[Cite as S.E.J. v. C.S.J., 2019-Ohio-3095.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

S.E.J.,                                             :

                 Plaintiff-Appellant,               :
                                                                No. 107576
                 v.                                 :

C.S.J.,                                             :

                 Defendant-Appellee.                :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 1, 2019


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. SU-17719503


                                              Appearances:

                 S.E.J., pro se.

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, Gabriel Rivera and Steven Ritz, Assistant
                 Prosecuting Attorneys, for appellee.



PATRICIA ANN BLACKMON, P.J.:

                      Appellant S.E.J. appeals the juvenile court’s child support order of

$143.90 per month for his son, S.J. (d.o.b. February 26, 2009). Appellant argues

that the court derived the support order after erroneously imputing to him yearly
income of $8,476, representing 20 hours of minimum wage employment per week.

Appellant assigns three errors for our review:

      I.     The trial court erred and abused its discretion [by proceeding]
             with trial after appellant established for the record the appellee
             * * * defaulted by failing to timely answer the admissions as
             required by Civ.R. 36(C).

      II.    The trial court erred and abused its discretion when it failed to
             acknowledge appellant’s disability status. R.C. 3119.01(C)[.]

      III.   The trial court erred and abused its discretion when failing to
             observe the appellant’s disability funds by miscalculating the
             appellant’s funds. R.C. 3119.05.

               Having reviewed the record and the controlling law, we affirm the

decision of the trial court.

               The record indicates that appellant and appellee are currently

involved in divorce proceedings, and appellee is the residential parent of S.J. On

December 2, 2017, the Office of Child Support Services (“OCSS”) obtained an

administrative order for child support requiring appellant to pay $320.27 per month

plus two percent for processing. It is undisputed that appellant was unemployed at

the time of the order and appellee earns approximately $37,000 per year. In

deriving appellant’s support order, the OCSS considered his 2017 receipt of $1,359

from workers’ compensation and also imputed yearly income to him in the amount

of $12,714, representing minimum wage work for 30 hours per week. Appellant filed

objections to the administrative order and propounded extensive discovery to

appellee and to the OCSS.
               On June 7, 2018, the court held a hearing on appellant’s objections to

the administrative support order.       Appellant maintained that admissions he

propounded to appellee should be deemed admitted for failure to timely respond,

and that he should be awarded summary judgment. He also argued that the

administrative support order was erroneous in light of his disability.

               The evidence presented to the court with regard to appellant’s

requests for admissions indicates that appellant’s first set of discovery was sent to

appellee on March 7, 2018. On April 4, 2018, appellant filed a motion to deem the

first set of admissions admitted. Accounting for mailing times, the court determined

that appellee’s responses were not due at the point appellant filed his motion to

deem the matters admitted.

               The court also noted that appellant’s second set of discovery was

propounded to appellee on May 5, 2018. On May 11, 2018, appellant filed a motion

to deem the second set of admissions admitted. Appellee informed the court that

she sent discovery responses to appellant by certified mail in April 2018, but on June

1, 2018, her responses were returned with the post office mark “refused.” Appellee

gave additional copies of her discovery responses to appellant in open court and the

court took a brief recess in order for appellant to review this information. After this

recess, the court denied appellant’s motions to deem the matters set forth in the

requests for admissions admitted.

               The evidence also indicated that appellant attempted to propound

discovery and requests for admissions to OCSS on March 7, 2018. However, the
discovery requests were never served. Appellant resubmitted the discovery requests

on April 24, 2018. On May 24, 2018, appellant filed a motion to deem the second

set of admissions admitted, but the court determined that the motion was never

served on OCSS. The court also noted that the discovery requests improperly sought

information directly from and pertaining to the assistant prosecuting attorney. The

court denied all of appellant’s motions to deem matters admitted.

               Turning to the merits of the administrative support order, the court

noted that appellant was injured at work in 2011, and filed three claims for

compensation. The 2011 claim was allowed for a finger wound but appellant was

cleared to return to work within the year.        Approximately five months later,

appellant filed a second claim for a testicle injury. In 2016, he filed the third claim

for depressive disorder. Appellant was cleared to return to work in August 2017. He

then drove for Uber for two months in 2017 and also helped take care of S.J.

               The court concluded that appellant is voluntarily underemployed,

and it imputed income to him. However, the court reduced the imputed work hours

from 30 per week to 20 per week, thereby reducing the imputed yearly income of

the administrative support order from $12,714 to $8,476. The court likewise

reduced appellant’s monthly support obligation to $143.90 per month plus two

percent processing.

                            Request for Admissions

               In the first assigned error, appellant argues that the trial court erred

in denying his motion to deem matters admitted.
              Civ.R. 36(B) provides that ‘[a]ny matter admitted under this rule is

conclusively established unless the court on motion permits withdrawal or

amendment of the admission.”

              Pursuant to the express language of Civ.R. 36(A), requests for

admissions are “‘self-executing; if there is no response to a request or an admission,

the matter is admitted. Unlike other discovery matters, the admission is made

automatically and requires no further action by the party requesting the

admissions.’” Smallwood v. Shiflet, 8th Dist. Cuyahoga No. 103853, 2016-Ohio-

7887, ¶ 18, quoting State v. Cordell, 10th Dist. Franklin No. 08AP-361, 2008-Ohio-

6124, ¶ 10. Thus, once a party fails to timely respond to the requests for admissions,

the defaulted admissions become fact, and a motion seeking confirmation of those

admissions is unnecessary. Smallwood at id., citing Cordell at id.

              However, the requests for discovery must be properly served. See

Civ.R. 5. Further, where the discovery requests are sent by mail, an additional three

days is added to the 28-day deadline. See Civ.R. 6(E); Cleveland Trust Co. v. Willis,

20 Ohio St.3d 66, 485 N.E.2d 1052 (1985).

              The record in this case indicates that appellee responded to the

request for admissions in April and that appellant refused to accept certified mail

service of her discovery responses. The record also indicates that OCSS was not

properly served with the first set of discovery. The second set of OCSS discovery

impermissibly sought information directly from and pertaining to the assistant

prosecuting attorney.
               In accordance with the foregoing, the first assigned error lacks merit.

                                   Support Issues

               In the second and third assigned errors, appellant asserts that the trial

court erred in failing to recognize that he is disabled, and also improperly considered

his workers’ compensation benefits.

                A juvenile court has “considerable discretion” in deciding matters

related to child support. In re K.R.B., 2017-Ohio-7071, 95 N.E.3d 799, ¶ 16 (8th

Dist.); Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989).

               R.C. 3119.02 governs the calculation of child support. Under this

statute, a parent’s child support obligation shall be calculated “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.” R.C. 3119.02; In re K.R.B.

at ¶ 13. “The amount of child support calculated pursuant to the basic child support

schedule and applicable worksheet is ‘rebuttably presumed to be the correct amount

of child support due.’” Id., quoting R.C. 3119.03.

               To calculate child support, a juvenile court must determine each

parent’s gross income and consider the definitions contained in R.C. 3119.01(C),

which provides in relevant part:

      (12) “Gross income” means, except as excluded in division (C) (12) of
      this section, the total of all earned and unearned income from all
      sources during a calendar year, whether or not the income is taxable,
      and includes income from salaries, wages, overtime pay, and bonuses
      to the extent described in division (D) of section 3119.05 of the Revised
      Code; commissions; royalties; tips; rents; dividends; severance pay;
      pensions; interest; trust income; annuities; social security benefits,
      including retirement, disability, and survivor benefits that are not
      means-tested; workers’ compensation benefits; unemployment
      insurance benefits; disability insurance benefits; benefits that are not
      means-tested and that are received by and in the possession of the
      veteran who is the beneficiary for any service-connected disability
      under a program or law administered by the United States department
      of veterans’ affairs or veterans’ administration; spousal support
      actually received; and all other sources of income. * * *.

(Emphasis added.)

              Therefore, workers’ compensation benefits are included within the

definition of gross income to be considered in fashioning a child support order. See

also R.C. 3121.03; Rowan v. Rowan, 72 Ohio St.3d 486, 650 N.E.2d 1360 (1995)

(citing former analogous statute); Ruttman v. Flores, 8th Dist. Cuyahoga No. 66079,

1994 Ohio App. LEXIS 5362 (Dec. 1, 1994) (citing former analogous statute). In

addition, R.C. 4123.67 provides for the attachment of workers’ compensation

awards for the payment of child support.

              R.C. 3119.22 provides that a trial court may order an amount of child

support that deviates from the amount of child support that would otherwise result

from the use of the basic child support schedule and the applicable worksheet if,

after considering the factors and criteria set forth in R.C. 3119.23, the court

determines that the amount calculated “would be unjust or inappropriate and would

not be in the best interest of the child.” The decision to deviate from the actual

annual child support obligation is discretionary and will not be reversed absent an

abuse of discretion. In re C.A.S. & A.S., 8th Dist. Cuyahoga Nos.104052 and 104054,
2016-Ohio-5633, ¶ 16, citing In re Custody of Harris, 168 Ohio App.3d 1, 2006-

Ohio-3649, 857 N.E.2d 1235, ¶ 60-61 (2d Dist.).

              Further, a trial court is permitted to impute income to a parent when

the parent is voluntarily unemployed or underemployed. Rock v. Cabral, 67 Ohio

St.3d 108, 616 N.E.2d 218 (1993), syllabus. The determination of whether an

individual is voluntarily underemployed or unemployed is within the trial court’s

discretion and will be upheld absent an abuse of discretion. Id. at 112, applying

former R.C. 3113.215. Under R.C. 3119.01(C)(17)(a), the individual’s physical and

mental disabilities, prior employment experience, and ability to earn the imputed

income are among the various factors to be considered in imputing income to him

or her. However, the existence of a workers’ compensation claim does not bar a

court from imputing income to that party. J.S. v. T.S., 5th Dist. Knox No. 16CA18,

2017-Ohio-1042, ¶ 26.

              In this matter, the record indicates that appellant filed several

workers’ compensation claims, but he was cleared to return to work in 2011 and

again after the 2016 claim. He drove for Uber for several months in 2017. Therefore,

the trial court did not abuse its discretion in imputing income to him for part-time

work.   Moreover, appellant’s workers’ compensation benefits were properly

considered as income under R.C. 3119.01(C)(12) in connection with the court’s

calculation of appellant’s income for support purposes.

              The second and third assigned errors lack merit.

              Judgment is affirmed.
      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


______________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
RAYMOND C. HEADEN, J., CONCUR
