Delong v. Doster

[Cite as Delong v. Doster, 2017-Ohio-7112.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

JARROD J. DELONG,

PLAINTIFF-APPELLEE, CASE NO. 1-17-05

v.

ASHLEIGH M. DELONG (NKA DOSTER), OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Domestic Relations Division
Trial Court No. DR 2011 0298

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: August 7, 2017

APPEARANCES:

Anne Harvey for Appellant

Aaron Bensinger for Appellee
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ZIMMERMAN, J.,

{¶1} Defendant-appellant, Ashleigh DeLong, nka Doster, (“Ashleigh”)

brings this appeal from the January 20, 2017 judgment entry of the Allen County

Common Pleas Court, Domestic Relations Division, granting Plaintiff-appellee,

Jarrod DeLong (“Jarrod”) shared parenting of the parties’ minor child, Logan. On

appeal, Ashleigh challenges the trial court’s: (1) award of shared parenting; (2) its

child support determinations; and (3) its finding of contempt.

Relevant Facts and Procedural History

{¶2} Ashleigh and Jarrod were married on October 22, 2005. (Doc. 1). One

child, Logan, was born during their marriage. (Id.). Jarrod filed his complaint for

divorce on May 20, 2011 in the Allen County Common Pleas Court, Domestic

Relations Division. (Id.). At the time of the filing, Ashleigh resided in Delphos and

Jarrod lived in Lima.

{¶3} The final divorce hearing was held on October 18 and 21, 2011, and

resulted in the trial court’s magistrate recommending that Ashleigh be designated

the residential parent of Logan, with Jarrod receiving visitation pursuant to the trial

court’s local rule. (Doc. 58). Also set forth in the final divorce decree was the

relocation notice pursuant to R.C. 3109.051(G). (Doc. 59). Neither party appealed

the original divorce decree.

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{¶4} On August 3, 2015, Ashleigh filed a Notice of Intent to Relocate (to

Leipsic, Ohio) with the trial court and on August 7, 2015, she amended her notice.

(Docs. 86, 87). Jarrod was served with Ashleigh’s notice of intent to relocate on

August 18, 2015, (Doc. 89) and filed an objection to it the next day. (Doc. 88).

Ashleigh relocated to Leipsic on September 1, 2015. Thereafter, Jarrod filed a

Motion to Modify Parental Rights and Responsibilities with the trial court on

September 10, 2015. (Doc. 91). The trial court scheduled the motion for mediation

and, after such mediation failed, a guardian-ad-litem was appointed. (Docs. 95,

104). In its mediation order of October 7, 2015, the trial court ordered Ashleigh not

to relocate “at this time”. (Doc. 95).

{¶5} On December 14, 2015 Jarrod filed a motion for contempt against

Ashleigh because she moved to Leipsic with Logan. (Doc. 108). Further, on March

16, 2016, Jarrod filed a proposed shared parenting plan. (Doc. 118).

{¶6} A hearing was held in the trial court on April 21 and 22, 2016 to address

all pending matters. On June 8, 2016, the trial court’s magistrate issued a decision

finding Ashleigh in contempt for relocating to Leipsic, and finding that shared

parenting was in the best interest of Logan. (Doc. 136). On June 22, 2016, Ashleigh

objected to the magistrate’s decision, specifically objecting to the guardian-ad-

litem’s report and the implementation of shared parenting. (Doc. 138). The trial

court filed an order affirming the magistrate’s decision on January 6, 2017 (Doc.

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158), followed by its Judgment Entry adopting the shared parenting plan on January

20, 2017. (Doc. 159).

{¶7} Ashleigh filed her notice of appeal on February 6, 2017 and raises seven

assignments of error for our review. (Doc. 162). For ease of discussion, we will

first address Ashleigh’s first, second, third and fourth assignments of error together.

Assignment of Error No. I

THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
A SUBSTANTIAL CHANGE IN THE CIRCUMSTANCES OF
THE CHILD OR CUSTODIAL PARENT

Assignment of Error No. II
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
THAT A CUSTODY MODIFICATION SERVED THE
CHILD’S BEST INTERESTS

Assignment of Error No. III

THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
THAT THE HARM CAUSED BY THE MODIFICATION IS
OUTWEIGHED BY THE ADVANTAGES FROM THE
MODIFICATION

Assignment of Error No. IV

THE TRIAL COURT’S DECISION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE

Assignment of Error No. V

THE TRIAL COURT COMMITTED PLAIN ERROR BY
IMPUTING INCOME TO MOTHER BASED UPON HER
EARNINGS IN 2014

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Assignment of Error No. VI

THE TRIAL COURT COMMITTED PLAIN ERROR IN
TERMINATING THE CHILD SUPPORT ORDER AND
REQUIRING A REFUND

Assignment of Error No. VII

THE COURT ERRED IN FINDING THE MOTHER IN
CONTEMPT REGARDING HER NOTICE OF RELOCATION

First, Second, Third and Fourth Assignments of Error

{¶8} In her first, second, third and fourth assignments of error, Ashleigh

argues that the trial court abused its discretion by finding that a change in

circumstances occurred and that such change in circumstances was not enough to

modify the existing order allocating parental rights and responsibilities. Ashleigh

further contends that the trial court’s finding of a change in circumstances is against

the manifest weight of the evidence.

Standard of Review

{¶9} Even though Ashleigh has styled these assignments of error as being

both against the manifest weight of the evidence and an abuse of discretion, we

review custody determinations on an abuse of discretion standard only. Davis v.

Flickinger, 77 Ohio St.3d 415, 418 (1997). In Davis, the court stated “[w]e are

mindful that custody issues are some of the most difficult and agonizing decisions

a trial judge must make. Therefore, a trial judge must have wide latitude in

considering all the evidence before him or her * * * such a decision will not be

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reversed absent an abuse of discretion”. Id., citing Miller v. Miller, 37 Ohio St.3d

71 (1988). Therefore, the standard of review we will use to address these

assignments is abuse of discretion.

{¶10} A trial court has discretion when it allocates parental rights. Miller,

Id. A trial court abuses its discretion in allocating parental rights when its decision

is not “supported by a substantial amount of credible and competent evidence.”

Fricke v. Fricke, 3d Dist. Allen No. 1-06-18, 2006-Ohio-4845, citing Davis, Id.;

Bechtol v. Bechtol, 49 Ohio St.3d 21, syllabus. “An abuse of discretion suggests the

trial court’s decision is unreasonable or unconscionable.” Brammer v. Meachem,

3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

{¶11} The reason for this standard of review is that the trial judge is in the

best position to view the demeanor, attitude, and credibility of each witness and to

weigh the evidence and testimony. Davis, supra. This is especially true in a child

custody case, since there may be much that is evident in the parties’ demeanor and

attitude that does not translate well to the record. Id. at 419.

[I]t is inappropriate in most cases for a court of appeals to
independently weigh evidence and grant a change of custody. The
discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and
the impact the court’s determination will have on the lives of the
parties concerned. The knowledge a trial court gains through
observing the witnesses and the parties in a custody proceeding cannot
be conveyed to a reviewing court by a printed record. * * *

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(Citations omitted). Miller, supra.

{¶12} In applying an abuse of discretion standard, a reviewing court is not

free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No.

10-10-10, 2010-Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128

(1989).

Standard for Modifying a Prior Decree Allocating
Parental Rights and Responsibilities

{¶13} R.C. 3109.04(E)(1)(a) governs the modification of a decree allocating

parental rights and responsibilities and states:

The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds,
based on facts that have arisen since the prior decree or that were
unknown to the court at the time of the prior decree, that a change
has occurred in the circumstances of the child, the child’s
residential parent, or either of the parents subject to a shared
parenting decree, and that the modification is necessary to serve
the best interest of the child. In applying these standards, the
court shall retain the residential parent designated by the prior
decree or the prior shared parenting decree, unless a modification
is in the best interest of the child and one of the following applies:

***

The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.

{¶14} Thus, a trial court may modify an allocation of parental rights and

responsibilities only if the court finds 1) that a change of circumstances has occurred

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since the last decree; 2) that modification is in the best interest of the child; and 3)

that the advantages of a modification outweigh the potential harm to the child.

Beaver v. Beaver, 143 Ohio App.3d 1, 9 (2001).

Analysis

Change in Circumstances

{¶15} In her first assignment of error, Ashleigh asserts that the trial court

abused its discretion by finding that a substantial change in the circumstances of the

child or herself, as the residential parent, had occurred in this case warranting

modification of the allocation of parental rights and responsibilities of Logan. She

argues the changes the trial court considered did not involve her or Logan, but only

changes regarding Jarrod, the non-custodial parent.

{¶16} While a change in a parent’s situation can sometimes effect the child’s

well-being, “[i]t is not sufficient for the moving party to merely show that he can

provide a better environment than the environment provided by the parent with

custody.” Wyss v. Wyss, 3 Ohio App.3d 412, (1982). Thus, a change in

circumstances for the non-residential parent is generally irrelevant. Morgan v.

Morgan, 4th Dist. Highland No. 06CA15, 2006-Ohio-6615. In fact, R.C.

3109.04(E) specifically limits a change of circumstances to situations involving “the

child, the child’s residential parent, or either of the parents subject to a shared

parenting decree”. See R.C. 3109.04(E)(1)(a).

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{¶17} We agree with Ashleigh’s argument that the remarriage of Jarrod and

the subsequent birth of his daughter do not, on their own, constitute a change in

circumstances. However, taking into consideration the testimony of each witness,

and the evidence produced at the hearing, the trial court found “that there has been

a substantial change of circumstances in the residential parent and in the minor child

* * *”. (Doc. 136, p. 18).

{¶18} “A change of circumstances is a starting point requirement intended to

provide some stability to the custodial status of the child.” Davis, supra, citing

Wyss. However, appellate courts “must not make the threshold for change so high

as to prevent a trial judge from modifying custody if the court finds it necessary for

the best interest of the child.” Davis, at 420-421. Thus, we are required to give a

trial court’s decision regarding a change in circumstances the utmost discretion. A

trial court is limited to the extent that a change in circumstances cannot be based on

a slight or inconsequential change; it must be one of substance. Id. at 418. Not only

must the change in circumstances be of consequence, but it also must relate to the

child’s welfare. Beaver, supra.

{¶19} In this case, the trial court found the following facts resulted in a

change in circumstances that warranted modification: 1) Ashleigh’s relocation to

Leipsic; 2) the additional drive time for visitation; 3) the remarriage of both parents;

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4) the addition of new siblings in each home; and 5) Logan’s age. Thereafter, the

trial court found as follows:

The Court would find the total accumulation of these factors,
the change in the dynamics of the family structure of each of these
parties, the increase of age of the child and the additional distance
on top of all of those facts would certainly constitute a change of
circumstances sufficient for this Court to examine the allocation
of parental rights and responsibilities and make a determination
as to what may be in the best interest of Logan currently. (Doc.
158).

{¶20} The trial court, sitting as the trier of fact, was in the best position to

evaluate the minor child’s situation and the changes that occurred as a result of these

circumstances. In our review of the record, we find nothing to indicate that the trial

court abused its discretion by determining that a change in circumstances occurred

regarding Logan and Ashleigh. Thus, we find Ashleigh’s first assignment of error

lacks merit and is overruled.

Best Interest Factors Under R.C. 3109.04(F)(1)

{¶21} In her second assignment of error, Ashleigh argues that the trial court

abused its discretion in finding a custody modification served the child’s best

interests. Specifically, she contends that the trial court erred with its finding that

“she would do anything to stop the relationship between Jarrod and Logan”, and by

minimizing Jarrod’s past domestic violence charge. Ashleigh further contends that

the lack of cooperation and communication between her and Jarrod does not support

a modification of the prior parenting decree.

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{¶22} After finding that a change of circumstances exists, the trial court next

must consider whether the modification would serve the child’s best interest. “* *

* subsections of [R.C. 3109.04] spell out ten factors that the court shall consider to

determine the best interest of the child, and five more factors to determine whether

shared parenting is in the child’s best interest.” August v. August, 3d Dist. Hancock

No. 5-13-26, 2014-Ohio-3986, ¶23, citing R.C. 3109.04(F)(1) and (2). Those

factors include the following:

(1) In determining the best interest of a child pursuant to this
section, * * *, the court shall consider all relevant factors,
including, but not limited to:

(a) The wishes of the child’s parents regarding the child’s care;

(b) If the court has interviewed the child in chambers * * *, the
wishes and concerns of the child, as expressed to the court;

(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly
affect the child’s best interest;

(d) The child’s adjustment to the child’s home, school, and
community;

(e) The mental and physical health of all persons involved in the
situation;

(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation or companionship
rights;

(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that

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parent pursuant to a child support order under which that parent
is an obligor;

(h) Whether either parent previously had been convicted of or
pleaded guilty to any criminal offense involving any act that
resulted in a child being an abused child or a neglected child;
whether either parent, in a case in which a child has been
adjudicated an abused an abused child or a neglected child,
previously has been determined to be a perpetrator or the abusive
or neglectful act that is the basis of an adjudication; whether
either parent previously has been convicted or pleaded guilty to a
violation of section 2919.25 of the Revised Code or a sexually
oriented offense involving a victim who at the time of the
commission of the offense was a member of the family or
household that is the subject of the current proceeding; whether
either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the offense
was a member of the family or household that is the subject of the
current proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to believe
that either parent has acted in a manner resulting in a child being
an abused child or a neglected child;

(i) Whether the residential parent * * * has continuously and
willfully denied the other parent’s right to parenting time in
accordance with an order of the court;

(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.

(2) In determining whether shared parenting is in the best
interest of the children, the court shall consider all relevant
factors, including, but not limited to, the factors enumerated in
division (F)(1) of this section, * * *, and all of the following factors:

(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;

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(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other
parent;

(c) Any history of, or potential for, child abuse, spouse abuse,
other domestic violence, or parental kidnapping by either
parent;

(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared
parenting;

(e) The recommendation of the guardian ad litem of the child, if
the child has a guardian ad litem.

{¶23} In our review of the record, we find that the above factors were

analyzed by the trial court, specifically under 3109.04(F)(1)(a)-(j), revealing the

following: under factor a) Ashleigh desired to be designated as the residential parent

while Jarrod requested his proposed shared parenting plan be adopted; under factor

c) that Logan has good relationships with both parents, step-parents and siblings;

under factor d) that Logan has no established ties to either parent’s home or

community and had recently changed schools due to mother’s relocation; under

factor e) there were no concerns regarding the mental or physical health of either

parent, step-parent or of Logan; under factor f) that both parents would honor court

ordered parenting time; under factor g) that no arrearage of child support was

present; under factor h) that neither party has been convicted or plead guilty to a

criminal offense resulting in Logan being found to be an abused or neglected child.

However, there was reference to an act of domestic violence between Ashleigh and

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Jarrod. There was also a reference in the record that Jarrod spanked Logan during

a wrestling match. And under factor i) that neither party had denied parenting time

to the other. (Doc. 158).

{¶24} In addition to these findings (under R.C. 3109.04(F)(1)(a)-(j)), the trial

court further considered R.C. 3109.04(F)(2)(a)-(e) and determined the following as

to the proposed shared parenting plan: under factor a) Ashleigh and Jarrod have

issues making joint decisions regarding Logan; under factor b) that both Ashleigh

and Jarrod have the ability to encourage love, affection and contact between Logan

and the other parent; under factor c) that there was no history of child abuse; under

factor d) that the parties live within a close enough proximity to one another for

shared parenting to work; and under factor e) that the guardian ad litem

recommended that the shared parenting plan, proposed by Jarrod, be adopted. (Doc.

158).

{¶25} The trial court, having considered all the factors under R.C.

3109.04(F)(1)(a)-(j) and 3109.04(F)(2)(a)-(e), determined that the shared parenting

plan recommended by the magistrate was, in fact, in Logan’s best interest. In our

review of the record, we find that the trial court did not abuse its discretion as

competent and credible evidence exists, as set forth above, supporting that a

modification of the prior allocation of parental rights and responsibilities and

adopting the proposed shared parenting plan was in the best interest of Logan.

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{¶26} Accordingly, Ashleigh’s second assignment of error is overruled.

Advantages of Modification Outweigh Potential Harm

{¶27} Ashleigh argues in her third assignment of error that the trial court

abused its discretion by finding that the advantages of a modification outweigh the

potential harm to Logan. We disagree.

{¶28} In the case sub judice, the trial court found that by not adopting the

shared parenting plan would likely cause harm to Logan. In its January 6, 2017

Order Affirming Magistrate’s Decision, the trial court stated as follows:

“Ashleigh objects and indicates it is adopted just to provide
convenience for Jarrod, however that could also be phrased as to
avoid the additional inconvenience that Ashleigh, by her move,
has created for the relationship of Logan and Jarrod.

Too often parties get concerned with what they refer to as
‘my’ time instead of looking at the parenting situation as being
the time of the child. That time of the child needs to be shared
with the parents in the best manner they can. There are obviously
occasions and situations where it would not be in the child’s
interest to spend as much time as the child could with each parent,
but there has not been sufficient establishment in this particular
case to indicate Logan should not spend as much as he can with
each of his parents in an appropriate environment.

This also means that each of the parties must exercise their
time with the child and their relationship with the other party in
a mature, thoughtful, cooperative manner that is conducive to
establishing an appropriate environment to teach Logan
understanding, cooperation and consideration, rather than
manipulation and selfishness. The parties are evolving with their
new relationships and families and while demonstrating some of
their old negative tendencies are also showing some positive signs
of cooperation. The Court is fearful that not adopting the shared

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parenting plan may work to limit this progress and unnecessarily
limit the time Logan can utilize with both parents.” (Doc. 158).

{¶29} Thus, we find the trial court, in its independent review of the

objections, analyzed the harm of modification (to Logan) and did not abuse its

discretion by overruling the objections and by adopting Jarrod’s shared parenting

plan. Accordingly, we overrule Ashleigh’s third assignment of error.

Manifest Weight

{¶30} Ashleigh contends in her fourth assignment of error that the trial

court’s decision is against the manifest weight of the evidence.

{¶31} As we stated above, we review custody determinations on an abuse of

discretion standard only. Davis, supra. And because we have determined that

competent and credible evidence support the trial court’s determination, we need

not analyze Ashleigh’s fourth assignment of error, and such is overruled.

Fifth Assignment of Error

{¶32} Ashleigh’s fifth assignment of error addresses the imputation of child

support. Specifically, Ashleigh argues that the trial court erred by imputing her

income, for purposes of calculating a new child support order, by using her 2014

earnings.

Standard of Review

{¶33} Although we would normally review a child support order under an

abuse of discretion standard, however, since Ashleigh failed to object to the

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magistrate’s decision as to child support, we are now limited to review whether the

trial court’s determination amounted to plain error. Townsend v. Phommarath, 10th

Dist. Franklin No. 10AP-598, at paragraph 1 of the syllabus, 2011-Ohio-1891.

Civ.R. 53(D)(3)(b)(iv) provides:

Waiver of right to assign adoption by court as error on appeal.
Except for a claim of plain error, a party shall not assign as error
on appeal the court's adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of
fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the
party has objected to that finding or conclusion as required by
Civ.R. 53(D)(3)(b).

{¶34} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, the

Supreme Court of Ohio addressed the application of the plain error doctrine in civil

matters, stating “[i]n applying the doctrine of plain error in a civil case, reviewing

courts must proceed with the utmost caution, limiting the doctrine strictly to those

extremely rare cases where exceptional circumstances require its application to

prevent a manifest miscarriage of justice”. Thus, “appellate courts must proceed *

* * only * * * where the error seriously affects the basic fairness, integrity, or public

reputation of the judicial process itself”. Unifund CCR Partners v. Hall, 10th Dist.

Franklin No. 09AP-37, 2009-Ohio-4215, ¶ 22, quoting Goldfuss at 121. “Indeed,

the plain error doctrine implicates errors in the judicial process where the error is

clearly apparent on the face of the record and is prejudicial to the appellant”.

Skydive Columbus, citing Reichert v. Ingersoll, 18 Ohio St.3d 220 (1985).

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R.C. 3119.01(C)(5) and R.C. 3119.01(C)(11)

R.C. 3119.01(C)(5) provides:

(5) “Income means either of the following:

(a) For a parent who is employed to full capacity, the gross
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)(11) defines potential income as follows:

(11) “Potential income” means both of the following for a
parent who the court pursuant to a court support order, or a child
support enforcement agency pursuant to an administrative child
support order, determines is voluntarily unemployed or
voluntarily underemployed:

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;

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x) The parent’s decreased earning capacity because of a
felony conviction;
xi) Any other relevant factor.

b) Imputed income * * *

Analysis

{¶35} In considering Ashleigh’s fifth assignment of error whether the trial

court improperly determined her income (for purposes of calculating her child

support obligation), we note that “R.C. 3119.01(C)(11)(a) authorizes a court to

impute income to a parent who the court finds is voluntarily underemployed, for

purposes of calculating child support.” Breedlove v. Breedlove, 4th Dist.

Washington No. 08CA10, 2008-Ohio-4887, ¶ 14. “[W]hether a parent is voluntarily

(i.e. intentionally) unemployed or voluntarily underemployed is a question of fact

for the trial court. * * *” Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus.

{¶36} In calculating child support, a trial court must determine the annual

income of each parent. For an unemployed or underemployed parent, income is the

“sum of the gross income of the parent and any potential income of the parent”.

R.C. 3119.01(C)(5)(b). R.C. 3119.01(C)(11) provides the definition of “potential

income”, which is set forth above.

{¶37} Before a trial court can impute income to a parent, it must first find the

parent is voluntarily unemployed or underemployed. McLaughlin v. Kessler, 12th

Dist. Fayette No. CA2011-09-021, 2012-Ohio-3317, ¶13. In deciding if an

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individual is voluntarily underemployed “[t]he test is not only whether the change

was voluntary, but also whether it was made with due regard to the obligor’s

income-producing abilities and her or his duty to provide for the continuing needs

of the child or children concerned”. Woloch v. Foster, 98 Ohio App.3d 806, at 811.

{¶38} Ashleigh asserts that the trial court committed plain error by imputing

income to her based upon her 2014 earnings. She contends that her former employer

lost its contract, leaving her unemployed. We disagree.

{¶39} In our review of the record, we find that Ashleigh’s lack of

employment was primarily associated with her voluntary decision to be a stay at

home mom after the birth of her twins (with her new spouse) in lieu of working full

time. When questioned, Ashleigh testified as follows regarding this issue:

Q. (Mr. Mansfield) Are you currently employed?

A. (Ashleigh) No.

Q. Um after your pregnancy leave, uh will you take employment?

A. As of right now I’m a stay at home mother. Um after um if it
has anything to do with my husband, he would like me to stay
home longer. However, um my career is very important to me
and if I do go back to work I will probably go PRN that way I
can work it around the children’s schedule and the family life.

Q. What is uh your educational background?

A. I am currently an LPN and I have two um state licenses.

(Tr., Day 2, P. 2-3).

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and

Q. (Mr. Mansfield) Okay. When did you start
unemployment?

A. I started unemployment at the end of November. November
20th.

Q. Of 2015?

A. Of 2015. Yes.

Q. Okay. That due to your pregnancy?

A. Uh partially it was due to the pregnancy. Partially it was also
due to the contract wasn’t re-signed in Fort Wayne. Um I was
able to commute – possible. But with the pregnancy, talking
to my OB doctor, he didn’t feel it was necessary to. So I took
the severance package.

Q. Uh you’re not employed at this time then?

A. No.

(Tr., Day 2, P. 5).

{¶40} Thus, competent and credible evidence exists in the record to support

the trial court’s determination that Ashleigh’s decision not to work was by her

choice. Accordingly, we find the trial court reviewed and considered the

appropriate statutory factors and its determination that Ashleigh was voluntarily

unemployed was not in error.

{¶41} Regarding Ashleigh’s complaint as to the income the trial court used

in determining whether child support should be awarded pursuant to the shared

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parenting plan, we find the trial court considered the statutory factors, relying upon

R.C. 3119.019(C)(11)(a)(i) to impute “potential income” to Ashleigh. In the case

sub judice, the trial court chose to impute Ashleigh’s lowest single year income

earned as her potential income, as opposed to an average, from her previous work

years. This is evidenced by Ashleigh’s testimony:

Q. (Mr. Mansfield) Okay. What are those?

A. (Ashleigh) Um my income taxes.

Q. For what years?

A. Um, 2013 and it looks like 2014 and 2015.

***

Q. Okay. And uh how much did you earn in 2013?

A. In 2013 my wages – my salary was uh thirty-six thousand, eight
hundred seventy-nine dollars.

Q. Okay. In 2014? Did you have any other income in 2013?

A. Um 2013, no.

Q. Okay. 2014 were you employed?

A. Yes.

***

Q. And what were your earnings that year?

A. Thirty-five thousand, one hundred and sixty-three dollars.

Q. Okay. Any other earnings that year?

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A. No.

***

Q. Excuse me. 2015?

A. Um yes.

Q. And were you employed?

A. Uh half of the year I was employed at the Allen County
Sheriff’s Department. Um I then resigned there when I was
offered a promotion and a job with Quad Medical.

Q. Okay. And between those two jobs, uh what did you earn that
year?

A. Forty-one thousand, three hundred and ninety-six dollars.

Q. any other income besides those two jobs?

A. Uh the unemployment on here.

(Tr., Day 2, P. 3-5).

{¶42} Thus, in our review of this assignment, we find Ashleigh’s argument

unpersuasive. As evidenced by this testimony, Ashleigh’s income for 2013 was

$36,879, 2014 was $35,136 and 2015 was $41,396. The trial court elected to impute

an amount less than Ashleigh’s 2014 income for the child support worksheet (see

Doc. 159, Exhibit 1). Pursuant to R.C. 3119.01(C)(11)(a)(i), the trial court was

proper in imputing income nearly identical to Ashleigh’s 2014 income as her

“potential income” herein. Thus, competent and credible evidence exists in the

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record to support the trial court’s imputation of $35,095 to Ashleigh as such amount

was based upon her realistic earning ability.

{¶43} Accordingly, Ashleigh’s fifth assignment of error is overruled.

Sixth Assignment of Error

{¶44} In her sixth assignment of error, Ashleigh contends the trial court

committed plain error in terminating the prior order of child support and ordering a

refund to Jarrod of his overpaid child support. More specifically, by adopting

Jarrod’s shared parenting plan, the trial court was required to issue a new child

support order. In doing so, the trial court determined, as evidenced by its new

support worksheet (Doc. 159, Exhibit 1), that neither party owed a duty of support.

Thus, the trial court terminated the prior support order and ordered Ashleigh to

“return the full amount on her child support card” and “the balance due and owing

shall be paid at $100.00 per month” to Jarrod. (Doc. 159).

Standard of Review

{¶45} In appellant’s fifth assignment of error we declined to address

appellant’s argument (of imputing income) under an abuse of discretion, the normal

review of child support decisions, because the appellant failed to object to such

imputation of the trial court. However, in this assignment of error appellant wasn’t

able to object because the trial court issued the orders, not the magistrate. Thus, we

reject using plain error as the standard of review as child support decisions are

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within the discretion of the trial court and will not be disturbed without an abuse of

discretion. Marek v. Marek, 158 Ohio App.3d 750, 2004-Ohio-5556, citing Rock,

supra, at the syllabus. An abuse of discretion “implies the court’s attitude is

unreasonable, arbitrary or unconscionable”. Marek, quoting Blakemore, supra.

Analysis

{¶46} The amount of child support ordered by the trial court pursuant to the

basic child support schedule and worksheet is “rebuttably presumed to be the correct

amount of child support”. R.C. 3119.03. The trial court is permitted to deviate from

the basic child support schedule if it finds that basic child support would be “unjust

or inappropriate, and would not be in the best interest of the child”. See R.C.

3119.79(C); 3119.22. In deviating from basic child support, the court must examine

the factors found in R.C. 3119.23, which included “[s]ignificant in-kind

contributions from a parent”. R.C. 3119.23(J) (emphasis added).

{¶47} As evidenced in the record, the trial court, in its journal entry,

considered the parties’ in-kind contributions when determining child support,

stating:

“Child support shall cease and terminate for both parties effective
June 1, 2016. No further support shall be ordered and this being
in the best interest of the child and a deviation is appropriate
based on in kind contributions of the parties.” (Doc. 159).

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The trial court also found:

“There is an overpayment of child support. Defendant shall
return the full amount on her child support card. The balance
due & owing shall be paid at $100 per month.” (Doc. 159).

{¶48} As such, we find the trial court properly addressed the factors under

R.C. 3119.23 and did not abuse its discretion by considering the in-kind

contributions made by each party in determining that neither Ashleigh or Jarrod

needed to pay support. Because no new support order was issued, an overpayment

existed as to the previous child support order. Thus, a refund was due Jarrod, which

we find proper.

{¶49} We further note, as to this assignment of error, that appellant’s brief

(at page 17) contains just one sentence in support of this assignment of error and

contains no argument or authority for us to review. “It is not the duty of this court

to search the record for evidence to support an appellant’s argument as to alleged

error.” State ex re. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94.

{¶50} Accordingly, Ashleigh’s sixth assignment of error is overruled.

Seventh Assignment of Error

{¶51} In her seventh assignment of error Ashleigh argues that the court erred

in finding her in contempt because she moved to her new address without court

permission. Specifically, Ashleigh argues that she complied with all of the trial

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court’s requirements regarding her relocation and that the trial court exceeded its

authority by finding her in contempt for moving.

Standard of Review

{¶52} Before analyzing the merits of this assignment of error, we note that

Ashleigh failed to object to this matter when she objected to the magistrate’s

decision. As we stated above, Civ.R. 53(D)(3)(b)(iv) provides:

Waiver of right to assign adoption by court as error on appeal.
Except for a claim of plain error, a party shall not assign as error
on appeal the court’s adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of
fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the
party has objected to that finding or conclusion as required by
Civ.R. 53(D)(3)(b).

{¶53} Accordingly, since Ashleigh failed to object to the magistrate’s

decision, we are bound to review this assignment of error under the plain error

standard. See McBroom v. Loveridge, 6th Dist. Lucas No. L-05-1391, 2006-Ohio-

5908, ¶ 14. Goldfuss, supra, addresses the applicability of the plain error doctrine

to appeals of civil cases in which the Supreme Court of Ohio stated:

“In appeals of civil cases, the plain error doctrine is not favored
and may be applied only in the extremely rare case involving
exceptional circumstances where error, to which no objection was
made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process
itself.” Id., at the syllabus.

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Analysis

{¶54} In our review of the record, we find the standard relocation language,

pursuant to R.C. 3109.051(G), is contained in the parties’ May 4, 2012 Judgment

Entry / Decree of Divorce. (Doc. 59).

{¶55} R.C. 3109.051(G), which deals with the requirements of a residential

parent intending to relocate, states, in its pertinent part:

If the residential parent intends to move to a residence other than
the residence specified in the parenting time order or decree of
the court, the parent shall file a notice of intent to relocate with
the court that issued the order or decree. * * * Upon receipt of the
notice, the court, on its own motion or the motion of the parent
who is not the residential parent, may schedule a hearing with
notice to both parents to determine whether it is in the best
interest of the child to revise the parenting time schedule for the
child.

{¶56} While the express terms of R.C. 3109.051(G) permits a trial court to

schedule a hearing “to determine whether it is in the best interest of the child to

revise the parenting time schedule for the child”, the statute does not give the trial

court the authority to prevent the residential parent from relocating with the child.

In re T.M., 161 Ohio App.3d 638, 2005-Ohio-3083, ¶11-12; Harris v. Harris, 9th

Dist. Lorain No. 06CA009056, 2007-Ohio-3123, ¶ 6.

{¶57} In the case sub judice, Ashleigh relocated prior to the trial court’s

issuance of its order restricting her to move. Thus, the only valid provision spelled

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out by the trial court regarding relocation was that in its Judgement Entry / Decree

of Divorce, which reads as follows:

RELOCATION NOTICE: Pursuant to Ohio Revised Code
Section 3109.051(G), the parties are notified as follows:

If the residential parent intends to move to a residence other than
the residence specified in the court order, the residential parent
shall file a notice of intent to relocate with this court, addressed to
the attention of the relocation officer. Unless otherwise ordered
pursuant to R.C. Sections 3109.051(G)(2), (3), and (4), a copy of
such notices shall be mailed by the court to the parent who is not
the residential parent. Upon receipt of the notice, the court, on its
own motion or the motion of the parent who is not the residential
parent, may schedule a hearing with notice to both parents to
determine whether it is in the best interest of the child to revise
the parenting time schedule for the child. (Doc. 59).

{¶58} Thus, the notice contained in the parties’ divorce decree placed no

restriction upon Ashleigh’s ability to relocate with the couple’s minor child. In fact,

it merely required her, as the residential parent, to “file a notice of intent to relocate

with this court”. As a result, and under the facts of this case, the trial court lacked

the authority to restrict Ashleigh from relocating. Instead, pursuant to R.C.

3109.051(G)(1), the trial court can only schedule a hearing “to determine whether

it is in the best interest of the child to revise the parenting time schedule for the

child”.

{¶59} In order for plain error to exist, “* * * reviewing courts must proceed

with the utmost caution, limiting the doctrine strictly to those extremely rare cases

where exceptional circumstances require its application to prevent a manifest

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miscarriage of justice”. Thus, “appellate courts must proceed * * * only * * * where

the error seriously affects the basic fairness, integrity, or public reputation of the

judicial process itself”. Unifund CCR Partners, supra, quoting Goldfuss.

{¶60} In our review of this assignment, we find that the trial court’s order

restricting Ashleigh from relocating was journalized after she relocated. Thus, the

decision finding her in contempt for relocating was contrary to law and constitutes

plain error. As such, the finding of contempt by the trial court must be reversed.

{¶61} Accordingly, Ashleigh’s seventh assignment of error is sustained and

the trial court’s contempt finding is vacated.

{¶62} Having found no error prejudicial to Ashleigh herein in the particulars

assigned and argued as to the first, second, third, fourth, fifth and sixth assignments

of error, we affirm in part the judgment of the trial court. However, we sustain the

seventh assignment error as stated above, reverse in part the judgment of the trial

court, and vacate its finding of contempt against Ashleigh.

Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr

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