[Cite as Cummin v. Cummin, 2017-Ohio-7877.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                   HOCKING COUNTY

KIMBERLY IRETON CUMMIN,         :
                                :   Case Nos. 16CA19
     Plaintiff-Appellee,        :             16CA20
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
DAVID LAWRENCE CUMMIN,          :
                                :
     Defendant-Appellant.       :   Released: 09/21/17
_____________________________________________________________
                          APPEARANCES:

Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.

K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellee.1
_____________________________________________________________

McFarland, J.

            {¶1} This is an appeal of David Cummin from two judgments issued

by the Hocking County Court of Common Pleas following a limited remand

by this Court in Cummin v. Cummin, 2015-Ohio-5482, 55 N.E.3d 467. On

appeal, Appellant raises two assignments of error, contending that 1) the trial

court erred in calculating his income on remand; and 2) the trial court erred

in computing his gross income for purposes of the motion to modify child

support. Because we find the trial court abused its discretion in disregarding

the mandate given in our limited remand order, the trial court’s July 28,

1
    Appellee has failed to file a brief or otherwise participate in this appeal.
Hocking App. Nos. 16CA19 and 16CA20                                           2

2016, Remand Decision and Journal Entry is reversed, and the matter is

again remanded for the limited purpose of determining how much of

Appellant’s income, as already determined by the trial court to be $258,

427.00, constituted imputed income. Further, because we find that the trial

court failed to dispose of all pending issues that were newly raised post-

remand, the trial court’s August 18, 2016, Decision on Child Support and

Judgment Entry does not constitute a final, appealable order and we lack

jurisdiction to consider it. Accordingly, these appeals, which have been

consolidated, are reversed, in part, remanded, in part, and dismissed, in part.

                                   FACTS

      {¶2} We set forth the facts as previously observed in Cummin v.

Cummin, supra:

      “The parties were married on July 18, 1992 and have four
      children, all of which are still minors. A divorce decree was
      issued on November 4, 2011. As part of the divorce decree, the
      trial court ordered shared parenting, ordered Appellant to pay
      child support based upon the parties' full combined annual
      income, which exceeded $300,000.00, and also ordered
      Appellant to pay spousal support to Appellee. Appellant is a
      physician and Appellee, at the time of the divorce, had been out
      of the work force for several years while raising the parties' four
      children. However, at the time of the divorce, it was anticipated
      that Appellee would return to work and the trial court imputed
      income in the amount of $65,000.00 to Appellee for purposes
      of calculating child support. No initial direct appeal was taken
      from the divorce decree and associated orders.
Hocking App. Nos. 16CA19 and 16CA20                                       3

     Subsequently, Appellant filed a motion to modify support on
     January 7, 2014. Appellee then filed a cross-motion to modify
     child support, as well as a motion to modify visitation. A final
     hearing was held on June 25, 2014, with the parties having
     already worked out the majority of the parenting time issues. As
     such, the hearing primarily focused on financial issues that
     pertained to the motions to modify support. Appellant's new
     wife, Crystal Cummin, testified at the hearing. She testified that
     she and Appellant had been on several trips, including an Aruba
     vacation in which they took Appellant's children, a honeymoon
     to Croatia, a cruise to Puerto Rico, which was paid for by her
     employer, and a trip to New York. She testified that she earns
     approximately $116,000.00 annually working for Johnson &
     Johnson.

     Appellant testified that he earns $25,100.00 annually as the
     elected county coroner, most recently had a business net income
     of $150,206.00 and also has rental property income. He
     testified, however, that although he previously earned
     $11,000.00 annually as the hospital chief of staff, he would no
     longer receive that income because he was term-barred from
     continuing in that position. He further testified that his rental
     income had decreased and would continue to decrease in future
     years, as he had lost tenants and did not expect to be able to
     find new tenants. He also testified that his income had
     decreased due to the fact that he no longer performed inpatient
     hospital work. He testified that inpatient work did not pay well,
     and that he had reduced his work load in order to spend more
     time with his children. He estimated that he had decreased his
     weekly working hours from over one hundred hours to about
     seventy hours. On cross-examination, Appellant testified that he
     completed eighteen hours of continuing medical education
     while he was in Croatia for his honeymoon and, as a result, he
     deducted those travel expenses from his business income.

     Appellee also testified during the hearing. She testified that her
     annual income was between sixty-eight and sixty-nine thousand
     dollars, not including any support payments she receives. She
     testified that until recently, she had provided the children's
     health insurance benefits, despite the prior order that Appellant
Hocking App. Nos. 16CA19 and 16CA20                                              4

       do so. She testified that it was her belief that Appellant's current
       income was $240,000.00 and that he was capable of earning
       that much.

       After considering the testimony of the parties and reviewing tax
       returns, the trial court issued its decision finding Appellant to
       be voluntarily underemployed. The trial court reduced spousal
       support by $100.00 a month, from $2,000.00 per month to
       $1,900.00, but increased child support from $832.59 per month
       to $1,371.83 per month. The trial court noted in its entry, in
       connection with its finding that Appellant was voluntarily
       underemployed, that ‘[t]he net results cannot be precisely
       computed but the Court has made an effort to develop a
       reasonable child support calculation.’ The trial court properly
       attached a child support computation worksheet to its decision,
       noting that it had calculated support based upon a $150,000.00
       income limit as well as based upon the parties' actual combined
       annual income, which was $320,586.40, and had decided not to
       cap the support at the $150,000.00 limit. * * *”

       {¶3} On his first, direct appeal of the matter, Appellant argued that

the trial court erred in extrapolating his child support obligation beyond the

obligation for a combined income of $150,000, and that the trial court erred

in calculating his income. Cummin at ¶ 6. With regard to the income

calculation contention, Appellant argued that the trial court erred in finding

he was voluntarily underemployed and imputing income to him. Appellant

also argued the evidence did not support the gross income calculation the

trial court attributed to him. Id. at ¶ 17.

       {¶4} On appeal, this Court affirmed the trial court’s decision to

extrapolate Appellant’s child support obligation. Id. at ¶ 16. We also
Hocking App. Nos. 16CA19 and 16CA20                                             5

affirmed the trial court’s calculation of Appellant’s gross income, including

its decision that Appellant was voluntarily underemployed and, as such, its

decision to impute income to Appellant. Id. at ¶ 25. However, we observed

as follows:

      “Here, although the record is clear on the reasons the trial court
      decided to impute income, we cannot ascertain from the trial
      court’s journal entry the amount of potential income the trial
      court actually imputed to Appellant.”

Because we found the record “unclear as to how much income was

imputed[,]” we reversed the decision, in part, and remanded the matter to the

trial court for further proceedings consistent with our opinion. Id. at ¶ 26.

      {¶5} The trial court held a remand hearing on May 18, 2016. In its

remand decision the trial court noted that “[w]hile the parties understood the

Court was asked only to supply an income figure that was imputed to

Defendant in a prior decision, they expressed a mutual desire to submit other

current issues.” As such, the trial court permitted the parties to put on

additional evidence related to issues involving the medical, dental and

optical insurance coverage for the children and the management of the

children’s 529 College Savings Plans. Appellant also made an oral motion

to modify child support based upon changed circumstances which involved

the emancipation of one of the parties’ children as well as the birth of a child

between Appellant and his new wife.
Hocking App. Nos. 16CA19 and 16CA20                                           6

      {¶6} Following the hearing, the trial court issued a Remand Decision

and Journal Entry on July 28, 2016. Appellant filed a timely appeal from

that decision. The trial court issued another decision on August 18, 2016,

entitled Decision on Child Support and Judgment Entry. Appellant also

appealed that decision. This Court sua sponte consolidated the appeals on

September 1, 2016. Appellant now raises two assignments of error for our

review, as follows.

                       ASSIGNMENTS OF ERROR

“I.   THE TRIAL ERRED IN CALCULATING DR. CUMMIN’S
      INCOME ON REMAND.

II.   THE TRIAL COURT ERRED IN COMPUTING DR. CUMMIN’S
      GROSS INCOME FOR PURPOSES OF THE MOTION TO
      MODIFY CHILD SUPPORT.”

                       ASSIGNMENT OF ERROR I

      {¶7} In his first assignment of error, Appellant contends that the trial

court erred in calculating his income on remand. Appellant also contends

that the trial court failed to comply with this Court’s remand mandate, and

therefore abused its discretion. For the following reasons, we agree with

Appellant's remand argument.

      {¶8} We review child support matters under an abuse-of-discretion

standard. See Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028

(1989). “ ‘Although the abuse of discretion standard usually affords
Hocking App. Nos. 16CA19 and 16CA20                                               7

maximum [deference] to the lower court, no court retains discretion to adopt

an incorrect legal rule or to apply an appropriate rule in an inappropriate

manner. Such a course of conduct would result in an abuse of discretion.’ ”

See 2-J Supply, Inc. v. Garrett & Parker, L.L.C., 4th Dist. Highland No.

13CA29, 2015 -Ohio- 2757, ¶ 9; quoting Safest Neighborhood Assn. v.

Athens Bd. of Zoning Appeals, 2013–Ohio–5610, 5 N.E.3d 694, ¶ 16; citing

Harsha, William, H., The Substance of Appeals, 17 Ohio Lawyer, No. 6, 17.

When applying the abuse-of-discretion standard of review, appellate courts

must not substitute their judgment for that of the trial courts. See In re Jane

Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991). Furthermore, an

appellate court must presume that the findings of the trial court are correct

because the finder of fact is best able to observe the witnesses and to use

those observations to weigh witness credibility. Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984); see also

Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828

N.E.2d 153, ¶ 19 (4th Dist.).

      {¶9} R.C. 3119.022 governs the procedure for awarding and

calculating child support. The statute's overriding concern is to ensure the

best interest of the child for whom support is being awarded. Rock v. Cabral,

67 Ohio St.3d 108, 110, 616 N.E.2d 218 (1993). Thus, the statute's
Hocking App. Nos. 16CA19 and 16CA20                                            8

provisions are mandatory in nature and courts must follow the statute

literally and technically in all material aspects. Marker v. Grimm, 65 Ohio

St.3d 139, 601 N.E.2d 496, paragraph two of the syllabus (1992); see also

Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, ¶ 7.

If a trial court makes the proper calculations on the applicable worksheet, the

amount shown is “rebuttably presumed” to be the correct amount of child

support due. See Rock at 110; Albright; see also R.C. 3119.03.

      {¶10} Further, as we noted in Cummin, supra, at ¶ 19, “ ‘[i]n

calculating child support, a trial court must determine the annual income of

each of parent.’ ” McLaughlin v. Kessler, 12th Dist. Fayette No. CA2011–

09–021, 2012-Ohio-3317, ¶ 13. For an unemployed or underemployed

parent, income is the “sum of the gross income of the parent and any

potential income of the parent.” Id.; R.C. 3119.01(C)(5)(b).

      {¶11} During the first, direct appeal of this matter, this Court

affirmed the trial court's overall calculation of Appellant's annual income, as

well as the trial court' determination that Appellant was voluntarily

underemployed. We also affirmed the trial court's decision to impute

income to Appellant as a result of his voluntary underemployment. As

explained above, we ordered a limited remand solely for the purpose of

determining how much of Appellant's annual income, as determined by the
Hocking App. Nos. 16CA19 and 16CA20                                               9

trial court to be $258,427.00, constituted imputed income. The trial court

was not ordered, nor was it authorized, to completely recalculate Appellant's

annual income, or to revisit its prior decision regarding Appellant's

voluntarily underemployment and whether income should be imputed.

Those issues had already been determined by the trial court and had been

affirmed by this Court on appeal.

      {¶12} However, on remand, it appears the trial court permitted

additional testimony regarding Appellant's 2014 annual income and instead

of clarifying how much of Appellant's annual income figure was imputed

income, the trial court found that Appellant's annual income of $258,427.00

was actual income and did not include any imputed income. In fact, despite

expressly acknowledging, both on the record during the remand hearing and

in its remand decision, that the case has been remanded solely for a

determination regarding the amount of income that had been imputed, the

amount of imputed income was not even addressed by the trial court. As

such, the trial court's remand proceedings were not consistent with this

Court's prior decision in this case or our remand order.

      {¶13} “When the issues before the trial court on remand are

substantially similar to those involved in the prior appeal, the trial court is

bound to follow the determination of the law as found by the appellate
Hocking App. Nos. 16CA19 and 16CA20                                            10

court.” F.M.D. v. Medina (Apr. 5, 2000), 9th Dist. Medina No. 2962–M,

2000 WL 354115; citing Nolan v, Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d

410 (1984). An inferior court has no discretion to disregard a superior

court's mandate from a previous appeal in the same case. Nolan at 5.

Furthermore, the court is “without authority to extend or vary from the

mandate given.” Id. at 4. Additionally, in a case involving a partial remand,

the trial court may not try an issue that was not set forth in the appellate

court's mandate. Pingue v. Hyslop, 10th Dist. Franklin No. 01AP–1000,

2002–Ohio–2879, ¶ 35; quoting Oliver v. Empire Equip. Co., 8th Dist.

Cuyahoga No. 48686, 1985 WL 7950, *4 (1985).

      {¶14} In Nolan, the appellate court reversed the trial court's decision

awarding the parties joint occupancy of the marital home and remanded the

matter for further proceedings. Nolan at 2. On remand, the trial court made

no finding regarding the right of the occupancy of the marital home and

instead restructured the real estate settlement. Id. The appellate court

subsequently affirmed the remand decision and the case was appealed to the

Supreme Court of Ohio. Id. at 3. Presented with the essential question of

whether the trial court "impermissibly exceeded the scope of its authority on

remand[,]" the Supreme Court found necessary a review of the "law of the
Hocking App. Nos. 16CA19 and 16CA20                                         11

case" doctrine. Id. The Nolan court explained the law of the case doctrine as

follows:

      "Briefly, the doctrine provides that the decision of a reviewing
      court in a case remains the law of that case on the legal
      questions involved for all subsequent proceedings in the case at
      both the trial and reviewing levels. Gohman v. St. Bernard
      (1924), 111 Ohio St. 726, 730, 146 N.E. 291, reversed on other
      grounds New York Life Ins. Co. v. Hosbrook (1935), 130 Ohio
      St. 101, 196 N.E. 888 [3 O.O. 138]; Gottfried v. Yocum
      (App.1953), 72 Ohio Law Abs. 343, 345, 133 N.E.2d 389.

      The doctrine is considered to be a rule of practice rather than a
      binding rule of substantive law and will not be applied so as to
      achieve unjust results. Gohman, supra, 111 Ohio St. at 730-731,
      146 N.E. 291. However, the rule is necessary to ensure
      consistency of results in a case, to avoid endless litigation by
      settling the issues, and to preserve the structure of superior and
      inferior courts as designed by the Ohio Constitution. See State,
      ex rel. Potain, v. Mathews (1979), 59 Ohio St.2d 29, 32, 391
      N.E.2d 343 [13 O.O.3d 17].

      In pursuit of these goals, the doctrine functions to compel trial
      courts to follow the mandates of reviewing courts. See, e.g.,
      State, ex rel. Special Prosecutors, v. Judges (1978), 55 Ohio St.
      2d 94, 378 N.E.2d 162 [9 O.O.3d 88]; Charles A. Burton, Inc.
      v. Durkee (1954), 162 Ohio St. 433, 123 N.E.2d 432 [55 O.O.
      247]; Schmelzer v. Farrar (1976), 48 Ohio App.2d 210, 212,
      356 N.E.2d 751 [2 O.O.3d 178]; Miller v. Miller (1960), 114
      Ohio App. 234, 235, 181 N.E.2d 282 [19 O.O.2d 108]." Nolan
      at 3.

Ultimately, the Supreme Court determined that the sole basis for remand

was the issue of occupancy of the marital home and that the trial court's

decision to instead rework the financial aspects of the marital home
Hocking App. Nos. 16CA19 and 16CA20                                            12

disposition and failure to even address the subject of remand defeated the

purposes of the doctrine of law of the case. Nolan at 4-5.

      {¶15} We conclude that here, much like the Nolan case, the trial

court's decision on remand to recalculate and re-classify Appellant's annual

income as all actual income, instead of determining the imputed amount of

income as directed in the remand order, violated the law of the case doctrine

and exceeded the scope of the limited remand. As such, Appellant's first

assignment of error is sustained and the judgment of the trial court is

reversed. Further, we again remand this matter for the limited purpose of

determining how much of Appellant’s income, as already determined by the

trial court to be $258,427.00, constituted imputed income.

                        ASSIGNMENT OF ERROR II

      {¶16} In his second assignment of error, Appellant contends that the

trial court erred in computing his gross income for purposes of the motion to

modify child support. Appellant specifically argues that 1) the trial court

relied upon inadmissible evidence when imputing $220,000.00 worth of

gross income to Appellant; 2) the trial court failed to separately calculate his

actual income and the amount of income it was imputing; 3) the trial court

erred by including his income from his Coroner’s position while also

imputing the full salary of a private practice physician; 4) the trial court
Hocking App. Nos. 16CA19 and 16CA20                                           13

erred by failing to credit him with an adjustment for having a resident child;

5) the trial court erred in allocating credits for the provision of health

insurance; and 6) the trial court failed to make findings of fact and

conclusion of law, despite his timely request.

      {¶17} Before we reach the merits of Appellant's arguments under this

assignment of error, we must first determine whether the trial court's August

18, 2016 entry constitutes a final appealable order. This Court has

previously noted that “[a]n appellate court's jurisdiction over trial court

judgments extends only to final orders.” Elliott v. Rhodes, 4th Dist.

Pickaway No. 10CA26, 2011-Ohio-339, ¶ 17; citing Ohio Const. Art. IV,

Section 3(B)(2). Section 2505.02(B)(2) defines “a final order that may be

reviewed, affirmed, modified, or reversed” as one that “affects a substantial

right made in a special proceeding * * *.” Further “[a]n order affects a

substantial right if, in the absence of an immediate appeal, one of the parties

would be foreclosed from appropriate relief in the future.” Koroshazi v.

Koroshazi, 110 Ohio App.3d 637, 640, 674 N.E.2d 1266 (1996); citing Bell

v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). In

order to constitute a final order, the order must dispose of the whole case or

some separate and distinct branch. See, e.g., Noble v. Colwell, 44 Ohio St.3d

92, 94, 540 N.E.2d 1381 (1989). Generally, when an order does not
Hocking App. Nos. 16CA19 and 16CA20                                            14

contemplate further action and no other related issues remain pending, the

order normally constitutes a final order. Elliott v. Rhodes at ¶ 17; citing In re

H.T.-W., 6th Dist. Lucas No. L–10–1027, 2010–Ohio–1714, ¶ 7; see also

Christian v. Johnson, 9th Dist. Summit No. 24327, 2009–Ohio–3863.

      {¶18} As set forth above, this matter was remanded to the trial court

for clarification of the amount of income the trial court imputed to

Appellant. However, by agreement of the parties, several new issues were

brought before the trial court, including Appellant’s oral motion for a

modification of child support based upon changed circumstances which

included the emancipation of one of the parties’ children, as well as the birth

of a child between Appellant and his new wife. The other issues brought

before the trial court involved the management of the parties’ children’s 529

College Savings Plans, and the provision of medical, dental and optical

insurance for the children. Testimony was presented on all of these issues

during the remand hearing.

      {¶19} At the conclusion of the hearing, the trial court stated, on the

record, that an agreed entry regarding the 529 College Savings Plans needed

to be filed, and that an agreed entry regarding the provision of medical,

dental and optical insurance coverage needed to be filed. Further, the trial

court expressly stated in its August 18, 2016 entry that it was “still awaiting
Hocking App. Nos. 16CA19 and 16CA20                                            15

the agreed entry from counsel resolving the allocation of

medical/dental/optical insurance.” Our review of the record indicates that at

the time the trial court issued its judgment on August 19, 2016, the issues

related to the 529 College Savings Plans and the insurance coverage for the

children remained unresolved and pending. Thus, it appears that although

the trial court resolved the issues related to Appellant’s post-remand, oral

motion to modify child support, and despite its language in the entry that the

judgment was a final appealable order, the trial court did not resolve these

other pending issues. Accordingly, because this case includes multiple

claims and the trial court’s judgment did not resolve all pending issues, the

trial court’s decision does not constitute a final, appealable order. See Elliott,

supra, at ¶ 18. Accordingly, we hereby dismiss this portion of Appellant’s

appeal. Further, this matter is again remanded for the limited purpose of

determining how much of Appellant’s income, as already determined by the

trial court to be $258,427.00, constituted imputed income.

                                         JUDGMENT REVERSED IN
                                         PART, REMANDED IN PART,
                                         AND DISMISSED IN PART.
Hocking App. Nos. 16CA19 and 16CA20                                            16

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE REVERSED IN PART,
REMANDED IN PART, AND DISMISSED IN PART. Appellant shall
recover costs from Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error I;
            Concurs in Judgment Only as to Assignment of Error II.
Hoover, J.: Concurs in Judgment Only.


                                       For the Court,


                                 BY: __________________________
                                     Matthew W. McFarland, Judge




                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
