Opinion
2022-L-113
06-30-2023
LAKE COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES; CHILD SUPPORT ENFORCEMENT DIVISION, et al., Plaintiff, v. MARCO L. TRIVISONNO, Defendant-Appellant. MEGAN E. SACERICH, Plaintiff-Appellee,
Stephanie G. Snevel, Lake County Department of Job and Family Services, (For Plaintiff, Lake County Department of Job and Family Services; Child Support Enforcement Division). Thomas J. Sacerich, (For Plaintiff-Appellee). James W. Reardon, Carrabine & Reardon, Co., LPA, (For Defendant-Appellant).
Civil Appeal from the Court of Common Pleas, Juvenile Division Trial Court No. 2018 SE 00546
Stephanie G. Snevel, Lake County Department of Job and Family Services, (For Plaintiff, Lake County Department of Job and Family Services; Child Support Enforcement Division).
Thomas J. Sacerich, (For Plaintiff-Appellee).
James W. Reardon, Carrabine & Reardon, Co., LPA, (For Defendant-Appellant).
OPINION
MATT LYNCH, J.
{¶1} Defendant-appellant, Marco L. Trivisonno, appeals from the judgment of the Lake County Court of Common Pleas, Juvenile Division, increasing his child support obligation. For the following reasons, we affirm the decision of the lower court.
{¶2} On April 26, 2018, Plaintiffs, Lake County Department of Job and Family Services, Child Support Enforcement Division, and Megan E. Sacerich, filed a Complaint to Recognize Administrative Child Support. Therein, they argued that the Child Support Enforcement Division established a February 22, 2018 child support order, requiring Trivisonno to pay child support to Sacerich in the amount of $431.62 per month. The child support worksheet listed mother's income as $60,000 and Trivisonno's as $34,944. The court issued an October 19, 2018 Entry, ordering that Trivisonno pay $431.62 per month in child support.
{¶3} On September 1, 2020, Sacerich filed a Motion to Increase Child Support. She alleged that Trivisonno's income increased while she had lost her job and was unable to work due to the birth of a second child. She requested that support be increased to $684.13 per month.
{¶4} A hearing was held on this matter on July 22, 2022. Prior to the hearing, the parties stipulated to their incomes: Trivisonno's income for the years 2020-2022 ranged from $56,736 to $79,805. Sacerich's income in 2020-2022, set at the minimum wage due to her lack of employment, ranged from $18,096 to $19,344. The following testimony was presented at the hearing.
The Magistrate's Decision stated this amount as $79,806.
{¶5} Sacerich and Trivisonno have one child together, who was five years old as of the date of the hearing. Sacerich testified that Trivisonno does not have standard visitation with their child but visits with him one weekday from 1:30 p.m to 7:30 p.m. and every other Saturday from 9 a.m. to 8 p.m. According to Sacerich, he does not always exercise this right to visitation and misses a day of visitation at least once every two months. Sacerich pays for all food, including during visits, since the child has a specific diet, as well as other expenses. The parties split medical expenses.
{¶6} Sacerich testified that she has a bachelor's degree in graphic design, graduated in 2012, and had worked as a bank representative until 2018 when she was fired. At that time, she made $60,000 a year. Since then, she has primarily stayed at home with her children, although she does have a real estate license. She testified that she made about $1,000 in 2022 in relation to real estate work. She also has significant money in savings from an inheritance. She receives approximately $600 a month in child support for a child she has with a different father.
{¶7} In closing arguments, Sacerich argued in favor of an upward deviation due to expenses she incurs given the limited visitation and missed visitations. Trivisonno argued that a downward deviation should be granted due to Sacerich's failure to work although she has a degree and previously earned a "very good wage."
{¶8} A Magistrate's Decision was issued on July 26, 2022. The magistrate found that "an insufficient basis was presented at trial to find that the amounts calculated by the child support computation worksheets were unjust, inappropriate and not in the best interests of the minor child; therefore, the requests for a deviation are denied." It recommended an order of child support of $610.94 per month (beginning on September 1, 2020, through December 20, 2020), $773.32 per month in 2021, and $672.54 per month beginning January 1, 2022.
{¶9} On August 8, 2022, Trivisonno filed Objections to the Magistrate's Decision and he filed Supplemental Objections on November 1, 2022. He argued that a deviation should have been granted since Sacerich voluntarily does not work despite having a college degree. He also argued that an order of past support resulted in a windfall to Sacerich. The trial court filed a Judgment Entry on November 9, 2022, denying the objections and affirming its prior judgment adopting the Magistrate's Decision.
{¶10} Trivisonno timely appeals and raises the following assignments of error:
{¶11} "[1.] The trial court erred and abused its discretion when it failed to grant Appellant a requested deviation to his guideline child support obligation where appellee testified that she has a bachelor's degree, a professional license, recent employment history, and significant assets not being used to support the child but chooses to live on Appellant's child support obligation alone.
{¶12} [2.] The trial court erred and abused its discretion when it used the date of Appellee's Motion filing as the effective date of the new guideline child support obligation where doing so leads to an unjust enrichment of Appellee and is not in the best interests of the minor child."
{¶13} In his first assignment of error, Trivisonno argues that "[w]here a court has evidence before it that only one parent is supporting a minor child through 'the parent's property or by the parent's labor,' then that Court has abused [its] discretion by not granting a reasonable deviation to the only parent providing such support." He argues that the testimony established Sacerich's failure to work is a "willful choice to shirk her own financial responsibility for their minor child."
{¶14} Sacerich argues that the facts did not support a deviation under these circumstances. She contends that there is a lack of evidence to show that she was able to find jobs in her field of study and emphasizes she was able to collect unemployment after termination from her previous job, indicating she was not terminated for cause and did not voluntarily become unemployed.
{¶15} A trial court's decision regarding child support obligations and "whether to order a deviation from the child support guidelines" is reviewed for an abuse of discretion. In the Matter of A.H., 11th Dist. Geauga No. 2019-G-0222, 2021-Ohio-4055, ¶ 29; Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997) ("we cannot say that the trial court abused its discretion in refusing to deviate from the amount of child support calculated under the standard worksheet"). An abuse of discretion occurs when the trial court fails to "exercise sound, reasonable, and legal decision-making." (Citations omitted.) Allen v. Allen, 2022-Ohio-3198, 196 N.E.3d 368, ¶ 39 (11th Dist.).
{¶16} "In any action in which a court child support order is issued or modified, * * *, the court or agency shall calculate the amount of the parents' child support and cash medical support in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of Chapter 3119. of the Revised Code." R.C. 3119.02. "When calculating child support, the trial court must first determine the annual gross income of each parent," including the gross and potential income "of a parent the court determines to be voluntarily unemployed or underemployed." Lake Cty. Dept. of Job and Family Servs. v. Bailey, 11th Dist. Lake No. 2019-L-079, 2020-Ohio-986, ¶ 25; Rock v. Cabral, 67 Ohio St.3d 108, 111, 616 N.E.2d 218 (1993). See R.C. 3119.01(C)(9)(a) and (b) ("[i]ncome" includes "the gross income of the parent" or, "[f]or a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent"). "Potential income" includes income, imputed to the parent, which would have been earned, if the court determines that parent is "voluntarily unemployed or voluntarily underemployed." R.C. 3119.01(C)(17)(a). "A trial court must expressly find that a parent is voluntarily underemployed or unemployed before imputing income" and such determination is to be decided based on the facts of the case. Byers v. Cartechine, 11th Dist. Lake No. 2017-L-043, 2017-Ohio-9334, ¶ 26-27.
{¶17} After the court determines the guideline support amount under the child support schedule, "[t]hen, courts may deviate from that guideline amount" under certain circumstances. Rummelhoff v. Rummelhoff, 2022-Ohio-1224, 187 N.E.3d 1079, ¶ 19 (1st Dist.). The court may order a deviation "if, after considering the factors and criteria set forth in section 3119.23 of the Revised Code, the court determines that the amount calculated pursuant to the basic child support schedule and the applicable worksheet would be unjust or inappropriate and therefore not in the best interest of the child." R.C. 3119.22. R.C. 3119.23 provides a list of factors to be considered, which include, in pertinent part: "[s]pecial and unusual needs of the child or children, including needs arising from the physical or psychological condition of the child"; "[extended parenting time or extraordinary costs associated with parenting time"; "[t]he relative financial resources, including the disparity in income between parties or households, other assets, and the needs of each parent"; "[significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing"; "[t]he responsibility of each parent for the support of others"; and "[a]ny other relevant factor." R.C. 3119.23(A), (C), (E), (I), (M), and (Q).
{¶18} In child support cases, the court first determines the incomes, including imputed income, of the parties and proceeds according to the child support guidelines. It may then order a deviation if warranted. In the present matter, as to the first step, the parties' incomes for the purposes of the child support worksheet were discussed at the commencement of the hearing. Counsel for Trivisonno indicated: "Following up on what we discussed among counsel before we brought in the parties, we are, in fact, agreeing to those figures we discussed for 2020, 2021, and 2022 as the guideline figures and the presumptive starting point for guideline child support." The parties discussed and agreed on the amounts to be set for Trivisonno's income. The discussion continued:
THE COURT: And my understanding further is that Ms. Sacerich will be set at the minimum wage for those three years.
MR. REARDON (Counsel for Trivisonno): Yes.
MR. SACERICH (Counsel for Sacerich): Those respective years, yes, Your Honor.
THE COURT: Okay. Just so the record is clear further, the minimum wage full time for 2020 would be $18,096.00, for '21 it would be $18,304, and for 2022 it would be $19,344.00.
{¶19} Finally, the court inquired whether the parties had agreed to anything additional. Counsel for Trivisonno indicated: "I don't think so. I believe we discussed then that would be conclusive of the movant's case and that it would just then turn to me to argue or present evidence about the deviation." Counsel for Sacerich indicated: "Well, if he's going to ask for a deviation, I am going to ask for a deviation up." The court stated: "It sounds like both Mr. Sacerich and Mr. Reardon want to present evidence on the issues regarding potential deviations. So that being said, how about if we * * * start with opening statements." The matter then proceeded to hearing.
{¶20} It appears from this discussion that Trivisonno did not seek to have the court consider the issue of imputing income to Sacerich for the purposes of completing the child support worksheet. Counsel indicated that they agreed to the minimum wage figures for Sacerich's income "as the guideline figures." Trivisonno's counsel indicated that the figures stipulated to "would be conclusive of the movant's case" and he would then "argue or present evidence about the deviation." Thus, the magistrate did not indicate in the order that it considered those factors for determining imputed potential income for an underemployed parent pursuant to R.C. 3119.01 (C)(17)(a). The magistrate relied upon the parties' statements that indicated they stipulated to the parties' incomes.
{¶21} Trivisonno does not argue that the court erred in failing to impute additional income to Sacerich. Rather, he contends that the court should have granted a deviation from the amount determined under the guidelines and child support worksheet. He does not cite authority in support of how a party's underemployment or unemployment should apply as a deviation. This factor is typically considered as imputed income to be included on the child support worksheet.
{¶22} Whether a parent's underemployment is an appropriate factor to consider for the purposes of granting a deviation, rather than imputing income, was addressed by the First District in Rummelhoff, 2022-Ohio-1224. There, the court recognized that a "parent's underemployment is accounted for when the court imputes income," pursuant to R.C. 3119.01(C)(17). Id. at ¶ 35. It observed that although the factors for deviation include the "relative financial resources" of the parties under R.C. 3119.23(E), "[i]t is evident that the intent of the legislature was to account for income potential through the imputation of income, rather than to deviate based on a 'relative financial resource.'" Id. It concluded that "a deviation based on 'relative financial resources' does not refer to a party's untapped income potential or underemployment"; a "deviation must be based on actual financial resources"; and it was an abuse of discretion to base a deviation on a parent's "'ability to earn more than he currently was earning.'" Id. at ¶ 36 and 38.
{¶23} Here, Trivisonno's argument in favor of a deviation is based on Sacerich's unemployment or underemployment, a factor which the Rummelhoff court determined was not properly applied in considering a deviation. We recognize that there are facts tending to support a determination that Sacerich was voluntarily unemployed, including her past work history and college degree. However, as the court in Rummelhoff contemplated, failing to raise this issue through a request to impute income to Sacerich creates complications. The pertinent statute sets forth various factors to be considered when imputing income based on voluntary unemployment, which relate to employment potential, job availability, and job experience. R.C. 3119.01 (C)(17)(a)(i)-(xi). It has been held that when potential income is imputed by a trial court to a voluntarily unemployed parent, "an appellate court must be able to ascertain from the trial court's journal entry the amount of potential income imputed, and the trial court's reasons for imputing income to a child support obligor." Rock, 67 Ohio St.3d at 113, 616 N.E.2d 218. Because the parties stipulated to their incomes, the trial court did not consider these factors, make findings relating to whether Sacerich was voluntarily unemployed, or address any amount of income to be imputed. Further, evidence relating to factors such as the availability of employment in the area and the prevailing wage and salary levels was not presented. We are not prepared to find that a deviation must be granted when a parent may be voluntarily unemployed, since this circumvents the process set forth in R.C. 3119.01 (C)(17) for imputing income in these circumstances.
{¶24} Nonetheless, even if we were to consider Sacerich's unemployment under this factor or under the catch-all "any other relevant factor" under R.C. 3119.23(Q), we do not find the trial court abused its discretion in denying a downward deviation. While Sacerich may be able to work and obtain a greater salary than the minimum wage which was imputed to her, it is unclear what jobs are available to her with her graphic design degree, as her past employment was not in that field. Even presuming her failure to work and increase her earnings weighed into a deviation finding, there are other factors to be considered. In particular, there was testimony that Sacerich supplied all food for the child, even when he was visiting with Trivisonno, due to the child's special diet, and that Trivisonno exercised less than standard visitation with the child, leaving Sacerich responsible for the vast majority of the child's expenses and caregiving.
{¶25} While a court ordering a deviation from the child support guidelines must include findings of fact pursuant to R.C. 3119.22, it has been held that a denial of such request does not require justification of the court's decision or a statement that the court considered the R.C. 3119.23 factors. Coleman v. Campbell, 11th Dist. Geauga No. 2001-G-2401, 2002-Ohio-3841, ¶ 16 ("[u]nless the trial court deviates from [the worksheet] amount, the statute does not require the court to justify its decision"); Zeitler v. Zeitler, 9th Dist. Lorain No. 04CA008444, 2004-Ohio-5551, ¶ 14. Here, the trial court did not state any factors considered in denying both parties' requests for deviation. While not required to do so, this makes it difficult to assess the court's rationale for denial of the request to deviate. Nonetheless, we cannot find that the court abused its discretion in denying the deviation given the foregoing evidence.
{¶26} The first assignment of error is without merit.
{¶27} In his second assignment of error, Trivisonno argues that the trial court abused its discretion by increasing the amount of support owed retroactive to the date the motion to modify was filed, resulting in a windfall to Sacerich.
{¶28} "As this and other Ohio courts have noted," there is a general rule that, in the absence of special circumstances, "an order of a trial court modifying child support should be retroactive to the date such modification was first requested; the effective date of modification must coincide with some significant event in the litigation, and an arbitrary date may not be employed." (Citations omitted.) Crandall v. Crandall, 11th Dist. Geauga No. 2019-G-0202, 2020-Ohio-625, ¶ 23; Zamos v. Zamos, 11th Dist. Portage No. 2002-P-0085, 2004-Ohio-2310, ¶ 13 ("The general rule in Ohio is that when a court modifies a child support award, that modification is made retroactive to the date on which the motion to modify the award is made."). This rule has been characterized as a "'presumption of retroactivity' that may be 'overcome' by facts in the record that demonstrate 'special circumstances.'" Huth v. Huth, 11th Dist. Portage No. 2018-P-0084, 2019-Ohio-2970, ¶ 38, citing Sandel v. Choma, 9th Dist. Summit No. 25995, 2012-Ohio-3781, ¶ 5. "The general rule is based on equitable principles in recognition of 'the substantial time it frequently takes to dispose of motions to modify child support obligations.'" Zamos at ¶ 13, quoting Hamilton v. Hamilton, 107 Ohio App.3d 132, 139-140, 667 N.E.2d 1256 (6th Dist. 1995).
{¶29} "'Whether to make a modification of support retroactive to the date of the motion is a question left to the sound discretion of the trial court.'" Huth at ¶ 37, citing Nichols v. Nichols, 10th Dist. Franklin No. 13AP-13, 2013-Ohio-3927, ¶ 20, quoting Lightle v. Lightle, 2d Dist. Champaign No. 2012 CA 8, 2012-Ohio-3284, ¶ 8.
{¶30} Here, the lower court ordered an increase of the support obligation retroactive to September 1, 2020, the date that Sacerich filed a motion to modify child support. This is consistent with the foregoing presumption that modification of a child support obligation applies retroactively to the date of the request to modify. We recognize that "[w]hile it may 'often be equitable to apply a modification retroactively to the date of the motion, * * * a substantial arrearage or overage created by a retroactive modification can create a hardship to one of the parties.'" (Citation omitted.) Huth at ¶ 37. However, there is nothing in the record here to indicate that this order created a substantial arrearage or hardship. An abuse of discretion has not been found where the court ordered the modification retroactive to the date of the motion and where the appellant failed to direct the court to "facts in the record demonstrating special circumstances that overcome the presumption of retroactivity." Id. at ¶ 39.
{¶31} In support of his assigned error, Trivisonno cites C.W. v. S.R., 6th Dist. Lucas No. L-12-1282, 2013-Ohio-4521, for the proposition that a retroactive award should be denied when it creates a windfall. In C.W., the matter before the court did not involve a modification of an existing support order. Instead, the court addressed the request for retroactive support to an emancipated child who filed a paternity suit at the age of 22. In that case, the father had not been in contact with the child throughout his childhood pursuant to the mother's request, no support order had previously been sought, and the child had a "privileged upbringing" with his mother and stepfather. Id. at ¶ 14. In these circumstances, the court found no abuse of discretion in the determination that appellant was not harmed by a lack of support and that a retroactive award would "create a 'monumental windfall' to appellant and a 'devastating financial hit' to appellee." Id. at ¶ 24-27. Similarly, in the cited case of Baker v. Jarrell, 9th Dist. Lorain No. 07CA009126, 2007-Ohio-7024, where the mother and father had not been in contact since the child's birth in 1988, the mother filed a complaint for paternity and request for child support in 2005. Id. at. ¶ 2-3. The court found it was not an abuse of discretion to deny a lump sum payment of retroactive support where the child was almost emancipated and the mother no longer had custody of the child since it would be inequitable. Id. at ¶ 14-16.
{¶32} In the cases cited by Trivisonno, the parties sought not just an increase and modification of support but a new order which could lead to a substantial arrearage for many years, resulting in potential hardship and a windfall. Here, there was no retroactive support request for the entirety of the child's life but merely a retroactive order issued from the time of the modification motion, as is typical in matters where a party seeks child support modification.
{¶33} The second assignment of error is without merit.
{¶34} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, Juvenile Division, increasing Trivisonno's child support obligation, is affirmed. Costs to be taxed against appellant.
MARY JANE TRAPP, J., EUGENE A. LUCCI, J, concur