[Cite as Gibson v. Arroyo, 2017-Ohio-333.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




DEBORAH GIBSON,                                    :

        Plaintiff-Appellee,                        :     CASE NO. CA2015-12-114

                                                   :          OPINION
    - vs -                                                     1/30/2017
                                                   :

ANTONIO ARTHUR ARROYO,                             :

        Defendant-Appellant.                       :



              APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                               Case No. 93-36142



Deborah Gibson, 5608 Zoar Road, Lot 37, Morrow, Ohio 45152, plaintiff, pro se

Antonio Arthur Arroyo, P.O. Box 861, Trenton, NJ 08625, appellant, pro se

David P. Fornshell, Warren County Prosecuting Attorney, Megan M. Davenport, 520 Justice
Drive, Lebanon, Ohio 45036, for Warren County Child Support Enforcement Agency



        PIPER, P.J.

        {¶ 1} Defendant-appellant, Antonio Arroyo, appeals a decision of the Warren County

Court of Common Pleas, Juvenile Division, denying his request to modify his child support

obligation.

        {¶ 2} Arroyo has a child with plaintiff-appellee, Deborah Gibson, and was ordered to
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pay child support after his parentage was established by the juvenile court in 1994. Arroyo is

currently an inmate at a prison in New Jersey serving a 30-year sentence for murder. The

record does not indicate when Arroyo's incarceration began, or when he is to be released,

though the record indicates that Arroyo was incarcerated at the time his parentage was

established.

       {¶ 3} In 2006, the Child Support Enforcement Agency ("CSEA") conducted an

investigation into Arroyo's child support account status. CSEA determined that Arroyo was in

arrears, and recommended a payment of $34.60 per month to satisfy the arrearage amount.

CSEA also recommended that Arroyo pay $172.99 per month in child support. In total, and

taking into account the arrearage amount, the monthly child support order, and a two percent

processing charge, the trial court ordered Arroyo to pay $211.74 per month. However, the

total arrearage amount was not included in the trial court's order, nor was there any indication

at what point the arrearage payment of $34.60 per month would cease.

       {¶ 4} In 2011, Arroyo's child was emancipated, and the trial court adopted a

recommendation from CSEA that Arroyo's child support obligation terminate. However, it

appears that Arroyo's arrearage amount had not been satisfied, and he continued to have

monthly payments deducted from his prison income. The record indicates that Arroyo's

income from his inmate job assignment is $90 per month, $75 of which is deducted to pay his

court-ordered arrearage payment. The other $15 of Arroyo's income is made available to

Arroyo by the prison as a discretionary spending reserve.

       {¶ 5} In 2015, Arroyo moved the juvenile court to reduce/suspend his arrearage

payment until he is released from prison, claiming he is unable to live on $15 per month. The

juvenile court denied Arroyo's motion, finding that reducing/suspending Arroyo's child support

obligation until his release would be unjust and not within the best interest of Arroyo's child.

Within its entry, the juvenile court noted that Arroyo's monthly payment of $211.74 is an
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"arrearage only child support order." Arroyo now appeals, pro se, the juvenile court's

decision, raising the following assignment of error.

       {¶ 6} THE COURT FAILED TO CONSIDER IF DEFENDANT-APPELLANT ANTONIO

ARTHUR ARROYO COULD SURVIVE ON $15.00.

       {¶ 7} Arroyo argues in his assignment of error that the juvenile court erred in not

granting his motion to decrease or suspend his child support obligation until he is released

from prison.

       {¶ 8} A trial court's decision on a motion to modify child support will not be reversed

absent an abuse of discretion. Groves v. Groves, 12th Dist. Clermont No. CA2008-06-059,

2009-Ohio-931, ¶ 4.      An abuse of discretion implies that the court's decision was

unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment.

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

       {¶ 9} The modification of a child support order is governed by the requirements of

R.C. 3119.79. Banfield v. Banfield, 12th Dist. Clermont Nos. CA2010-09-066 and CA2010-

09-068, 2011-Ohio-3638, ¶ 18. In order to justify the modification of an existing support

order, the moving party must demonstrate a substantial change in circumstances that

"render[s] unreasonable an order which once was reasonable." Id.

       {¶ 10} Where the child support calculation involves a parent who is unemployed or

underemployed, the trial court must consider the parent's gross income and "potential

income." R.C. 3119.01(C)(5)(b). "Potential income" is income the parent would have earned

if he or she had been fully employed. R.C. 3119.01(C)(11). In determining the parent's

potential income, the court must first determine whether the parent is voluntarily unemployed

or underemployed. Id. The court then may impute the potential income to the parent in

accordance with the factors enumerated in R.C. 3119.01(C)(11)(a). Justice v. Justice, 12th

Dist. Warren No. CA2006-11-134, 2007-Ohio-5186, ¶ 8.
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       {¶ 11} R.C. 3119.05(I) addresses the imputation of income for imprisoned parents,

and provides,

              (I) Unless it would be unjust or inappropriate and therefore not in
              the best interests of the child, a court or agency shall not
              determine a parent to be voluntarily unemployed or
              underemployed and shall not impute income to that parent if
              either of the following conditions exist:

              ***

              (2) The parent is incarcerated or institutionalized for a period of
              twelve months or more with no other available assets * * *.

       {¶ 11} As such, R.C. 3119.05(I)(2) clearly prohibits trial courts from determining that a

parent is voluntarily unemployed and imputing income to that parent if the parent is

imprisoned for a period of 12 months or more with no other available assets. However, the

statute allows an exception when not imputing income "would be unjust or inappropriate and

therefore not in the best interests of the child."

       {¶ 12} The record clearly indicates that the juvenile court made a finding that not

imputing income to Arroyo for purposes of his child support modification motion would be

unjust and not within the best interest of Arroyo's child. The juvenile court determined that

not imputing income to Arroyo would reward him for his criminal conduct and would otherwise

deprive Arroyo's child of "valuable financial support." The juvenile court further found that it

was in the best interest of Arroyo's child that Arroyo pay down his child support arrearage

within a reasonable time, rather than wait years until Arroyo is released from prison. While

we find no abuse of discretion in the juvenile court's determination that not imputing income

to Arroyo would be unjust, we find that the juvenile court's order must be reversed because it

is unsupported by the current record.

       {¶ 13} As previously stated, the limited amount of facts in the record establish that in

2006, Arroyo was ordered to pay $211.74 per month for arrearages, ongoing child support,


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and a processing fee. However, and according to the juvenile court's entry, only $34.60 of

that amount was ordered to satisfy Arroyo's arrearages. The other $172.99 and processing

fee were specific to Arroyo's ongoing child support obligation. That obligation terminated in

2011 when Arroyo's child was emancipated. Since 2011, there is no indication in the record

regarding the amount of arrearages Arroyo still owes. Nor is there any indication that the

juvenile court ordered Arroyo to continue payment obligations of $211.74 per month for only

the arrearage amount as referenced in the juvenile court's entry denying Arroyo's motion to

modify his child support obligation.

       {¶ 14} On remand, the juvenile court must determine the proper amount of

arrearages owed by Arroyo, as well as a proper payment amount based on Arroyo's current

income or income the juvenile court finds appropriate to impute to him. Arroyo's sole

assignment of error is therefore, sustained.

       {¶ 15} Judgment reversed and the matter is remanded for further proceedings

consistent with this opinion.


       S. POWELL and RINGLAND, JJ., concur.




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