[Cite as Staffrey v. Smith, 2010-Ohio-1296.]



                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

KRISTEN STAFFREY,                                )
                                                 )
        PLAINTIFF-APPELLANT,                     )
                                                 )
VS.                                              )         CASE NO. 09-MA-107
                                                 )
DAVID SMITH,                                     )               OPINION
                                                 )
        DEFENDANT-APPELLEE.                      )

CHARACTER OF PROCEEDINGS:                        Civil Appeal from Court of Common
                                                 Pleas, Juvenile Division, of Mahoning
                                                 County, Ohio
                                                 Case No. 05JI221

JUDGMENT:                                        Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellant                          Attorney Brent English
                                                 M.K. Ferguson Plaza, Suite 470
                                                 1500 West Third St.
                                                 Cleveland, Ohio 44113-1422

For Defendant-Appellee                           Attorney Matthew Giannini
                                                 1040 South Commons Place, Suite 200
                                                 Youngstown, Ohio 44514




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                        -2-



Dated: March 25, 2010
[Cite as Staffrey v. Smith, 2010-Ohio-1296.]
DONOFRIO, J.

        {¶1}     Plaintiff-appellant, Kristen Staffrey, appeals from a Mahoning County
Common Pleas Court, Juvenile Division decision modifying the child support order for
the child she shares with defendant-appellee, David Smith.
        {¶2}     The parties’ daughter was born on July 8, 2002.        The parties were
never married. Pursuant to an agreed judgment entry, a shared parenting plan was
put into effect in September 2005, which included a child support order for appellee.
        {¶3}     On February 15, 2007, appellee filed a motion to modify the shared
parenting agreement and to recalculate child support. At some point, appellant also
filed a motion to modify child support. The court sent the matter to mediation where
the parties reached a partial agreement.
        {¶4}     The matter then proceeded to a hearing before a magistrate.
Subsequently, the magistrate modified the shared parenting agreement as was
agreed to by the parties. He noted that as to the modification of support, he was yet
awaiting the parties’ financial information. So he set the matter for another hearing
solely on the issue of support modification.
        {¶5}     The magistrate held another hearing on October 15, 2008.             The
magistrate found that the parties had stipulated to certain financial information for
purposes of the child support worksheet.          He found that appellant is voluntarily
underemployed. Therefore, he imputed annual income of $14,560 to appellant. He
found that appellee has a total annual income of $43,126. The magistrate gave
consideration to three deductions for appellee: (1) yearly union dues of $156; (2)
local taxes of $1,342; and (3) medical insurance for the child of $648 annually. Given
these findings, the magistrate completed a child support worksheet and found that
appellee was to pay $456.65 per month in child support.
        {¶6}     Appellant filed objections to the magistrate’s decision. Specifically, she
asserted that the magistrate (1) incorrectly determined the amount of appellee’s
annual income from his employment with the Mahoning County Sheriff’s Office, (2)
incorrectly determined the amount of appellee’s additional income, (3) incorrectly
determined the amount of the marginal out-of-pocket cost incurred by appellee to
insure the child, and (4) incorrectly imputed income to her.
                                                                              -2-


      {¶7}   The trial court held a hearing on appellant’s objections. It found that
appellee’s earnings with the Tamarkin Company, aka Giant Eagle, had been imputed
by the magistrate. It noted that the parties disputed the amount of these earnings.
Therefore, the trial court subpoenaed and received appellee’s W2 forms from
Tamarkin. It then used this information in rendering its decision. The court further
found that the magistrate’s decision was clear that the income imputed to appellant
was an amount stipulated to by the parties. Additionally, it found that based on the
magistrate’s findings of fact, appellant was voluntarily underemployed and the
magistrate properly imputed minimum wage income to her. The court then used the
child support worksheet and found that appellee’s child support obligation was
$395.94 per month.
      {¶8}   Appellant next filed a “targeted” request for findings of fact and
conclusions of law on three points. In response, the trial court issued a judgment
entry addressing these three points.
      {¶9}   First, it stated that it used $28,918.44 as appellee’s income on line 1(A)
of the child support worksheet because it issued subpoenas to appellee’s employers
and attached copies of the responses to its judgment entry.           The court then
calculated appellee’s income based on the responses and reached a total of
$28,918.44. Second, the court stated that it took judicial notice of the out-of-pocket
cost for health insurance to cover the child because appellee’s insurance provider is
the same provider for the court. The court calculated the insurance cost to be $648.
Third, the court stated that it determined appellant was voluntarily underemployed
based on the stipulated facts outlined in the magistrate’s decision and also noted that
appellant was only employed during the summer. It stated that case law does not
exist to support the credit of taxes on imputed income for child support determination.
It went on to note, however, that even if it did assess taxes, the taxes would be only
$400.40. The court noted that such a tax credit would not have a significant impact
on child support.    Finally, the court modified appellee’s monthly child support
obligation to $399.78.
      {¶10} Appellant filed a timely notice of appeal on June 11, 2009.
                                                                               -3-


       {¶11} Appellant raises four assignments of error, the first of which states:
       {¶12} “THE TRIAL COURT ERRED IN COMPUTING APPELLEE’S CHILD
SUPPORT OBLIGATION BECAUSE IT DID NOT USE HIS ACTUAL GROSS
INCOME.”
       {¶13} Appellant argues that the trial court did not calculate appellee’s income
correctly. She asserts that appellee’s total income is $35,518.47. She reaches this
figure by adding:    (1) $30,605.86 from the Mahoning County Sheriff’s Office as
reported on appellee’s 2008 W2; (2) $4,357.61 from the City of Campbell as reported
on appellee’s 2008 W2; and (3) $555 from the Tamarkin Company as reported on
appellee’s 2008 W2.
       {¶14} Based on the alleged miscalculation, appellant asks that we remand
this matter so that the trial court can correct appellee’s income and recalculate child
support based on an income of $35,518.47.
       {¶15} In reviewing matters concerning child support, appellate courts look at
whether the trial court abused its discretion. Booth v. Booth (1989), 44 Ohio St.3d
142, 144. Abuse of discretion connotes more than an error of law or judgment; it
implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
       {¶16} Appellee’s W-2s, which the trial court relied on, are in the record. They
reflect the following for his 2008 wages.
       {¶17} From his employment at the Tamarkin Company, appellee earned
$555. From his employment with the City of Campbell, appellee earned $4,357.61.
On both of these W-2s, appellee’s “Wages, tips, other compensation” located in Box
1 are identical to his “Medicare wages and tips” located in Box 5. There is no dispute
surrounding these wages.
       {¶18} From appellee’s employment with the Mahoning County Sheriff’s Office,
his wages as listed in Box 1 are $26,635.49. His wages as listed in Box 5 are
$30,605.86. This is where the confusion arises. Appellant claims appellee’s income
from Mahoning County is $30,605.86, the figure listed in Box 5 as “Medicare wages
and tips.” The trial court however, apparently used $26,635.49 as appellee’s income,
                                                                              -4-


which is the figure listed in Box 1 as “Wages, tips, other compensation.” To this
figure, the trial court apparently added two other items.
       {¶19} Box 14 on the W-2 is simply titled “Other.”        Box 14 typically lists
nontaxable earned income and includes such things as health insurance premiums
and union dues. Appellee’s Box 14 includes four items: (1) “Co-Pa” of $1,282.95; (2)
“Cloth” of $1,000; (3) “Union” of $468.72; and (4) “PERS” of $1,889.15.             The
calculations reveal that the trial court added the amounts from “Co-Pa,” which is
appellee’s health care premium, and from “Cloth,” presumably appellee’s clothing
allowance, to his wages as listed in Box 1 in order to calculate his income from
Mahoning County. When we add these figures to appellee’s income listed in Box 1,
we get the trial court’s total for annual gross income as listed on the child support
worksheet and in its findings of fact ($26,635.49 + $1,282.95 + $1,000 = $28,918.44).
It appears then that the trial court did not add the amounts for “Union” and “PERS.”
       {¶20} R.C. 3119.01(C)(5) defines “income” for purposes of calculating a fully
employed parent’s child support obligation as “the gross income of the parent.”
       {¶21} R.C. 3119.01(C)(7) describes what is and what is not “gross income:”
       {¶22} “‘Gross income’ means, except as excluded in division (C)(7) of this
section, 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 * * *; commissions; royalties; tips; rents;
dividends; severance pay; pensions; interest; trust income; annuities; social security
benefits, including retirement, disability, and survivor benefits that are not means-
tested; workers' compensation benefits; unemployment insurance benefits; disability
insurance benefits; benefits that are not means-tested and that are received by and
in the possession of the veteran who is the beneficiary for any service-connected
disability * * *; spousal support actually received; and all other sources of income.
“Gross income” includes income of members of any branch of the United States
armed services * * *; self-generated income; and potential cash flow from any source.
       {¶23} “‘Gross income’ does not include any of the following:
       {¶24} “* * *
                                                                                 -5-


       {¶25} “(d) Amounts paid for mandatory deductions from wages such as union
dues but not taxes, social security, or retirement in lieu of social security.” (Emphasis
added.)
       {¶26} Pursuant to the statutory definition, “gross income” specifically includes
all earned and unearned income from all sources whether or not the income is
taxable.
       {¶27} “[T]he purposes underlying the Internal Revenue Code and the child
support guidelines are vastly different. The tax code permits or denies deduction from
gross income based on myriad economic and social policy concerns which have no
bearing on child support. The child support guidelines in contrast are concerned
solely with determining how much money is actually available for child support
purposes. To this end, R.C. 3113.215(A)(2) [former support statute] includes
nontaxable income in “gross income” for purposes of calculating child support. This
recognized the economic reality that all money earned by a parent, irrespective of its
taxability, is in fact income to that parent.” Helfrich v. Helfrich (Sept. 17, 1996), 10th
Dist. No. 95APF12-1599.
       {¶28} When a trial court calculates a parent’s income for purposes of
determining child support, it must verify the income “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 the tax returns.”         R.C. 3119.05(A).     “Although
federal and state tax documents provide a proper starting point to calculate a
parent’s income, they are not the sole factor for the trial court to consider.” Jajola v.
Jajola, 8th Dist. No. 83141, 2004-Ohio-370, at ¶14, citing Foster v. Foster, 150 Ohio
App.3d 298, 2002-Ohio-6390; Houts v. Houts (1995), 99 Ohio App.3d 701, 706.
       {¶29} In this case, appellee’s W2’s were the only evidence the trial court had
before it of appellee’s income. There is no transcript of any other evidence before us.
Furthermore, in the magistrate’s decision he notes that appellee failed to appear at
the pretrial conference where the parties, through counsel, entered a few stipulations.
                                                                                 -6-


And the trial court indicated in its May 12, 2009 judgment entry that it calculated
appellee’s income based on the subpoenaed information from appellee’s employers.
       {¶30} Consequently, in this case the court should have considered appellee’s
Medicare wages as evidence of his gross income because these wages, although
not taxable in their entirety, were earned income.
       {¶31} Accordingly, appellant’s first assignment of error has merit.
       {¶32} Appellant’s second assignment of error states:
       {¶33} “THE TRIAL COURT ERRED IN COMPUTING APPELLEE’S CHILD
SUPPORT       OBLIGATION        BECAUSE        IT    MISCALCULATED         APPELLEE’S
MARGINAL OUT-OF-POCKET COST TO PROVIDE NECESSARY HEALTH
INSURANCE FOR THE MINOR CHILD.”
       {¶34} In its judgment entry in response to appellant’s targeted request for
findings of fact, the trial court stated that it took judicial notice of the out-of-pocket
cost for health insurance to cover the child because appellee’s insurance provider is
the same provider for the court. The court found the yearly cost to be $648.
       {¶35} Here appellant argues that the trial court incorrectly used its own figure
for the marginal out-of-pocket cost to provide healthcare for the child. Appellant
states that it subpoenaed the personnel director for the Mahoning County Sheriff’s
Office to provide the cost of insuring the child who responded that the cost was
$49.50 per month, or $594 annually. Appellant contends that the parties stipulated to
this figure when counsel appeared at a magistrate’s conference on October 15, 2008.
She points to her counsel’s affidavit filed with the trial court on December 18, 2008.
This figure, appellant contends, was never disputed by appellee.
       {¶36} Appellant argues that the trial court could not take judicial notice of the
cost of insuring the child. Firstly, she asserts that this is not the type of fact that a
court can take judicial notice of because it does not fit into one of the categories
listed in Evid.R. 201(B). Secondly, she asserts that the cost of health insurance was
not at issue because the parties had stipulated to this fact. Therefore, appellant
argues that the court abused its discretion by taking judicial notice of a fact that
contradicted the actual evidence.
                                                                                     -7-


        {¶37} “A judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of the trial court
or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”            Evid.R. 201(B).     A court may take
judicial notice of fact whether or not it is requested by a party. Evid.R. 201(C).
        {¶38} Clearly, the cost to insure the parties’ daughter under appellee’s health
insurance is not a generally known fact. A judge may not take judicial notice of facts
just because the judge has personal knowledge of a fact. And whether it is capable
of accurate and ready determination is questionable. The court stated that because
appellee’s insurer is the same as the court’s insurer, the court was able to calculate
the cost of appellee’s out-of-pocket cost for health insurance for his daughter. Even
though the court and appellee may have the same health insurance provider, the
terms of their health insurance plans may not be the same.                   Their costs for
dependents may vary based on the plans that each may have. Both the judge and
appellee are Mahoning County employees. However, it does not seem that this fact
conclusively means that they have the identical health care plans with identical terms
and identical costs for insuring dependents.
        {¶39} Also, the parties had already stipulated to the out-of-pocket health care
cost.
        {¶40} In support of her objections, appellant’s counsel filed his affidavit in
compliance with Civ.R. 53(D)(3)(b)(iii), which provides that objections to a
magistrate’s decision “shall be supported by a transcript of all the evidence submitted
to the magistrate * * * or an affidavit of that evidence if a transcript is not available.”
        {¶41} In his affidavit, appellant’s counsel stated that on October 15, 2008, he
and appellee’s counsel met with the magistrate and agreed to certain stipulations.
(English Aff. ¶¶2, 4).       He further averred that this meeting occurred in the
magistrate’s chambers and was not recorded.               (English Aff. ¶8).     One of the
stipulations agreed to by the parties was that the magistrate could use the records
counsel had subpoenaed from appellee’s employers. (English Aff. ¶¶5, 6). Counsel
attached these records to his affidavit. One of these records set out appellee’s out-
                                                                                  -8-


of-pocket cost for insuring his daughter. (English Aff. Ex. A). Relying on the figure in
this agreed-to exhibit reflects that appellee’s out-of-pocket cost for insuring his
daughter is $49.50 per month or $594 per year, as stated by appellant. Appellee
never rebutted the statements in appellant’s counsel’s affidavit by way of filing his
own affidavit of the evidence.
       {¶42} Accordingly, appellant’s second assignment of error has merit.
       {¶43} Appellant’s third assignment of error states:
       {¶44} “THE TRIAL COURT ERRED IN COMPUTING APPELLEE’S CHILD
SUPPORT OBLIGATION BECAUSE IT ERRED IN FINDING THAT THE PARTIES
HAD STIPULATED THAT APPELLANT WAS VOLUNTARILY UN[der]EMPLOYED.”
       {¶45} Appellant argues here that the court mistakenly concluded that the
parties stipulated before the magistrate that appellant was underemployed.              She
asserts that the parties never entered such a stipulation. Appellant further notes that
the magistrate did not state a factual basis for his finding that she was
underemployed, nor was any evidence presented on this point. Appellant contends
that the trial court mistakenly read the magistrate’s finding of fact on the issue to
mean that the parties stipulated to her underemployment. Appellant argues that,
because no evidentiary hearing was held, no evidence that she is underemployed
exists on the record, and there is uncontroverted evidence that the parties never
entered a stipulation on this issue, the trial court abused it discretion in finding to the
contrary.
       {¶46} Whether a parent is voluntarily underemployed is a matter within the
trial court’s discretion. Rock v. Cabral (1993), 67 Ohio St.3d 108. Thus, we will not
reverse a trial court’s determination that a parent is voluntarily underemployed unless
we find that the court abused its discretion in reaching that decision. Id.
       {¶47} In his affidavit, appellant’s counsel stated that he did not stipulate that
appellant is voluntarily underemployed. (English Aff. ¶9). He also stated that he
stipulated to appellant’s most recent pay stub and tax return.          (English Aff. ¶9).
These documents revealed that appellant earned $2,134 in 2007 and would earn
$1,222 in 2008. (English Aff. ¶9). This is the only evidence in the record regarding
                                                                             -9-


appellant’s employment and income. As noted above, there is no transcript of the
hearing before the magistrate and appellee did not even appear for the hearing.
       {¶48} The court states in its April 9, 2009 judgment that even if the parties
had not stipulated to appellant’s underemployment, the evidence nonetheless
demonstrated that she was in fact underemployed:
       {¶49} “The Court finds that the Magistrate’s Decision is clear that the imputed
income was an amount stipulated to by the parties. Further, that the [sic.] based
upon the Magistrate’s Findings of Fact, the mother was voluntarily underemployed
and that the Magistrate properly imputed her wages at minimum wage for at [sic.]
total of $14,560.00 annually.”
       {¶50} Thus, the court makes clear that regardless of any stipulation, it
determined that appellant was underemployed. What the magistrate and the court
failed to consider, however, is the burden of proof on this issue.
       {¶51} When one parent claims that the other parent is voluntarily
underemployed, the parent making this claim has the initial burden of proof. Caldwell
v. Caldwell, 9th Dist. Nos. CA2008-02-019, CA2008-03-021, 2009-Ohio-2201, at ¶53.
Once the parent making the voluntary underemployment claim has met this burden,
the burden shifts to the underemployed parent to show that he or she is working at
his or her potential. Trenkamp v. Trenkamp (Dec. 1, 2000), 10th Dist. No. C-000203.
       {¶52} In this case, appellee never met his initial burden of proof. There is no
evidence of record that appellee presented to demonstrate that appellant is
voluntarily underemployed. In fact, the only “evidence” of record that we have on this
issue is appellant’s counsel’s affidavit stating that he never stipulated to
underemployment.       And while appellant’s counsel did stipulate to appellant’s low
income for the previous two years, there is no evidence to suggest that this income
necessarily equates to underemployment. Because there was no stipulation and
there was no evidence of underemployment, appellee did not meet his burden of
proof on this issue.
       {¶53} Consequently, the trial court’s decision to find that appellant was
voluntarily underemployed was an abuse of discretion.
                                                                                - 10 -


       {¶54} Accordingly, appellant’s third assignment of error has merit.
       {¶55} Given our resolution of appellant’s third assignment of error, her fourth
assignment of error is moot. It states:
       {¶56} “ASSUMING THAT THE TRIAL COURT VALIDLY IMPUTED INCOME
TO     THE      APPELLANT        DUE      TO      HER      ALLEGED       ‘VOLUNTARY
UNDEREMPLOYMENT,’ THE TRIAL COURT ERRED BECAUSE IT FAILED TO
GIVE APPELLANT CREDIT FOR LOCAL TAXES SHE WOULD HYPOTHETICALLY
HAVE TO PAY ON THE LOCAL INCOME WHICH WAS HYPOTHETICALLY
IMPUTED TO HER.”
       {¶57} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded so that the trial court can recalculate appellee’s
child support obligation pursuant to law and consistent with this court’s opinion.


Vukovich, P.J., concurs.
DeGenaro, J., concurs.
