[Cite as Huth v. Huth, 2019-Ohio-2970.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


 KRESNT D. HUTH,                                    :         OPINION

                   Plaintiff-Appellee,              :
                                                              CASE NO. 2018-P-0084
         - vs -                                     :

 ROBERT J. HUTH,                                    :

                   Defendant-Appellant.             :


 Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
 Division, Case No. 2007 DR 00548.

 Judgment: Affirmed in part and reversed in part; remanded.


 Eric R. Fink, 11 River Street, Kent, OH 44240 (For Plaintiff-Appellee).

 David M. Leneghan and K. Scott Carter, 200 Treeworth Boulevard, Suite 200, Broadview
 Heights, OH 44147 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Robert J. Huth, appeals from a judgment entered by the Portage

County Court of Common Pleas, Domestic Relations Division, on October 10, 2018. The

judgment is affirmed in part and reversed in part, and the matter is remanded for further

proceedings consistent with this opinion.

        {¶2}      This matter originated in the trial court as a divorce action between appellant

(“Father”) and appellee, Kresnt D. Huth (“Mother”), in 2007. The parties were granted a

divorce on June 3, 2008, and the trial court implemented a Shared Parenting Plan for the
three minor children born during the marriage. With regard to child support, the Shared

Parenting Plan provided:

              Father shall pay to Mother for support of the minor children the sum
              of $300.00 per month, plus 2% processing charge commencing April
              25, 2008. An upward deviation in child support is warranted because
              of the time the children spend with each parent and to equalize the
              parties’ income. If not for the upward deviation in child support,
              Father shall pay to Mother for the support of the minor children the
              sum of $78.87 per month plus 2% processing charge for a total of
              $80.45 per month pursuant to the attached Child Support Calculation
              Worksheet.

The Shared Parenting Plan additionally provided that “all cost [sic] of school lunches,

school fees, extracurricular activities, sports equipment, lessons, school supplies,

yearbooks, school clothes, etc. shall be split equally between the parties.”

       {¶3}   Father failed to pay child support to Mother, which resulted in contempt

proceedings. In 2010, Father filed a Motion for Modification of Child Support “based upon

a change in the parties’ financial conditions.”      The parties entered into an Agreed

Judgment Entry on July 14, 2010, in which Mother agreed to waive the past due child

support, and Father’s current child support obligation was deviated to zero. Father

remained obligated to pay an amount towards the children’s medical care.

       {¶4}   On July 21, 2014, Father filed a Motion for Reallocation of Parental Rights

and Responsibilities, in which he requested to be named residential parent of two of the

parties’ three children. In a Motion for In-Camera Interview, Father stated that “time is of

the essence in this matter as [Father] will be relocating to the State of Florida and desires

to enroll the children in school in a timely fashion if possible for the upcoming school

year[.]”




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       {¶5}   On August 28, 2015, Mother filed a Motion to Modify Child Support based

upon a change in circumstances.          “Specifically,” she stated, “Father has changed

addresses, is no longer evenly dividing any expenses, and therefore has not paid any

child support in over six (6) months.”

       {¶6}   A hearing was held February 3, 2016, a transcript of which has not been

provided on appeal. It appears undisputed, however, that Father did not attend the

hearing. Father’s counsel appeared, as did Mother and her counsel.

       {¶7}   On February 24, 2016, the trial court issued a Judgment Entry, in which it

declared the parties had agreed to be bound by the attached Amended Shared Parenting

Plan and had agreed to dismiss all outstanding motions. According to the Amended

Shared Parenting Plan, Father was to pay Mother $600.00 to settle her claim for prior

child support and a deviated amount of $625.00 per month, commencing retroactively on

November 1, 2015.

       {¶8}   Father again failed to pay child support, and contempt proceedings were

initiated in 2017.

       {¶9}   On February 12, 2018, Father filed a Motion to Modify Child Support,

alleging a change of circumstances: “Before [the February 24, 2016] Order the parties

had equal parenting time, but Defendant moved to Florida. Defendant has returned from

Florida and the parties are back implementing equal parenting time.”

       {¶10} The trial court held an evidentiary hearing on April 9, 2018, a transcript of

which has not been provided on appeal. It is apparent from the record, however, that

Father disputed that the February 24, 2016 order was valid because he had not agreed

to the Amended Shared Parenting Plan.




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      {¶11} By judgment entry issued June 13, 2018, the trial court vacated its February

24, 2016 order and the Amended Shared Parenting Plan. The court explained as follows:

             [At the hearing on April 9, 2018,] the parties stipulated as to the
             calculations and accounting performed by CSEA regarding
             payments and arrearages subject to and conditioned upon a finding
             that the order of February 24, 2016, is a valid and binding order.
             [Father] disputed that the February order is valid.

             The first witness, Ms. Judy Rice from CSEA, testified that [Father]
             contacted CSEA on July 26, 2016; August 19, 2016; October 20,
             2016; and December 5, 2016. On each occasion [Father] denied
             that there was any child support order.

             There is no dispute that a hearing was held on February 3, 2016.
             [Mother] and counsel were present and counsel for [Father] was
             present. [Father] testified that he knew of the hearing, but knowingly
             elected not to attend that hearing.

             The parties had been following a Shared Parenting Plan. Under the
             terms of that Shared Parenting Plan, neither party was ordered to
             pay child support. [Father], however, indicated that he was moving
             to Florida and the Shared Parenting Plan would be impossible to
             follow. The purpose of the February 3, 2016 hearing was to establish
             child support.

             [Father] has now returned to the area and wishes to resume
             operating under a Shared Parenting Plan where he would pay no
             child support. A new Shared Parenting Plan has not been adopted
             by the Court.

             There is no dispute that [Father] owes some child support for the time
             he was living in Florida. He has, however, not paid any child support.
             Although the order of February 24, 2016 was called an Agreed Entry,
             it was not signed by [Father] or his counsel. The Court, with
             reluctance, feels obligated to vacate that February 24, 2016 order.

             * * * Counsel for the parties are ordered to contact the Court forthwith
             and schedule a hearing date to establish child support. The start
             date for said order shall be February 1, 2016.

      {¶12} An evidentiary hearing was held August 13, 2018, at which both Mother and

Father testified. Both parties were represented by counsel. A representative of the Child




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Support Enforcement Agency (“CSEA”) was also present. The trial court permitted the

parties to file briefs in lieu of closing arguments.

       {¶13} On October 10, 2018, the trial court issued a judgment entry, in which it

stated it was ruling on Mother’s August 28, 2015 Motion to Modify Child Support because

the February 24, 2016 “agreed” entry had been vacated.

       {¶14} The trial court found that Father’s move to Florida had “resulted in a de facto

termination of the Shared Parenting Plan”; the three children reside full time with Mother,

who is employed and has been paying all of the children’s medical expenses, insurance,

and day-to-day living expenses; Father visits the children sporadically; Father voluntarily

elects to remain underemployed and has only ever made one child support payment.

       {¶15} The trial court determined Mother’s annual income to be $38,000.00 and

imputed an annual income to Father in the amount of $54,154.30. The court ordered

Father to pay child support in the sum of $992.75 per month when health insurance is

provided, and $789.60 plus $221.13 in medical support per month when health insurance

is not provided. The modified child support order was ordered effective, retroactively,

from September 1, 2015.

       {¶16} All other pending motions were overruled and dismissed without prejudice.

       {¶17} Father noticed an appeal from this entry and asserts the following four

assignments of error for our review:

              [1.] The trial court lacked jurisdiction to terminate the shared
              parenting plan making the judgment void.

              [2.] The trial court abused its discretion in terminating the shared
              parenting plan.

              [3.] The trial court abused its discretion when it found appellant
              under-employed and then imputed income.



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              [4.] The trial court abused its discretion in relating the modification
              back to the filing of the motion to modify.

       {¶18} Father’s first two assignments of error relate to the trial court’s finding that

there has been a “de facto” termination of the Shared Parenting Plan. Father argues the

trial court was without jurisdiction to terminate the Shared Parenting Plan on its own

motion, rendering the judgment void. Alternatively, Father argues the trial court abused

its discretion in terminating the Shared Parenting Plan because there was no change in

circumstances and the court did not undertake a best interest analysis with regard to the

children.

       {¶19} Mother responds that the trial court had jurisdiction to terminate the Shared

Parenting Plan on its own motion, pursuant to R.C. 3109.04(E)(2)(c). Mother alternatively

asserts that Father invoked the trial court’s jurisdiction to terminate the Shared Parenting

Plan when he filed his Motion for Reallocation of Parental Rights and Responsibilities on

July 21, 2014.

       {¶20} We find both parties’ arguments without merit, as they are based on a false

premise. The trial court did not terminate the Shared Parenting Plan. It merely observed

the following: “At one time the children were subject to a Shared Parenting Plan. The

Defendant then moved to Florida, which resulted in a de facto termination of the Shared

Parenting Plan.” This observation of the trial court did not, however, effectively terminate

the Shared Parenting Plan. There is, in fact, no order that demonstrably terminated the

Shared Parenting Plan. In support of our determination that it was not the trial court’s

intention to terminate the Shared Parenting Plan, we note the Child Support Computation

Worksheet attached to the trial court’s order indicates it is a Shared Parenting Order




                                             6
worksheet. Further, if the trial court had terminated the parties’ Shared Parenting Plan, it

would have issued a modified decree for the allocation of parental rights and

responsibilities for the care of the children, pursuant to R.C. 3109.04(E)(2)(d). It did not

do so. Finally, in order to terminate the parties’ Shared Parenting Plan upon its own

motion, the trial court was required to find that shared parenting is not in the best interest

of the children. See Larbig v. Larbig, 11th Dist. Ashtabula No. 2016-A-0070, 2017-Ohio-

7288, ¶14, citing R.C. 3109.04(F)(1). No such finding was made.

         {¶21} Accordingly, Father’s first and second assignments of error are without

merit.

         {¶22} The remaining two assignments of error relate to the trial court’s

modification of child support. In his third assignment of error, Father argues the trial court

abused its discretion by imputing income to him in the absence of any evidence

establishing he is voluntarily underemployed.

         {¶23} At the time of the trial court’s order, R.C. 3119.02 provided, in pertinent part:

                In any action in which a court child support order is issued or
                modified, [or] in any other proceeding in which the court determines
                the amount of child support that will be ordered to be paid pursuant
                to a child support order, * * * the court * * * 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 * * * 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.
                ***

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

determine the annual income of each parent. “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




                                                7
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)(9) (formerly (C)(5)). When a trial court determines a parent “is voluntarily

unemployed or voluntarily underemployed,” “potential income” includes “imputed

income.” R.C. 3119.01(C)(17)(a) (formerly (C)(11)(a)).

      {¶25} The income to be imputed by the trial court is the income the voluntarily

unemployed or underemployed parent would have earned if fully employed, as

determined by the factors listed in R.C. 3119.01(C)(17)(a)(i)–(xi). 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)(17)(a) (formerly (C)(11)(a)). See Hammonds v. Eggett, 11th

Dist. Geauga No. 2010-G-2980, 2011-Ohio-6510, ¶17.

             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.

Rock v. Cabral, 67 Ohio St.3d 108, 111 (1993) (emphasis sic) (footnote and internal

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




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       {¶26} “Thus, the potential income to be imputed to a voluntarily unemployed or

underemployed parent is based upon the amount the parent would have earned if he or

she had been fully employed. The imputed amount of income, in turn, is determined” by

applying R.C. 3119.01(C)(17)(a). Fields v. Fields, 11th Dist. Ashtabula No. 97-A-0073,

1998 WL 964543, *4 (Dec. 31, 1998) (applying former R.C. 3113.215).

       {¶27} “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, supra, at syllabus. Thus, absent an abuse of discretion, the trial court’s

determinations in this regard will not be disturbed on appeal. Id. at 112, citing Booth v.

Booth, 44 Ohio St.3d 142, 144 (1989).

       {¶28} The trial court found that Father “works as a subcontracting concrete

finisher on a seasonal basis and voluntarily elects to remain underemployed.” The trial

court found that Father’s actual income for 2017, the year prior to the evidentiary hearing,

was $47,824.00:

              Based upon [Father’s] testimony, using figures most favorable to
              [Father], [Father’s] income was $6,800 for the first three months of
              2017, $20,512 for the last four and a half months of the year, and
              one could extrapolate that his income from April to August is the
              same as the last four and a half months of the year, $20,512. This
              would result in annual income of $47,824.

       {¶29} The trial court then determined Father’s annual potential income is

$54,154.30. In making this determination, the trial court made the following findings:

              [Mother] believes the most accurate calculation of [Father’s] income
              is to differentiate between his regular season and off-season income.
              [Father] has proven that he is completely capable of working in the
              off-season and, based upon his earnings from January to March of
              2018, he is fully capable of earning $2,266.67 per month in the off-



                                             9
              season ($6,800 for 3 months). At $25 per hour, this is only about 90
              hours a month (i.e., working less than half of each month). Similarly,
              based upon 2017, [Father] is capable of earning $5,860.57 in the
              busy months (the three and a half months from mid-August through
              November of 2017). Therefore, [Father’s] annual income would be
              calculated by treating January through half of April as off-season,
              half of April through November as regular season, and December as
              off-season. This results in an annual projected income of $2,266.67
              (January) plus $2,266.67 (February) plus $2,266.67 (March) plus
              $1,133.34 (first half of April) plus $2,930.29 (second half of April) plus
              $5,860.57 (May) plus $5,860.57 (June) plus $5,860.57 (July) plus
              $5,860.57 (August) plus $5,860.57 (September) plus $5,860.57
              (October) plus $5,860.57 (November) plus $2,266.67 (December)
              equaling $54,154.30.

       {¶30} Finally, the trial court imputed the entire amount of potential income to

Father: “It is hereby ordered, adjudged and decreed that the income to be imputed to the

Defendant is $54,154.30.”

       {¶31} The trial court did not reference what facts and circumstances it relied on in

finding Father voluntarily underemployed. Nevertheless, based on Father’s testimony at

the evidentiary hearing, we conclude the trial court did not abuse its discretion in making

this finding. For instance, Father testified that he was not disabled or injured, he was able

to feed his three children on only $50-$60 for the three days he used to have them each

week, and he was overqualified for some jobs (e.g., McDonald’s) that may be available

to him during the “off-season” of his usual concrete-related employment.

       {¶32} The trial court did not, however, reference any factors in R.C.

3119.01(C)(17)(a), or any other relevant fact or circumstance, in support of its conclusion

that $54,154.30 should be imputed to Father for child support purposes.

       {¶33} “Courts have consistently held that consideration of these factors is a

necessary requirement to imputing income, even after a determination that the parent’s

unemployed or underemployed status is voluntary.” Marek v. Marek, 9th Dist. Summit



                                             10
No. 21886, 2004-Ohio-5556, ¶19 (citations omitted); see also Misra v. Mishra, 10th Dist.

Franklin No. 17AP-306, 2018-Ohio-5139, ¶18, citing Meeks v. Meeks, 10th Dist. Franklin

No. 05AP-315, 2006-Ohio-642, ¶37 (“when imputing income to a parent, the trial court

must consider the enumerated factors”) (emphasis added).

       {¶34} Accordingly, we conclude that imputing income for the purpose of

calculating Father’s child support obligation, without any indication on the record that the

court considered and followed the statutory guidelines, was an abuse of discretion. See

Marek, supra, at ¶24. This matter must be remanded for the trial court to revisit the issue

of imputing income to Father, in compliance with R.C. 3119.01(C)(17)(a).

       {¶35} Father’s third assignment of error has merit to the extent indicated.

       {¶36} In his final assignment of error, Father argues the trial court erred in relating

the child support modification back to September 1, 2015. Mother has not responded to

this assignment of error.

       {¶37} “‘Whether to make a modification of support retroactive to the date of the

motion is a question left to the sound discretion of the trial court.’” Nichols v. Nichols,

10th Dist. Franklin No. 13AP-13, 2013-Ohio-3927, ¶20, quoting Lightle v. Lightle, 2d Dist.

Champaign No. 2012 CA 8, 2012-Ohio-3284, ¶8. “While it may ‘often be equitable to

apply a modification retroactively to the date of the motion, * * * a substantial arrearage

or overage created by a retroactive modification can create a hardship to one of the

parties.’” Id., quoting Lightle.

       {¶38} “The general rule in Ohio is that when a court modifies a child support

award, that modification is made retroactive to the date on which the motion to modify the

award is made.” Zamos v. Zamos, 11th Dist. Portage No. 2002-P-0085, 2004-Ohio-2310,




                                             11
¶13 (citations omitted). “The general rule is based on equitable principles in recognition

of ‘the substantial time it frequently takes to dispose of motions to modify child support

obligations.’” Id., quoting Hamilton v. Hamilton, 107 Ohio App.3d 132, 139-140 (6th

Dist.1995). “‘[A]bsent some special circumstance, an order of a trial court modifying child

support should be retroactive to the date such modification was first requested.’” Id.,

quoting State ex rel. Draiss v. Draiss, 70 Ohio App.3d 418, 421 (9th Dist.1990); see also

Sandel v. Choma, 9th Dist. Summit No. 25995, 2012-Ohio-3781, ¶5 (characterizing the

rule as a “presumption of retroactivity” that may be “overcome” by facts in the record that

demonstrate “special circumstances”).

       {¶39} Here, we do not find that the trial court abused its discretion in ordering the

modification of child support retroactive to when Mother first requested the modification.

Father has not directed us to facts in the record demonstrating special circumstances that

overcome the presumption of retroactivity.

       {¶40} Father’s fourth assignment of error is without merit.

       {¶41} The judgment of the Portage County Court of Common Pleas, Domestic

Relations Division, is affirmed in part and reversed in part. This matter is remanded to

the trial court to clarify that it has considered the statutory factors and engaged in an

imputed income analysis based on those factors with regard to the modification of child

support.



THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.




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