[Cite as Reynolds-Cornett v. Reynolds, 2014-Ohio-2893.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




PAULA D. REYNOLDS-CORNETT,                                :
                                                              CASE NO. CA2013-09-175
        Plaintiff-Appellee,                               :
                                                                   OPINION
                                                          :         6/30/2014
   - vs -
                                                          :

JEFFREY REYNOLDS,                                         :

        Defendant-Appellant.                              :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                         DOMESTIC RELATIONS DIVISION
                              Case No. DR04101317



Thomas G. Eagle, 3386 North St. Rt. 123, Lebanon, Ohio 45036, for plaintiff-appellee

Fred S. Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for
defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Jeffrey Reynolds (Father), appeals a decision from the

Butler County Court of Common Pleas, Domestic Relations Division, establishing child

support and awarding attorney fees in favor of plaintiff-appellee, Paula D. Reynolds-Cornett

(Mother).

        {¶ 2} Father and Mother were divorced by decree on April 21, 2005. Two minor
                                                                                   Butler CA2013-09-175

children were born of this marriage, J.R. and C.R. As of October 23, 2007, Father was the

residential parent and legal custodian of J.R., and Mother, the residential parent and legal

custodian of C.R. In 2012, Father decided he could no longer care for J.R. Accordingly, on

June 11, 2012, Mother filed a motion to modify the custody of J.R. and establish a child

support order. The parties agreed to a change of custody where Mother would also be the

residential parent and legal custodian of J.R.1 Subsequently, the magistrate recommended a

child support order based on a purported agreement by the parties. However, this order was

not adopted by the trial court and the matter was remanded for a hearing to recalculate

support.

        {¶ 3} Prior to the hearing, Mother filed two additional motions, one requesting child

support to be extended past the natural age of majority for J.R. due to his severe and

permanent disabilities, and a motion for attorney fees. The magistrate conducted a hearing

on these issues on January 3, 2013 and March 12, 2013. On April 25, 2013, the magistrate

issued a decision, recommending child support be paid by Father to Mother in the amount of

$614.43 a month, including the two percent processing fee, and that such support continue
                                                                        2
past the age of majority until further order from the court.                The magistrate also ordered

Father to pay Mother's attorney's fees in the amount of $3,039. Father filed objections to the

magistrate's decision.

        {¶ 4} On July 10, 2013, the trial court held a hearing on Father's objections. On

September 6, 2013, the court overruled Father's objections and affirmed the magistrate's




1. C.R. remained in the custody of Mother.

2. Father has not appealed trial court's decision to extend child support for J.R. beyond the age of majority.
                                                      -2-
                                                                                     Butler CA2013-09-175

April 25, 2013 decision.3 Father now appeals, raising three assignments of error for review.

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT FOUND APPELLEE TO NOT BE VOLUNTARILIY UNEMPLOYED.

        {¶ 7} In his first assignment of error, Father argues the trial court erred in finding he

failed to meet his burden and establish that Mother was voluntarily unemployed. Father

contends he presented evidence that Mother was able to work and capable of earning a

minimum $11.00 an hour, but she voluntarily chose not to work. Father asserts Mother's

reason for not working, to take care of J.R., was an insufficient justification given the

availability of free nursing assistance through Medicaid.

        {¶ 8} Prior to addressing the merits of Father's arguments, we must first address

Father's contention that the trial court failed to conduct an independent review of the record,

as required by Civ.R. 53(D)(4)(d). Father asserts the trial court improperly deferred to the

magistrate's credibility and factual conclusions. The record simply does not support Father's

arguments. Rather, the record demonstrates the trial court merely acknowledged the

magistrate was in the best position to evaluate the credibility of the parties. Moreover, the

trial court specifically stated it conducted an independent review of the record and concluded

the magistrate's decision was "fully supported by the evidence presented." Accordingly, we

find the trial court performed an independent review of the magistrate's decision in




3. We note that on May 30, 2013, based on Mother's motion for correction or clarification, the magistrate issued
a second decision which increased Father's child support obligation from $614.43 to $887.56 per month. The
magistrate noted that in reaching its April decision and ordering Father to pay $614.43, she utilized the split
custody statutory child support worksheet, rather than the appropriate sole custodian child support computation
worksheet. Accordingly, the magistrate recalculated child support using the correct worksheet and ordered
Father to pay $887.56. Although the parties indicated at the hearing on the objections and in their briefs to this
court that Father has been ordered to pay $887.56 per month, there is nothing in the record which indicates that
the trial court adopted the magistrate's May 30, 2013 decision. See Civ.R. 53(D)(4)(a); Hart v. Spenceley, 12th
Dist. Butler No. CA2011-08-165, 2013-Ohio-653, ¶ 11 ("A trial court must act on a magistrate's decision in order
to give the recommendation the force of law").
                                                       -3-
                                                                       Butler CA2013-09-175

compliance with Civ.R. 53(D)(4)(d). We now turn to the merits of Father's arguments

regarding the trial court's decision.

       {¶ 9} A trial court's decision as to whether a parent is voluntarily unemployed is a

question of fact and will not be disturbed on appeal absent an abuse of discretion.

McLaughlin v. Kessler, 12th Dist. Fayette No. CA2011-09-021, 2012-Ohio-3317, ¶ 14. An

abuse of discretion connotes more than an error of law or judgment; it implies that the court's

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

       {¶ 10} In calculating child support, a trial court must determine the annual income for

each parent. For an unemployed or underemployed parent, income is the "sum of the gross

income of the parent and any potential income of the parent." R.C. 3119.01(C)(5)(b); see

also Marron v. Marron, 12th Dist. Warren Nos. CA2013-11-109 and CA2013-11-113, 2014-

Ohio-2121, ¶ 45. Potential income includes imputed income that a trial court determines the

parent would have earned if fully employed based upon the criteria set forth in R.C.

3119.01(C)(11)(a)(i)-(xi). The criteria under R.C. 3119.01(C)(11)(a) includes the age and any

special needs of the children and personal factors as to the parents, including the parent's

prior employment experience, education, skills and training, employment availability, and

local wages. Marron at ¶ 45; Corwin v. Corwin, 12th Dist. Warren Nos. CA2013-01-005 and

CA2013-02-012, 2013-Ohio-3996, ¶ 74. These factors, although specifically related to

imputing income, may also be relevant in determining whether a parent is voluntarily

unemployed or underemployed. Kessler at ¶ 17, fn. 2. Before a trial court may impute

income to a parent, however, it must first find that the parent is voluntarily unemployed or

underemployed. R.C. 3119.01(C)(11); see also Kessler at ¶ 13. The parent who claims the

other parent is voluntarily unemployed bears the burden of proof on that issue. Marron at ¶

45.
                                              -4-
                                                                         Butler CA2013-09-175

       {¶ 11} Mother's testimony from the hearing indicates she is 41 years old and a high

school graduate, but does not hold a college degree. Mother testified that she last worked

outside the home three years ago at Kohl's Department Store warehouse as a "picker." At

that time, she earned $11 per hour. However, Mother explained that it would be difficult for

her to obtain full-time work due to her responsibilities in caring for J.R. and C.R. As to J.R.,

Mother testified he has congenital muscular dystrophy and therefore requires extensive

assistance in engaging in daily activities. In particular, Mother testified she bathes J.R. daily,

dresses him, transports him to and from his wheelchair, and prepares his meals. Mother also

explained she is up multiple times during the night to turn J.R. in his bed. In addition,

although J.R. is in school full-time, Mother stated it is often unpredictable when he will be

unable to go to school due to illness. As to C.R., Mother testified that she has a learning

disability which requires Mother to assist C.R. with her homework in the afternoons.

       {¶ 12} At the time of the hearing, father failed to present any evidence of, or cross-

examine Mother on work that was available to her. Mother's wages and earning potential

three years ago are of limited relevancy as to what is available to her today. Father failed to

prove there were employment opportunities available in the Butler County area for high

school-educated individuals like Mother, or that she had the skills, experience, or ability to

engage in employment outside the home, especially in light of the needs of J.R. and C.R.

Moreover, it is not unreasonable for Mother, given her low wage potential, the extensive

medical needs of J.R., and the needs of C.R., to care for the children herself rather than to

seek the aid of hired help. See Kitchen v. Kitchen, 12th Dist. Butler No. CA2002-12-298,

2004-Ohio-1189, ¶ 16. Although Father argues free nursing care is available to Mother to

assist in the care of J.R., as Father used such "free" care when J.R. was under his custody,

Father failed to present evidence regarding the specifics of this care and whether J.R. was

still eligible for it. Father also failed to demonstrate how, given Mother's responsibilities for
                                               -5-
                                                                                      Butler CA2013-09-175

both children, this assistance would enable her to obtain employment outside the home. In

fact, Mother testified that even if she had such nursing assistance, she would still be unable

to work outside the home.

        {¶ 13} Under the facts and circumstances of this case, we find the trial court did not

abuse its discretion in finding Mother was not voluntarily unemployed.                             Father's first

assignment of error is overruled.

        {¶ 14} Assignment of Error No. 2:

        {¶ 15} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT IN ITS COMPUTATION OF APPELLANT'S INCOME FOR PURPOSES OF

CHILD SUPPORT.

        {¶ 16} In his second assignment of error, Father argues the trial court erred by

including $11,199, the average of his overtime pay for the past three years, as part of his

gross income.4 Father argues he submitted evidence, beyond his own testimony, that

overtime pay "had been eliminated," and therefore it should not have been included as part

of his gross income as his overtime pay constituted nonrecurring income.

        {¶ 17} "A trial court's decision in matters concerning child support shall be reviewed

under an abuse of discretion standard." Combs v. Walsh, 12th Dist. Butler No. CA2005-07-

198, 2006-Ohio-7026, ¶ 16, citing Booth v. Booth, 44 Ohio St.3d 242, 144 (1989). As

mentioned above, an abuse of discretion connotes more than an error of law or judgment; it

implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore, 5

Ohio St.3d at 219.

        {¶ 18} For a parent employed to "full capacity," R.C. 3119.01(C)(5) defines "income"

for purposes of calculating child support as "the gross income of the parent." "Gross income"


4. Father's overtime pay for the three years prior to the hearing was as follows: (1) in 2010 it was $10,157; (2) in
2011 it was $8,737, and (3) in 2012 it was $14,703.
                                                        -6-
                                                                      Butler CA2013-09-175

is defined by R.C. 3119.01(C)(7) as "the total of all earned and unearned income from all

sources during a calendar year, whether or not the income is taxable, and includes income

from salaries, wages, overtime pay, and bonuses to the extent described in [R.C. 3119.05(D)]

* * *." However, gross income does not include "nonrecurring or unsustainable income or

cash flow items," which is defined as income or cash flow that a parent receives "in any year

or for any number of years not to exceed three years that the parent does not expect to

continue to receive on a regular basis." R.C. 3119.01(C)(8).

       {¶ 19} In calculating income from overtime for purposes of a parent's gross income,

R.C. 3119.05(D) provides that the court shall include the lesser of either (1) "[t]he yearly

average of all overtime * * * received during the three years immediately prior to the time

when the person's child support is being computed" or (2) "[t]he total overtime * * * received

during the year immediately prior to the time when the person's child support obligation is

being computed." R.C. 3119.05(D); see also Ornelas v. Ornelas, 12th Dist. Warren No.

CA2011-08-094, 2012-Ohio-4106, ¶ 22.

       {¶ 20} In addition, R.C. 3119.05(A) requires a parent's income to "be verified by

electronic means or with suitable documents, including, but not limited to, paystubs, employer

statements, receipts, and expense vouchers related to self-generated income, tax returns,

and all supporting documentation and schedules for tax returns." R.C. 3119.05(A); see also

Ornelas at ¶ 23; Benjelloun v. Benjelloun, 12th Dist. Butler No. CA2012-01-004, 2012-Ohio-

5353, ¶ 12. This court has previously stated that "a parent must exactly adhere to this

requirement and prove their current income by presenting those documents listed in R.C.

3119.05(A)." Benjelloun at ¶ 12, quoting Ornelas at ¶ 23.

       {¶ 21} At the hearing, Father presented the testimony of Joyce Deeter, the former

Benefits Employee Relations Manager for Deceuninck North America, Father's employer.

Deeter testified that based on Father's change in position from an extrusion specialist to a
                                             -7-
                                                                      Butler CA2013-09-175

tool tuning technician in September 2012, "forced overtime" was no longer available. Deeter

explained Father's prior position required him to work 12-hour shifts for seven days out of a

fourteen-day time period. Accordingly, there was forced or "automatic" overtime with that

position. Father's new position, however, only required him to work eight-hour shifts with no

"automatic overtime." Deeter further testified that any other overtime would be "minimal" as

instructed by the executive staff. Father also submitted a letter written by Deeter which

similarly stated: "With the position change, the forced overtime has been eliminated and

therefore the overtime is very minimal." Father contends this letter from Deeter represents a

"document from the employer regarding the elimination of overtime" in compliance with the

requirements of R.C. 3119.05(A) and our decision in Benjelloun. Father also testified he was

no longer guaranteed overtime pay with this new position. Father explained he had received

some overtime pay that year, in 2013, but it was mainly due to working through lunch.

      {¶ 22} We find the trial court did not err in including Father's average overtime pay in

determining his gross income for child support calculations. Although "non-recurring" cash

flow items are excluded from gross income, Father failed to present evidence that his

overtime pay had been eliminated and therefore was "nonrecurring." Deeter's letter and her

subsequent testimony only established that forced overtime had been eliminated due to

Father's new position. Both the letter and Deeter's testimony indicated that although

voluntary overtime would be "minimal," such overtime had not been eliminated and was still

available. Moreover, the record demonstrates, contrary to Father's assertions, that he

continues to receive overtime pay. From January 15, 2013 through March 4, 2013, the first

few months in his new position, Father received almost $3,000 in overtime pay.

      {¶ 23} Accordingly, based on the record before us, the trial court did not abuse its

discretion in including the average of Father's overtime pay for the past three years in its

calculation of Father's gross income. In the vein of fairness, we note that because the trial
                                             -8-
                                                                          Butler CA2013-09-175

court retains jurisdiction to modify child support, Father is free to request a modification of his

child support obligation if he fails to continue to receive overtime pay or his income changes

and this results in a substantial change of circumstances. See R.C. 3119.79(A); Loetz v.

Loetz, 63 Ohio St.2d 1, 2 (1980).

       {¶ 24} Father's second assignment of error is overruled.

       {¶ 25} Assignment of Error No. 3:

       {¶ 26} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT AWARDED ATTORNEY FEES TO APPELLEE.

       {¶ 27} Father argues in his third assignment of error that the trial court erred in

awarding attorney fees to Mother. Father contends the trial court abused its discretion

because his conduct did not cause or increase Mother's attorney's fees. Father also argues

the trial court erred by failing to consider Mother's additional income, including disability

payments she receives for both children, and her current husband.

       {¶ 28} An award of attorney fees is within the sound discretion of the trial court.

Casper v. Casper, 12th Dist. Warren Nos. CA2012-12-128 and CA2012-12-129, 2013-Ohio-

4329, ¶ 62. A trial court's decision to award attorney fees will be reversed only if it amounts

to an abuse of discretion. Foppe v. Foppe, 12th Dist. Warren No. CA2010-06-056, 2011-

Ohio-49, ¶ 34.

       {¶ 29} Pursuant to R.C. 3105.73(B), "[i]n any post-decree motion or proceeding that

arises out of an action for divorce, * * * the court may award all or part of reasonable

attorney's fees and litigation expenses to either party if the court finds the award equitable."

In determining whether an award is equitable, the court may consider "the parties' income,

the conduct of the parties, and any other relevant factors the court deems appropriate, but it

may not consider the parties' assets." R.C. 3105.73(B); Theurer v. Foster-Theurer, 12th Dist.

Warren Nos. CA2008-06-074 and CA2008-06-083, 2009-Ohio-1457, ¶ 57.
                                                -9-
                                                                        Butler CA2013-09-175

       {¶ 30} After a thorough review of the record, we find the trial court did not abuse its

discretion in ordering Father to pay Mother $3,039 in attorney fees. Prior to awarding

attorney fees, the trial court stated it had "considered all factors in [R.C.] 3105.73." One such

factor is the income of the parties. Father argues the court failed to consider income Mother

receives in the form of disability payments for several of her family members. However, at

the hearing, Mother testified regarding the disability payments received for C.R., J.R., and

her current husband. Moreover, the record reflects a substantial disparity in income and

earning potential between the parties. Mother, a high school graduate, has not worked

outside the home in three years, and when she did work, she only earned approximately $11

per hour. In addition, Mother's income originates, in large part, from government assistance

in the form of disability payments for several family members and from food stamps. Father,

conversely has held a job with the same employer for over 14 years and earns over $19 per

hour. In addition, Mother testified she had to borrow money from J.R. to pay the attorney

fees related to this action so she could "protect [his] rights." Based on these circumstances,

we find the trial court did not abuse its discretion in finding an award was equitable and

ordering Father to pay Mother $3,039 in attorney fees.

       {¶ 31} Father's third and final assignment of error is overruled.

       {¶ 32} Judgment affirmed.


       RINGLAND, P.J., and PIPER, J., concur.




                                              - 10 -
