[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