[Cite as Johnson v. Johnson, 2020-Ohio-4085.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     GREENE COUNTY

 JENNIFER L. JOHNSON                                 :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2019-CA-58
                                                     :
 v.                                                  :   Trial Court Case No. 2016-DR-171
                                                     :
 DAVID L. JOHNSON                                    :   (Appeal from Common Pleas Court –
                                                     :   Domestic Relations Division)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                                OPINION

                           Rendered on the 14th day of August, 2020.

                                                ...........

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio
45385
      Attorney for Plaintiff-Appellee

DAVID L. JOHNSON, P.O. Box 364, Fairborn, Ohio 45324
     Defendant-Appellant, Pro Se

                                           .............

HALL, J.
                                                                                           -2-




       {¶ 1} David L. Johnson appeals pro se from a judgment of the Greene County

Common Pleas Court, Domestic Relations Division, entered on remand after a prior

appeal.   Because we find some errors in the trial court’s judgment, we modify the

judgment and affirm as modified.

                         I. Factual and Procedural Background

       {¶ 2} David and Jennifer L. Johnson (plaintiff-appellee) were married on October

20, 2001, and have two children. During their marriage, Jennifer worked for United

Healthcare, and David was self-employed as the sole proprietor of a computer repair and

custom computer-building business. Jennifer filed a complaint for divorce on July 29,

2016. The parties agreed to use June 28, 2016, as the date of their separation for

purposes of the division of property, as that was the date that David vacated the marital

residence. In 2017, the trial court held a hearing to determine the parties’ respective

incomes and to identify and categorize their assets and liabilities. In August 2018, the trial

court entered a final judgment and decree of divorce that awarded Jennifer custody of the

children, gave David parenting time, and set forth the court’s determinations as to the

payment of child support and spousal support, the division of the parties’ assets and

liabilities, and the allocation of attorneys’ fees and costs.

       {¶ 3} David appealed, and we affirmed the trial court’s judgment in part and

reversed it in part. See Johnson v. Johnson, 2d Dist. Greene No. 2018-CA-36, 2019-

Ohio-1024. We remanded the case “for the limited purpose of addressing” four issues:

       1) as to the order for distribution of property, for failing to articulate,

       consistent with R.C. [3105].171, why David’s claimed inheritance was
                                                                                             -3-


         regarded as marital property and not as David’s separate property; 2) as to

         the order regarding tax refunds/liabilities, for failing to order Jennifer to pay

         David both one-half of that portion of Jennifer’s federal income tax refund

         for 2016 attributable to the months before the parties separated and one-

         half of that portion of David’s $346 federal income tax liability for 2016

         attributable to the months before the parties separated; 3) as to the orders

         for spousal support and child support, to accurately reflect the amount of

         David’s imputed annual income, and to make any corresponding changes

         warranted in the amount of spousal support and/or child support to be paid;

         and 4) as to the award of attorney’s fees, for failing to address whether

         David should have been credited for a $750 payment previously made to

         Jennifer.

(Emphasis sic.) Id. at ¶ 77.

         {¶ 4} Following our remand, the trial court issued an order addressing these issues

on August 23, 2019. David appeals from the August 23 judgment.

                                           II. Analysis

         {¶ 5} David assigns five errors to the trial court, which challenge the court’s

resolution of the first three remanded issues, i.e., the calculation of his annual income,

the treatment of his inheritance, and Jennifer’s payment of the parties’ tax refund and

liability.

                        A. Recalculation of David’s annual income

         {¶ 6} The first and third assignments of error challenge the trial court’s

recalculation of David’s imputed annual income:
                                                                                        -4-


             Judge Hurley erred when he issued this Entry and Order without a

      hearing on the issues remanded from the Second District Court of Appeals

      (2018-CA-0036) and new issues based upon finding not in evidence.

             Judge Hurley erred as a matter of law and abused his discretion and

      demonstrated his bias against the Defendant when he found the

      Defendant’s current annual income to be $18,000 without a hearing. This

      finding is outside the scope of the Second District Court of Appeals remand

      on case 2018-CA-0036.

      {¶ 7} In its original judgment, the trial court imputed to David a monthly income of

$1,200 (which would be $14,400 per year), but used an annual income of $24,000 to

calculate spousal and child support. On appeal, we concluded that, given the monthly

income finding, the trial court evidently made a mathematical error in calculating David’s

annual income. We remanded the matter to the trial court “to correct that computation

error, and to further determine what revisions, if any, may be warranted in the parties’

respective spousal and child support obligations, as well as any other obligations, as a

result of David’s corrected income figure.” Johnson, 2d Dist. Greene No. 2018-CA-36,

2019-Ohio-1024, at ¶ 57.

      {¶ 8} On remand, the trial court decided to set David’s income at a different

amount. In its judgment, the court said that “it is reasonable to use a current annual

income of $18,000 for Husband for purposes of calculating child and spousal support,”

which is a monthly income of $1,500. The court did not hold a new hearing but cited

evidence from the 2017 hearing to support the higher income.

      {¶ 9} “[T]he trial court is without authority to extend or vary the mandate given [by
                                                                                           -5-


a reviewing court].” Nolan v. Nolan, 11 Ohio St.3d 1, 4, 462 N.E.2d 410 (1984). “The

appellate court is in the best position to interpret its own mandate and determine whether

a trial court judge has complied with that mandate.” (Citation omitted.) State ex rel.

Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, ¶ 29.

       {¶ 10} The trial court’s actions here exceeded the scope of our order on remand.

The problem in the court’s original judgment was simply that the court had made a

mathematical error in calculating David’s annual income and then used that incorrect

annual amount to determine his obligations, like spousal support and child support. We

ordered the trial court to correct the mathematical error and make corresponding changes

to his support obligations, using the correct annual income. But the trial court went further.

It revisited the question of how much income to impute to David, based on new findings

that it did not make the first time. This went beyond our mandate. See Larkin v. Larkin,

2d Greene Nos. 2015-CA-07, 2015-CA-21, 2016-Ohio-1563, ¶ 19-20 (concluding that the

trial court exceeded the scope of remand by recalculating income based on new findings).

       {¶ 11} We conclude, however, that the trial court’s error was harmless. In its 2018

judgment, the court awarded David monthly spousal support of $360 but said that

Jennifer’s obligation was offset by David’s monthly child support obligation of $360. The

court stated: “Accordingly, there shall be no exchange of spousal or child support between

the parties.” Similarly, in its 2019 judgment in response to our remand, the trial court

awarded David monthly spousal support of $300, but offset this amount by his monthly

child-support obligation of $300. The court’s order stated that David was to pay Jennifer

monthly child support of $0, noting that this was a “100% deviation” from the worksheet,

because “Husband’s child support obligation was offset against Wife’s spousal support
                                                                                        -6-


obligation.” Thus, despite the trial court imputing more income to David on remand,

David’s support obligations were essentially unchanged. Accordingly, David suffered no

prejudice from the court’s recalculation of his income. See Carpenter v. Carpenter, 7th

Dist. Noble No. 11 NO 387, 2012-Ohio-4567, ¶ 23 (use of incorrect income figure was

harmless error because the appellant suffered no prejudice).

      {¶ 12} Finally, we note that even if the trial court had hewed to our mandate and

used $14,400 as David’s annual income, instead of $18,000, the $3,600 difference would

have made only a marginal difference in the calculation of his prospective child support

obligation. And on this record, the trial court, without abusing its discretion, would have

offset that amount against prospective spousal support too.

      {¶ 13} The first and third assignments of error are overruled.

                           B. Requirement that David seek work

      {¶ 14} In addition to recalculating David’s income, on remand the trial court added

an order requiring him to find a job. The fourth assignment of error challenges the trial

court’s seek-work order:

             Judge Hurley erred as a matter of law and abused his discretion and

      demonstrated his bias against the Defendant when he issued a “seek work”

      order without justification or a hearing to determine current facts.

      {¶ 15} In calculating support, “Ohio courts often impute income to parties who are

voluntarily underemployed or otherwise not working up to their full earning potential.”

(Citations omitted.) Miller v. Miller, 2d Dist. Montgomery No. 14540, 1994 WL 730560, *4

(Dec. 28, 1994). The trial court here implicitly found that David was underemployed, which

was why it imputed income to him. On remand, the court for the first time ordered David
                                                                                         -7-


to seek work. According to the court’s judgment, it included this order because the court

had said at the original hearing “that if it uses $18,000, it will also put on a seek work

order,” and “David did not renew his objection to a seek work order.”

       {¶ 16} The statute governing seek-work orders states that a court can issue such

an order “as part of a court support order or, if a court support order has previously been

issued, as a separate order.” R.C. 3121.03(D)(1). So the trial court’s order that David

seek work could arguably be considered a separate order, outside the confines of our

remand.

       {¶ 17} Still, the governing statute did not permit the court to enter the seek-work

order. R.C. 3121.03(D)(1) states that a court can issue a seek-work order “[i]f the obligor

under a court support order is unemployed, has no income, and does not have an account

at any financial institution.” The unambiguous conjunctive language permits a trial court

to issue a seek-work order only if the obligor is unemployed and has no income and does

not have a bank account.

       {¶ 18} In In re Cooper Brown, 2d Dist. Montgomery No. 19010, 2002 WL 125690,

*2 (Feb. 1, 2002), we referenced a prior version of this statute, former R.C. 3113.21(D)(4),

which contained the same substantive language and stated that “[t]he unambiguous

language * * * allows a trial court to issue a seek work order only if the obligor is

unemployed or has no income or financial account” (Emphasis sic.). We further held that,

“when an individual is voluntarily under-employed, * * * imputation of income is proper,”

but the statute “does not provide for a seek-work order to issue when an individual is

voluntarily under-employed, because by definition, he is actually employed.” Id. Thus,

Cooper Brown concluded that the trial court had erred by entering a seek-work order
                                                                                          -8-


where the father had been found to be underemployed and in imputing income to him.

       {¶ 19} Here, the trial court found that David was underemployed, not unemployed.

Furthermore, R.C. 3121.03(D)(1) states that a court may issue a seek-work order against

an “obligor,” but David was not an obligor. “Obligor” is defined as “the person who is

required to pay support under a support order.” R.C. 3119.01(B)(4). As we have noted,

the trial court did not order David to pay any support, nor did it find that David owed

support arrearages.

       {¶ 20} The fourth assignment of error is sustained.

                      C. David’s inheritance as marital property

       {¶ 21} The second assignment of error challenges the trial court’s finding that

David’s inheritance was marital property:

              Judge Hurley erred when he ruled that the Defendant made an inter

       vivos gift of the $6000 inheritance to his wife.

       {¶ 22} In the original 2018 judgment, the trial court treated the inheritance as

marital property, rather than David’s separate property, but the court did not explain why.

For that reason, we ordered the court to explain. On remand, the trial court found that the

inheritance had initially been David’s separate property, but that he had made an inter

vivos gift of it to Jennifer, who used the money to pay marital bills. As a result, the court

concluded that the nature of the inheritance was changed to marital property. Accordingly,

the trial court did not award David any additional money for the inheritance.

       {¶ 23} Under R.C. 3105.171(A)(6)(a)(i), “an inheritance is generally considered a

party’s separate property.” St. Germaine v. St. Germaine, 2d Dist. Greene No. 2009-CA-

28, 2010-Ohio-3656, ¶ 16. But “spouses can change separate property to marital property
                                                                                             -9-


based on actions during the marriage.” Helton v. Helton, 114 Ohio App.3d 683, 685, 683

N.E.2d 1157 (2d Dist.1996). “The most commonly recognized method for effecting this

change is through an inter vivos gift of the property from the donor spouse to the donee

spouse.” Id.; see also Miller v. Miller, 6th Dist. Sandusky No. S-19-19, 2018-Ohio-5285,

¶ 10 (“[p]arties can transmute separate property into marital property by means of an inter

vivos gift,” particularly “where * * * there has been effected a reduction of the parties’ joint

obligation”).

       {¶ 24} The trial court’s findings in support of its conclusion that the inheritance was

not David’s separate property were supported by the evidence. Given those findings,

we see no error in the trial court’s determination that the inheritance was marital property.

       {¶ 25} The second assignment of error is overruled.

                          D. The parties’ tax refund and liability

       {¶ 26} The fifth assignment of error challenges the trial court’s determination that

Jennifer’s federal income tax refund was offset by David’s federal income tax liability:

                Judge Hurley erred mathematically in his calculation of how much

       the wife owes the husband for the 2016 tax returns.

       {¶ 27} On remand, we instructed the trial court to order Jennifer to pay David half

of what the court determined was the marital portion of both her 2016 tax refund and his

2016 tax liability. The trial court found that 50% of the refund and liability were marital

property. Thus, the marital portion of Jennifer’s refund was $2,158.50, and the marital

portion of David’s debt was $173. But the trial court offset David’s half of the refund,

$1,079.25, by Jennifer’s half of the debt, $86.50, and ordered Jennifer to pay David
                                                                                          -10-


$992.50.1

        {¶ 28} We conclude that the tax refund and liability figures should not have been

offset. Jennifer retained the entire marital portion of her refund, and David paid the entire

marital portion of his debt, so Jennifer owed David his share of her refund plus her share

of his debt. This is why we concluded in the prior appeal that the court had erred “for

failing to order Jennifer to pay David both one-half of that portion of Jennifer’s federal

income tax refund * * * and one-half of that portion of David’s $346 federal income tax

liability.” (Emphasis sic.) Johnson, 2d Dist. Greene No. 2018-CA-36, 2019-Ohio-1024, at

¶ 77. The trial court should have ordered Jennifer to pay David $1,165.75 for the tax

refund and liability.

        {¶ 29} The fifth assignment of error is sustained.

                                      III. Conclusion

        {¶ 30} We have concluded that the trial court erred by ordering David to seek work

and by ordering Jennifer to pay David his share of her tax refund offset by her share of

his tax debt. Rather than remanding this case for the trial court to correct its judgment,

we modify the trial court’s judgment in two respects: (1) the seek-work order is vacated,

and (2) for the parties’ 2016 tax refund and liability, Jennifer is ordered to pay David

$1,165.75. We affirm the trial court’s judgment as modified.

                                      .............



TUCKER, P.J. and FROELICH, J., concur.


Copies sent to:

1   The trial court made a subtraction mistake: $1,079.25 - $86.50 = $992.75.
                        -11-



Jay A. Adams
David L. Johnson
Hon. Steven L. Hurley
