[Cite as Bosch v. Bosch, 2017-Ohio-7308.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


NICHOLAS BOSCH                              :       JUDGES:
                                            :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                 :       Hon. Craig R. Baldwin, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
KELLY J. BOSCH                              :       Case No. 17-CA-14
                                            :
        Defendant-Appellee                  :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Divison,
                                                    Case No. 13 DR 483




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   August 21, 2017




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

HOLLY P. REGOLI                                     THOMAS C. LIPP
124 West Main Street                                KEVIN J. TROTTER
Suite 203                                           123 South Broad Street
Lancaster, OH 43130                                 Suite 309
                                                    Lancaster, OH 43130
Fairfield County, Case No. 17-CA-14                                                          2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant Nicholas Bosch (Father), appeals the February 14, 2017

judgment entry adopting the magistrate’s decision of the Fairfield County Court of

Common Pleas Domestic Relations Division. Defendant Appellee is Kelly Bosch (Mother).

                            FACTS AND PROCEEDURAL HISTORY

       {¶ 2} Father and Kelly Bosch were married in September 2008 and have two minor

children, one born before their marriage, and one after. They separated in October, 2013.

Father filed for a divorce on November 6, 2013. The matter proceeded to a trial before a

magistrate on March 14, 2016. The sole purpose of the trial was to address financial

matters. Here on appeal, Father’s sole issue is the trial court’s imputation of his income

in the amount of $70,976.48.

       {¶ 3} Before trial, Father had four different attorneys. At trial, Father represented

himself. He made no opening or closing argument, presented no evidence or exhibits,

declined to testify, and cross-examined Mother only as to her current income. He

presented no evidence as to his current or prior income. He then rested his case.

       {¶ 4} Mother, through counsel, presented evidence of her own income and

expenses, as well as W-2’s from Father’s last known place of employment, Scioto Ready

Mix. Father’s gross income with Scioto Ready Mix was $70,976.48.

       {¶ 5} At the conclusion of the trial the parties were directed to submit proposed

findings of fact and conclusions of law. Father filed the same on April 19, 2016. The

document included seven exhibits and information that Father did not present at trial. The

magistrate issued her decision on October 19, 2016. In rendering her decision, the

magistrate did not consider the exhibits or information that Father failed to present at trial.
Fairfield County, Case No. 17-CA-14                                                        3


         {¶ 6} Father filed objections to the magistrate’s decision on October 31, 2016.

Mother filed a reply on January 30, 2017. On January 31, Father filed “Amended and

Supplemental Objections to the Magistrate Decision.” In each, Father attempted to

introduce evidence and pose arguments that should have been raised at trial.

         {¶ 7} On February 14, 2017, the trial court denied Father’s objections and amended

objections, and adopted the magistrate’s decision.

         {¶ 8} Father now appeals, raising one assignment of error:

                                                 I

         "THE TRIAL COURT ERRED WHEN IT IMPUTED INCOME OF $70,000.00 TO

PLAINTIFF-APPELLANT."

         {¶ 9} Preliminarily, we note this case is before this court on the accelerated

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment

on appeal, provides in pertinent part: "The appeal will be determined as provided by

App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court's decision as to each error to be in brief and conclusionary form."

         {¶ 10} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983).

         {¶ 11} This appeal shall be considered in accordance with the aforementioned

rules.
Fairfield County, Case No. 17-CA-14                                                       4


       {¶ 12} Father argues that the trial court abused its discretion when it determined

he was underemployed and imputed to him an income of $70,000.00 a year. We disagree.

       {¶ 13} Our standard of review of decisions of a domestic relations court relating to

child support, spousal support and property division, is generally an abuse of discretion

standard. Snyder v. Snyder 5th Dist. Stark No. 2008CA00219, 2009-Ohio-5292 ¶ 28. The

Supreme Court has repeatedly held the term abuse of discretion implies the court's

attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983). When applying the abuse of discretion standard,

a reviewing court may not substitute its judgment for that of the trial court. Holcomb v.

Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (1989).

       {¶ 14} In calculating child support, a trial court is permitted to impute income to a

parent when the parent is voluntarily unemployed or voluntarily underemployed. R.C.

3119.01(C)(11). This Court stated in Farrell v. Farrell, 5th Dist. Licking No. 2008-CA-0080,

2009-Ohio-1341, ¶ 20: “In deciding if an individual is voluntarily under employed or

unemployed, the court must determine not only whether the change was voluntary, but

also whether it was made with due regard to obligor's income-producing abilities and his

or her duty to provide for the continuing needs of the child. Woloch v. Foster, 98 Ohio

App.3d 86, 649 N.E.2d 918 (1994). A trial court does so by weighing the circumstances

of each particular case. Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993).”

       {¶ 15} Pursuant to R.C. 3119.01(C)(11)(a), imputed income is determined from the

following criteria:

       (i) The parent's prior employment experience;

       (ii) The parent's education;
Fairfield County, Case No. 17-CA-14                                                     5


       (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) The parent's decreased earning capacity because of a felony conviction;

       (xi) Any other relevant factor.



       {¶ 16} In determining Father’s income in order to arrive at his child support

obligation, the magistrate found the following:



                     At trial, Father presented no evidence regarding his current

              income or his prior income. The only evidence before the court

              regarding Plaintiff’s income is Defendant’s Trial Exhibit 9

                     According to Defendant’s Trial Exhibit 9, Father previously

              worked for Scioto Ready Mix and earned gross pay of $43,129.30

              between June 30, 2013 and December 27, 2013. According to
Fairfield County, Case No. 17-CA-14                                                 6


            Defendant’s Trial Exhibit 9, Father earned gross pay of $27847.18

            from January 3, 2014 to June 20, 2014 at Scioto Ready Mix. Thus,

            for an approximate twelve month period from June 30, 2013, to June

            20, 2014, Father earned a total of $70,976.48.

                   Some of Father’s gross income is overtime income and bonus

            income. The child support statute requires the Magistrate to include

            either last year’s overtime and bonus income or the average of the

            past three years of overtime and bonus income, whichever is less.

            The Magistrate is unable to make this determination with the

            evidence presented. The Plaintiff and Defendant failed to present

            evidence the past three years of Plaintiff’s overtime and bonus

            income. Therefore, for child support purposes, overtime income is

            included based upon Father’s overtime earnings from June 30, 2013

            through June 20, 2014.

                   Father declined to testify or offer any other evidence when he

            had the opportunity to present his case-in-chief. Father did not

            provide evidence of his current employment or current sources of

            income. If Father is no longer working at Scioto Ready Mix, he

            offered no explanation for this. The Magistrate concludes that work

            is available in the locality for which Father would be qualified. If

            Father is no longer earning an annual income of $70,976.48, the

            magistrate concludes he is voluntarily underemployed. For child

            support purposes, income is imputed to Father at $70,976.48.
Fairfield County, Case No. 17-CA-14                                                         7


       {¶ 17} Father complains there was no evidence presented at the trial to support a

conclusion that he is voluntarily underemployed, yet he produced no evidence to the

contrary. The only evidence presented consisted of tax documents from Father’s last

known place of employment.

       {¶ 18} Father additionally argues the trial court failed to consider any of the factors

contained in Ohio Revised Code Section 3119.01(C)(11) to determine his potential

income. This court, however, has previously found there is no “magic language”

requirement in deciding if an individual is voluntarily under employed or unemployed.

Snyder v. Snyder, 5th Dist. Stark No. 2008CA00219, 2009-Ohio-5292 ¶ 37, citing

Winkelman v. Winkelman, 7th Dist. Geauga No. 07 DC 255, 2008-Ohio-6557, ¶ 22. We

find the trial court's statement to be sufficient to comply with the requirement of R.C. R.C.

3119.01(C)(11) that a finding of voluntary unemployment or underemployment be made

before imputing income for child support purposes.

       {¶ 19} As noted above, Father presented no evidence at trial as to his current

employment. Mother presented evidence of Father’s last known place of employment.

This is the only evidence from which the magistrate could draw a conclusion. Upon review

of the record, we simply cannot find the trial court abused its discretion in determining the

imputation of income.
Fairfield County, Case No. 17-CA-14                    8


      {¶ 20} The sole assignment of error is denied.


By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.




EEW/sg 807
