[Cite as L.B. v. T.B., 2011-Ohio-3418.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

L.B.                                                                    :

        Plaintiff-Appellee                                              :         C.A. CASE NO. 24441

v.                                                                      :         T.C. NO.            02DM924

T.B.                                                                    :          (Civil appeal from Common
                                                                                   Pleas Court, Domestic Relations)
        Defendant-Appellant                                  :

                                                                        :

                                                         ..........

                                                       OPINION

                              Rendered on the                8th       day of           July          , 2011.

                                                         ..........

KEITH R. KEARNEY, Atty. Reg. No. 0003191, 40 N. Main Street, Suite 2160, Dayton,
Ohio 45423
      Attorney for Plaintiff-Appellee

T.B., Defendant-Appellant

                                                         ..........

FROELICH, J.
                                                         1
        {¶ 1} Plaintiff-appellant T.B.                       (Husband) appeals from a judgment of the

Montgomery County Court of Common Pleas, Domestic Relations Division, reducing his

child support order. For the following reasons, the judgment of the trial court will be


            1
             Pursuant to our order of April 22, 2011, the parties are referred to by initials only.
                                                                                        2

Affirmed.

                                                 I

       {¶ 2} The parties were married in 1996 and have one child. The marriage was

terminated by a final decree of dissolution in 2003. Custody was awarded to L.B. (Wife),

and pursuant to an agreed entry filed several months later, child support was set at

$723/month.    Both parties were practicing attorneys; Wife earned $82,000 a year, and

Husband earned $60,000 a year.

       {¶ 3} In 2005, Husband was fired from his job, as a result of an ongoing criminal

investigation. However, he was able to find another attorney position earning $90,000 a

year. Husband was charged with two felony offenses in 2006, at which time he was forced

to resign.    Initially, his bond conditions prevented him from working.     When those

conditions were amended, Husband found employment earning about $16,000 a year at

United Dairy Farmers. Husband requested that the Child Support Enforcement Agency

(CSEA) administratively adjust his child support obligation. In March of 2007, the CSEA

filed a motion to modify, noting that the parties’ incomes exceeded $150,000, and pursuant

to R.C. 3119.04(B), modification of a previous court order must be done by the court. This

motion was dismissed by the court in May of 2008. Husband eventually pled guilty to one

count of possession of child pornography and was sentenced to four years in prison; he is

scheduled for release in October, 2012.       In October, 2009, the Ohio Supreme Court

suspended Husband from the practice of law.

       {¶ 4} In June of 2009, during his incarceration, Husband again requested an

administrative modification. On December 4, 2009, the CSEA again filed a motion for
                                                                                               3

modification with the court because the parties’ income “likely exceeds $150,000.” The

parties were ordered to file exhibits and written arguments in support of their positions, in

lieu of an evidentiary hearing. The record indicates that in his last position as an attorney

prior to his incarceration, Husband was earning $90,000/year, while Wife was earning

$141,000/year. On October 6, 2010, the magistrate ordered that, effective December 9,

2009, Husband’s child support obligation would be reduced to $494/month, plus $75/month

to be paid on the accrued arrearage. Husband filed objections to the decision, and the trial

court overruled those objections. Husband appeals from the trial court’s judgment.

                                                      II

         {¶ 5} The same standard of review applies to all three assignments of error. “A

  trial court’s decision regarding a child support obligation will not be reversed on appeal

       absent an abuse of discretion.” Snyder v. Snyder, Cuyahoga App. No. 95421,

2011-Ohio-1372, ¶42, citing Pauly v. Pauly, 80 Ohio St.3d 386, 390, 1997-Ohio-105, in turn

citing Booth v. Booth (1989), 44 Ohio St.3d 142, 144. “An abuse of discretion is more than

      an error of law, it connotes that the court’s attitude is unreasonable, arbitrary, or

 unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 * * *. Moreover, as

long as the decision of the trial court is supported by some competent, credible evidence, the

reviewing court will not disturb it. Masitto v. Masitto (1986), 22 Ohio St.3d 63 * * *.” Id.

                                                III

       {¶ 6} Husband’s First Assignment of Error:

       {¶ 7} “THE TRIAL COURT ERRED WHEN IT FOUND THAT NO CHANGE

OF    CIRCUMSTANCES            EXISTED       THAT          PERMITTED     IT    TO    ADDRESS
                                                                                           4

MODIFICATION OF CHILD SUPPORT.”

       {¶ 8} Husband’s Second Assignment of Error:

       {¶ 9} “THE      TRIAL     COURT      ABUSED       ITS   DISCRETION       WHEN      IT

DETERMINED         APPELLANT’S        CHILD      SUPPORT       OBLIGATION        WITHOUT

UTILIZING THE FACTORS SET FORTH IN R.C. §3119.01(C)(11).”

       {¶ 10} In his first assignment of error, Husband argues that the trial court erred in

finding that there was no change of circumstances to warrant recalculation of his child

support order. In his second assignment of error, Husband contends that the trial court erred

in using his $90,000 income when recalculating the child support order.

       {¶ 11} When a trial court makes or modifies an order for child support, the court is

required to comply with Chapters 3119, 3121, 3123, and 3125 of the Ohio Revised Code.

R.C. 3109.05(A)(3). Any modification of a child support order requires a two-step process.

 Coffman v. Coffman (June 28, 1995), Greene App. No. 94-CA-104, citing Brockmeier v.

Brockmeier (1993), 91 Ohio App.3d 689, 692; Cheek v. Cheek (1982), 2 Ohio App.3d 86,

87. The court must first determine whether there has been a change in circumstances. Id.,

citing Brockmeier, supra; Cheek, supra; Cole v. Cole (1990), 70 Ohio App.3d 188. Pursuant

to R.C. 3119.79, when either party requests a modification of a child support order based

upon a change in income, the court must recalculate the amount of support using the

statutory guidelines, schedules, and worksheets. Id. See, also, Snyder v. Snyder, Cuyahoga

App. No. 95421, 2011-Ohio-1372, ¶43. “A recalculated amount that varies more than ten

percent from the existing amount ‘shall be considered by the court as a change of

circumstance substantial enough to require a modification of the child support amount.’ ”
                                                                                           5

Id., quoting R.C. 3119.79(A). If there has been a change in circumstances, the court may

modify the support order in accordance with the statutory factors and guidelines. Id., citing

Cole, supra.

       {¶ 12} As Husband concedes, “[i]ncarceration which results from voluntary criminal

acts does not constitute a change in circumstances which justifies modification of a child

support order.” Kreuzer v. Kreuzer (May 4, 2001), Greene App. No. 00CA43, citing Cole

v. Cole (1990), 70 Ohio App.3d 188; Mannasmith v. Mannasmith (July 26, 1988), Marion

App. No. 9-90-44; Richardson v. Ballard (1996), 113 Ohio App.3d 552; Williams v.

Williams (Sept. 24, 1992), Franklin App. No. 92AP-438. “‘A parent cannot, by intentional

conduct or mere irresponsibility, seek relief from this duty of support. Defendant, who by

his own wrongful conduct placed himself in a position that he is no longer available for

gainful employment, is not entitled to relief from his obligation to support his child.

Incarceration was a foreseeable result of his criminal conduct and thus is deemed a voluntary

act in and of itself.’” Kreuzer, supra, quoting Williams, supra.

       {¶ 13} Husband apparently argues that, at least in his situation where there is no

contention that he has any other income or assets, although mere incarceration is not a

change of circumstances, that his resultant impecunious state is unquestionably a change of

circumstances. It is true that the statute defines “change of circumstance” as including

when the recalculated amount of support varies by more than ten percent from the existing

amount and that if Husband’s income were established at zero, there is a change of

circumstances. R.C. 3119.79(A).

       {¶ 14} To engage in such recalculation, the court must consider the “income” to the
                                                                                                                            6

parties, which is defined in R.C. 3119.01(C)(5) for a parent who is unemployed or

underemployed as including “potential income.”                            R.C. 3119.01(C)(5)(b).                  In turn,

“potential income” is defined by R.C. 3119.01(C)(11) for a parent who is voluntarily

unemployed or underemployed to include “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; (ix) The parent’s increased earning capacity because of experience; (x) Any other

relevant factor.”

       {¶ 15} Husband argues that his (vi) “special skills and training” are useless because

he does not have a law license, and that there is no evidence (vii) that he “has the ability to

earn the imputed income” since he is imprisoned and has no license. The superficial

applicability of these criteria is belied by the fact that his current situation is totally

attributable to his voluntary acts. How is this different than an attorney who decides to

forego the pressures of practicing law, to surrender his license, and to retire to Walden

Pond? There is no requirement that the purpose of the voluntary unemployment was to

evade a support obligation. Rock v. Cabral (1993), 67 Ohio St.3d 108. 2 The statute


           2
           There are certainly public policy considerations, but Ohio follows the “no justification” rule. See, e.g., Cammett,
                                                                                                                           7

implicitly recognizes the discretion given to the trial court by allowing it to consider “any

other relevant factor.”           To say that his voluntary unemployment is not a change of

circumstances, but that the loss of income necessarily ensuing from it is a change of

circumstances, is a circular argument that attempts to lift itself by its own bootstraps.

         {¶ 16} Both the magistrate and the trial court found that Husband’s incarceration,

which was a direct result of his voluntary criminal actions does not constitute a change in

circumstances that would permit the modification of child support.                                  Nevertheless, the

magistrate found that “it is also evident that [Wife] has increased her income substantially,

up to $141,000 in 2009.” As a result of that increase, the magistrate recommended a

reduction of child support. Although the trial court did not specifically state that the

substantial increase in Wife’s income constituted a change in circumstances, the trial court

did, in fact, reduce the child support order by $229/month, using Wife’s increased income in

its calculations. Thus, in reducing the child support order after finding that Husband’s

incarceration did not constitute a change of circumstances, the trial court necessarily agreed

with the magistrate’s finding that the increase in Wife’s income did constitute a change in

circumstances.

         {¶ 17} Husband argues that the trial court should not have used his income of

$90,000 in its calculations. He maintains that, at most, the trial court should have attributed

$16,000 in income to him, the amount that he was earning immediately prior to his

incarceration. However, having found no change of circumstances regarding Husband, the



   Deadbeats, Deadbrokes, and Prisoners, 18 Georgetown Journal on Poverty Law and Policy 127 (Spring 2011); Pearson, Building
   Debt While Doing Time: Child Support and Incarceration, 43 Judges Journal 5 (2004).
                                                                                            8

trial court properly exercised its discretion by using the last income attributable to Husband

prior to his criminal acts, which resulted in the suspension of his law license and his

subsequent incarceration.

       {¶ 18} Because the purpose of child support is to protect children and to serve their

best interest, “[c]hildren should not be made to suffer because of a parent’s wrongdoing.”

Kreuzer, citing Cole, supra. The only person who would benefit from the trial court’s using

Husband’s reduced income would be Husband, not his child. Therefore, we find no abuse

of discretion in the use of Husband’s $90,000 income.

       {¶ 19} We recognize that while Husband is incarcerated, he will likely be unable to

make his child support payments. An obligor generally cannot be held in contempt for

failure to pay child support while incarcerated. Rhodes v. Rhodes, Belmont App. No. 00

BA 34, 2001-Ohio-3410, citing Richardson v. Ballard (1996), 113 Ohio App.3d 552.

Furthermore, an inability to pay child support is an affirmative defense to a criminal

non-support charge. R.C. 2919.21(D). Whether future modifications are appropriate and

how arrearage payments should be established are not before us.

       {¶ 20} Husband’s first and second assignments of error are overruled.

                                                 IV

       {¶ 21} Husband’s Third Assignment of Error:

       {¶ 22} “THE TRIAL COURT ERRED WHEN IT SET THE EFFECTIVE DATE

OF APPELLANT’S NEW CHILD SUPPORT OBLIGATION AS DECEMBER 9, 2009 -

THE DATE IN WHICH APPELLEE WAS SERVED WITH THE MOTION TO REDUCE

SUPPORT.”
                                                                                             9

       {¶ 23} In his third assignment of error, Husband argues that the trial court should

have ordered the new child support obligation to begin in the spring of 2009, when he started

the administrative process seeking a reduction. Instead, the trial court ordered the new

order to begin on December 9, 2009, which corresponded with Wife’s being served with the

motion to reduce child support. We conclude that the trial court did not abuse its discretion

in ordering the reduction effective on December 9, 2009.

       {¶ 24} Husband insists that the trial court effectively punished him for attempting to

use the administrative process. On the other hand, Wife claims that because the parties’

combined income is over $150,000, any change in child support could only have been

considered by the court rather than through an administrative review, and, therefore, the trial

court did not err in choosing the December 9, 2009 date. R.C. 3119.04(B) states that if the

combined gross income of both parents is more than $150,000 per year, and there is a

court-ordered child support order, the court shall determine the amount of the child support

obligation, while the child support enforcement agency would have jurisdiction only with

respect to an administrative child support order.

       {¶ 25} There is nothing legally wrong with Husband’s request to make the new child

support order retroactive to his attempts to initiate an administrative review in June of 2009.

 Generally, an order to modify a child support order should relate back to the date of a

party’s motion. Bockhorn v. Bockhorn, Greene App. No. 2005-CA-145, 2006-Ohio-6226,

¶30, citing State ex rel. Gilmore v. Minter (Dec. 19, 1997), Montgomery App. No. 16462.

However, it is within the trial court’s discretion to use another date. Id. Husband is

familiar with the law and previously requested an administrative modification which resulted
                                                                                              10

in the CSEA’s having to file a motion to modify. Especially in a situation where the

administrative agency did not have the authority to review the support order, we find no

abuse of discretion with the trial court’s decision to make the order effective on the date on

which Wife was served with the court motion to reduce the child support order.

        {¶ 26} Husband’s third assignment of error is overruled.

                                                  V

        {¶ 27} Husband’s three assignments of error having been overruled, the judgment of

the trial court is affirmed.

        ..........

        GRADY, P.J., concurs.

        FAIN, J., concurring:

        {¶ 28} Although it does not affect the outcome of this appeal, I take issue with the

proposition that a trial court may, without abusing its discretion, commit an error of law.

        {¶ 29} I have traced this offensive formulation – that abuse of discretion means more

than an error of law – as far back as Steiner v. Custer (1940), 137 Ohio St. 448, 450, which,

in turn, cites Black’s Law Dictionary (2 Ed.), 11 as authority. The definition of “abuse of

discretion” in Black’s Law Dictionary, Eighth Edition (2004), at 11, offers no support for the

offensive formulation:

        {¶ 30} “1.     An adjudicator’s failure to exercise sound, reasonable, and legal

decision-making. 2. An appellate court’s standard for reviewing a decision that is asserted

to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.”

        {¶ 31} Interestingly, the definition of “abuse of discretion” in Black’s Law
                                                                                            11

Dictionary, Fourth Edition (1968), which was the edition of Black’s Law Dictionary extant

when I was in law school, not only does not support the offensive formulation, it contradicts

it:

        {¶ 32} “ ‘Abuse of discretion’ is synonymous with a failure to exercise a sound,

reasonable, and legal discretion. * * * * . It is a strict legal term indicating that appellate

court is simply of opinion that there was a commission of an error of law in the

circumstances. * * * * .      And it does not imply intentional wrong or bad faith, or

misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and

judgment – one is that [sic] clearly against logic and effect of such facts as are presented in

support of the application or against the reasonable and probable deductions to be drawn

from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of

law. * * * * .

        {¶ 33} “A discretion exercised to an end or purpose not justified by and clearly

against reason and evidence. * * * * . Unreasonable departure from considered precedents

and settled judicial custom, constituting error of law. * * * * . The term is commonly

employed to justify an interference by a higher court with the exercise of discretionary power

by a lower court and is said by some authorities to imply not merely error of judgment, but

perversity of will, passion, prejudice, partiality, or moral delinquency. The exercise of an

honest judgment, however erroneous it may appear to be, is not an abuse of discretion. * * *

* . Where a court does not exercise a discretion in the sense of being discreet, circumspect,

prudent, and exercising cautious judgment, it is an abuse of discretion. * * * * . Difference

in judicial opinion is not synonymous with ‘abuse of discretion’ as respects setting aside
                                                                                            12

verdict as against evidence. * * * * .” (Citations omitted; emphasis added.)

        {¶ 34} I can only speculate that the origins of the offending formulation lay in an

attempt to make the following point too succinctly:

        {¶ 35} When a pure issue of law is involved in appellate review, the mere fact that

the reviewing court would decide the issue differently is enough to find error.3 By contrast,

where the issue on review has been confided to the discretion of the trial court, the mere fact

that the reviewing court would have reached a different result is not enough, without more,

to find error.

        {¶ 36} I know, all too well, that the offending formulation can be found in a plethora

of appellate opinions, including decisions of the Ohio Supreme Court. But I am not aware

of any Ohio appellate decisions in which it is declared, as part of the holding, that a trial

court may, in the exercise of its discretion, commit an error of law.

        {¶ 37} I will admit that, on numerous occasions, I have been too lazy to delete a

quotation or paraphrase of the offending formulation from a staff attorney’s draft. I am

confident, however, that in none of those opinions is it part of the holding that a trial court

may, in the exercise of its discretion, commit an error of law.

        {¶ 38} No court – not a trial court, not an appellate court, nor even a supreme court –

has the authority, within its discretion, to commit an error of law.4

                                          ..........


           3
          Of course, not all errors are reversible. Some are harmless; others are
   not preserved for appellate review.
           4
          This does not, of course, obviate the existence of frequent and lively
   disagreements between courts and individual judges as to what the law is.
                            13

Copies mailed to:

Keith R. Kearney
T.B., Defendant-Appellant
Hon. Timothy D. Wood
