[Cite as Courtney v. Courtney, 2014-Ohio-4281.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




MELISSA A. COURTNEY,                              :
                                                       CASE NOS. CA2013-09-087
        Plaintiff-Appellee/                       :              CA2013-10-096
        Cross-Appellant,
                                                  :           OPINION
                                                               9/29/2014
   - vs -                                         :

                                                  :
DARREN L. COURTNEY,
                                                  :
        Defendant-Appellant/
        Cross-Appellee.                           :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                             Case No. 12DR35243



Rittgers & Rittgers, Nicholas D. Graman, 12 East Warren Street, Lebanon, Ohio 45036, for
plaintiff-appellee/cross-appellant

Jim L. Hardin, 200 East Silver Street, Lebanon, Ohio 45036, for defendant-appellant/cross-
appellee



        S. POWELL, J.

        {¶ 1} Defendant-appellant/cross-appellee, Darren L. Courtney (Father), appeals from

a divorce decree issued by the Warren County Court of Common Pleas, Domestic Relations

Division, following his divorce from plaintiff-appellee/cross-appellant, Melissa A. Courtney

(Mother). Mother has filed a cross-appeal from the same divorce decree. For the reasons
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outlined below, we affirm in part, reverse in part and remand for further proceedings.

       {¶ 2} Mother and Father were married on September 9, 1994. The couple had three

children born issue of the marriage, the youngest being a special needs child due to his

diagnosis of Fragile X Syndrome. On January 12, 2012, after discovering information she

believed proved Father was having an affair, Mother filed a complaint for divorce. Shortly

thereafter, on February 17, 2012, Father was terminated from his position as general in-

house counsel with Fujitec America, Inc., based on allegations he had sexually harassed a

co-worker. It is undisputed that Father earned a salary of $161,967 from his employment

with Fujitec America for the year 2011.

       {¶ 3} Following his termination from the company, on March 2, 2012, Fujitec America

notified the Mason Police Department that it had discovered documents in Father's office and

on his office computer that lead them to believe Father had stolen thousands of dollars from

the company. On June 25, 2012, after the police investigation had concluded, a Warren

County grand jury returned an indictment against Father charging him with two counts of

aggravated theft, one count of telecommunications fraud, and one count of tampering with

records, all third-degree felonies. Father subsequently pled guilty to one count of aggravated

theft on March 28, 2013 and was then sentenced on May 15, 2013. See State v. Courtney,

Warren C.P. No. 12CR28271 (May 15, 2013) (Judgment Entry of Sentence). As a result of

his guilty plea, the Ohio Supreme Court suspended Father from the practice of law for an

interim period beginning on June 21, 2013 pending a disciplinary investigation and

proceeding. See In re Courtney, 136 Ohio St.3d 1220, 2013-Ohio-2551.

       {¶ 4} On March 28, 2013, the same day Father entered his guilty plea, a final divorce

hearing was held, wherein a magistrate heard testimony from both Mother and Father.

During the final divorce hearing, Mother testified that she worked for Mason Public Schools

as a special education teacher making $51,670 a year, as well as tutoring students five hours
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a week making $19.50 an hour. Mother also testified that she worked at a nursing home

during the summer making $10 an hour.

           {¶ 5} On the other hand, Father testified "I'd rather be a contractor and carpenter

than an attorney." To that end, Father testified he had done "some" work as a carpenter and

a contractor billing at a rate of $20 an hour. Father also testified that he was working at

Office Depot making $10.50 an hour and that he received $539 per week in unemployment.

According to Father's testimony, he hoped to start a contracting business over the next

several years because he "can be a decent businessman and hopefully I can make a decent

living."

           {¶ 6} On April 5, 2013, the magistrate issued its decision recommending the parties

be divorced.        As part of that decision, the magistrate found Father was voluntarily

underemployed and imputed income to him for child and spousal support purposes in the

amount of $161,967, the same amount Father made while working as general in-house

counsel for Fujitec America in 2011. The magistrate also awarded Mother $5,787 in attorney

fees by allowing Mother to retain Father's share in an IRA valued at $11,574. Mother and

Father both filed objections to the magistrate's decision, which, as relevant here, the trial

court denied. The trial court then issued an entry and final decree and judgment of divorce

adopting the magistrate's decision on September 20, 2013.

           {¶ 7} Father now appeals from the trial court's decision, raising four assignments of

error for review. Mother has also appealed from that decision, raising a single cross-

assignment of error for review.

           {¶ 8} Father's Assignment of Error No. 1:

           {¶ 9} THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DETERMINATION OF

CHILD SUPPORT OF $1408.43 PER MONTH BY IMPROPERLY IMPUTING INCOME,

FAILING TO GRANT A DEVIATION, AND BY OFFSETTING PAST AND FUTURE
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SUPPORT AMOUNTS AGAINST APPELLANT'S IRA INTEREST.

       {¶ 10} In his first assignment of error, Father argues the trial court erred by finding him

to be voluntarily underemployed and by imputing potential income to him in the amount of

$161,967 for purposes of computing child support.

       {¶ 11} Pursuant to R.C. 3119.01(C)(11), before a trial court may impute income to a

parent for purposes of computing child support, it must first find that the parent is voluntarily

unemployed or voluntarily underemployed. Reynolds-Cornett v. Reynolds, 12th Dist. Butler

No. CA2013-09-175, 2014-Ohio-2893, ¶ 10. Whether a party is voluntarily unemployed or

voluntarily underemployed is "a factual determination to be made by the trial court based on

the circumstances of each particular case." Rotte v. Rotte, 12th Dist. Butler No. CA2004-10-

249, 2005-Ohio-6269, ¶ 14, citing Rock v. Cabral, 67 Ohio St.3d 108, 112 (1993). The trial

court's determination on this issue will not be disturbed on appeal absent an abuse of

discretion. Jestice v. Jestice, 12th Dist. Butler No. CA2013-07-133, 2014-Ohio-3777, ¶ 9. An

abuse of discretion connotes more than an error of law or judgment; it implies that the court's

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). "A decision is unreasonable if there is no sound reasoning process

that would support that decision." AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).

       {¶ 12} After a thorough review of the record, we find the trial court did not abuse its

discretion in finding Father was voluntarily underemployed. As noted above, Father was

terminated from his position as general in-house counsel for Fujitec America after it was

alleged he sexually harassed of a co-worker.          Since that time, Father pled guilty to

aggravated theft, a third-degree felony, after it was discovered he had stolen thousands of

dollars from the company. Although not yet suspended from the practice of law at the time of

the final divorce hearing, as noted above, the Ohio Supreme Court has since suspended
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Father from the practice of law for an interim period pending a disciplinary investigation and

proceeding. Father's felony conviction and suspension from the practice of law can all be

attributed to his voluntary and admittedly illegal acts. Therefore, we find no abuse of

discretion in the trial court's decision finding Father was voluntarily underemployed.

Accordingly, Father's argument challenging the trial court's finding him voluntarily

underemployed is overruled.

       {¶ 13} Our inquiry, however, does not end there for Father also argues the trial court

erred by imputing potential income to him. As this court recently stated, if the trial court finds

that a parent is voluntarily underemployed, such as the case here, "then it must consider the

nonexclusive list of criteria set forth in R.C. 3119.01(C)(11)(a) to determine the amount of

potential income to impute to the parent." Jestice, 2014-Ohio-3777 at ¶ 8, citing Corwin v.

Corwin, 12th Dist. Warren No. CA2013-01-005, 2013-Ohio-3996, ¶ 74. This "potential

income" includes imputed income a trial court determines the parent would have earned if

fully employed based upon personal factors such as: (1) the parent's prior employment

experience; (2) the parent's education; (3) the parent's physical and mental disabilities, if any;

(4) the parent's special skills and training; (5) whether there is evidence that the parent has

the ability to earn the imputed income; (6) the age and special needs of the child for whom

child support is being calculated; (7) the parent's increased earning capacity because of

experience; (8) the parent's decreased earning capacity because of a felony conviction; and

(9) any other relevant factor. Marron v. Marron, 12th Dist. Warren Nos. CA2013-11-109 and

CA2013-11-113, 2014-Ohio-2121, ¶ 45, citing R.C. 3119.01(C)(11)(a).

       {¶ 14} The amount of income that should be imputed, if any, is also a factual

determination made by the trial court based on the circumstances of each particular case.

Moore v. Moore, 12th Dist. Clermont No. CA2006-09-066, 2007-Ohio-4355, ¶ 67, citing

Cabral, 67 Ohio St.3d at 112. Therefore, just as the trial court's decision as to whether a
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parent is voluntarily underemployed, the trial court's determination on the amount of income

to impute to an underemployed parent will likewise not be disturbed on appeal absent an

abuse of discretion. Jestice, 2014-Ohio-3777 at ¶ 9; see also Justice v. Justice, 12th Dist.

Warren No. CA2006-11-134, 2007-Ohio-5186, ¶ 7. As stated previously, an abuse of

discretion connotes more than an error of law or judgment; it implies that the court's attitude

is unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.

       {¶ 15} Based on the facts and circumstances of this case, we find the trial court

abused its discretion in imputing $161,967 in potential income to Father, the same amount he

made while working as general in-house counsel for Fujitec America in 2011. Again,

although highly educated and trained in the law, the Ohio Supreme Court has suspended

Father from the practice of law for an interim period pending a disciplinary investigation and

proceeding, thereby making his ability to earn the imputed income highly unlikely. Moreover,

while he hopes to start a contractor business, Father's earning capacity is greatly reduced

due to his felony conviction for aggravated theft. The record also contains evidence

indicating Father has struggled with depression and may have at one point exhibited suicidal

ideations. Therefore, while it is true the parties' youngest child does require special needs,

imputing the same amount of income to Father that he earned as a high-paying attorney is

not reasonable and amounts to an abuse of discretion. Accordingly, Father's argument

challenging the trial court's decision imputing potential income to him in the amount of

$161,967 is sustained.

       {¶ 16} Father has raised several other issues under his first assignment of error

regarding the trial court's decision to award child support. However, in light of our findings

above, these issues are now rendered moot. Accordingly, Father's first assignment of error

is overruled as it relates to the trial court's decision finding him voluntarily underemployed,

but sustained as it relates to the trial court's decision imputing potential income to him in the
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amount of $161,967.

       {¶ 17} Father's Assignment of Error No. 2:

       {¶ 18} THE TRIAL COURT ERRED IN DETERMINING THE AMOUNT, LENGTH,

TYPE AND TERMS OF PAYMENT OF SPOUSAL SUPPORT.

       {¶ 19} In his second assignment of error, Father challenges multiple aspects of the

trial court's award of spousal support to Mother, a decision also based on the trial court's

erroneous decision to impute $161,967 in potential income to Father. Therefore, without

offering any opinion as to the merits of Father's claims in regards to the length, type and

terms of the trial court's spousal support award, Father's second assignment of error is also

sustained.

       {¶ 20} Father's Assignment of Error No. 3:

       {¶ 21} THE TRIAL COURT ERRED IN ITS FINDINGS AND DISTRIBUTION OF

MARITAL PROPERTY PURSUANT TO [R.C.] 3105.171.

       {¶ 22} In his third assignment of error, Father argues the trial court erred in its

distribution of marital property. Admittedly, this case provides a multitude of complex issues

regarding the proper distribution of marital property. However, based on our review of the

record, the trial court's decision regarding its findings and distribution of marital property was

also based, at least in part, on its erroneous decision to impute $161,967 in potential income

to Father. Therefore, as with his second assignment of error addressed above, Father's third

assignment of error is likewise sustained.

       {¶ 23} Father's Assignment of Error No. 4:

       {¶ 24} THE TRIAL COURT ERRED WHEN IT ORDERED APPELLANT TO PAY A

PORTION OF APPELLEE'S ATTORNEYS' FEES.

       {¶ 25} In his fourth assignment of error, Father argues the trial court erred by ordering

him to pay Mother $5,785 towards her attorney fees. Father, however, did not raise this
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issue as part of his timely-filed objections to the magistrate's April 5, 2013 decision

recommending their divorce. By failing to file an objection to the magistrate's decision on this

basis, a requirement of which he was explicitly informed, Father has effectively waived any

such claim on appeal. See Civ.R. 53(D)(3)(b)(iv); see, e.g., Needham v. Jones, 12th Dist.

Butler No. CA2012-07-135, 2013-Ohio-2965, ¶ 22; Ruble v. Ruble, 12th Dist. Madison No.

CA2010-09-019, 2011-Ohio-3350, ¶ 46; Mavity v. Mavity, 12th Dist. Butler Nos. CA2000-12-

244 and CA2000-12-247, 2002 WL 205422, *8 (Feb. 11, 2002). Father's fourth assignment

of error is therefore overruled.

       {¶ 26} Mother's Cross-Assignment of Error No. 1:

       {¶ 27} THE    TRIAL     COURT      ERRED      IN   GRANTING        ONLY     $5787    OF

APPELLEE/CROSS-APPELLANT'S ATTORNEY'S FEES.

       {¶ 28} In her single cross-assignment of error, Mother argues the trial court erred by

ordering Father to pay only $5,785 in attorney fees when her litigation expenses were

actually in excess of $19,000.

       {¶ 29} Pursuant to R.C. 3105.73(A), in an action for divorce:

              a court may award all or part of reasonable attorney's fees and
              litigation expenses to either party if the court finds the award
              equitable. In determining whether an award is equitable, the
              court may consider the parties' marital assets and income, any
              award of temporary spousal support, the conduct of the parties,
              and any other relevant factors the court deems appropriate.

       {¶ 30} It is well-established that an award of attorney fees is within the sound

discretion of the trial court. Casper v. Casper, 12th Dist. Warren Nos. CA2012-12-128 and

CA2012-12-129, 2013-Ohio-4329, ¶ 62. In turn, a trial court's decision to award attorney

fees will be reversed only if it amounts to an abuse of discretion. Reynolds-Cornett, 2014-

Ohio-2893 at ¶ 28, citing Foppe v. Foppe, 12th Dist. Warren No. CA2010-06-056, 2011-Ohio-

49, ¶ 34.

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       {¶ 31} Based on the facts and circumstances of this case, we find no abuse of

discretion in the trial court's decision to award Mother $5,787 in attorney fees, as opposed to

some larger portion of her overall attorney fees and litigation expenses. The record is clear

that the trial court considered the conduct of Father in determining the necessity and

reasonableness of attorney fees, which it has discretion to do.

       {¶ 32} However, in order to effectuate such an award, the trial court allowed Mother to

retain Father's share of an IRA valued at $11,574. Based upon our decision in Father's first,

second and third assignments of error, we find the trial court's decision to award Mother the

entire share of this IRA as Father's contribution towards her attorney fees may also be

impacted by such an award. Therefore, although we find no abuse of discretion in the trial

court's decision to award Mother with only $5,787 in attorney fees, the trial court's decision

must nevertheless be reversed so that this entire case can be reviewed anew in light of our

decision finding the trial court erred by imputing potential income to Father in the amount of

$161,967. Therefore, Mother's single cross-assignment of error is overruled.

       {¶ 33} Judgment affirmed in part, reversed in part and remanded for further

proceedings.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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