[Cite as Slaughter v. Hoover-Grier, 2017-Ohio-2770.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Darius T. Slaughter, Jr.,                              :

                Plaintiff-Appellee,                    :
                                                                   No. 16AP-486
v.                                                     :         (C.P.C. No. 15JU-7543)

Jasmyn K. Hoover-Grier,                                :     (REGULAR CALENDAR)

                Defendant-Appellant.                   :



                                           D E C I S I O N

                                      Rendered on May 11, 2017


                On brief: Don Roberts Law Offices, and David R. Plumb, for
                appellant. Argued: David R. Plumb.

                  APPEAL from the Franklin County Court of Common Pleas,
                      Division of Domestic Relations, Juvenile Branch

HORTON, J.
        {¶ 1} Jasmyn Hoover-Grier ("Jasmyn") appeals from the entry of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
overruling her objections to a magistrate's decision to recalculate her income on a child
support order and deny her request to retroactively date the order. For the reasons set
forth below, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} A.H. was born to Jasmyn on January 26, 2012. The Franklin County Child
Support Enforcement Agency ("CSEA") issued an initial administrative order for child
support and medical support on May 26, 2015. The CSEA determined that Darius
Slaughter ("Darius") was the father of A.H. and had a duty of support as the child support
obligor. The order required Darius to pay child support in the amount of $850.84 per
month during any months in which A.H. was covered under private health insurance, or
No. 16AP-486                                                                             2

$909.19 per month during periods of non-coverage. The monthly amounts were
calculated on a child support computation worksheet attached to the order and were
based on annual gross income amounts of $21,164 for Darius and $9,391.20 for Jasmyn.
The worksheet listed an adjustment to Jasmyn's income based on annual child care
expenses in the amount of $8,341.20. The order also informed the parties of the right to
object by filing an action under R.C. 2151.231. (May 26, 2015 Order.)
       {¶ 3} Darius objected by filing a form captioned "Complaint to Set Support
(Objection to CSEA Administrative Order)" in the trial court on June 12, 2015. His
objection stated the following: "I disagree with the monthly child support payment and
would like to file for objection." (Compl.)
       {¶ 4} Jasmyn filed an "Answer/Cross-Claim" on June 24, 2015, stating the
following objection: "I object because I want the support order to be from the day [A.H.]
was born. He knew about her before then and was getting her since that day." (Answer.)
       {¶ 5} The magistrate held a hearing on the parties' objections on August 10, 2015.
Jasmyn was not represented by counsel. Because Darius did not appear, the magistrate
dismissed his objection without prejudice and stated that she would "proceed on"
Jasmyn's objection. (Aug. 10, 2015 Tr. at 5.)
       {¶ 6} At the hearing, Jasmyn testified that she worked between 20 and 30 hours
each week at a retail store where she was paid $8.60 an hour and that she had no other
income. (Tr. at 6.) She paid $225 per week for day care expenses for A.H. (Tr. at 9.) When
the magistrate noted that the day care expenses appeared to be equal to or exceeded her
income, Jasmyn stated that her mother helped her "a little bit" by giving her $100 every
other week, and that she paid no rent because she lived at home. (Tr. at 9-11.) Jasmyn also
stated that she was on her mother's insurance. (Tr. at 11.) Jasmyn brought statements
from the day care center and her tax return. The magistrate noted that Jasmyn's tax
return did not report any itemized deduction for child care expenses, as she had filed the
return with Form 1040EZ, the IRS form that only allows a standard deduction with no
itemization. (Tr. at 12.)
       {¶ 7} The magistrate issued a decision on August 12, 2015, that contained a
number of findings and orders. First, it stated that Darius' objection was dismissed "due
to his failure to appear," and that Jasmyn's objection was granted. (Mag.'s Decision at 1.)
Second, the decision modified the effective date of the child support order to
No. 16AP-486                                                                               3

November 20, 2014. Third, the monthly amount owed by Darius was lowered to $312.02
per month during months in which A.H. was covered under private health insurance and
$357.50 per month during periods of non-coverage. Fourth, in an attached child support
computation worksheet, Jasmyn's annual gross income was recalculated as $17,888.00,
and the adjustment to her income for annual child care expenses was entirely eliminated.
(Mag.'s Decision at 2.)
       {¶ 8} Jasmyn objected to the magistrate's decision on three grounds. First, she
argued that it was an error to omit the child care expenses in the new computation.
Jasmyn argued that the magistrate had "refused to consider the daycare statements" that
she had brought to the hearing as evidence of child care expenses. (Aug. 24, 2015 Obj. to
Mag.'s Decision.) Second, Jasmyn argued that the child support order should have been
retroactively dated to January 26, 2012, the date of A.H.'s birth, and not November 11,
2014, because she had contacted CSEA before A.H. turned three and Darius had known
that he was A.H.'s father since the child's birth. Third, Jasmyn objected to the
recalculation of her income, which raised it to $17,888.00. She noted that she was a full-
time university student who also worked part-time, and that the pay stub she had
provided to the magistrate stated that her cumulative pay as of July 25, 2015 was only
$5,983.80. Id.
       {¶ 9} The trial court held a hearing on Jasmyn's objections on March 2, 2016, at
which she was represented by counsel. After her attorney summarized Jasmyn's
objections to the magistrate's decision, copies of her W2s and documentation of child care
expenses were introduced as exhibits. (Mar. 2, 2016 Tr. at 10.) Jasmyn testified once
again. The trial court asked her about "the apparent disparity" between her income and
the amount of child care expenses she claimed to be paying. (Tr. at 12.) Jasmyn testified
that while her income went towards day care expenses, she had also begun to receive
some child support payments, and her mother sometimes assisted her as well. (Tr. at 12-
13.) The trial court asked Jasmyn how much money her mother gave her to assist with
child care expenses. When Jasmyn replied that she couldn't "say off the top of [her] head,"
the trial court judge said that she did not need to provide a figure. (Tr. at 13.)
       {¶ 10} In a decision dated June 1, 2016, the trial court overruled Jasmyn's
objections and approved and adopted the magistrate's decision in part. In the decision,
the trial court made three key rulings. First, the trial court declined to use any child care
No. 16AP-486                                                                                4

expenses to reduce the amount of Jasmyn's income, determining that Jasmyn had "no
personal expense for daycare for the minor child." (June 1, 2016 Entry at 2.) The trial
court reached this conclusion based on the following findings: Jasmyn's "mother pays the
child care," Jasmyn's tax return did not show a deduction for child care expenses, and
Jasmyn had provided "no canceled checks or money order stubs to prove that she is the
person actually paying for the child's daycare." Id.
         {¶ 11} Second, the trial court declined to retroactively date the child support order
under R.C. 3111.13(F)(3)(a) because Jasmyn had failed to "provide any evidence that she
had out of pocket medical expenses" or lost wages "due to the pregnancy," stating that it
could not "make a retroactive award for expenses that were not actually incurred." (Entry
at 3.)
         {¶ 12} Third, the trial court overruled Jasmyn's objection to the calculation of her
income, reasoning as follows:
                Defendant testified that her income was $8.60 per hour and
                that she works 25-35 hours per week plus commission. She
                also testified that her mother gives her $100 every two weeks
                which is $2,600 per year. Also, Defendant testified that her
                mother pays $225.00 per week for her child care which is
                $11,700 per year. Defendant's mother is also paying her health
                insurance and providing her with housing. She does not have
                any disability that would prohibit her from working full-time.
                Wages may be imputed to full-time when there is no disability
                or impediment to working full time. The magistrate calculated
                her earnings at $17,888.00. She did not err in using
                $17,888.00 per year.

Id.
         {¶ 13} Jasmyn now appeals, and asserts the following four assignments of error:
                [I.] The Trial Court's adoption of the Magistrate's Decision,
                filed on August 12, 2015, constitutes an abuse of discretion by
                failing to make findings of fact that are consistent with the
                uncontroverted testimony and evidence that was admitted by
                the Trial Court.

                [II.] The Trial Court's adoption of the Magistrate's Decision,
                filed on August 12, 2015, constitutes an abuse of discretion by
                failing to find that Appellant paid for child care expenses
                during 2015.

                [III.] The Trial Court's adoption of the Magistrate's Decision,
                filed on August 12, 2015, constitutes reversible error because
No. 16AP-486                                                                                5

              the Trial Court       misinterpreted    and   misapplied     R.C.
              3111.13(F)(3)(a).

              [IV.] The Trial Court's adoption of the Magistrate's Decision,
              filed on August 12, 2015, constitutes an abuse of discretion by
              miscalculating Appellant's income for 2015.

II. STANDARD OF REVIEW
       {¶ 14} An abuse of discretion standard applies to appellate review of "matters
concerning child support," including its calculation under R.C. Chapter 3119. Booth v.
Booth, 44 Ohio St.3d 142, 144 (1989); see also Winkler v. Winkler, 10th Dist. No. 02AP-
937, 2003-Ohio-2418, ¶ 55. An " 'unreasonable, arbitrary or unconscionable ' " action by
the trial court amounts to an abuse of discretion. Booth at 144, quoting Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
III. FIRST ASSIGNMENT OF ERROR
       {¶ 15} In her first assignment of error, Jasmyn asserts that the trial court abused
its discretion by making four factual findings that were inconsistent with the testimony
and evidence. First, Jasmyn points to the trial court's statement that she "appeared pro
se" at the March 2, 2016 hearing where she was represented by counsel. Because Jasmyn
did appear before the magistrate without counsel, the trial court may have intended the
statement to refer to her earlier appearance. However, even if the statement was
technically incorrect, the trial court's description of Jasmyn as pro se does not qualify as a
finding of fact that is material to any issue in the child support order. Jasmyn has not
explained how this misstatement affected any substantive issue relevant to her appeal,
such as the trial court's calculation of income or the support amount.
       {¶ 16} The three other findings that Jasmyn points to, however, do raise such
concerns. The trial court's decision stated that Jasmyn's mother "pays the child care,"
while Jasmyn herself "has no personal expense for daycare for the minor child." (Entry
at 2.) The decision also states that Jasmyn "testified that her mother pays $225.00 per
week for her child care which is $11,700.00." (Entry at 3.) The record does not support
these findings. Jasmyn testified before the magistrate that she, not her mother, paid $225
per week for day care expenses. At the later hearing, Jasmyn stated that her income from
the part-time job went towards this expense, with some assistance from her mother and
recent child support payments. While Jasmyn could have been more clear in her
testimony or provided better supporting documentation, there is no support in the record
No. 16AP-486                                                                                 6

for the trial court to find that Jasmyn had "no personal expense" for child care, or that her
mother paid the entire amount of those costs.
       {¶ 17} Jasmyn also faults the trial court for failing to consider the fact that she is a
full-time student when it found that there was no impediment to her working full-time.
Jasmyn's objection to the magistrate's decision urged the trial court to consider that fact,
yet the trial court's entry failed to mention it at all.
       {¶ 18} Finally, Jasmyn points to a discussion of the medical expenses pertaining to
A.H.'s birth that she argues are "irrelevant to this matter." (Appellant's Brief at 14.)
Specifically, the trial court faulted Jasmyn for not producing evidence of such expenses
when ruling on her request to retroactively date the child support order. We will reserve
discussion of this issue for the third assignment of error, which concerns that particular
ruling, and note here only that the trial court's statement did not constitute a finding of
fact. Rather, the trial court stated that there was no evidence in the record of such
expenses, which was not an incorrect characterization of the record.
       {¶ 19} In short, we conclude that the trial court abused its discretion when it made
findings of fact regarding the child care expenses that were not supported by the record
and ignoring Jasmyn's status as a full-time student. These findings were material to the
child support order. The first assignment of error is sustained.
IV. SECOND ASSIGNMENT OF ERROR
       {¶ 20} In her second assignment of error, Jasmyn argues that the trial court erred
by failing to find that she had paid for child care expenses in 2015.
       {¶ 21} As previously discussed, the trial court abused its discretion when it found
that Jasmyn's mother had paid the child care expenses in their entirety by
mischaracterizing the substance of Jasmyn's testimony. The trial court also faulted
Jasmyn for not providing "canceled checks or money order stubs to prove" that she paid
for the expenses. (Entry at 2.) However, Jasmyn introduced a statement from the child
care center that itemized over one year's worth of the charges that had been paid. (Def.'s
Ex. C.) The weekly amount of child care expenses charged was consistent with Jasmyn's
testimony, and the statement shows that the center directly billed Jasmyn in her own
name for the day care charges. Id.
No. 16AP-486                                                                               7

       {¶ 22} In spite of Jasmyn's testimony and the expense statement, the trial court
interpreted Jasmyn's failure to itemize her child care expenses on her income tax return
as evidence that she had not paid any such expenses:
                Defendant has no personal expense for daycare for the minor
                child. She offered her income tax return for review and she
                does not take a child care deduction on her Income.
                Defendant filed Tax Form 1040EZ. The Court can only allow a
                deduction for expenses that Defendant personally incurs and
                can provide evidence that she paid.

(Entry at 2.)
       {¶ 23} Yet the tax return that Jasmyn filed, the 1040EZ, does not allow a filer to
itemize deductions or claim anything other than the standard deduction. IRS Pub. 17 at 6-
7 (2016). Jasmyn's use of the 1040EZ form is not proof that she did not, in fact, pay for
child care expenses. At most, it is probative of the amount of her income, tax liability, and
the fact that she did not itemize her deductions when filing. The trial court would have
acted within its discretion if it had deducted the tax credit that Jasmyn would have
received had she itemized the child care expenses from her gross income. See R.C.
3119.022 (providing, at item 19, a line to list any "[a]nnual child care expenses for
children who are the subject of this order that are work-, employment training-, or
education-related, as approved by the court or agency (deduct tax credit from annual cost,
whether or not claimed)."). However, inferring from this tax form that Jasmyn paid no
such expenses while ignoring other evidence in the record of payment was arbitrary and,
therefore, an abuse of discretion.
       {¶ 24} Furthermore, even if Jasmyn's mother had paid the entirety of the child care
expenses, there is "no authority, statutory or otherwise, requiring child care expenses to
be paid directly from the parent's income." (Emphasis sic.) Johnson v. McConnell, 2d
Dist. No. 24115, 2010-Ohio-5900, ¶ 31. In Johnson, the trial court refused a mother's
request to factor child care expenses in a child support calculation because it was "unable
to determine the source of [the] funds" for the expenses. Id. at ¶ 30. The trial court
believed that the mother was "entitled to have her daycare expenses considered only if she
could prove that she had paid for those expenses from her income or savings." Id. The
Second District Court of Appeals rejected the burden imposed on the mother where no
statute or other authority required her to prove that she alone had paid for daycare:
"Although the source of funds to pay the daycare expenses may be considered by the trial
No. 16AP-486                                                                               8

court in the court's exercise of its discretion, the fact that the parent may be receiving
financial assistance from third parties for daycare expenses does not disqualify those
expenses from inclusion in the child support calculation." Id. at ¶ 31. Here, the trial court
imposed the same burden on Jasmyn when it asserted that it could "only allow a
deduction for expenses that Defendant personally incurs and can provide evidence that
she paid." (Entry at 2.) As in Johnson, the trial court erred as a matter of law by holding
Jasmyn to this standard, in addition to abusing its discretion by ignoring the evidence in
the record regarding Jasmyn's payment of the expenses. The second assignment of error
is sustained.
V. THIRD ASSIGNMENT OF ERROR
       {¶ 25} Jasmyn's third assignment of error asserts that the trial court misapplied
R.C. 3111.13(F)(3)(a), the statute governing the applicable date of child support orders.
According to Jasmyn, the trial court overruled her request based on an erroneous
application of the statute's provision regarding birthing expenses, which were never at
issue in this case.
       {¶ 26} R.C. 3111.13(F)(3)(a) states the following:
                A court shall not require a parent to pay an amount for that
                parent's failure to support a child prior to the date the court
                issues an order requiring that parent to pay an amount for the
                current support of that child or to pay all or any part of the
                reasonable expenses of the mother's pregnancy and
                confinement, if both of the following apply:

                (i) At the time of the initial filing of an action to determine the
                existence of the parent and child relationship with respect to
                that parent, the child was over three years of age.

                (ii) Prior to the initial filing of an action to determine the
                existence of the parent and child relationship with respect to
                that parent, the alleged father had no knowledge and had no
                reason to have knowledge of his alleged paternity of the child.

       {¶ 27} Jasmyn's sole objection to the CSEA's child support order was that it should
have been retroactively dated to A.H.'s birth because Darius had known A.H. was his
child. (Answer.)
       {¶ 28} The trial court's decision stated that Jasmyn had to "prove both factors"
under R.C. 3111.13(F)(3)(a). The trial court first ruled that Jasmyn had satisfied the first
one by filing a request for child support before A.H.'s third birthday. The trial court then
No. 16AP-486                                                                                9

ruled that Jasmyn could not satisfy the second prong of the statute because she had not
provided any evidence that she had paid medical expenses for A.H.'s birth:
                The Court can only deduce from her testimony that the birth
                of the child was covered by the health insurance policy and
                Defendant had no personal expenses for the birth of the child.
                The Court cannot make a retroactive award for expenses that
                were not actually incurred. No evidence was submitted during
                the hearing that Defendant was working or had lost wages as a
                result of her pregnancy and confinement. * * * Since no
                evidence of reasonable expenses for mother's pregnancy and
                confinement were shown, the Court OVERRULES and
                DENIES this Objection.

(Entry at 3.)
       {¶ 29} The trial court appears to have misread the statute and misunderstood the
relief that Jasmyn had requested. R.C. 3111.13(F)(3)(a) recognizes that there are two types
of potentially retroactive child support orders: those for "the current support of [the]
child," and those for "all or any part of the reasonable expenses of the mother's pregnancy
and confinement." Here, only the first type of order was at issue. Pregnancy expenses
were never the subject of the CSEA's order or Jasmyn's objection.
       {¶ 30} Furthermore, the trial court failed to apply the proper test when considering
Jasmyn's request to retroactively date the child support order. The section applied by the
trial court, R.C. 3111.13(F)(3)(a), prevents a court from effecting a retroactive order of
child support when: (1) a child is over three years of age at the time an action is filed "to
determine the existence of the parent and child relationship with respect to that parent;"
and (2) before such filing, "the alleged father had no knowledge and had no reason to have
knowledge of his alleged paternity of the child." Thus, R.C. 3111.13(F)(3)(a) is typically
invoked by an "alleged father" disclaiming any knowledge of his paternity of the child in
question. See, e.g., Hills v. Patton, 3d Dist. No. 1-07-71, 2008-Ohio-1343, ¶ 28 (affirming
trial court's decision to deny father's motion to dismiss mother's claim for back child
support under R.C. 3111.13).
       {¶ 31} When considering Jasmyn's request to retroactively date the child support
order to A.H.'s birth, the trial court should have applied R.C. 3111.13(F)(2). See Fraelich v.
Parrish, 9th Dist. No. 14CA010684, 2016-Ohio-445, ¶ 10 (describing the application of
R.C. 3111.13(F)(2) as "mandatory" when a court considers "whether to award support for
the period prior to a determination of parentage"). The statute provides that:
No. 16AP-486                                                                              10

              When a court determines whether to require a parent to pay
              an amount for that parent's failure to support a child prior to
              the date the court issues an order requiring that parent to pay
              an amount for the current support of that child, it shall
              consider all relevant factors, including, but not limited to, any
              monetary contribution either parent of the child made to the
              support of the child prior to the court issuing the order
              requiring the parent to pay an amount for the current support
              of the child.

R.C. 3111.13(F)(2).
       {¶ 32} R.C. 3111.13(F)(2) "does not institute a per se rule that requires or disallows
awards of retroactive child support. Instead, the statute vests the trial court with the
discretion to determine whether a parent must pay a retroactive amount of child support,
and specifies the factors the court can consider in making its decision." In re Evans, 10th
Dist. No. 01AP-1328, 2002-Ohio-3555, ¶ 12. However, we have previously held that
"[d]emonstrating that a father voluntarily provided support prior to a child support order,
and that the child's financial needs were met during that pre-order period, can be
sufficient evidence to relieve a father of retroactive child support." Id. at ¶ 16. Thus, on
remand, evidence of Darius' previous support contributions would be relevant to this
analysis.
       {¶ 33} The third assignment of error is sustained.
VI. FOURTH ASSIGNMENT OF ERROR
       {¶ 34} In her fourth assignment of error, Jasmyn asserts that the trial court abused
its discretion by miscalculating her 2015 income. According to Jasmyn, the trial court
failed to consider the factors set forth under R.C. 3119.01(C)(11) that a court must
consider when imputing income to a parent, and erroneously included contributions from
her mother as a portion of her gross income.
       {¶ 35} For purposes of a child support calculation, income is defined in one of two
ways. First, a fully employed parent's income is defined as his or her gross income. R.C.
3119.01(C)(5)(a). "Nonrecurring or unsustainable income or cash flow items," which are
defined as "an income or cash flow item the 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," are not included in gross income. R.C. 3119.01(C)(7)(e) & 3119.01(C)(8).
       {¶ 36} Second, if a parent is "unemployed or underemployed," income is equal to
"the sum of the gross income of the parent and any potential income of the parent."
No. 16AP-486                                                                                11

R.C. 3119.01(C)(5)(b). A court or child support agency must find that the parent "is
voluntarily unemployed or voluntarily underemployed" in order to impute potential
income to the parent. R.C. 3119.01(C)(11). To determine the amount, the statute provides
the following:
                 Imputed income that the court or agency determines the
                 parent would have earned if fully employed as determined
                 from the following criteria:

                 (i) The parent's prior employment experience;

                 (ii) The parent's education;

                 (iii) The parent's physical and mental disabilities, if any;

                 (iv) The availability of employment in the geographic area in
                 which the parent resides;

                 (v) The prevailing wage and salary levels in the geographic
                 area in which the parent resides;

                 (vi) The parent's special skills and training;

                 (vii) Whether there is evidence that the parent has the ability
                 to earn the imputed income;

                 (viii) The age and special needs of the child for whom child
                 support is being calculated under this section;

                 (ix) The parent's increased earning capacity because of
                 experience;

                 (x) The parent's decreased earning capacity because of a
                 felony conviction;

                 (xi) Any other relevant factor.

R.C. 3119.01(C)(11)(a).
       {¶ 37} A trial court abuses its discretion if it does "not make an explicit finding that
[the parent] was voluntarily unemployed or underemployed prior to imputing potential
income to [the parent]" and fails to consider the R.C. 3119.01(C)(11) factors. Apps v.
Apps, 10th Dist. No. 02AP-1072, 2003-Ohio-7154, ¶ 49. Here, the trial court did not make
a specific determination that Jasmyn was voluntarily underemployed before imputing
potential income to her. In the section of its decision overruling Jasmyn's objection to the
No. 16AP-486                                                                                               12

magistrate's calculation of her income, the trial court simply stated that she "does not
have any disability that would prohibit her from working full-time. Wages may be
imputed to full-time when there is no disability or impediment to working full-time."
(Entry at 3.) The trial court did not consider Jasmyn's status as a full-time student. Nor
was there any discussion of the R.C. 3119.01(C)(11) factors, other than the observation
that Jasmyn was not disabled. Furthermore, the imputed income was also partially based
on the trial court's erroneous finding that Jasmyn's mother had paid the totality of A.H.'s
child care expenses. (Entry at 3.) Given these errors, we conclude that the trial court's
recalculation of Jasmyn's gross income was unreasonable and amounted to an abuse of
discretion.1 The fourth assignment of error is sustained.
VI. DISPOSITION
        {¶ 38} For the foregoing reasons, we sustain all four assignments of error and
reverse and remand with instructions to properly analyze Jasmyn's request to
retroactively date the child support order in accordance with R.C. 3111.13(F)(2).
                                                                            Judgment reversed; cause
                                                                          remanded with instructions.

                                TYACK, P.J. and BROWN, J., concur.
                                    _________________




1Jasmyn's sole objection to the CSEA order concerned its effective date, not the amount of support. The only
party objecting to the amount was Darius, but because he failed to appear, his objection was dismissed. The
CSEA's calculation is "rebuttably presumed to be the correct amount of child support due" under R.C.
3119.03. No party appeared before the trial court to rebut that presumption, yet the trial court undertook its
own sua sponte review of the amount.
