowe v. Marlowe, 2023-Ohio-1417, ¶ 133 (6th Dist.).
{¶ 62} An abuse of discretion connotes that the court’s attitude was arbitrary,
unreasonable or unconscionable. Id., citing State ex rel. Askew v. Goldhart, 75 Ohio
St.3d 608, 610 (1996). In order for an appellate court to reach an abuse-of-discretion
24. finding, a trial court’s judgment must be so profoundly and wholly violative of facts and
reasons such that it evidences the perversity of will, rather than the exercise of will, and
the defiance the exercise of judgment, not the exercise of judgment, and lastly, the
exercise of passion or bias, not reason. Marlowe at ¶ 133, citing State v. Weaver, 2022-
Ohio-4371, ¶ 24.
{¶ 63} At the outset, we note that the father’s amended brief does not fully comply
with App.R. 16, which provides in pertinent part:
(A) Brief of the Appellant. The appellant shall include in its brief . . . all of
the following:
(7) An argument containing the contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. (Emphasis added.)
{¶ 64} We further note that father’s amended brief does not comply with Sixth
Dist.Loc.R. 10, which states in relevant part:
(C). Citations. . . . Case citations and other legal authorities must appear
in the text of the argument after the point of law for which the case or
legal authority is cited[.] (Emphasis added.)
25. {¶ 65} It is the duty of father, not this court, to demonstrate his assigned error with
arguments that are supported by citations to legal authorities and facts in the record.
Speller v. Toledo Pub. Schools Bd. of Edn., 2017-Ohio-7994, ¶ 56 (6th Dist.).
{¶ 66} In his brief, father’s citations to legal authorities do not appear in the text of
his arguments after the point of law for which the legal authority is cited. Rather, all of
father’s citations to legal authorities are set forth in two paragraphs which are separate
from the four paragraphs containing his arguments.
{¶ 67} Father’s failure to fully comply with App.R. 16(A)(7) and Sixth
Dist.Loc.R. 10(C) allows us to strike his brief. See Sixth Dist.Loc.R. 10(F). However, we
choose to address his arguments.
Income Imputed to Father
{¶ 68} Father claims CSEA acted arbitrary, capricious, and against the manifest
weight of the evidence when it imputed income to him based on the faulty premise that
he works as a carpenter in nonmetropolitan northeastern Ohio, which father maintains is
“a field in which he is not, has not, and has never been employed.”
{¶ 69} Upon review on this very narrow claim, in the juvenile court’s September
19, 2017 judgment entry, which father mentioned in his arguments as “precedent reached
by the same trial court a mere three years prior,” the court fully adopted the August 28,
2017 magistrate’s decision, and noted that neither parent filed objections to the
magistrate’s decision. In that magistrate’s decision, as set forth above, the magistrate
summarized the trial testimony of the witnesses, including father, and set forth, inter alia,
26. that father “is employed at . . . [TCC] . . . [and] his occupation is construction,
carpentry[.] [(Emphasis added.)] . . . [TCC] does remodeling, new kitchens, new
bathrooms, and trim work.”
{¶ 70} We next look to the August 18, 2022 magistrate’s decision, where the
magistrate’s synopsis of Weaver’s testimony included:
[Weaver] gathered information . . . [and] . . . requested information from
the parties. . . . [A]fter compiling wage information on the parties she
analyze[d] it and . . . imputed income [to father] based upon ‘carpenter[.]’
She is aware [father] owns [TCC]. . . . [H]er calculation was based on
2019[,] [s]he decided to impute wages to [father] because when she
reviewed [his]documents his employer verification information was
different from the information on his taxes and his wage information was
not even at a minimum wage level and he is skilled labor. . . . [Also,]
[t]here were inconsistencies in [his] paperwork. . . . The figure from
O*NET is based on location. [She] put in a zip code and it gave her a
recommendation for Northeastern Ohio non-metropolitan areas.
27. Our Conclusions
{¶ 71} We conclude, based upon the foregoing, as well as the lack of evidence to
the contrary,4 that CSEA did not act arbitrarily or capriciously when it imputed income to
father, based on father working as a carpenter in nonmetropolitan northeastern Ohio.
{¶ 72} We further conclude that the juvenile court did not abuse its discretion
when, in its February 17, 2023 judgment entry, it set forth and ruled as follows:
Father argues that his testimony about his business and its income . .
. that he is not a carpenter and as such should not be imputed a carpenter’s
wage . . . was ignored by the Magistrate. . . . However, the evidence was
that Father owns a home improvement business where he does trim work
and remodels kitchens and bathrooms among other services. Those
projects clearly require rough and finish carpentry as well as other skills.
Father’s only employee is his wife and she does none of the finish work
according to Father. Therefore, Father wants the Court to believe that he’s
not a carpenter even though the jobs that he completes require the work of a
carpenter and no one else is available to do it. Father’s testimony was
simply not credible.
{¶ 73} Wherefore, we find no merit in father’s arguments regarding the imputation
of income to him.
4 Father failed to cite to any evidence in the record to support his argument that he did not work as a carpenter in nonmetropolitan northeastern Ohio.
28. Income not Imputed to Mother (Current Finding)
{¶ 74} Father contends that CSEA failed to take into consideration mother’s
medical administrative assisting degree or her pharmacy technician certification when
calculating her income, CSEA acted arbitrarily when it did not to impute income to
mother “even at minimum wage, despite her having numerous credentials,” and CSEA
and the court did not consider mother’s voluntary underemployment or unemployment
entirely.
{¶ 75} Upon review, in the June 9, 2021 administrative hearing decision, the
hearing officer set forth, inter alia, “[mother’s] income was placed at $13,400 per year
based on her employment for 2019. [Her] income was not an issue for purposes of this
hearing.”
{¶ 76} In the August 18, 2022 magistrate’s decision, the magistrate set forth the
following relevant portions of summarized witness testimony:
[Mother] . . . testified [I.W.] is five years old and not in good health. He has
been very sick this year, had COVID and the flu. [His] immune system is
low and he uses an inhaler. . . . She . . . remembers filling out an affidavit of
her expenses for [CSEA] and her expenses haven’t changed. Her current
rent is $730 and it’s paid by Metro. Her average monthly electric bill is
$130 and water bill is $35. She receives food stamps and Care Source for
medical [which] doesn't cover all medical expenses. . . . [F]ood stamps
provides $200 per month and she spends an additional $200 to $250 per
29. month on groceries. . . . [S]he drives a 2009 Hyundai. Her car insurance is
$70 per month; cell phone $40; and internet $40. . . . [I]n 2019 she was a
pharmacy technician for Drug Mart[,] [s]he was certified by Drug Mart and
worked in the pharmacy . . . from 2018 to August 2020. She was paid
$10.10 per hour and had no benefits. She worked 20 to 30 hours per week.
[I.W] was in daycare in a woman’s home. [Mother] left Drug Mart because
her daycare provider stopped taking children due to COVID and [mother]
was unable to find someone to watch [I.W.] All daycares were closed . . .
[S]he currently works in produce at Cornell’s Foods [and] earns $13 per
hour and works 15 to 20 hours per week. . . . [S]he has an Associate’s
Degree in medical assisting from 2015 or 2016. She has no experience in
that field. She applied for work in that field when she got the degree, but
couldn’t get a job. She has not applied for work in that field since August
2020. . . . For both her Associates Degree in Medical Administrative
Assisting and pharmacy tech you have to keep up to date in those fields and
she hasn’t. . . . [S]he is paid by Cornell’s weekly and she takes home
between $100 to $200. . . . [T]he amount of child support from [father]
doesn’t allow her to afford daycare. . . . [S]he has no one to help her with
[I.W.] . . . [s]o [s]he works while he’s . . . in Kindergarten. . . . Cornell’s
allows her to be flexible with her schedule, which she needs because [I.W.]
is sick a lot.
30. ...
[Weaver] . . . testified [CSEA] do[es] impute income for individuals when
that person’s income is less than minimum wage. . . . [Weaver] did not look
at imputed wages for [mother] because [mother’s income] was above the
threshold.
{¶ 77} In the juvenile Court’s February 17, 2023 judgment entry, the court set
forth:
Father argues that Mother should have been imputed income like
him and claims she is voluntarily underemployed. However, unlike Father,
Mother is working a job that pays above minimum wage by a legitimate
business, whose finances are not controlled and reported, solely, by her.
Further, her current employment, Cornell’s, pays more, hourly, than her
prior pharmacy tech job with Drug Mart. More importantly, Mother cannot
work full time because of her responsibilities toward the parties’ child,
[I.W.] Daycare has not been available since COVID and [I.W.] suffers
some health issues which render him ill often. Mother has no choice but to
deal with these issues herself because Father has no contact with his son
and provides no other support to assist his child. This argument fails.
Our Conclusions
{¶ 78} Based on the above, we conclude that father failed to point out any
evidence in the record which showed that CSEA did not consider mother’s medical
31. administrative assisting degree or her pharmacy technician certification when calculating
her income. We further conclude CSEA did not act arbitrarily when it did not impute
income to mother, because CSEA imputes income when a parent’s income is less than
minimum wage, and mother’s income was above the threshold. Lastly, we conclude
father did not direct us to evidence in the record which showed that CSEA and/or the
court did not consider “mother’s voluntary underemployment or unemployment.”
{¶ 79} Therefore, we find no merit in father’s arguments regarding the lack of
imputed income to mother.
{¶ 80} Based upon the foregoing, we affirm the February 17, 2023 judgment of
the Erie County Court of Common Pleas, Juvenile Division. The costs of this appeal are
assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
32.