[Cite as O’Connor v. O'Connor, 184 Ohio App.3d 538, 2009-Ohio-5436.]




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




O'CONNOR,
n.k.a. RACHESKY,

        APPELLEE,                                               CASE NO. 12-09-04

        v.

O'CONNOR,                                                       OPINION

        APPELLANT.




                Appeal from Putnam County Common Pleas Court
                          Domestic Relations Division
                          Trial Court No. 94-DVA-211

                      Judgment Reversed and Cause Remanded

                         Date of Decision:       October 13, 2009




APPEARANCES:

        Michael A. Borer, for appellee.

        Garth W. Brown, for appellant.
Case No. 12-09-04


        SHAW, Judge.

        {¶1} Defendant-appellant Michael Ryan O’Connor appeals from the May

12, 2009 judgment entry of the Court of Common Pleas of Putnam County, Ohio,

modifying a previous child-support order. Michael alleges that the court erred in

calculating the revised child-support order because it did not impute the income

that plaintiff-appellee, Denise K. O’Connor, n.k.a. Rachesky, earned prior to

leaving her job in November 2008.

        {¶2} Michael and Denise had their first child, Chelsea, born February 23,

1992. The couple subsequently married on April 4, 1992. Their second child,

Michael, was born January 12, 1994.                      On August 29, 1994, Denise filed a

complaint for divorce. The court granted the divorce on December 16, 1994, and

ordered Michael to pay $476.67 a month for child support and to provide health

insurance for their two children.

        {¶3} The amount for child support remained the same until January 8,

2009, when the Putnam County Child Support Enforcement Agency (“CSEA”)

recommended the amount be increased.1 On the child-support worksheet, CSEA

assigned Denise an income of $14,248 based on annual earnings at minimum

wage. The recommendation did not provide the reasons for assigning Denise this

income amount. Indeed, the recommendation provided little information about the


1
 The record does not contain any filings between the resolution of the matters involved with the divorce in
October 1996 and the notice of CSEA review completed in January 2009.


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circumstances and facts warranting the increase and the method for calculating the

revised support. Nevertheless, CSEA proposed that the current support order

should be increased to $758.68 per month when health insurance is being provided

by Michael or $782.50 per month plus an additional $139.17 per month for cash

medical support when insurance is not being provided. CSEA submitted these

recommendations to the Putnam County Court of Common Pleas for review to

determine whether the proposed revisions for support were appropriate.

       {¶4} On May 12, 2009, the court conducted a hearing to review the

revised child-support order. Present in court were the director and the attorney for

the CSEA, Denise, who was not represented by legal counsel, and Michael’s

attorney. The only evidence offered at the hearing was Denise’s testimony. While

on the stand, Denise stated that prior to leaving her job in November 2008, she

worked at Procter and Gamble for 11½ years. She provided earnings statements

for 4 of those 11 years that stated that Denise earned an annual salary of

approximately $50,000. She did not provide any financial information about her

income for the other 7½ years of employment. In addition, Denise also testified to

the personal reasons leading to her decision to voluntarily leave her job.

       {¶5} Based on Denise’s testimony, the trial court summarily adopted

CSEA’s recommendations finding its proposals to be “appropriate” and




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“reasonable under the circumstances” and thereby ordered Michael to begin

paying the revised amount of child support.

       {¶6} Michael now appeals, asserting one assignment of error.

                          ASSIGNMENT OF ERROR

       The trial court abused its discretion by not imputing the appellee’s
       previous income when calculating child support since the appellee
       voluntarily left her job in November of 2008.

       {¶7} In his sole assignment of error, Michael alleges that the trial court

erred in adopting CSEA’s recommendation because it imputed Denise’s annual

income at the minimum-wage level instead of imputing income based on the

actual salary she earned from her previous employment. Specifically, Michael

alleges that the trial court provided no explanation for a decision that ignored the

evidence of actual income and instead imputed a minimum-wage income, which is

supported by nothing in the record.

       {¶8} An appellate court reviews the trial court’s determination of the

amount of income to be imputed in a child-support order under an abuse-of-

discretion standard. Rock v. Cabral (1993), 67 Ohio St.3d 108, 616 N.E.2d 218,

syllabus. An abuse of discretion implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219, 450 N.E.2d 1140.




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       {¶9} The calculation of child support is governed by R.C. Chapter 3119.

Pursuant to R.C. 3119.02, a court or child-support-enforcement agency must

calculate the amount of a child-support obligation according to the schedules and

worksheets provided in R.C. 3119.02 to 3119.24. The applicable worksheet for

this case is found in R.C. 3119.022 entitled “Child Support Computation

Worksheet for Sole Residential Parent or Shared Parenting Order” because Denise

is the sole residential custodian of the parties’ children.

       {¶10} In the instant case, CSEA completed and calculated the appropriate

worksheet. The first section of the worksheet requires information regarding the

income of both parents. This section directs the agency to assess the “[a]nnual

income from employment or, when determined appropriate by the court or agency,

average annual gross income from employment over a reasonable period of years.”

R.C. 3119.022.     Since Michael is employed, CSEA entered his gross annual

income, a figure that the parties agree is accurate.          However, CSEA merely

entered $14,248 as Denise’s income, a figure that is the subject of this appeal.

Upon completing the remainder of the worksheet, CSEA attached it to a notice to

the trial court of CSEA’s review. Neither the worksheet nor CSEA’s notice of

review provided any further information to indicate how or why CSEA arrived at

this amount for Denise’s income.




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        {¶11} At the subsequent court hearing on May 12, 2009, regarding the

CSEA order, Michael objected to the amount of $14,248 assigned as Denise’s

imputed income, when the only evidence in the case reflected a three-year income

for Denise of over $50,000. Although not explicitly stated, we can glean from the

record that CSEA and the trial court determined Denise to be voluntarily

unemployed. This is significant because before a trial court may impute income to

a parent, it must first determine that the parent is voluntarily unemployed or

underemployed. Moore v. Moore (2008), 175 Ohio App.3d 1, 884 N.E.2d 1113, ¶

63, citing Rock v. Cabral (1993), 67 Ohio St.3d 108, 616 N.E.2d 218, syllabus.

While the trial court does not specifically address this finding in its judgment

entry, it can be inferred from Denise’s testimony that both the trial court and

CSEA found Denise voluntarily unemployed.

        {¶12} Denise testified that she voluntarily left her job in November 2008,

citing several personal reasons. One of the reasons given for her departure was

recent surgery performed on her knees to correct a previous injury. Although

Denise claimed that her occupation aggravated this injury because she had to

remain standing during her 12½ hour shift, the doctor who performed the surgery

permitted her to return to her job after the operation.2 Denise testified that her


2
  At the hearing, Denise also stated that her job interfered with the care of her youngest son, from her
second marriage, who required extra attention because he suffered from multiple severe allergies.
According to Denise, this was a major reason for her leaving her job, in addition to the nature of the
occupation aggravating her knee injury.


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doctor ordered her not to work for only a short period after her surgery to allow for

recovery.    Additionally, when questioned whether her employer asked her to

leave, Denise responded “absolutely not.” Based on this testimony, it is apparent

that the trial court and CSEA found Denise voluntarily unemployed.

       {¶13} Upon making this determination, CSEA and the trial court were

required to impute Denise’s potential income on the child-support-order worksheet

in compliance with R.C. 3119.01(C)(11)(a), which states:

       “Potential income” means * * * the following for a parent who the
       court pursuant to a court 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 abilities, 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;



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        (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) Any other relevant factor.

        {¶14} Denise’s imputed income of $14,248 was apparently based on

annual earnings at minimum wage.         At the hearing, Denise questioned why

minimum-wage income was imputed to her, since she was unemployed.               In

response, the court explained to her that the reason this amount was imputed was

because she had previously been employed and despite being unemployed, was

still able to work. However, prior to this cursory explanation, Denise offered only

limited evidence of her prior employment income.         She testified that before

leaving her job with Procter and Gamble in November 2008, she had been

employed there for 11½ years. However, she presented specific evidence of her

annual income earned only during 2005, 2006, 2007, and 2008.

        {¶15} During these years, Denise worked as a technician. In this capacity,

she operated and maintained heavy machinery used to dispense and bottle liquid

laundry detergent. She testified that her annual salary was “plus or minus $50,000

a year,” depending on the amount of mandatory overtime she accrued. Thus,

according to her testimony, she earned $54,475 in 2005; $5,000 in 2006; $50,312

in 2007, and she estimated that she earned the same amount in 2008 as she had in

2007.


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      {¶16} Denise further explained the discrepancy in her 2006 income.

During that year she gave birth to her youngest child, whom she conceived with

her current husband, Alan Wayne Rachesky.         Denise’s employer granted an

unpaid leave of absence to employees who decided to stay home with their

newborns until they reached one year old. Thus, she only earned a minimal

amount for the limited time she worked in 2006. However, upon her return,

Denise continued to make her previous salary of approximately $50,000 a year.

Moreover, she testified that had she continued to be employed as a technician her

salary would have remained the same.

      {¶17} Previously, this court has stated that the trial court (and CSEA) are

required to consider the statutory factors mentioned above when imputing income

under R.C. 3119.01. Long v. Long, 162 Ohio App.3d 422, 2005-Ohio-4052, 833

N.E.2d 809, ¶ 15-16. The purpose for using these factors is to closely approximate

a parent’s potential earning capacity when the parent is voluntarily unemployed.

      {¶18} Denise’s testimony demonstrates ample evidence of her prior

employment experience, one of the statutory factors. However, the only evidence

we have of her prior employment income is her position as a line technician

earning around $50,000 annually for the three years discussed previously. In

addition, her testimony also revealed evidence that she has the present ability to




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earn more than the imputed income of minimum wage, another statutory

consideration.

      {¶19} In sum, there is no other evidence in the record as to her earning

levels during the remaining 7½ years of employment.        As a result, the only

evidence offered at the hearing supported imputing to Denise an income at or

around the level of her earnings of $50,000 per year prior to leaving her job in

November 2008. Moreover, on this evidence, there is nothing in the record to

indicate why CSEA and the trial court found it appropriate to impute Denise’s

annual earnings at $14,248 in light of the factors expressly provided in R.C.

3119.01.

      {¶20} In the absence of any explanation in the record for imputing

Denise’s income at the minimum-wage level of $14,248 rather than imputing her

income consistently with the statutory factors listed in R.C. 3119.01—and

consistently with the only evidence in the record showing an income of over

$50,000—we have no choice but to find the trial court’s approval of CSEA’s order

imputing an income of $14,248 to Denise to be an abuse of discretion.

      {¶21} For all these reasons, the assignment of error is sustained.

Accordingly, the decision of the Putnam County Court of Common Pleas is

reversed and this cause is remanded for further consideration consistent with this

opinion.



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                                                      Judgment reversed
                                                    and cause remanded.

      PRESTON, P.J., and WILLAMOWSKI, J., concur.




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