Raymont v. Raymont

2022 Ohio 2389

• Court: Ohio Court of Appeals
• Decided: July 11, 2022
• Docket: 2021CA0029
• Status: Published

Opinion

[Cite as Raymont v. Raymont, 2022-Ohio-2389.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

ERIC G. RAYMONT, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : TRISHA R. RAYMONT, : Case No. 2021CA0029 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 2017 DV 0022

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 11, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTINE M. L. THORNSLEY ROBERT E. WEIR 309 Main Street 305 Main Street Coshocton, Ohio 43812 Coshocton, Ohio 43812 Coshocton County, Case No. 2021CA0029 2

Baldwin, J.

{¶1} Appellant, Trisha Raymont, appeals the Coshocton County Court of

Common Pleas decision modifying the obligation of Eric Raymont to pay spousal and child

support.

STATEMENT OF THE CASE AND THE FACTS

{¶2} This case was before this court in 2021 as Raymont v. Raymont, 5th Dist.

Coshocton No. 2020CA0019, 2021-Ohio-3022 (Raymont I). We sustained two of the

assignments of error in that case and remanded the matter for further proceedings

consistent with our opinion. The trial court considered our remand and issued a new

decision to which appellant, Trisha Raymont takes exception and appeals. The facts,

remaining unchanged, are incorporated from our opinion in Raymont I.

{¶3} The parties’ marriage was terminated via magistrate's decision filed

November 3, 2017, which was approved and adopted by the trial court via judgment entry

filed November 20, 2017. Pursuant to the November 20, 2017 Judgment Entry, Appellee

was ordered to pay spousal support in the amount of $2,000.00/month, and child support

in the amount of $606.91/month. At the time of the divorce trial, Appellee was employed

by AK Steel and earned a yearly salary of approximately $88,088.00, plus $3,618.24 in

overtime and bonuses.

{¶4} The Coshocton County Child Support Enforcement Agency (“CSEA”) filed

a motion to modify child support on May 15, 2018, seeking a reduction in Appellee's child

support obligation due to his unemployment. The trial court granted the motion on the

same day. On August 20, 2018, Appellant filed a motion for contempt, alleging Appellee

failed to meet various financial obligations. Appellant subsequently filed an amended Coshocton County, Case No. 2021CA0029 3

motion for contempt, which included additional financial obligations Appellee failed to

satisfy. On January 9, 2019, the trial court found Appellee in contempt for failing to pay his

spousal and child support obligations.

{¶5} CSEA filed a motion to modify child support on November 20, 2018, seeking

an increase in Appellee's child support obligation after an administrative hearing officer

found Appellee's unemployment “was not beyond his control.” The trial court granted the

motion on the same day. On September 3, 2019, Appellant filed a motion requesting

Appellee's retirement benefits be used to pay his arrearages and other financial

obligations. The trial court granted the motion via entry filed on February 14, 2020.

{¶6} Appellee filed a pro se motion to modify spousal support on February 10,

2020. Appellant filed a motion for attorney fees incurred in defending Appellee's motion to

modify. The trial court conducted a hearing on the motions on February 25, 2020. At the

hearing, the trial court dismissed Appellee's motion due to his failure to present evidence

in support thereof. Via Entry filed February 28, 2020, the trial court awarded attorney fees

to Appellant in the amount of $1,125.00. On April 6, 2020, Appellant filed a motion for

contempt based upon Appellant's failure to pay her attorney fees.

{¶7} Appellee filed a motion to modify/terminate spousal support on July 31,

2020. CSEA filed a motion for hearing to modify child support on August 11, 2020. Prior

to the filing of the motion for hearing, on June 26, 2020, CSEA filed an administrative

recommendation, recommending Appellee's child support obligation be modified from the

current obligation of $711.44/month/child to $118.33/month/child based upon a change in

Appellee's circumstances, specifically, a change in income. On September 8, 2020, the Coshocton County, Case No. 2021CA0029 4

trial court conducted a hearing on Appellant's motion for contempt, Appellee's motion to

modify/terminate spousal support, and CSEA's motion.

{¶8} At the hearing, Appellee testified, after almost 20 years, he was terminated

for cause from AK Steel in January, 2018. Appellee explained he had made an off-handed

comment to a female co-worker. As a result, the co-worker made a complaint to the human

resources department. Appellant did not deny making the comment, but stated the

individual to whom he made the comment was a co-worker he had known for 15 years and

was someone with whom he could joke around.

{¶9} Immediately following his termination, Appellee sought other employment,

stating he had applied for “[w]ell over 500 positions, and I still do continue to apply.” Tr.

Sept. 8, 2020 Hearing at 12. Appellee prepared his resume and sent out applications. In

addition, Appellee utilized online resources, attended job fairs, and contacted Job and

Family Services. His boss at AK Steel wrote a positive letter of recommendation. Appellee

explained he worked as a metallurgist, which is a very specialized field. Appellee did not

obtain alternate employment for almost a year. Appellee eventually sought any type of

employment. He even began training for Macy's call center.

{¶10} He is currently employed by Source 1 Alloys, earning an annual salary of

$41,600.00, with no overtime or bonuses.

{¶11} At the time of the divorce hearing, Appellant was earning approximately

$14,700/year. The record shows that, at the time of the September 8, 2020 hearing,

Appellant was employed by East Coast Risk Management, LLC, and earned an annual

salary of $27,716.00. Coshocton County, Case No. 2021CA0029 5

{¶12} The trial court ordered the parties to submit proposed findings of fact and

conclusions of law by October 8, 2020, but subsequently provided the parties with

additional time to do so. On November 5, 2020, the parties filed their respective proposed

findings of fact and conclusions of law. Via Judgment Entry filed November 19, 2020, the

trial court denied Appellee's motion to modify/terminate. The trial court found there was no

substantial change in circumstances necessary for the modification of child and/or spousal

support as Appellee's “misconduct and resulting reduction in income are considered

voluntary underemployment and discharge.” Id. at 4.

{¶13} Appellee filed an appeal, raising the following assignments of error:

{¶14} “I. THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLANT

WAS VOLUNTARILY UNDEREMPLOYED.”

{¶15} “II. THE TRIAL COURT ERRED WHEN IT FOUND THERE WAS NOT A

SUBSTANTIAL CHANGE IN CIRCUMSTANCES WARRANTING A MODIFICATION OF

APPELLANT'S SPOUSAL AND CHILD SUPPORT OBLIGATIONS.”

{¶16} “III. THE TRIAL COURT DID NOT TAKE INTO CONSIDERATION THE

INCREASE IN APPELLEE'S INCOME IN HIS DETERMINATION THAT THERE WAS

NOT A CHANGE IN CIRCUMSTANCES.”

{¶17} We found that “the trial court did not err in finding [Appellee] was voluntarily

underemployed as [Appellee's] own actions caused his termination” Raymont I at ¶ 16 but

we sustained the second and third assignments of error holding that:

Although [Appellee] was voluntarily underemployed due to his own

actions, we find consideration of his inability to regain employment at the

level enjoyed before the divorce is both relevant and equitable in Coshocton County, Case No. 2021CA0029 6

determining whether there was a substantial change in circumstances. See

Gibson v. Gibson, 2d Dist. Montgomery No. 28171, 2019-Ohio-1799

(regarding ex-husband's employability after felony conviction and efforts to

find comparable jobs); Courtney v. Courtney, 12th Dist. Warren No.

CA2013-09-087, 2014-Ohio-4281 (trial court abused its discretion in failing

to consider reduction in father's earning capacity after law license was

suspended due to felony conviction for aggravated theft). In determining

whether there was a change in circumstances, the trial court should have

considered the fact [Appellee] was terminated for a non-criminal offense,

made legitimate and diligent efforts to gain comparable employment, and

[Appellant's] income increased approximately 50% since the time of the

original divorce hearing.

Raymont I at ¶ 21.

{¶18} Upon remand, the trial court considered the record before it in accordance

with our opinion and granted appellee’s motion to terminate spousal support. The trial

court held that:

Therefore, the Court determines that a modification of spousal

support is appropriate because the circumstances of the parties have

changed and the change is so substantial that it makes the existing award

of spousal support no longer reasonable and appropriate. R.C. 3105.18(E).

Specifically, the court finds that there has been an involuntary decrease in

the Plaintiff/Husband’s wages as noted above. R.C. 3105.18(F). The court

further finds that the change of circumstances is substantial, not purposely Coshocton County, Case No. 2021CA0029 7

brought about by the moving party, and not contemplated at the time the

parties entered into the prior agreement. Waters vs. Boney, 2009-Ohio-574

(5th Dist., Stark); Weddington v. Weddington, 2010-Ohio-4967 (5th Dist.,

Licking).

{¶19} The trial court also approved recommendation submitted by CSEA to modify

child support.

{¶20} Appellant filed a notice of appeal and submitted two assignments of

error:

{¶21} “I. THE TRIAL COURT BY VIOLATING O.R.C. § 3105.18(F) ERRED AS A

MATTER OF LAW WHEN IT RULED THAT VOLUNTARY UNDEREMPLOYMENT (I.E.,

TERMINATION FROM EMPLOYMENT FOR JUST CAUSE FOR INAPPROPRIATE

SEXUAL BEHAVIOR) IS A SUBSTANTIAL CHANGE IN CIRCUMSTANCES, CAUSING

A TERMINATION OF APPELLEE'S SPOUSAL SUPPORT ORDER AND A

MODIFICATON OF APPELEE'S (SIC) CHILD SUPPORT ORDER.”

{¶22} “II. THE TRIAL COURT ABUSED ITS DISCRETION WITH TERMINATING

APPELLEE'S SPOUSAL SUPPORT ORDER AND MODIFYING APPELLEE'S CHILD

SUPPORT ORDER.”

STANDARD OF REVIEW

{¶23} The appellant’s assignments of error arise from the trial court’s decision

regarding spousal and child support. Decisions regarding the modification of spousal

support and child support are reviewed under an abuse of discretion standard. Boron v.

Boron, 5th Dist. Stark No. 2018CA00080, 2019-Ohio-714, ¶ 26; G.P. v. L.P., 5th Dist.

Morrow No. 2021 CA 0011, 2022-Ohio-1373, ¶ 74 on reconsideration, 5th Dist. Morrow Coshocton County, Case No. 2021CA0029 8

No. 2021 CA 00112022-Ohio-2156, ¶ 74. An abuse of discretion occurs only when the

trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Further, as an appellate court, we

are not the trier of fact. Our role is to determine whether there is relevant, competent, and

credible evidence upon which the factfinder could base his or her judgment. Tennant v.

Martin-Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, 936 N.E.2d 1013, ¶ 16 (5th Dist.),

citing Cross Truck v. Jeffries, Stark App. No. CA-5758, 1982 WL 2911 (Feb. 10, 1982).

ANALYSIS

{¶24} Appellant submits two assignments of error, but the foundation of her

argument is the contention that appellee was voluntarily underemployed because he was

terminated from his employment when a co-worker reported an inappropriate comment

made to her during the workday. Appellee relies upon our decision in Boron v. Boron, 5th

Dist. Stark No. 2018-CA-00080, 2019-Ohio-714 to support her conclusion that “a voluntary

underemployment which results in a decrease in income is not an involuntary decrease in

income required pursuant to O.R.C. § 3105.18(F).” In Raymont I, we found that the trial

court's reliance on this Court's opinion in Boron to support the conclusion that Eric

Raymont was underemployed to be misplaced. We found that Boron was factually

distinguishable and our conclusion remains the same. Raymont I, supra, ¶ 16. The Boron

decision is inapposite.

{¶25} In Raymont I we concluded that: “* * * the decrease in Appellant's income

was not purposely brought about by him” and we held that:

consideration of his inability to regain employment at the level enjoyed before the

divorce is both relevant and equitable in determining whether there was a Coshocton County, Case No. 2021CA0029 9

substantial change in circumstances. * * * In determining whether there was a

change in circumstances, the trial court should have considered the fact Appellant

was terminated for a non-criminal offense, made legitimate and diligent efforts to

gain comparable employment, and Appellee's income increased approximately

50% since the time of the original divorce hearing.

Raymont I, supra, ¶ 20-21.

{¶26} The trial court complied with our instructions and concluded that there was

a substantial change of circumstances, not brought on by appellee and not contemplated

at the time of the original agreement. The record supports the court’s factual finding that

appellee’s testimony that, after his discharge, he applied to over 500 positions and

investigated several resources to replace his income and found the highest level of

employment available to him. As a result, his income was reduced by over fifty percent.

{¶27} Appellant insists that the trial court abused its discretion because it is

rewarding appellant for “abhorrent behavior” and “will only lead to more disrespectful,

sexist pigs, looking for a free handout.” Appellant focuses on the behavior that led to

appellees discharge and argues that because his unemployment was the result of a

voluntary act, his request for a modification of spousal support must be rejected. In

Raymont I we found “that the trial court did not err in finding Appellant was voluntarily

underemployed as Appellant's own actions caused his termination,” but that finding is not

the end of the analysis. Raymont I, supra, ¶ 16. We also held that “[i]n determining

whether there was a change in circumstances, the trial court should have considered the

fact Appellant was terminated for a non-criminal offense, made legitimate and diligent Coshocton County, Case No. 2021CA0029 10

efforts to gain comparable employment, and Appellee's income increased approximately

50% since the time of the original divorce hearing. Id. at ¶ 21.

{¶28} The facts in this case are analogous to the facts in Gibson v. Gibson, 2nd

Dist. Montgomery No. 28171, 2019-Ohio-1799, ¶ 52, where the court relied upon

testimony that the obligor “was unable to find work comparable to his prior employment”

after he was terminated and that he made repeated efforts to find employment and found

only lower paying jobs. In the case before us, the record contains unrebutted evidence of

the appellee’s exhaustive attempts to replace the income from his former position. The

Gibson Court found that, given the obligor’s change in circumstances, the trial court did

not abuse its discretion by reducing the spousal support obligation. We find that the same

analysis and conclusion applies to this case.

{¶29} We find further support for our holding in Courtney v. Courtney, 12th Dist.

Warren No. CA2013-09-087, 2014-Ohio-4281, ¶ 13 where the Twelfth District Court of

Appeals held that “if the trial court finds that a parent is voluntarily underemployed, such

as the case here, “then it must consider the nonexclusive list of criteria set forth in R.C.

3119.01(C)(11)(a)1 to determine the amount of potential income to impute to the parent.”

(Citations omitted.) The criteria relevant to this case include: The availability of

employment in the geographic area in which the parent resides; The prevailing wage and

salary levels in the geographic area in which the parent resides; The parent's special skills

and training; Whether there is evidence that the parent has the ability to earn the imputed

income; and any other relevant factor. R.C. 3119.01(C)(17)(a)(iv)-(vii), (xi).

1 R.C. 3119.01(C)(11)(a) has been renumbered R.C. 3119.01(C)(17)(a). Coshocton County, Case No. 2021CA0029 11

{¶30} These criteria support a conclusion that no income should be imputed to

appellee. The appellee was a metallurgist with very specialized skills that were not in great

demand in the geographic area in which he resided. The record contains no evidence that

he was able to earn the imputed income or that he was earning less than the prevailing

wage for the employment he found. Further, appellee’s testimony that his search for

similar employment was thorough was unrebutted. The appellant presented no evidence

to contradict appellee’s testimony and relied on the argument that appellee was voluntarily

underemployed. Appellant’s analysis is incomplete as it failed to consider the facts and

circumstances that we directed the trial court to consider in our opinion in Raymont I.

{¶31} The trial court found the appellee’s conduct that led to his termination was

“reprehensible” and this opinion should not be interpreted to condone his actions. The trial

court’s review is not, however, limited to that incident and must consider his subsequent

behavior and his actions to remedy the problem that arose from his behavior. The record

supports a conclusion that appellee’s search for adequate employment was exhaustive

and appellee offered no criticism of his efforts. While we agree with the trial court that

appellee’s behavior was reprehensible, we also find that the applicable law encourages

parties such as appellee to seek replacement employment. Coshocton County, Case No. 2021CA0029 12

{¶32} We find that the trial court did not abuse its discretion by modifying the

spousal support and child support orders. Appellant’s assignment of error is denied and

the decision of the Coshocton County Court of Common Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.