Rock v. Cabral

• Citation: 616 N.E.2d 218,67 Ohio St.3d 108
• Decision Date: 11 August 1993
• Docket Number: No. 92-1598,92-1598
• Parties: ROCK, Appellee, v. CABRAL, f.k.a. Rock, Appellant.
• Court: United States State Supreme Court of Ohio

Page 108

67 Ohio St.3d 108

616 N.E.2d 218

ROCK, Appellee, v. CABRAL, f.k.a. Rock, Appellant.

No. 92-1598.

Supreme Court of Ohio.

Submitted April 28, 1993.

Decided Aug. 11, 1993.

SYLLABUS BY THE COURT

Whether a parent is "voluntarily underemployed" within the meaning of R.C. 3113.215(A)(5), and the amount of "potential income" to be imputed to a child support obligor, are matters to be determined by the trial court based upon the facts and circumstances of each case. The determination will not be disturbed on appeal absent an abuse of discretion.

Appellee, John Curtis Rock, and appellant, Barbara Cabral, formerly Barbara Rock, were married in 1971. In August 1989, the marriage was dissolved by decree in the Court of Common Pleas of Medina County. Under the terms of the decree of dissolution, appellant retained sole custody of the parties' two children, David William Rock, born September 30, 1971, and Margaret Lynne Rock, born January 30, 1975. Appellee was ordered to pay child support for David and Margaret.

By the summer of 1990, Margaret began expressing a desire to live with her father. Thus, in August 1990, appellee filed, in the court of common pleas, a motion for a change in Margaret's custody. ¹ Appellee also moved the court to order appellant to pay child support for Margaret. On October 11, 1990, the trial court granted appellee's motion for change of custody, awarded appellee sole custody of Margaret, and terminated appellee's monthly child support obligation for Margaret. In January 1991, a court-appointed referee conducted a hearing on appellee's motion for an award of child support. The following facts are not in dispute.

Appellant remarried in May 1990 and is financially supported by her new husband. Appellant holds a B.A. degree in accounting from the University of Akron. In 1989, appellant earned approximately $7,000 working for four to five and one-half months in the field of accounting. Appellant testified that someone with a B.A. in accounting could earn a starting salary of $15,000 to $22,000 per year. However, at the time of the hearing, appellant was self-employed in a weaving business she started sometime prior to the change in Margaret's custody. In 1989, appellant's weaving business generated a net profit of $518. For 1990, appellant claimed a net loss exceeding $11,000. Appellant apparently anticipated that her weaving business would generate little or no income in 1991. Appellant testified that her sole purpose for obtaining a degree in accounting was to help her run the weaving business. The referee found this claim of appellant lacking in credibility.

At the time of the hearing, appellee was employed as a full-time school teacher. For the 1990-1991 school year, appellee expected to earn $41,108 in gross income. Pursuant to the terms of the parties' separation agreement, incorporated in the decree of dissolution, appellant and appellee were to share the expenses of David's college education. For 1991, appellee expected to pay $6,600 for his share of David's college expenses. Appellant's share of the expenses was an estimated $2,828.

On April 30, 1991, the referee filed her report and recommendation with the trial court. The referee determined that appellant was "capable of earning more than her [weaving] business generates" and recommended that $14,000 of income be imputed to appellant for purposes of calculating appellant's support obligation. The referee determined that imputing $14,000 of annual income to appellant was reasonable based upon appellant's actual earnings in 1989 during her approximately five-month employment in the accounting field. A completed child support computation worksheet was appended to the referee's report. Based upon the worksheet calculation (imputing $14,000 of potential income to appellant on line 1 of the worksheet) and the R.C. 3113.215(D) child support schedule, the referee recommended that appellant be ordered to pay $128.54 per month in child support. In an order dated October 24, 1991, the trial court adopted the referee's recommendation, stating in part:

"Barbara Rock has a degree in accounting and is capable of earning more money than the Referee imputed to her.

"If she chooses to indulge in a weaving business, that is her choice, but the fact remains she is obligated to pay her proportionate share of child support.

" * * * The Court adopts the recommendation of the Referee in toto as its Order."

On appeal, appellant argued that the trial court erred in imputing $14,000 of income to her for purposes of calculating her child support obligation. The court of appeals rejected appellant's contentions and affirmed the judgment of the trial court. The court of appeals held that the trial court did not abuse its discretion in finding that appellant was voluntarily underemployed, and in imputing $14,000 of income to appellant for purposes of calculating her support obligation.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Prudence C. Spink, Medina, for appellee.

Allen M. Cabral, Akron, for appellant.

DOUGLAS, Justice.

R.C. 3113.215 governs the procedures a trial court must follow in calculating and awarding child support. The calculation of support must be made in accordance with the basic child support schedule set forth in R.C. 3113.215(D), and the applicable sample or "model" worksheet in R.C. 3113.215(E) or (F). R.C. 3113.215(B)(1). The amount calculated through line 18 of the applicable child support computation worksheet is "rebuttably presumed" to be the correct amount of child support due. Id. Court-ordered deviations from the schedule and worksheet are not permitted absent full and strict compliance with the requirements of R.C. 3113.215(B)(1)(a) and (b). See Marker v. Grimm (1992), 65 Ohio St.3d 139, 601 N.E.2d 496. The overriding concern of the legislation is to ensure the best interest of the child(ren) for whom support is being awarded. Id. at 141-142, 601 N.E.2d at 498.

In computing child support in accordance with the provisions of R.C. 3113.215, a trial court must determine the annual income of each of the child's parents. R.C. 3113.215(A)(1) provides that:

" '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." (Emphasis added.)

R.C. 3113.215(A)(5) provides in part:

" 'Potential income' means * * * for a parent that the court determines is voluntarily unemployed or voluntarily underemployed:

"(a) The income that the court determines the parent would have earned if fully employed as determined from the parent's employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides[.]"

Thus, in calculating and awarding child support, a trial court must consider the "potential income" as well as the gross income of a parent the court determines to be voluntarily unemployed or underemployed. The "potential income" to be imputed to such parent for purposes of calculating his or her support obligation is to be determined based upon the amount the parent would have earned if he or she had been "fully employed." R.C. 3113.215(A)(5)(a). That amount is to be determined by the parent's employment potential and probable earnings based on the parent's recent work history, job qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides. Id.

Appellant contends that the trial court erred in finding that she was "voluntarily underemployed" within the meaning of R.C. 3113.215(A). Appellant suggests that a person is voluntarily underemployed within the meaning of the statute only if he or she has purposely reduced earnings in an effort to reduce his or her child support obligation. We disagree.

The language of R.C. 3113.215(A)(5) is clear and unambiguous. Nothing in the statute requires proof that an obligor intended to evade a higher support obligation by not obtaining employment commensurate with education, qualifications and ability. The primary design and purpose of R.C. 3113.215 are to protect and ensure the best interests of children. See Marker, supra, 65 Ohio St.3d at 141-142, 601 N.E.2d at 498. The parent's subjective motivations for being voluntarily ² unemployed or underemployed play no part in the determination whether potential income is to be imputed to that parent in calculating his or her support obligation.

Further, the question whether a parent is voluntarily (i.e., intentionally) unemployed or voluntarily underemployed is a question of fact for the trial court. Absent an abuse of discretion, that factual determination will not be disturbed on appeal. See, generally, Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028 (applying abuse of discretion standard to matters involving child support). " 'The term "abuse of discretion" connotes more than an 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, 5 OBR 481, 482, 450 N.E.2d 1140, 1142. Here, the trial court determined that appellant has an accounting degree and the ability to earn more as an accountant than in her chosen occupation as a weaver. The trial court found that appellant obtained a degree in accounting to support herself in the accounting profession, but that her remarriage in May 1990 enabled appellant to pursue a full-time career as a weaver. Thus, the trial court found that appellant was voluntarily underemployed in her occupation as a weaver. We find no abuse of discretion on the part of the trial court in making these findings.

Appellant also argues that...