[Cite as Yant v. Roebuck, 2017-Ohio-2591.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PUTNAM COUNTY




ALIVEA YANT,

        PLAINTIFF-APPELLEE,                              CASE NO. 12-16-14

        v.

AARON D. ROEBUCK,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Putnam County Common Pleas Court
                               Juvenile Division
                           Trial Court No. 20154061

                                     Judgment Affirmed

                             Date of Decision:   May 1, 2017



APPEARANCES:

        Shannon A. McAlister for Appellant

        Gregory J. Hermiller for Appellee
Case No. 12-16-14


ZIMMERMAN, J.

       {¶1} Defendant-appellant Aaron D. Roebuck (“Roebuck”) brings this appeal

from the September 20, 2016 judgment entry, and subsequent entries, from the

Putnam County Common Pleas Court, Juvenile Division, granting Plaintiff-appellee

Alivea Yant (“Yant”) child support for the parties’ minor child, A.Y.

                      Relevant Facts and Procedural History

       {¶2} On September 8, 2014, Yant gave birth to A.Y.

       {¶3} On November 2, 2015 a Complaint to Determine Father-Child

Relationship was filed by the Putnam County Child Support Enforcement Agency

on behalf of Yant. The Complaint alleged Roebuck to be the father of A.Y. and

requested that he submit to genetic testing.

       {¶4} On December 12, 2015 Roebuck filed an Answer to the Complaint.

Ultimately, genetic test results were filed in the trial court establishing Roebuck to

be the biological father of A.Y. (Doc. 3).

       {¶5} The case proceeded to a child support hearing on July 27, 2016,

wherein, by agreement of the parties, the Putnam County Child Support

Enforcement Agency was excused from the case and Yant moved forward, with

separate counsel, on the agency’s Complaint. At the hearing, Roebuck consented

to a finding of paternity. (Tr. Pg. 4) and testified he had been employed by Radio

Hospital but his employment was terminated in November of 2015. (Tr. Pg. 72).


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       {¶6} Yant testified that she voluntarily left her full-time employment as a

health care aid and became a full-time student effective January of 2015. (Tr. Pg.

34-36).

       {¶7} Roebuck’s income evidence presented to the trial court revealed that he

earned $19,363.93 in 2013, $37,718.59 in 2014, $22,857.53 in 2015 and nothing in

2016. Yant’s income evidence revealed that she earned $12,269.00 in 2013,

$3,557.00 in 2014, $8,266.00 in 2015 and nothing in 2016. (Plaintiff’s Exhibits A-

F).

       {¶8} On September 20, 2016 the trial court filed its decision and judgment

entry on child support for A.Y. (Doc. 4). However, the entry did not include a child

support worksheet and failed to direct either party to pay child support.

Subsequently, a child support worksheet was filed on October 11, 2015. (Doc. 5).

       {¶9} On October 19, 2016 Roebuck filed his first Notice of Appeal with this

Court, which was ultimately dismissed for lack of jurisdiction, due to the failure of

the trial court to order either party to pay child support.

       {¶10} On November 10, 2016, the trial court filed its judgment entry

ordering Roebuck to pay Yant child support in the amount of $334.42 per month

plus a 2% administration fee.

       {¶11} It is from these entries, collectively, that Roebuck appeals, asserting

the following assignments of error for our review.


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                       FIRST ASSIGNMENT OF ERROR

         THE TRIAL COURT COMMITTED AN ERROR BY FAILING
         TO MAKE SUFFICIENT FINDINGS FOR APPELLANT TO
         RAISE ASSIGNMENTS OF ERROR.

                      SECOND ASSIGNMENT OF ERROR

         THE TRIAL COURT COMMITTED AN ERROR OF LAW IN
         CALCULATING MINIMUM WAGE.

                       THIRD ASSIGNMENT OF ERROR

         THE TRIAL COURT COMMITTED ERROR AND ABUSED
         ITS DISCRETION WHEN IT FOUND THE APPELLANT TO
         BE VOLUNTARILY UNEMPLOYED.

                     FOURTH ASSIGNMENT OF ERROR

         THE TRIAL COURT COMMITTED ERROR AND ABUSED
         ITS DISCRETION IN DETERMINING THE APPELLANT’S
         GROSS INCOME.

                       First and Second Assignments of Error

         {¶12} Roebuck’s first two assignments of error address the imputation of

minimum wage (to Yant) by the trial court. Accordingly, we will address these

assignments of error together, starting with Roebuck’s second assignment of error

first.

         {¶13} In his second assignment of error, Roebuck argues the trial court

committed error in calculating minimum wage. Specifically, Roebuck contends the

trial court committed “an error of law” when it imputed minimum wage in the

amount of $15,080 to Yant.

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                                 Standard of Review

       {¶14} At the outset it appears to us that Roebuck’s terminology of “error of

law” suggests that the trial court committed plain error in imputing the sum of

$15,080 as minimum wage. In Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-

Ohio-401, the Supreme Court of Ohio addressed the application of the plain error

doctrine in civil matters, stating “[i]n applying the doctrine of plain error in a civil

case, reviewing courts must proceed with the utmost caution, limiting the doctrine

strictly to those extremely rare cases where exceptional circumstances require its

application to prevent a manifest miscarriage of justice”. Thus, “appellate courts

must proceed * * * only * * * where the error seriously affects the basic fairness,

integrity, or public reputation of the judicial process itself”. Skydive Columbus

Ohio, L.L.C. v. Litter, 10th Dist. Franklin No. 09AP-563, 2010-Ohio-3325, ¶13,

citing Unifund CCR Partners v. Hall, 10th Dist. Franklin No. 09AP-37, 2009-Ohio-

4215, ¶22, quoting Goldfuss at 121. “Indeed, the plain error doctrine implicates

errors in the judicial process where the error is clearly apparent on the face of the

record and is prejudicial to the appellant”. Skydive Columbus, citing Reichert v.

Ingersoll, 18 Ohio St.3d 220 (1985).

       {¶15} Thus, we reject using plain error as the standard of review as child

support decisions are within the discretion of the trial court and will not be disturbed

without an abuse of discretion. Marek v. Marek, 158 Ohio App.3d 750, 2004-Ohio-


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5556, citing Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus. An abuse of

discretion is “more than an error of law or judgment, it implies the court’s attitude

is unreasonable, arbitrary or unconscionable”. Marek, quoting Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

                                      Analysis

       {¶16} Because the trial court imputed an amount inconsistent with Ohio’s

prevailing minimum wage, we must now analyze whether the trial court’s action

amounted to abuse of discretion. In the present matter, Roebuck contends the

following language in the trial court’s September 20, 2016 entry amounts to error:

       “imputation of minimum wage pursuant to ORC 3119(C)(11) is
       appropriate. Accordingly Plaintiff shall have income imputed in
       the amount of $15080 annually”.

(Doc. 37 Pg. 6).

We note that at the time of the September 20, 2016 entry, the prevailing minimum

wage in Ohio was $8.10 an hour, or $16,848 annually based on a 40-hour work

week. However, at such time, the Federal minimum wage was $7.25 per hour, or

$15,080 annually. Thus, we must determine whether the trial court committed an

error by imputing the Federal minimum wage amount as opposed to the Ohio

minimum wage.

       {¶17} In reviewing the record, we find the trial court properly applied R.C.

3119.01(C)(11)(a) when imputing a minimum wage to Yant. In our review of R.C.


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3119.01(C)(11)(a)(i)-(xi), we find no restrictions for a trial court to impute income

to a parent using minimum wage pursuant to Federal minimum wage standards.

Further, Roebuck presents no authority suggesting such use of the Federal minimum

wage standard by the trial court is improper. Thus, we find the trial court’s use of

Federal minimum wage was not an abuse of discretion in this case as it represents

an ascertainable and acceptable standard of minimum wage.              Accordingly,

Roebuck’s second assignment of error is overruled.

       {¶18} As to the first assignment of error, Roebuck argues that the trial court

failed to make specific findings in its determination as to the minimum wage it used.

However, the record before us is clear that Roebuck never requested written findings

of the trial court pursuant to Civ.R. 52. Civ. R. 52 provides as follows:

       When questions of fact are tried by the court without a jury,
       judgment may be general for the prevailing party unless one of
       the parties in writing requests otherwise before the entry of
       judgment pursuant to Civ. R. 58, or not later than seven days after
       the party filing the request has been given notice of the court’s
       announcement of its decision, whichever is later, in which case,
       the court shall state in writing the findings of fact found
       separately from the conclusions of law.

       ***

       {¶19} “A party that fails to request findings of fact pursuant to Civ.R. 52

faces an uphill burden of demonstrating that a judgment is against the manifest

weight of the evidence”. O’Brien v. O’Brien, 12th Dist. Butler CA2009-11-289,

2010-Ohio-3258 (2010).

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       {¶20} Here, because Roebuck failed to request that the trial court make

findings of fact and conclusions of law under Civ.R. 52 the trial court was not

required to include specific findings of fact to support its imputed income of

minimum wage.

       {¶21} Accordingly, Roebuck’s first assignment of error is overruled.

                      Third and Fourth Assignments of Error

       {¶22} In his third and fourth assignments of error, Roebuck claims the trial

court committed error and abused its discretion when 1) it found Roebuck to be

voluntarily unemployed and 2) in its determination of Roebuck’s gross income for

child support purposes. Specifically, Roebuck questions the trial court’s factual

determination finding him voluntarily unemployed and its refusal to impute

minimum wage for his 2016 income.

                                 Standard of Review

       {¶23} Decisions regarding the award of child support are within the

discretion of the trial court and will not be disturbed without an abuse of discretion.

Marek, supra. An abuse of discretion is “more than an error of law or judgment, it

implies the court’s attitude is unreasonable, arbitrary or unconscionable”. Marek,

quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).




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                    R.C. 3119.01(C)(5) and R.C. 3119.01(C)(11)

      R.C. 3119.01(C)(5) provides:

      (5) “Income means either of the following:

             a) For a parent who is employed to full capacity, the gross
             income of the parent;

             b) For a parent who is unemployed or underemployed,
             the sum of the gross income of the parent and any potential
             income of the parent.

      R.C. 3119.01(C)(11) defines potential income as follows:

      (11)    “Potential income” means both of the following for a
              parent who the court pursuant to a court support order, or
              a child support enforcement agency pursuant to an
              administrative child support order, determines is
              voluntarily unemployed or voluntarily underemployed:

              a) 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;


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                   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.

              b)    Imputed income * * *

                                     Analysis

       {¶24} In considering Roebuck’s arguments that the trial court erred in

determining he was voluntarily unemployed and by imputing his income, we note

that “R.C. 3119.01(C)(11)(a) authorizes a court to impute income to a parent whom

the court finds is voluntarily underemployed, for purposes of calculating child

support.” Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 2008-Ohio-

4887, ¶14. “[W]hether a parent is voluntarily (i.e. intentionally) unemployed or

voluntarily underemployed is a question of fact for the trial court. Absent an abuse

of discretion that factual determination will not be disturbed on appeal.” Rock,

supra, at 112. The term “abuse of discretion” means 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).

       {¶25} In calculating child support, a trial court must determine the annual

income of 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”.




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R.C. 3119.01(C)(5)(b). R.C. 3119.01(C)(11) provides the definition of “potential

income”, which is set forth above.

       {¶26} Before a trial court can impute income to a parent, it must first find

that the parent is voluntarily unemployed or underemployed.          McLaughlin v.

Kessler, 12th Dist. Fayette No. CA2011-09-021, 2012-Ohio-3317, ¶13. In deciding

if an individual is voluntarily underemployed “[t]he test is not only whether the

change was voluntary, but also whether it was made with due regard to the obligor’s

income-producing abilities and her or his duty to provide for the continuing needs

of the child or children concerned”. Woloch v. Foster, 98 Ohio App.3d 806, at 811.

       {¶27} Roebuck contends that the trial court erred and abused its discretion in

finding him to be voluntarily unemployed, arguing he was unable to secure new

employment despite reasonable efforts. (Tr. Pg. 73-98). We disagree.

       {¶28} The trial court conducted its review of the required child support

statutes as to whether or not Roebuck was voluntarily unemployed and as to his

potential income. The trial court found that Roebuck’s lack of employment was

primarily associated with his voluntary decision to provide care for his two children

(from another relationship) in lieu of working full time. When questioned, Roebuck

testified as follows in regards to this issue:




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       Q.   (Mr. Hermiller)      Okay. And tell the Court about your
            pursuit of employment what all have you done?

       A.   (Roebuck)       Really what I’ve been looking for is something
            that I can work around their schedule, because their child care’s
            expensive.

(Tr. Pg. 72-73).

and

       Q.   (Mr. Hermiller)        And where all have you applied?

       A.   I have applied at Sprint. I have applied at AT&T. I have applied
            with actual Verizon, over at Verizon. I’ve applied at Best One
            Tire. I’ve applied at, I mean I could go on all day.

       Q.   And what has been the result of those applications or that
            process?

       A.   Typically it’s a schedule conflict as to where when [sic] I was
            with Radio Hospital, I was able to pretty much mold my schedule
            around my kids because I was the manager.

       Q.   So when you say there’s a schedule conflict, then some of the
            positions have offered you employment but the hours weren’t
            appropriate?

       A.   With the pay, probably not.

(Tr. Pg. 73-74).

       Pursuant to this evidence regarding Roebuck’s decision not to work, the trial

court found him voluntarily unemployed by stating:

       “While it is admirable that the Defendant chooses to care for two of
       his children, he cannot be permitted to favor those two over the other
       because of the nature of the relationship in which they were
       conceived. It is clear that the Defendant is prioritizing his ability to

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       personally care for this first two children over his obligation to support
       his third. In making this his priority he has established himself as
       voluntarily unemployed”.

(Doc. 37).

       {¶29} In our review of the record, we find the trial court reviewed and

considered the appropriate statutory factors in determining that Roebuck was

voluntarily unemployed.       The trial court analyzed Roebuck’s employment

experience, availability of work in his geographic location, his education as well as

his special skills and training to earn the potential income that it imputed. Thus, the

trial court did not abuse its discretion in determining Roebuck was voluntarily

unemployed as competent and credible evidence exists in the record in support of

the same.

       {¶30} Roebuck further argues that the evidence introduced at trial does not

support the trial court’s finding of the gross income it attributed to him. More

specifically, Roebuck argues that the trial court erred when it used the average of

the years 2013, 2014 and 2015 to calculate his potential income, and disregarded

his zero income for 2016.

       {¶31} In determining Roebuck’s imputed income, the trial court again

considered the statutory factors relying upon R.C. 3119.05(H), which provides:

       “When the court or agency calculates gross income, the court or
       agency, when appropriate, may average income over a reasonable
       number of years”.


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The trial court chose to use Roebuck’s incomes for 2013, 2014 and 2015, but not

2016, stating:

        “The Court disregards his zero income for 2016 (a year for which
        minimum wage of $15080 would be imputed) because indulging this
        year would allow him to benefit from his decision to be unemployed.”

(Doc. 37). Accordingly, the trial court’s child support award was based upon the

average of Roebuck’s actual income from 2013, 2014 and 2015 to determine his

potential income to be $26,646.681 which is reasonable considering that Roebuck

voluntarily chose not to work in 2016.

        {¶32} Viewing the evidence as a whole, we are not convinced that the trial

court abused its discretion by finding Roebuck voluntarily unemployed. Moreover,

we find the imputation of income calculated by the trial court to be appropriate. As

such, we overrule Roebuck’s third and fourth assignments of error.

        {¶33} Having found no error prejudicial to the appellant herein in the

particular assignments of error, we affirm the judgment of the trial court.

                                                                               Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.

/jlr



1
  The trial court averaged Roebuck’s 2013, 2014 and 2015 income as provided in Exhibits D, E and F as
follows:
          Income for 2013 $19,363.93
          Income for 2014 $37,718.59
          Income for 2015 $22,857.53
          Total            $79,940.05
          $79,940.05 ÷ 3 = $26,646.68

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