 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ruark v. Smith6/30/2005
{ } 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 plaintiff-appellee, Angela Ruark, nka Humphrey. For the reasons that follow, we affirm that judgment.
{ } On September 24, 1992, appellee gave birth to a daughter, Kansas. Appellant and appellee lived together but were never married. In 1993, the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, found appellant to be the child's father. However, the domestic 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 has moved out and has visitation with his daughter.
{ } On January 10, 2003, appellee filed a motion to establish an award of child support from appellant. After a hearing, a magistrate 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 appellant after finding that he was voluntarily unemployed. The magistrate retroactively applied this award to the date appellee filed her motion for child support, January 10, 2003. Appellant filed objections to the magistrate's decision, claiming that the decision was against the manifest weight of the evidence. The trial court overruled those objections, finding sufficient evidence to support the magistrate's determination that appellant was voluntarily unemployed.
{ } 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 child support.
{ } Appellant first argues that the trial court erred by imputing income to him in calculating an award of child support. Before a trial court may impute income to a parent, it must first find that the parent is voluntarily unemployed or underemployed. Inscoe v. Inscoe (1997), 121 Ohio App.3d 396, 424; Marek v. Marek, 158 Ohio App.3d 750, 2004-Ohio-5556, at . Whether a parent is voluntarily unemployed or underemployed is a determination within the trial court's discretion and will be upheld absent an abuse of discretion. Rock v. Cabral (1993), 67 Ohio St.3d 108, at112 (applying R.C. 3113.215, the predecessor to the current R.C. 3119.01). An abuse of discretion is 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.
{ } Appellant contends that he is not voluntarily unemployed 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 him 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. Kowalczuk 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. This admission further supports the conclusion that appellant was capable of working. Given this evidence, the trial court did not abuse its discretion when it
Page 1 2 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|