[Cite as Carver v. Carver, 2015-Ohio-3941.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     HURON COUNTY


Joseph C. Carver                                  Court of Appeals No. H-15-006

        Appellant                                 Trial Court No. DR 2005 0408

v.

Shirley J. Carver (Oney)                          DECISION AND JUDGMENT

        Appellee                                  Decided: September 25, 2015

                                              *****

        Joseph C. Carver, pro se.

                                              *****

        SINGER, J.

        {¶ 1} This is an appeal from the Huron County Court of Common Pleas denying a

modification of child support. We affirm.

        {¶ 2} On June 21, 2005 appellant, Joseph Carter, and appellee, Shirley Carver,

were granted a divorce. Two children were born of the marriage. Appellant was to pay

child support. Appellant paid child support until he was incarcerated on a felony
conviction for false statements and concealment of assets in bankruptcy. He was

sentenced in 2012 to a term of two years in prison.

       {¶ 3} During his incarceration, appellant did not make any child support

payments. Appellant was released early for good behavior in November 2013. He failed

to make any support payments until March 2014. The record reflects appellant received

income advancements for four months subsequent to being released from prison. During

that time period, however, appellant made no effort to fulfill his support obligations. The

trial court, therefore, found appellant was in contempt. Appellant now appeals setting

forth the following two assignments of error:

              I. The trial court failed to address the issues registered through

       objections filed December 15, 2014, December 23, 2014 and a supplement

       filed on January 29, 2015. The objection registered by Plaintiff-Appellant,

       Joseph Carver (“Father”) through counsel John D. Allton #0002514, on or

       about January 27, 2015, that income should not have been imputed to father

       under Section 3119.05, addressing specifically under the No. 3 of the

       objections filed in whole that granting the plaintiff’s objection for

       modification of his child support does not harm the mother or children.

              II. The trial court erred in failing to order CSEA to abide by the

       Ohio Revised Code and allowed income be imputed to Father during the

       time of imprisonment when R.C. 3119.05(I) prohibited a court or agency

       from imputing income to a parent incarcerated for more than twelve




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       months, unless failing to do so would be unjust inappropriate, and not in the

       best interest of the child.

       {¶ 4} Appellant’s two assignments of error can be addressed as one. Appellant

argues that as of September 28, 2012, Ohio law prohibits finding a parent who is

incarcerated for 12 months or more to be voluntary unemployed. See R.C. 3119.05(I)(2).

Therefore, appellant urges that the trial court erred by not ordering the Child Support

Enforcement Agency (CSEA) to abide by the law in determining his child support

obligation.

       {¶ 5} This court must agree that R.C. 3119.05(I)(2) generally prohibits the

imputation of income to an imprisoned parent. Accord Kairn v. Clark, 12th Dist. Warren

Nos. CA2013-06-059, CA2013-08-071, 2014-Ohio-1890. We, however, must also note

that the statute allows an exception when failing to impute income would be unjustly

inappropriate and not in the best interest of the child. Id. at ¶ 18.

       {¶ 6} The decision of a trial court regarding modification of a child support

obligation falls within the court’s sound discretion, and its decision will not be reversed

absent a showing of an abuse of discretion. Pauly v. Pauly, 80 Ohio St.3d 386, 390, 1997

Ohio 105, 686 N.E.2d 1108 (1997).

       {¶ 7} This case also requires us to analyze R.C. 3119.05(I)(2). This statutory

interpretation is a matter of law and therefore will be reviewed de novo. State v. Kormos,

2012-Ohio-3128, 974 N.E.2d 725, ¶ 13. We look to the plain language of the statute to

determine the intent of the General Assembly. State ex rel. Burrows v. Indus. Comm., 78




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Ohio St.3d 78, 81, 676 N.E.2d 519 (1997). A court does not need to interpret a statute

“when statutory language is plain and unambiguous and conveys a clear and definite

meaning.” Campbell v. City of Carlisle, 127 Ohio St.3d 275, 2010-Ohio-5707, 939

N.E.2d 153, ¶ 8.

       {¶ 8} The modification of a child support order is governed by the requirements of

R.C. 3119.79. Banfield v. Banfield, 12th Dist. Clermont Nos. CA2010-09-066, CA2010-

09-068, 2011-Ohio-3638, ¶ 18. In order to justify the modification of an existing support

order, the moving party must demonstrate a substantial change in circumstances that

“render[s] unreasonable an order which once was reasonable.” Id.

       {¶ 9} R.C. 3119.79(A) provides that a substantial change of circumstances occurs

when a court recalculates the actual annual obligation required pursuant to the schedule

and worksheet and the resulting amount is ten percent greater or less than the existing

actual annual child support obligation. McLaughlin v. Kessler, 12th Dist. Fayette No.

CA2011-09-021, 2012-Ohio-3317, ¶ 10.

       {¶ 10} Where the calculation of child support involves a parent who is

unemployed or underemployed, the trial court must consider the parent’s gross income

and “potential income.” R.C. 3119.01(C)(5)(b). “Potential income” is income the parent

would have earned if he or she had been fully employed. R.C. 3119.01(C)(11). In

determining the parent’s potential income, the court must first determine whether the

parent is voluntarily unemployed or underemployed. Id. The court then may impute the

potential income to the parent in accordance with the factors enumerated under R.C.




4.
3119.01(C)(11)(a). Justice v. Justice, 12th Dist. Warren No. CA2006-11-134, 2007-

Ohio-5186, ¶ 8.

       {¶ 11} R.C. 3119.05(I) addresses the imputation of income for imprisoned parents.

The statute provides:

              (I) Unless it would be unjust or inappropriate and therefore not in

       the best interests of the child, a court or agency shall not determine a parent

       to be voluntarily unemployed or underemployed and shall not impute

       income to that parent if either of the following conditions exist:

              (1) * * *

              (2) The parent is incarcerated or institutionalized for a period of

       twelve months or more with no other available assets, * * *. (Emphasis

       added.) R.C. 3119.05(I)(2).

       {¶ 12} Appellant was employed as a doctor prior to his conviction and

incarceration for hiding his assets in bankruptcy. Appellant, furthermore, was given

salary advancements for a short period of time upon being released from prison in

November 2013. Despite receiving these income advancements, appellant made no

attempts to pay, or arrange payment, as obligated to do. The record further reflects that

appellee and her children were dependent upon appellant’s support, and that appellant

should have known appellee could not support their children without his support.

Appellee was only imputed minimum wage with regard to her income. Hence, it would

have been unfair, inappropriate and not in the best interest of the children for the trial




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court to determine appellant was not obligated to act and pay support in good faith.

Based on this determination, the trial court did not err in finding that appellant was only

entitled to a support modification as of April 9, 2014, and that his obligation to support

his children prior to that could not be waived.

       {¶ 13} Moreover, appellant here attempts to convince the court that had it not been

for “advice” given by the CSEA, he would have sought to modify his support obligation

while incarcerated. We cannot grant merit to this position. Based on the record, CSEA

never indicated that appellant “must” hire an attorney. CSEA actually stated that

appellant “could” hire an attorney. This is standard advice from any governmental/

administrative agent or agency.

       {¶ 14} For the foregoing reasons, appellant’s assignments of error are not well-

taken, and the judgment of the Huron County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     Carver v. Carver
                                                                     C.A. No. H-15-006




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Stephen A. Yarbrough, P.J.                                JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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