[Cite as Cummin v. Cummin, 2015-Ohio-5482.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                HOCKING COUNTY

KIMBERLY CUMMIN,               :
                               :    Case No. 14CA24
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
DAVID CUMMIN,                  :
                               :
     Defendant-Appellant.      :    Released: 12/21/15
_____________________________________________________________
                          APPEARANCES:

Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.

K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellee.
_____________________________________________________________

McFarland, A.J.

       {¶1} Appellant, David Cummin, appeals the decision of the trial court

issued upon cross motions to modify support. On appeal, Appellant raises

two assignments of error, contending that 1) the trial court erred in

extrapolating his child support obligation beyond the obligation for a

combined income of $150,000.00, and 2) the trial court erred in calculating

his income. Because we find no abuse of discretion in the trial court’s

decision to extrapolate the child support order based upon the parties’ actual

income, rather than capping it at a $150,000.00 income level, we find no

merit to Appellant’s first assignment of error and it is therefore overruled.
Hocking App. No. 14CA24                                                         2

Because we find no error or abuse of discretion in the trial court’s

determination that Appellant was voluntarily underemployed and its

decision to impute income, we overrule Appellant’s second assignment of

error, in part. However, because we cannot ascertain from the trial court's

decision the amount of income actually imputed to Appellant, we sustain

Appellant’s second assignment in part and reverse and remand this matter

for further proceedings consistent with this opinion.

                                   FACTS

      {¶2} The parties were married on July 18, 1992 and have four

children, all of which are still minors. A divorce decree was issued on

November 4, 2011. As part of the divorce decree, the trial court ordered

shared parenting, ordered Appellant to pay child support based upon the

parties’ full combined annual income, which exceeded $300,000.00, and

also ordered Appellant to pay spousal support to Appellee. Appellant is a

physician and Appellee, at the time of the divorce, had been out of the work

force for several years while raising the parties’ four children. However, at

the time of the divorce, it was anticipated that Appellee would return to

work and the trial court imputed income in the amount of $65,000.00 to
Hocking App. No. 14CA24                                                                            3

Appellee for purposes of calculating child support.1 No initial direct appeal

was taken from the divorce decree and associated orders.

         {¶3} Subsequently, Appellant filed a motion to modify support on

January 7, 2014. Appellee then filed a cross-motion to modify child support,

as well as a motion to modify visitation. A final hearing was held on June

25, 2014, with the parties having already worked out the majority of the

parenting time issues. As such, the hearing primarily focused on financial

issues that pertained to the motions to modify support. Appellant’s new

wife, Crystal Cummin, testified at the hearing. She testified that she and

Appellant had been on several trips, including an Aruba vacation in which

they took Appellant’s children, a honeymoon to Croatia, a cruise to Puerto

Rico, which was paid for by her employer, and a trip to New York. She

testified that she earns approximately $116,000.00 annually working for

Johnson & Johnson.

         {¶4} Appellant testified that he earns $25,100.00 annually as the

elected county coroner, most recently had a business net income of

$150,206.00 and also has rental property income. He testified, however, that

although he previously earned $11,000.00 annually as the hospital chief of

staff, he would no longer receive that income because he was term-barred

1
 Appellee possesses a Master’s degree and is a trained nutritionist, with experience in hospital
administration.
Hocking App. No. 14CA24                                                                                      4

from continuing in that position. He further testified that his rental income

had decreased and would continue to decrease in future years, as he had lost

tenants and did not expect to be able to find new tenants.2 He also testified

that his income had decreased due to the fact that he no longer performed

inpatient hospital work. He testified that inpatient work did not pay well,

and that he had reduced his work load in order to spend more time with his

children. He estimated that he had decreased his weekly working hours

from over one hundred hours to about seventy hours. On cross-examination,

Appellant testified that he completed eighteen hours of continuing medical

education while he was in Croatia for his honeymoon and, as a result, he

deducted those travel expenses from his business income.

         {¶5} Appellee also testified during the hearing. She testified that her

annual income was between sixty-eight and sixty-nine thousand dollars, not

including any support payments she receives. She testified that until

recently, she had provided the children’s health insurance benefits, despite

the prior order that Appellant do so. She testified that it was her belief that

Appellant’s current income was $240,000.00 and that he was capable of

earning that much.




2
  Appellant testified that the office space he has available for rent may only be rented to physicians and that
there were no physicians in town to rent the space to.
Hocking App. No. 14CA24                                                        5

      {¶6} After considering the testimony of the parties and reviewing tax

returns, the trial court issued its decision finding Appellant to be voluntarily

underemployed. The trial court reduced spousal support by $100.00 a

month, from $2,000.00 per month to $1,900.00, but increased child support

from $832.59 per month to $1,371.83 per month. The trial court noted in its

entry, in connection with its finding that Appellant was voluntarily

underemployed, that “[t]he net results cannot be precisely computed but the

Court has made an effort to develop a reasonable child support calculation.”

The trial court properly attached a child support computation worksheet to

its decision, noting that it had calculated support based upon a $150,000.00

income limit as well as based upon the parties’ actual combined annual

income, which was $320,586.40, and had decided not to cap the support at

the $150,000.00 limit. It is from this decision that Appellant now brings his

timely appeal, setting forth two assignments of error for our review.

                        ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED IN EXTRAPOLATING DR.
      CUMMIN’S CHILD SUPPORT OBLIGATION BEYOND THE
      OBLIGATION FOR A COMBINED INCOME OF $150,000.

II.   THE TRIAL COURT ERRED IN CALCULATING DR. CUMMIN’S
      INCOME.”
Hocking App. No. 14CA24                                                                                  6

                                ASSIGNMENT OF ERROR I

        {¶7} In his first assignment of error, Appellant contends that the trial

court erred in extrapolating his child support obligation beyond the

obligation for a combined income of $150,000.00. Appellee argues that

Appellant’s argument is “nonsensical and just silly.” We begin by

considering the appropriate standard of review for trial court determinations

regarding child support.

        {¶8} “[A] trial court's modification of a prior child support order is

within the broad discretion of the trial court and will not be disturbed absent

an abuse of discretion.” Wolfe v. Wolfe, 10th Dist. Franklin No. 04AP-409,

2005-Ohio-2331, ¶ 7; citing Woloch v. Foster, 98 Ohio App.3d 806, 810,

649 N.E.2d 918 (2nd Dist. 1994). Here, the trial court made an initial child

support determination when the parties’ divorce was final in 2011. The

child support worksheet attached to the original divorce decree indicates that

the trial court based the child support on the parties’ actual income, rather

than capping their combined income at $150,000 for purposes of calculating

child support.3 Appellant did not object to the trial court’s use of the




3
 In actuality, the trial court used Appellant’s actual income, but imputed income to Appellee in the amount
of $65,000.00 as Appellee was a stay at home mother at the time of the divorce. At the time the original
divorce decree was issued, the trial court determined the parties' combined annual income was
$306,997.50.
Hocking App. No. 14CA24                                                                                7

“extrapolation method” at that time and no direct appeal was taken from that

decision.4

        {¶9} Three years later, the trial court modified its prior award of child

support, once again using the “extrapolation method,” rather than capping

the parties’ combined income at $150,000.00. Because Appellant did not

object to the trial court’s method of calculating support initially, we

conclude it is improper for him to raise that argument for the first time in

this current appeal. However, even if this argument is not waived, both

statutory and case law indicate that it is within the trial court’s discretion to

either cap income at $150,000.00 or use parties’ actual income when crafting

a child support order.

        {¶10} Again, we review child support matters under an abuse-of-

discretion standard. See, Booth v. Booth, 44 Ohio St.3d 142, 144, 541

N.E.2d 1028 (1989). An abuse of discretion “connotes more than an error of

law or judgment; rather, it implies that the court's attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). When applying the abuse-of-discretion

standard of review, appellate courts must not substitute their judgment for

that of the trial courts. See, In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566
4
 "This method takes the applicable percentage under the child support schedules for couples with
combined incomes of $150,000 and applies it directly to whatever income the parents make." Lanham v.
Mierzwiak, 197 Ohio App.3d 426, 2011-Ohio-6190, 967 N.E.2d 1256, ¶ 17 (6th Dist.).
Hocking App. No. 14CA24                                                          8

N.E.2d 1181 (1991). Furthermore, an appellate court must presume that the

findings of the trial court are correct because the finder of fact is best able to

observe the witnesses and to use those observations to weigh witness

credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461

N.E.2d 1273 (1984); see, also, Mahlerwein v. Mahlerwein 160 Ohio App.3d

564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 19 (4th Dist.).

      {¶11} R.C. 3119.022 governs the procedure for awarding and

calculating child support. The statute's overriding concern is to ensure the

best interest of the child for whom support is being awarded. Rock v. Cabral,

67 Ohio St.3d 108, 110, 616 N.E.2d 218 (1993). Thus, the statute's

provisions are mandatory in nature and courts must follow the statute

literally and technically in all material aspects. Marker v. Grimm, 65 Ohio

St.3d 139, 601 N.E.2d 496, paragraph two of the syllabus (1992); see, also,

Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, ¶ 7.

If a trial court makes the proper calculations on the applicable worksheet, the

amount shown is “rebuttably presumed” to be the correct amount of child

support due. See Rock at 110; Albright; see, also, R.C. 3119.03.

      {¶12} Although we will discuss the trial court's calculation of

Appellant's income more fully below, at this juncture we simply note that

the trial court calculated the parties' combined annual income at the
Hocking App. No. 14CA24                                                                                      9

modification hearing held in 2014, as $320,586.40.5 Thus, as with the

original calculation, the parties' combined income more than doubled the

$150,000.00 income figure limit Appellant argues child support should have

been based upon. R.C. 3119.04, entitled "Determination of obligor's child

support obligation on a case-by-case basis for certain income amounts,"

provides in section (B) as follows:

         "If the combined gross income of both parents is greater than

         one hundred fifty thousand dollars per year, the court, with

         respect to a court child support order, or the child support

         enforcement agency, with respect to an administrative child

         support order, shall determine the amount of the obligor's child

         support obligation on a case-by-case basis and shall consider

         the needs and the standard of living of the children who are the

         subject of the child support order and of the parents. The court

         or agency shall compute a basic combined child support

         obligation that is no less than the obligation that would have

         been computed under the basic child support schedule and

         applicable worksheet for a combined gross income of one

         hundred fifty thousand dollars, unless the court or agency
5
  This figure represented Appellee's actual income, rather than imputed income as included in the original
support order, as well as Appellant's actual income and potential income, as a result of the trial court's
finding that Appellant was voluntarily underemployed.
Hocking App. No. 14CA24                                                        10

       determines that it would be unjust or inappropriate and would

       not be in the best interest of the child, obligor, or obligee to

       order that amount. If the court or agency makes such a

       determination, it shall enter in the journal the figure,

       determination, and findings."

       {¶13} As such, based upon the foregoing, for parties with combined

incomes exceeding $150,000.00, as is the case here, the trial court shall

determine on a case-by-case basis, taking into consideration the needs and

standard of living of the children, the amount of child support to be paid. A

plain reading of the statute reveals that the only time a trial court is required

to make special findings is when it sets support in an amount less than the

obligation that would have been computed under the basic child support

schedule and applicable worksheet for a combined gross income of

$150,000.00. In that situation, a trial court must find that an award based

upon a higher income amount would be unjust, inappropriate or not in the

best interests of the child.

       {¶14} Here, the trial court based the child support award upon the

parties' full combined income amount and expressly included its reasoning

for not capping support based on a $150,000.00 income figure. The trial

court stated as follows:
Hocking App. No. 14CA24                                                           11

      "The Court agrees that a support modification is now required.

      The attached support calculation is the basis for the

      modifications. See, Exhibit #1. Note that Exhibit #2 calculates

      the result if the Court were to limit the total income to

      $150,000.00. The Court finds the combined annual income

      figure is $320,586.00 and it would be unfair and not in the best

      interests of the children to utilize as the income figure the

      limited $150.000.00. See R.C. 3119.04(B)."

The trial court's express language in its order demonstrates that it considered

the best interests of the children and the justness of limiting the award, when

it rejected that approach in setting support. Although Appellant argues the

findings the trial court made were against the manifest weight of the

evidence, we disagree.

      {¶15} Again, this was a modification hearing. In setting support when

the parties first divorced, the trial court found that all the children enjoyed

special educational opportunities and that the two youngest children required

some special medical attention. Further, the evidence introduced at the

modification hearing indicated Appellant travels extensively, sometimes

with the children and sometimes without. This evidence is applicable in
Hocking App. No. 14CA24                                                       12

considering the needs and standard of living of the children. Based upon the

record before us, we find no abuse of discretion on the part of the trial court.

      {¶16} Further, as Appellant himself notes in his brief, although this

Court has not considered the "extrapolation method" of calculating support,

other districts have determined that trial courts must only make special

findings when support is determined in an amount less than the obligation

that would have been computed under the basic child support schedule and

applicable worksheet for a combined gross income of $150,000.00.

Lanham v. Mierzwiak, supra, at ¶ 22 ("the statute does not require any

explanation of its decision unless it awards less than the amount awarded for

combined incomes of $150,000."); See also, Gorman v. Gorman, 7th Dist.

Jefferson No. 12JE23, 2013-Ohio-5643, ¶ 56; Chawla v. Chawla, 10th Dist.

Franklin No. 13AP-399, 2014-Ohio-1188, ¶ 16; quoting Guertin v. Guertin,

10th Dist. Franklin No. 06AP-1101, 2007-Ohio-2008, ¶ 6; quoting Cyr v.

Cyr, 8th Dist. Cuyahoga No. 84255, 2005-Ohio-504, ¶ 56. That situation,

however, is not applicable here. As such, because we can find no abuse of

discretion on the part of the trial court in "extrapolating" child support based

upon the parties' actual combined incomes, Appellant's first assignment of

error is overruled.
Hocking App. No. 14CA24                                                       13

                        ASSIGNMENT OF ERROR II

      {¶17} In his second assignment of error, Appellant contends that the

trial court erred in calculating his income. In particular, Appellant contends

that the trial court erred in finding he was voluntarily underemployed and in

imputing income to him. Appellant also contends that the evidence at trial

does not support the gross income that the trial court attributed to him.

Appellee responds by contending that the trial court did not err in calculating

Appellant’s income, and argues that the trial court found Appellant’s

testimony regarding his income not to be credible.

      {¶18} In considering Appellant’s argument that the trial court erred in

determining Appellant was voluntarily underemployed and imputing income

to him, 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 v. Cabral at 112. The

term abuse of discretion means more than an error of judgment; it implies
Hocking App. No. 14CA24                                                       14

that the court's attitude is unreasonable, arbitrary, or unconscionable. Warner

v. Warner, 4th Dist. Scioto No. 12CA3511, 2013-Ohio-478, ¶ 9.

      {¶19} “In calculating child support, a trial court must determine the

annual income of each of parent.” McLaughlin v. Kessler, 12th Dist. Fayette

No. CA2011-09-021, 2012-Ohio-3317, ¶ 13. For an unemployed or

underemployed parent, income is the “sum of the gross income of the parent

and any potential income of the parent.” Id.; R.C. 3119.01(C)(5)(b). R.C.

3119.01(C)(11) provides as follows with regard to the definition of

"potential income":

      “ ‘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;
Hocking App. No. 14CA24                                                      15


      (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;

      (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 from any nonincome-producing assets of a

      parent, as determined from the local passbook savings rate or

      another appropriate rate as determined by the court or agency,

      not to exceed the rate of interest specified in division (A) of

      section 1343.03 of the Revised Code, if the income is

      significant."

"[B]efore a trial court may impute income to a parent, it must first find that

the parent is voluntarily unemployed or underemployed.” McLaughlin at

¶ 13; R.C. 3119.01(C)(11).
Hocking App. No. 14CA24                                                          16

      {¶20} 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, supra, at 811. Moreover, "[a] child support

obligee who claims that the obligor is voluntarily underemployed has the

burden of proof on that issue.” Fischer v. Fischer, 2nd Dist. Clark No.

11CA81, 2012-Ohio-2102, ¶ 24.

      {¶21} Appellant contends that the trial court erred and abused its

discretion in finding him to be voluntarily underemployed, arguing that it

was understood during the original divorce proceedings that he intended to

reduce his hours in order to spend more time with the children under the

shared parenting order. Appellant claims he did just that but is now

essentially being penalized for doing so in light of the trial court's finding

that he is voluntarily underemployed. Appellant further contends that

although he reduced his hours from over one hundred per week, he still

works approximately seventy hours per week. He argues that the trial

court's decision was an abuse of discretion based upon these facts. For the

following reasons, however, we disagree.
Hocking App. No. 14CA24                                                        17

      {¶22} Initially we note that although Appellant argues he reduced his

hours in order to spend more time with his children, which is understandable

and even admirable, Appellant's subjective motivation for reducing his hours

is not a factor in the determination. "The parent's subjective motivations for

being voluntarily unemployed or underemployed play no part in the

determination whether potential income is to be imputed to that parent in

calculating his or her support obligation." Rock v. Cabral, supra, at 113.

Further, whether a parent is underemployed is more than just an hours-

worked determination. For instance, in Chawla v. Chawla, supra, a trial

court imputed income to a physician parent of $550,000.00 despite the fact

that the parent claimed his actual income was only 200,000.00. The trial

court, however, based its decision upon the parent's earning potential and

work experience, citing the fact the he had been offered, but did not take, a

position earning $550,000.00. Although the parent argued he was unable to

accept the position due to "unmet contingencies," the decision was affirmed

on appeal. Chawla at ¶ 31.

      {¶23} Here, the trial court did not exclusively focus on the fact that

Appellant was working less hours. Rather, the trial court stated as follows in

determining Appellant was voluntarily underemployed:
Hocking App. No. 14CA24                                                         18

      "Defendant's contention that he should have a major reduction

      in child support too is not credible. His private practice income

      has been reduced by increasing his deductions and reducing

      hours. At the same time he was quite willing to place upon

      Plaintiff the health, dental, and hospitalization insurance

      coverage for the children, until a better option arrived. He has

      also allowed some of his investments to become unproductive

      to reduce his income and taxes. He cannot expect Plaintiff to

      work full time when he wants to decline income opportunities.

      Defendant is voluntarily under-employed."

Thus, the trial court considered other issues such as Appellant's hiring of a

new accountant and decision to pursue more aggressive tax deductions. For

instance, the testimony introduced during the hearing also indicated that

Appellant and his new wife honeymooned to Croatia and deducted that

expense as business-related travel for tax purposes because Appellant

completed continuing medical education while he was there.

      {¶24} Appellant argues under this assignment of error that the

evidence introduced at trial does not support the gross income that the trial

court attributed to him. More specifically, Appellant argues that the trial

court improperly included income from an expired lease, as well as ordinary
Hocking App. No. 14CA24                                                          19

and necessary business expenses in his gross income for self-employment,

for purposes of calculating child support. However, as indicated above, the

trial court rejected Appellant's testimony regarding his business expense

deductions, stating Appellant's testimony was not credible. The trial court

also apparently rejected Appellant's claim that his rental income was

permanently decreased due to losing a tenant in his office space, although it

does appear the trial court did provide somewhat of a deduction on

Appellant's rental income determination. It was within the trial court's

discretion to make credibility determinations with respect to Appellant's

claimed reduction in income. In addition, the trial court had before it for its

review tax returns of the parties for the current year as well as the past three

years.

         {¶25} Based upon these facts, it appears that the trial court considered

the appropriate statutory factors in determining Appellant was voluntarily

underemployed. For instance, in making its decision, the trial court was well

aware of Appellant's employment experience, education, availability of work

in his geographic location, as well as Appellant's skills and training and

ability to earn the imputed income. Further, the trial court stated earlier in

its decision with respect to the requested modification of spousal support

that "Defendant's income reduction is self-inflicted and could be altered
Hocking App. No. 14CA24                                                         20

again abruptly." For these reasons, we cannot conclude that the trial court

abused its discretion in finding Appellant to be voluntarily underemployed

and determining that income should be imputed to him.

      {¶26} However, we do find one area of concern with the trial court's

decision that requires a reversal and remand. The Supreme Court of Ohio

has stated that "an appellate court must be able to ascertain from the trial

court's journal entry the amount of potential income imputed, and the trial

court's reasons for imputing income to a child support obligor." Rock v.

Cabral, supra, at 113. Here, although the record is clear on the reasons the

trial court decided to impute income, we cannot ascertain from the trial

court's journal entry the amount of potential income the trial court actually

imputed to Appellant. The trial court spoke to this problem in the entry,

stating with respect to the voluntary underemployment determination, "[t]he

net results cannot be precisely computed but the Court has made an effort to

develop a reasonable child support calculation." This simply does not

comply with the requirements set forth in Rock.

      {¶27} As such, and although we find no abuse of discretion on the

part of the trial court in finding Appellant voluntarily underemployed and

thus imputing income to him, we do find that the record is unclear as to how

much income was imputed. For this reason, this matter is reversed in part
Hocking App. No. 14CA24                                                        21

and remanded to the trial court for further proceedings consistent with this

opinion. We affirm the trial court’s decision in all other respects.

                                        JUDGMENT AFFIRMED IN
                                        PART, REVERSED IN
                                        PART, AND REMANDED FOR
                                        FURTHER PROCEEDINGS
                                        CONSISTENT WITH THIS
                                        OPINION.
Hocking App. No. 14CA24                                                        22

                           JUDGMENT ENTRY


     It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and
Appellee shall split court costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Harsha, J.: Concur in Judgment and Opinion.


                                       For the Court,


                                 BY: _____________________________
                                     Matthew W. McFarland,
                                     Administrative Judge



                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
