[Cite as Berg v. Berg, 2014-Ohio-4272.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

VERGIE BERG                                      JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. W. Scott Gwin, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 14-CA-26
MEREDITH BERG

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Fairfield County Domestic
                                              Relations Court, Case No. 2005 DR 31


JUDGMENT:                                     Affirmed in part; Reversed in part and
                                              Remanded


DATE OF JUDGMENT ENTRY:                        September 26, 2014


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


ANGELA J. SEIMER                              DAVID B. SHAVER
124 West Main Street, Suite 201               647 Hill Road North, Suite C.
Lancaster, Ohio 43130                         Pickerington, Ohio 43147
Fairfield County, Case No. 14-CA-26                                                          2

Hoffman, P.J.


       {¶1}   Defendant-appellant Meredith Berg appeals the February 28, 2014

Judgment Entry on Objections entered by the Fairfield County Court of Common Pleas,

Domestic Relations Division, which overruled his objections to the magistrate’s April 3,

2013 decision, and approved and adopted said decision as order of the court. Plaintiff-

appellee is Vergie Berg.1

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   The parties were married on December 22, 2001. Two children were born

as issue of the union. Both children are still minors. Appellee filed a complaint for

divorce on January 24, 2005. The parties reached an agreement before Appellant’s

answer was due, and an Agreed Entry/Decree of Divorce was filed on April 21, 2005.

Pursuant to the divorce decree, Appellant’s child support obligation was $297.62 plus

processing fees.    The trial court issued a judgment entry on July 23, 2007, which

increased Appellant’s child support to 337.56/month plus processing fees.

       {¶3}   On March 28, 2012, the Fairfield County Child Support Agency issued an

Administrative Adjustment Recommendation. The trial court originally scheduled the

matter for hearing on June 29, 2012, but rescheduled it for October 18, 2012, after

Appellant filed a motion for a continuance.

       {¶4}   Appellee propounded interrogatories and requests for production on

Appellant. The trial court scheduled a show cause hearing after Appellee filed a motion

to compel/request for sanctions due to Appellant’s failure to respond to her discovery

1
 The record in this matter shows Appellee’s name spelled “Vergie” and “Virgie”. As the
briefs filed with this Court use the “V-e-r-g-i-e” spelling, we shall use that spelling in this
Opinion.
Fairfield County, Case No. 14-CA-26                                                      3


requests.     Via Entry to Compel filed September 26, 2012, the trial court ordered

Appellant to respond to Appellee’s discovery requests by October 4, 2012. The trial

court deferred ruling on Appellee’s request for sanctions.

       {¶5}    Appellant failed to appear at the Administrative Adjustment Hearing on

October 18, 2012.       Via Judgment Entry filed October 22, 2012, the trial court

rescheduled the hearing until December 20, 2012. The trial court ordered Appellant to

bring copies of his 2009, 2010, and 2011 Income Tax returns; 2009, 2010, and 2011

W-2 forms; pay stubs from employment/self-employment for the past six months; and all

documentation pertaining to available medical insurance coverage, including the costs

of single and family policies.

       {¶6}    On December 18, 2012, Appellant filed a motion to continue the

December 20, 2012 hearing. The trial court granted the continuance and rescheduled

the hearing for February 28, 2013. Appellant did not appear at the February 28, 2013

hearing, but counsel for Appellant did appear. The magistrate heard testimony from

Appellee.     Interrogatories answered by Appellant were admitted into evidence and

made part of the record. The magistrate allowed testimony which established the home

in which Appellant lives, rent free, was purchased by his father for $345,000.

       {¶7}    Via Decision filed April 3, 2013, the magistrate found Appellant was “either

voluntarily unemployed or voluntarily underemployed.”         April 4, 2013 Magistrate’s

Decision at 2. The magistrate proceeded to set Appellant’s income for child support

purposes at $33,600. The magistrate arrived at this figure “by estimating what his

parents give him to live on in monthly terms.” Id.
Fairfield County, Case No. 14-CA-26                                                     4


      {¶8}   Appellant filed objections to the magistrate’s decision.      Via Judgment

Entry filed February 28, 2014, the trial court overruled Appellant’s objections to the

magistrate’s decision, and adopted said decision as order of the court.

      {¶9}   It is from this judgment entry Appellant appeals, raising the following

assignments of error:

      {¶10} "I. TRIAL COURT ERRED IN IMPUTING INCOME TO DEFENDANT-

APPELLANT AS THERE WAS NO EVIDENCE THAT DEFENDANT-APPELLANT WAS

VOLUNTARILY UNEMPLOYED OR UNDEREMPLOYED.

      {¶11} "II. TRIAL COURT ERRED BY NOT PROPERLY APPLYING THE

FACTORS LISTED IN O.R.C. 3119.01(11).

      {¶12} "III. THE TRIAL COURT ERRED IN IMPUTING INCOME TO THE

DEFENDANT-APPELLANT BASED UPON THE VALUE OF BENEFITS ALLEGEDLY

RECEIVED FROM HIS PARENTS OR GIRLFRIEND.

      {¶13} "IV. THE VALUE OF BENEFITS ALLEGEDLY RECEIVED BY THE

DEFENDANT-APPELLANT FROM THIRD PARTIES WAS NOT SUPPORTED BY

COMPETENT EVIDENCE."

                                                I

      {¶14} In his first assignment of error, Appellant contends the trial court erred in

imputing income to him as there was no evidence Appellant was voluntarily unemployed

or underemployed. Specifically, Appellant argues the trial court failed to make a specific

finding of fact that he was voluntarily unemployed/underemployed. We disagree.

      {¶15} Pursuant to R.C. 3119.01(C)(1) and (C)(5)(b), income for child support

purposes is defined to include the sum of the parent's gross income and “any potential
Fairfield County, Case No. 14-CA-26                                                       5


income of the parent.” Potential income includes imputed income that the court

determines the parent would have earned if fully employed based upon the criteria

articulated in R.C. 3119.01(C)(11)(a)(i)-(x). However, before a trial court may impute

income to a parent, it must first find that the parent is voluntarily unemployed or

underemployed. Inscoe v. Inscoe (1997), 121 Ohio App.3d 396, 424; Marek v. Marek,

158 Ohio App.3d 750, 2004-Ohio-5556, at ¶ 14; Rock, supra, at 111; Leonard v. Erwin

(1996), 111 Ohio App.3d 413, 417; Ramskogler v. Falkner, 9th Dist. No. 22886, 2006-

Ohio-1556, at ¶ 14 (trial court abused its discretion by failing to make the requisite

finding of voluntarily unemployed or underemployed); Sapinsley v. Sapinsley, 1st Dist.

No. C050092, 2005-Ohio-6773, at ¶ 11 (trial court abuses its discretion when it imputes

income without first finding voluntarily unemployed or underemployed).

       {¶16} A review of the record reveals the magistrate made an explicit finding

Appellant was voluntarily unemployed or underemployed prior to imputing potential

income to him.     Specifically, the magistrate found, “Mr. Berg is either voluntarily

unemployed or voluntarily underemployed.” Magistrate’s Decision at 2. Because the

trial court adopted the magistrate’s decision in toto as order of the court, the trial court

was not required to make the explicit finding in the February 28, 2014 Judgment Entry.

       {¶17} Furthermore, from our review of the record, we find there was competent,

credible evidence presented to support the trial court's conclusion Appellant was

voluntarily unemployed or underemployed.

       {¶18} Appellant’s first assignment of error is overruled.
Fairfield County, Case No. 14-CA-26                                                   6


                                                   II

       {¶19} In his second assignment of error, Appellant submits the trial court erred

by failing to properly apply the factors set forth in R.C. 3119.01(11).

       {¶20} R.C. 3119.01(C)(11)(a) provides:

               (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 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.
Fairfield County, Case No. 14-CA-26                                                        7


       {¶21} Without evidence to the contrary and despite the trial court's failure to

enunciate each relevant statutory factors, we presume the trial court considered the

statutory factors and applied the law correctly.

       {¶22} Appellant’s second assignment of error is overruled.

                                               III, IV

       {¶23} Because Appellant’s third and fourth assignments of error require similar

analysis, we shall address said assignments together. In his third assignment of error,

Appellant maintains the trial court erred in imputing income to him based upon the value

of benefits allegedly received from his parents or girlfriend. In his final assignment of

error, Appellant argues the value the trial court placed on the benefits he received was

not supported by competent evidence.

       {¶24} The trial court, in adopting the magistrate’s decision, set Appellant’s

income for child support purposes at $33,600, deriving this figure “by estimating what

his parents give him to live on in monthly terms.” The trial court estimated the monthly

mortgage payment based upon the amount Appellant’s father paid for the home in

which Appellant was living. The trial court also estimated monthly payments of real

estate taxes, home owners insurance, and auto insurance as well as monthly living

expenses.     There was no evidence presented to support any of these figures, other

than the value of the house in which Appellant was living. The judge or the trier of fact

must have before it sufficient evidence to justify or support the figures it utilizes. In the

absence of such evidence, we find the trial court erred in speculatively extrapolating

Appellant’s income for child support purposes at $33,600.
Fairfield County, Case No. 14-CA-26                                                    8


      {¶25} Accordingly, Appellant's third and fourth assignments of error are

sustained.

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

Relations Division, is affirmed in part; and reversed in part, and the matter remanded to

recalculate Appellant's imputed income and redetermine child support.

By: Hoffman, P.J.

Gwin, J. and

Wise, J. concur
