[Cite as Hoch v. Carr, 2012-Ohio-1445.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

ALLISON HOCH                                         C.A. No.       26097

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BRYAN H. CARR                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2007-12-3926

                                DECISION AND JOURNAL ENTRY

Dated: March 30, 2012



        DICKINSON, Judge.

                                          INTRODUCTION

        {¶1}    Allison Hoch and Bryan Carr divorced in January 2008 after seven years of

marriage. They have two minor children, one born in January 2003 and the other in April 2005.

In March 2009, Mr. Carr moved to modify the child support order. The parties agreed to submit

the issue to the trial court on written briefs and, in August 2010, a magistrate entered a decision

reducing Mr. Carr’s child support obligation from $1079 to $600. Ms. Hoch objected to the

magistrate’s decision, and, in August 2011, the trial court determined that Mr. Carr should pay

$882 per month in child support, retroactive to the date of his motion. Mr. Carr has appealed,

arguing that the trial court incorrectly failed to find that Ms. Hoch is voluntarily underemployed,

incorrectly cited facts not in evidence, and incorrectly failed to deviate from the child support

guidelines. We affirm because whether Ms. Hoch is voluntarily underemployed is an issue that

Mr. Carr could have raised at the time of the parties’ divorce and the trial court exercised proper
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discretion when it determined that a downward deviation in child support was not appropriate

under the facts of this case.

                                VOLUNTARILY UNDEREMPLOYED

       {¶2}    Mr. Carr’s first assignment of error is that the trial court incorrectly failed to find

that Ms. Hoch is voluntarily underemployed and, thus, impute income to her for purposes of the

court’s child support calculation. Under Section 3119.01(C)(5)(b) of the Ohio Revised Code, the

“[i]ncome” of a parent who is unemployed or underemployed is “the sum of the gross income of

the parent and any potential income of the parent.” “Whether a parent is ‘voluntarily

underemployed’ . . . and the amount of ‘potential income’ to be imputed to [her], are matters to

be determined by the trial court based upon the facts and circumstances of each case.” Rock v.

Cabral, 67 Ohio St. 3d 108, syllabus (1993). Whether a parent is voluntarily underemployed is a

question of fact that this Court reviews “for some competent, credible evidence.” Knouff v.

Walsh-Stewart, 9th Dist. No. 09CA0075, 2010-Ohio-4063, at ¶ 27. “The burden of proof is on

the parent who is claiming that the other is voluntarily underemployed.” Id.

       {¶3}    According to Mr. Carr, Ms. Hoch has been employed as a registered nurse for 10

years. He has asserted that, instead of seeking a full-time job, she works only 21.8 hours per

week, mainly from home. He has argued that, based on the high demand for registered nurses in

the area, she could be earning $61,000 or even $73,000 instead of $40,000, which is what she

earned in 2009. He has argued that the evidence that he submitted with his trial court brief

established that she is voluntarily underemployed.

       {¶4}    The doctrine of res judicata prevents this Court from considering an argument that

could have been, but was not, raised in prior litigation between the parties. Grava v. Parkman

Twp., 73 Ohio St. 3d 379, 382 (1995). Ms. Hoch presented evidence that was not disputed by
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Mr. Carr that she has been at her current position since 2005. The parties jointly filed for divorce

in 2007. Mr. Carr did not argue that Ms. Hoch was voluntarily underemployed at the time of

their divorce.

       {¶5}      Res judicata does not apply to the issue of voluntary underemployment if there

has been a change in circumstances regarding the parties’ ability to work. Woods v. Woods, 9th

Dist. No. 17935, 1997 WL 303660 at *7 (May 21, 1997) (concluding that res judicata did not

apply to voluntarily unemployed determination because father “was no longer precluded from

working due to his injured knee.”). In his brief to the trial court, Mr. Carr asserted that Ms. Hoch

accepted her current position with the reduced hours “[u]pon the birth of [their] second child.”

He argued, however, that, as of August 2010, “both children will attend school on a full time

basis.” He also relied on Justice v. Justice, 12th Dist. No. CA2006-11-134, 2007-Ohio-5186, a

case in which the Twelfth District Court of Appeals upheld the trial court’s determination that

Maureen Justice was voluntarily underemployed because she did not seek full-time employment

after the parties’ children started going to school full-time. Id. at ¶ 10.

       {¶6}      This Court has held that, “[if] a party moves to modify an existing child-support

order, . . . the trial court is limited to determining the child support obligation as of the time the

motion was filed.” Berthelot v. Berthelot, 154 Ohio App. 3d 101, 2003-Ohio-4519, ¶ 10 (9th

Dist.). Mr. Carr moved to modify the child support order in March 2009. At the time of his

motion, the parties’ youngest child was only 3 years old, still approximately 18 months away

from starting all-day kindergarten. We, therefore, conclude that, at the time Mr. Carr moved to

modify the support order, there had not been a change in circumstances sufficient to prevent the

doctrine of res judicata from applying to his claim that Ms. Hoch was voluntarily

underemployed. Upon review of the record, we conclude that, because Mr. Carr could have
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argued that Ms. Hoch was voluntarily underemployed at the time that the parties filed for divorce

and because there had not been a change of circumstances in the parties’ ability to work at the

time he filed his motion, Mr. Carr’s argument is barred by the doctrine of res judicata. See

Cramblett v. Cramblett, 7th Dist. No. 05 HA 581, 2006-Ohio-4615, at ¶ 36 (concluding that

doctrine of res judicata barred father’s argument that wife was voluntarily underemployed);

Petralia v. Petralia, 11th Dist. No. 2002-L-047, 2003-Ohio-3867, at ¶ 18 (similar). Mr. Carr’s

first assignment of error is overruled.

                                          IMPROPER FACTS

       {¶7}    Mr. Carr’s second assignment of error is that the trial court incorrectly considered

facts not in evidence when it determined whether Ms. Hoch was voluntarily underemployed.

Because Mr. Carr’s voluntary underemployment argument was barred by the doctrine of res

judicata, we conclude that any reference by the trial court to facts not in evidence regarding its

determination of that issue was harmless error. Civ. R. 61. Mr. Carr’s second assignment of

error is overruled.

                                 CHILD SUPPORT DEVIATION

       {¶8}    Mr. Carr’s third assignment of error is that the trial court incorrectly failed to

order a deviation in child support. He has argued that it was appropriate for the court to deviate

from the worksheet calculation because he has equal parenting time with Ms. Hoch, including

50% of the time that the children are awake each week, every other weekend, and 50% of the

summer. He has also argued that he bears an equal financial responsibility for the day-to-day

costs of raising the children, including the cost of a home, meals, medical expenses, dental

expenses, entertainment, and enrichment activities. He has further argued that he is responsible

for maintaining separate clothing and necessities for the children.
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       {¶9}    At the time the parties divorced, they agreed to shared parenting. If a court that

has issued a shared parenting order concludes that a child support order based on a calculation

under the standard schedule and worksheet “would be unjust or inappropriate to the children or

either parent and would not be in the best interest of the child because of the extraordinary

circumstances of the parents or because of any other factors or criteria set forth in section

3119.23 of the Revised Code, the court may deviate from that amount.” R.C. 3119.24(A). “For

the purposes of [Section 3119.24(A)], ‘extraordinary circumstances of the parents’ includes all of

the following: (1) [t]he amount of time the children spend with each parent; (2) [t]he ability of

each parent to maintain adequate housing for the children; (3) [e]ach parent’s expenses,

including child care expenses, school tuition, medical expenses, dental expenses, and any other

expenses the court considers relevant; [and] (4) [a]ny other circumstances the court considers

relevant.” R.C. 3119.24(B). This Court has held that, although Section 3119.24(A) gives a court

discretion to deviate from the amount of child support calculated by the schedule and worksheet,

it must consider the circumstances listed in Section 3119.24(B) before it may do so. Irish v.

Irish, 9th Dist. No. 10CA009810, 2011-Ohio-3111, ¶ 17. It may also consider the factors listed

in Section 3119.23. Id. at ¶ 18.

       {¶10} The trial court noted that Mr. Carr has companionship time with the parties’

children in accordance with the standard parenting time schedule except that he has two

midweek evening visits instead of one and has the children for half of their summer break instead

of four weeks. It found that, although that was more time than usual, the increase did not

constitute an equal distribution of the children’s time to each parent. It also found that, given the

disparity in the parties’ income, a downward deviation in child support was not warranted.
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       {¶11} Mr. Carr has argued that, if you do not include the time that the parties’ children

are sleeping or are in school, he has almost equal parenting time to Ms. Hoch. He has ignored

the fact that, at the time he moved to modify the support order, one of the children was not in

school. We also note that, according to the trial court’s child support worksheet, Mr. Carr’s

adjusted gross income was approximately $26,500 more than Ms. Hoch’s. After adjusting for

child support and taxes, the worksheet indicated that Mr. Carr’s cash to meet living expenses was

$44,419 and Ms. Hoch’s was $44,903, a monthly difference of $40. Considering that Ms. Hoch

has the children for a longer period of time each month than Mr. Carr, we conclude that the trial

court exercised proper discretion when it determined that the facts of this case did not present

extraordinary circumstances such that it would be unjust to order support under the standard

schedule and worksheet. Mr. Carr’s third assignment of error is overruled.

                                         CONCLUSION

       {¶12} Mr. Carr’s argument that Ms. Hoch is voluntarily underemployed is barred by the

doctrine of res judicata. The trial court exercised proper discretion by refusing to deviate

downward when it ordered child support. The judgment of the Summit County Common Pleas

Court, Domestic Relations Division, is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    CLAIR E. DICKINSON
                                                    FOR THE COURT



WHITMORE, P. J.
BELFANCE, J.
CONCUR


APPEARANCES:

MARY E. RANDAZZO, Attorney at Law, for Appellant.

EMILY M. HETE, Attorney at Law, for Appellee.
