IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Angela Ruark, :
Plaintiff-Appellee, :
No. 04AP-1018
v. :
(C.P.C. No. 93DP02-1707)
Anthony W. Smith, : (REGULAR CALENDAR)
Defendant-Appellant. :
O P I N I O N
Rendered on June 30, 2005
James Wilmore Brown
, for appellee.
John T. Ryerson
, for appellant.
APPEAL from the Franklin County Court of Common Ple
as,
Division of Domestic Relations, Juvenile Branch.
KLATT, J.
{¶1}
Defendant-appellant, Anthony W. Smith, appeals from
a judgment of the
Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile
Branch, ordering him to pay child support to plaint
iff-appellee, Angela Ruark, nka
Humphrey. For the reasons that follow, we affirm t
hat judgment.
{¶2}
On September 24, 1992, appellee gave birth to a dau
ghter, Kansas.
Appellant and appellee lived together but were neve
r married. In 1993, the Franklin
County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch, found
No. 04AP-1018
2
appellant to be the child's father. However, the d
omestic court did not order appellant to
pay child support because he was unemployed at the
time. Kansas is now in appellee's
custody and resides in her home, while appellant ha
s moved out and has visitation with
his daughter.
{¶3}
On January 10, 2003, appellee filed a motion to est
ablish an award of child
support from appellant. After a hearing, a magistr
ate recommended that appellant pay an
award of child support in the amount of $239.26 per
month. The magistrate based this
amount on $16,640 annual income it imputed to appel
lant after finding that he was
voluntarily unemployed. The magistrate retroactive
ly applied this award to the date
appellee filed her motion for child support, Januar
y 10, 2003. Appellant filed objections to
the magistrate's decision, claiming that the decisi
on was against the manifest weight of
the evidence. The trial court overruled those obje
ctions, finding sufficient evidence to
support the magistrate's determination that appellant was voluntarily unemployed.
{¶4}
Appellant appeals, assigning the following error:
The trial court erred in overruling the objections
to the Report
of the Magistrate that ordered Appellant to pay chi
ld support.
{¶5}
Appellant first argues that the trial court erred b
y imputing income to him in
calculating an award of child support. Before a tr
ial court may impute income to a parent,
it must first find that the parent is voluntarily u
nemployed 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. Whether a parent is voluntarily
unemployed or underemployed is a
determination within the trial court's discretion a
nd will be upheld absent an abuse of
discretion.
Rock v. Cabral
(1993), 67 Ohio St.3d 108, at
112 (applying R.C. 3113.215,
the predecessor to the current R.C. 3119.01). An a
buse of discretion is more than an
No. 04AP-1018
3
error of law or judgment; it implies that the court
's attitude is unreasonable, arbitrary or
unconscionable.
Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219.
{¶6}
Appellant contends that he is not voluntarily unemp
loyed because his
continuing back pain renders him physically unable
to work. The trial court disagreed,
noting appellant's conflicting explanations for why he was unable to pay child support and
his lack of effort during the past 12 years to find
a job that would accommodate his back
injury. Except for a brief period of time when he
worked at an auto service store,
appellant has not worked in the past 12 years, nor
has he sought employment during that
time. Appellant contends his back injury causes hi
m pain and prevents him from working.
Yet appellant's chiropractor, Robert J. Kowalczuk,
testified that the only restriction placed
on appellant's activities was heavy lifting. Kowal
czuk indicated that appellant's back
condition did not prevent him from working entirely
. Moreover, appellant admitted that he
earned some money by working on friends' cars. Thi
s admission further supports the
conclusion that appellant was capable of working.
Given this evidence, the trial court did
not abuse its discretion when it found that appella
nt was voluntarily unemployed.
{¶7}
Having found appellant to be voluntarily unemployed
, the trial court next
imputed income to appellant of $8 an hour for a tot
al of $16,460 a year. When imputing
income, the trial court determines what the parent
would have earned if fully employed.
R.C. 3119.01(C)(11)(a).
1
The trial court must consider the parent's prior
employment
experience, education, disabilities, special skills
and training, and the increased earning
1
R.C. 3119.01(C)(11)(b), not applicable here, also requires the trial court to consider nonincome-prod ucing
assets of a parent.
No. 04AP-1018
4
capacity because of experience. Id. It must also
consider the availability of employment
in the geographic area where the parent resides, th
e prevailing wage and salary levels in
that area, evidence that the parent has the ability
to earn the imputed income, the age
and special needs of the children, and any other re
levant factor. Id. The amount of
potential income to be imputed to a parent is also
a determination within the trial court's
discretion.
Rock
, supra.
{¶8}
The trial court considered appellant's previous emp
loyment with an auto
service store where he earned $9 an hour and his cu
rrent ability to do some work on cars.
Appellant also had some high school education and c
ould read and write and do simple
math. Although appellant did not have any mental d
isabilities, the trial court did take into
account his back condition and the pain it causes.
The trial court noted, however, that
appellant had worked on friends' cars "on the side"
over the years and also drove to
Florida for a vacation with his daughter. The tria
l court also considered Kansas' age and
the fact that she has no special needs above those
of an average 11-year old. After
considering all of these facts, the trial court det
ermined that imputing $8 per hour of
income to appellant was appropriate. Given appella
nt's circumstances, the trial court did
not abuse its discretion by imputing income of $8 a
n hour. That hourly wage is less than
what appellant earned at his previous job and is wi
thin the range of what someone with
appellant's skills and experience could earn in a s
edentary position.
{¶9}
Appellant also contends the trial court erred by no
t crediting him for
payments he made to his child since January 10, 200
3, the effective date of his child
support obligation. Appellant testified that since
that date, he gave Kansas $45 per
No. 04AP-1018
5
month for her school lunches and approximately $60
to $70 a month for clothes. He now
claims that it was error for the trial court to den
y him a credit for these payments. We
disagree.
{¶10}
Pursuant to R.C. 3121.45, any payments from the per
son responsible for
support made directly to the child entitled to rece
ive support payments instead of to the
child support enforcement agency, shall be deemed t
o be a gift, unless such payment
was made to satisfy another obligation. Appellant
does not contend that the payments he
made directly to Kansas were for another obligation
. Therefore, the payments he has
made since January 10, 2003 were gifts. R.C. 3121.
45. The trial court did not abuse its
discretion by refusing to credit these gifts toward his child support obligation.
{¶11}
Appellant's sole assignment of error is overruled,
and the judgment of the
Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile
Branch, is affirmed.
Judgment affirmed.
BROWN, P.J., and FRENCH, J., concur.