holding that the determination of whether a parent is voluntarily underemployed will not be disturbed on appeal absent an abuse of discretion
How later courts described this case
- holding that the determination of whether a parent is voluntarily underemployed will not be disturbed on appeal absent an abuse of discretion
- stating a "parent's subjective motivations for being voluntarily unemployed or underemployed play no part in the determination of whether potential income is to be imputed to that parent in calculating his or her support obligation"
- finding that a mother, who had a degree in accounting, was voluntarily underemployed as a weaver and imputing an income of $14,000 that she could have earned if she worked as an accountant
- stating that "[t]he 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"
Written by the judges who cited it.
The opinion
Alice Robie Resnick, J.,
concurring in part and dissenting in part.
I concur in the syllabus announced by the majority, but I dissent from the result that is reached by its application to the facts of this case. I would find that the trial court abused its discretion in determining that appellant was “voluntarily underemployed.”
As stated by the majority, the question of whether a parent is voluntarily underemployed is a question of fact for the trial court and absent an abuse of the court’s discretion, such factual determination will not be disturbed on appeal. It is clear to me that the facts of this case do not support a finding of voluntary underemployment.
The dates of various events in this case are extremely significant to the determination of the case. At the time the marriage was dissolved in 1989, appellant retained sole custody' of the parties’ two children. One year later, the younger child, Margaret, expressed a desire to live with her father. In October 1990, custody of Margaret was awarded to appellee. When appellee moved for change of custody, he sought child support payments from appellant.
Crucial to a determination of this case is the fact that appellant started her weaving business sometime prior to the change in custody. She earned approximately $7,000 in 1989 as an accounting intern and received her accounting degree in 1990. Her weaving business showed a small profit in 1989 and a loss in 1990.
Apparently the trial court completely ignored the fact that appellant started her weaving business before she was awarded an accounting degree and before Margaret’s custody change. The trial court also seemed to gloss over the fact that although appellant earned money in the accounting field, it was through an *114 internship undertaken prior to graduation and was not appellant’s full-time career. During much of this time she conducted the weaving business.
The majority notes that the referee found appellant’s claim that she obtained an accounting degree to help her run her business lacked credibility. Such determination appears arbitrary considering the facts and circumstances of this case. Because appellant was engaged in the weaving business prior to receiving an accounting degree, I would find appellant’s stated reason for obtaining an accounting degree very reasonable and completely plausible. Further, all that is relevant to this case is that appellant has a degree in accounting and was self-employed. To impute an income of $14,000 to appellant, who never earned that amount of money, is totally unreasonable.
Moreover, it should be noted that this is not a case involving a modification of child support. This is a case of change of custody with a new child support order. As she was not previously paying child support, there is no financial baseline for appellant in this case. In determining child support obligations, the court should take appellant as it found her at the time of Margaret’s custody change, i.e., as a self-employed artist.
I am amazed that the majority allowed the somewhat condescending attitude expressed by the trial court to pass unchallenged. In particular, the trial court found that appellant had a degree in accounting and stated: “If she chooses to indulge in a weaving business, that is her choice * * Chooses to “indulge”? I must ask if the trial court would have used the same tone had appellant chosen to join the Peace Corps instead of operating a weaving business. In my mind, the result reached in this case is as ludicrous as imputing the income of an orthopedic surgeon to Albert Schweitzer.
I find that the result reached in this case is an outrageous misapplication of R.C. 3113.215. Appellant has an accounting degree and has chosen to pursue a career as an artist. The finding of the trial court is both unreasonable and arbitrary and, as a result, is an abuse of discretion. This is not voluntary underemployment within the ambit of R.C. 3113.215(A)(5); therefore, I respectfully dissent.