[Cite as Chandler v. Chandler, 2017-Ohio-710.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


KEITH D. CHANDLER,                               :     OPINION

                 Plaintiff-Appellant,            :
                                                       CASE NO. 2016-T-0046
        - vs -                                   :

KRISTA D. CHANDLER,                              :

                 Defendant-Appellee.             :


Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2010 DR 00066.

Judgment: Affirmed and remanded.


Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Plaintiff-
Appellant).

John P. Laczko, 3685 Stutz Drive, Suite 100, Canfield, OH 44406 (For Defendant-
Appellee).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Keith D. Chandler, appeals from a judgment entry of the

Trumbull County Court of Common Pleas, Domestic Relations Division, entered on July

19, 2016.        For the following reasons, the judgment is affirmed and the matter is

remanded to the trial court to issue a nunc pro tunc judgment entry.

        {¶2}     Appellant and appellee, Krista D. Chandler, were married in 2005 and

have one child together. This matter originated in the trial court in 2010 as a divorce
proceeding between the parties. An initial child support order was set forth in May

2010; appellant was ordered to pay $779 per month. A hearing was held before the

court in June 2011, and the parties entered into a Shared Parenting Plan wherein

appellee was named the temporary residential parent and legal custodian. The Divorce

Decree was not entered until May 9, 2012, at which time the parties stipulated to shared

residential parent status. Appellant was ordered to pay $776.04 per month in child

support. No objections were filed nor was an appeal perfected from this decree. Over

the next few years, the parties filed multiple motions; various hearings were set and

continued. Most of the contested matters involved requests for changes in child support

and custody that were never fully resolved.

      {¶3}   Relevant to the case sub judice, the parties submitted an Amended

Shared Parenting Plan in December 2015, which was approved by the trial court. The

parties agreed to equal parenting time, but could not agree on child support. Thus, the

plan provided that the trial court was to make the determination as to child support. A

hearing was held on this issue before a magistrate on December 3, 2015.

      {¶4}   The magistrate’s decision found there had been no change in parenting

time from the date the divorce was decreed. The magistrate also found that appellant

was voluntarily underemployed and, as a result, imputed income to him in the amount of

$60,164. Adding this amount to appellant’s income from VA benefits and his business,

the magistrate calculated appellant’s gross annual income on the Child Support

Computation Worksheet to be $109,000.             He determined appellee’s annual gross

income was $37,500. Appellant was ordered to pay child support in the amount of

$1012.15 per month.




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      {¶5}   Appellant filed objections to the magistrate’s decision, which were

overruled.   The trial court approved the magistrate’s decision on April 28, 2016.

Following a limited remand from this court to address a final appealable order issue, the

trial court reissued its judgment entry on July 19, 2016, which approved the magistrate’s

decision and set forth the specific amount of child support ordered.

      {¶6}   Appellant asserts two assignments of error for our review from this entry:

             [1.] The trial court’s finding that the appellant was voluntarily
             unemployed [sic] was against the manifest weight of the evidence.

             [2.] The trial court erred and abused its discretion in failing to grant
             a downward deviation in child support based upon the fact that the
             parties share equal parenting time.

      {¶7}   R.C. 3119.02 provides, in pertinent part:

             In any action in which a court child support order is issued or
             modified, * * * the court or agency shall calculate the amount of the
             obligor’s child support obligation in accordance with the basic child
             support schedule, the applicable worksheet, and the other
             provisions of sections 3119.02 to 3119.24 of the Revised Code.
             The court or agency shall specify the support obligation as a
             monthly amount due and shall order the support obligation to be
             paid in periodic increments as it determines to be in the best
             interest of the children. * * *

      {¶8}   Here, the trial court approved an Amended Shared Parenting Plan

submitted by the parties.     R.C. 3119.022 provides a Child Support Computation

Worksheet the trial court is required to use when it “calculates the amount of child

support to be paid pursuant to a child support order in a proceeding * * * in which the

court issues a shared parenting order[.]”

      {¶9}   Under his first assignment of error, appellant challenges the factual finding

that appellant is voluntarily underemployed and the decision to impute income in the

amount of $60,164 as being against the manifest weight of the evidence.



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      {¶10} To calculate the amount of child support owed, the trial court must first

determine the annual income of each parent. See R.C. 3119.022. “Income” in a child

support case is defined as either of the following: “(a) For a parent who is employed to

full capacity, the gross income of the parent; (b) For a parent who is unemployed or

underemployed, the sum of the gross income of the parent and any potential income of

the parent.” R.C. 3119.01(C)(5).

      {¶11} When a trial court determines a parent “is voluntarily unemployed or

voluntarily underemployed,” “potential income” includes imputed income.               R.C.

3119.01(C)(11)(a). The income to be imputed by the trial court is the income the parent

would have earned if fully employed as determined by the factors listed in R.C.

3119.01(C)(11)(a)(i)-(xi). Hammonds v. Eggett, 11th Dist. Geauga No. 2010-G-2980,

2011-Ohio-6510, ¶17. Those factors include the parent’s prior employment experience;

education; physical and mental disabilities, if any; the availability of employment and the

prevailing wage and salary levels in the geographic area in which the parent resides;

special skills and training; whether there is evidence that the parent has the ability to

earn the imputed income; the age and special needs of the child; the parent’s increased

earning capacity because of experience; the parent’s decreased earning capacity due to

a felony conviction; and any other relevant factor. R.C. 3119.01(C)(11)(a).

      {¶12} “Whether a parent is ‘voluntarily underemployed’ within the meaning of

[the statute], and the amount of ‘potential income’ to be imputed to a child support

obligor, 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 (1993), syllabus

(referring to the analogous provisions found in former R.C. 3113.215).




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              Nothing in the statute requires proof that an obligor intended to
              evade a higher support obligation by not obtaining employment
              commensurate with education, qualifications and ability. The
              primary design and purpose of [the statute] are to protect and
              ensure the best interests of children. 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.

Id. at 111 (emphasis sic) (footnote omitted) (internal citation omitted).

       {¶13} “‘It is well established that an appellate court employs an abuse of

discretion standard when reviewing matters concerning child support.’”               In re

Cunningham, 11th Dist. Trumbull No. 2008-T-0006, 2008-Ohio-3737, ¶26, quoting

Gordon v. Liberty, 11th Dist. Portage No. 2004-P-0059, 2005-Ohio-2884, ¶14, citing

Booth v. Booth, 44 Ohio St.3d 142, 144 (1989); see also Rock, supra, at syllabus. A

challenge to the manifest weight of the evidence, however, also requires a review of the

evidence presented, including the reasonable inferences and the credibility of the

witnesses, to determine whether the trier of fact clearly lost its way and created such a

manifest miscarriage of justice that the decision must be reversed. Id. at ¶41, citing

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); see also Smith v. Smith, 11th Dist.

Geauga No. 2013-G-3126, 2013-Ohio-4101, ¶42, citing Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179.

       {¶14} The magistrate held a hearing in December 2015 on the issue of child

support. Appellant testified that he receives approximately $23,000 per year in VA

benefits. He lost his job at Sims Buick where he earned approximately $109,000 in the

year 2013. Appellant agreed this is proof that he has the current ability to earn that

same amount.      Appellant further testified that he started his own business, Storm

Service Solutions LLC, in May or June of 2015 and only pays himself a draw of $500



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per week (i.e., $26,000 per year). Appellant testified he only draws $500 per week

because he is trying to build up the business and he “[doesn’t] have, really, have that

many bills.” Appellant also testified, however, that his company employs 14 employees,

some of which are paid more than himself.        He further testified that the company

purchased and/or makes payments on a 2016 Ford F150 truck ($45,000), a 2010 Ford

F250 service van ($10,000), two 2015 Ford Fusions used by his sales people ($20,000

each), a 2015 one-ton diesel truck ($56,000), and a 2008 Ford Ranger truck ($10,000),

which the company then gifted to his father; the company leases a commercial property

for $1500/month; and the company makes monthly insurance premiums in the amount

of $2500/month. The record also reflects the company purchased a four-wheeler in the

amount of $1500.

      {¶15} Here, the magistrate found that appellant is voluntarily underemployed

based on his testimony that he has the current ability to earn at least $109,000 annually

but that he has elected to defer his own income while he is building his business. Thus,

the magistrate imputed income to appellant in the amount of $60,164. Added to the

$26,000 annual income from his business and the $22,836 annual VA benefits, this

resulted in an annual gross income of $109,000 on the Child Support Computation

Worksheet.

      {¶16} Considering the testimony outlined above, the magistrate’s finding that

appellant is voluntarily underemployed is not against the manifest weight of the

evidence. Based on appellant’s prior employment experience and evidence that he has

the ability to earn the imputed income, we cannot say the trial court abused its




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discretion in imputing $60,164 to appellant for purposes of calculating his child support

obligation.

       {¶17} Appellant’s first assignment of error is without merit.

       {¶18} Under his second assignment of error, appellant argues the trial court

erred by not granting a downward deviation of his child support obligation, even though

the parties share equal parenting time. Appellant concedes the parties have shared

equal parenting time since the divorce decree was entered in 2012 and that his

parenting time has not increased since then. He asserts, however, that the trial court

should have considered “extended parenting time” when it issued the current child

support order because the parties did not share equal parenting time at the time they

entered into the original Shared Parenting Plan.

       {¶19} Under R.C. 3119.22, the court may order an amount of child
             support that deviates from the amount of child support that would
             otherwise result from the use of the basic child support schedule
             and the applicable worksheet if the court determines that the actual
             annual obligation would be unjust or inappropriate and would not be
             in the child’s best interest. In making this determination, the court
             must consider the factors set forth in R.C. 3119.23.

Owais v. Costandinidis, 2d Dist. Greene No. 2007 CA 89, 2008-Ohio-1615, ¶41. One

such factor is “[e]xtended parenting time or extraordinary costs associated with

parenting time[.]” R.C. 3119.23(D).

       {¶20} “The decision to deviate from the actual annual obligation is discretionary

and will not be reversed absent an abuse of discretion.” Owais, supra, at ¶41; see also

Holt v. Holt, 11th Dist. Trumbull No. 2002-T-0147, 2004-Ohio-4536, ¶9-11.

       {¶21} Here, the trial court determined that the Amended Shared Parenting Plan

did not significantly alter the parenting time provided for in the original Shared Parenting




                                             7
Plan. Appellant also concedes that his parenting time has not increased since 2012

when the Divorce Decree was entered and child support was set at $776.04. Further,

appellant’s gross annual income, including the imputed income affirmed above, is

significantly greater than appellee’s. Nothing in the record indicates that the failure to

grant a downward deviation to appellant’s child support obligation was not in the child’s

best interest. Thus, we cannot say the trial court abused its discretion in this regard.

       {¶22} Notwithstanding the foregoing conclusion, we find a limited remand is

necessary. Appellant contends the magistrate mistakenly designated appellee as the

sole residential parent and legal custodian on the Child Support Computation

Worksheet.

       {¶23} The trial court approved the Amended Shared Parenting Plan submitted

by the parties. That plan sets forth the parties’ agreement that they will share parenting

of their child in all respects.    On the Child Support Computation Worksheet, the

magistrate checked the box for “Mother” as the residential parent and legal custodian,

instead of checking the box indicating “Shared.”

       {¶24} “[I]n a shared parenting arrangement, neither party is a nonresidential

parent. Instead, under R.C. 3109.04[(L)(6)], both parents are considered residential

parents at all times.” Pauly v. Pauly, 80 Ohio St.3d 386, 388 (1997). Thus, it appears

the magistrate should have checked the box to indicate the parties share the

designation of residential parent and legal custodian.

       {¶25} Based on the reasoning set forth above, appellant’s second assignment of

error is overruled insofar as he challenges the trial court’s decision not to make a

downward deviation in his child support obligation.          The assignment of error is




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sustained, however, insofar as it calls into question the designation of residential parent

and legal custodian. The cause will be remanded for the trial court to issue a nunc pro

tunc entry correcting the designation of residential parent and legal custodian on Exhibit

B, the Child Support Computation Worksheet, of the trial court’s judgment entry.

       {¶26} The judgment of the Trumbull County Court of Common Pleas, Domestic

Relations Division, is affirmed.    The matter is remanded for further proceedings

consistent with this opinion.



CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.




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