Parkins v. Parkins

1 Ohio App. Unrep. 127
CourtOhio Court of Appeals
DecidedJanuary 24, 1990
DocketCase No. 5-88-18
StatusPublished

This text of 1 Ohio App. Unrep. 127 (Parkins v. Parkins) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parkins v. Parkins, 1 Ohio App. Unrep. 127 (Ohio Ct. App. 1990).

Opinion

SHAW, J.

This is an appeal from a judgement entry and decree of divorce filled in the Common Pleas Court of Hancock County on June 23, 1988. Defendant-appellant, Dennis Parkins (Dennis) raises five assignments of error claiming the trial courts abused its discretion in determining issues pertaining to child support, medical bills, alimony, property division and visitation.

"1. The trial court abused its discretion and erred in establishing the amount of child support to be paid by appellant, where it failed to find that appellee was voluntarily underemployed."

In his first assignment of error, Dennis claims the trial court erred in not imputing potential income to plaintiff-appellee, Sandra Parkins (Sandra) as a "voluntarily underemployed parent" in violation of the trial court's own child support guidelines as set forth in Section III (A) (4) of Hancock County Common Pleas Court Local Rule 2.30.

The Local Rule provides in pertinent part:

"If a parent is voluntarily unemployed or underemployed, child support may be calculate based on a determination of potential income. It is within the trial court's discretion whether to impute income on a case by case basis. * * *"(Emphasis added.)

The language of this rule clearly contemplates a finding by the trial court that the parent in question is voluntarily underemployed as a predicate to the subsequent exercise of the court's discretion in determining whether to impute income where such a finding is made. In the case before us, the trial court made no such finding.

There was testimony that Sandra and Dennis had made a joint decision early in the marriage that Sandra would not seek employment outside the home in order to take care of the two children, which she did for a [128]*128number of years. Additional testimony indicated that Sandra had once been licensed and employed as beautician and had taken some steps to retrain herself for that profession again after fifteen years away from the business.

From the time of the parties' separation (approximately one and one-half years prior to the divorce) Sandra also testified that she had investigated several avenues of employment and at the time of the divorce, she was employed part-time at the Hancock County Humane Society .In short, there is competent, credible evidence in the record upon which the trial court could have properly based its refusal to find Sandra was voluntarily underemployed and we will not second guess that decision. See C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. Nor do we find any abuse of the trial court's discretion in its resulting decision that imputing potential income to Sandra as permitted in Local Rule 2.30 was not appropriate in this case.

See Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217.

The first assignment of error is overruled.
"2.The trial court abused its discretion and erred in ordering appellant to pay all medical dental, optometric, orthodontic, hospital, drug and illness expenses of the minor children contrary to Local Rule 2.29 and the stipulation of the parties."

The record shows that Dennis and Sandra entered into the following stipulation at trial regarding payment of medical expenses for the children:

"That the Defendant [Dennis] will pay the medical, dental, optometric, hospital and prescription drug expenses of the children and keep them covered under health and accident insurance subsequent to the Local Rule pertaining to the same." (Emphasis added.) Local Rule 2.29 of the Hancock County Common Pleas Court provides in pertinent part:
"Unless otherwise specified in a medical provision of a judgement entry the responsibility for any and all medical, dental, and oculist expense shall not exceed two hundred ($200.00) dollars per calendar year per child. * * *" (Emphasis added.)

The final judgement entry and decree of divorce provides in regard to the medical expenses as follows:

"4. Defendant [Dennis] shall maintain medical and hospitalization insurance coverage for the protection of each child and shall be responsible for the payment of all medical, dental, optometric, orthodontic, hospital, drug and illness expenses of said minor children not covered by insurance."

Presumably on the basis of the phrase "* * * subsequent to the Local Rule * * *" contained in the stipulation of the parties, Dennis now argues that the agreed to pay the medical expenses only to the extent of the $200 per child per year specified in the Local Rule. We are not clear as to the intended meaning of the word "subsequent" in the stipulation, although it is evident that Dennis would have us interpret this as "subject" or "pursuant." Unfortunately the stipulation does not say that and we must therefore be cautious in the weight to be given the stipulation. In any event, the emphasized portion of the local rule seems to openly allow for the trial court to "* * * otherwise specify" * * *" a different provisions in its final judgement entry which the trial court obviously did here. Thus the ultimate consideration once again is simply whether the trial court abused its discretion either in disregarding the stipulation of the parties or in disregarding the $200 limit suggested in Local Rule 2.29. See Blakemore v. Blakemore, supra, and see (regarding appellate review of trial court's deviation from its own local rule) 23 Ohio Jurisprudence 3d (1980), 119, 121, Courts and Judges, Sections 488, 489.

There is no evidence in the record from which we can draw a reliable conclusion as to the monetary difference to Dennis between the $200 limit of Local Rule 2.29 and the actual amount he might have to pay under the court's order. However, the evidence showed among other things that at the time of the divorce, Dennis was gainfully employed as the manager of a convenience store at a salary in the $40,000 range. On the other hand, Sandra maintained only tenuous part-time employment with a total yearly income in the range of $9,000 with custody of and responsibility for the two minor children. Thus, even considering Sandra's award of the residence, child support and alimony we cannot say that the trial court's order concerning the medical expenses, whether in derogation of the court's own guidelines or [129]*129the stipulation of the parties, was unreasonable, arbitrary or unconscionable under the circumstances. Blakemore v. Blakemore, supra. We find no abuse of discretion by the trial court and the second assignment of error is overruled.

"3. The trial court abused its discretion and erred in awarding appellee alimony in an amount and for a period of time contrary to section 3105.18 (B) Oit.C., and local alimony guidelines."

Under his third assignment of error, Dennis first argues that the trial court failed to consider all eleven statutory factors under R.C. 3105.18 (B) in determining its award of alimony.

The relevant portion of R.C. 3105.18 (B) states:

"(B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including, but not limited to, the following: * * *"

See also, Kaechele v.

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376 N.E.2d 578 (Ohio Supreme Court, 1978)
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419 N.E.2d 4 (Ohio Supreme Court, 1981)
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Bluebook (online)
1 Ohio App. Unrep. 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parkins-v-parkins-ohioctapp-1990.