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Court Must Find Parent Voluntarily Unemployed Before Estimating Child Support

A domestic relations court must expressly find that a parent is voluntarily unemployed before calculating a child support order based on estimated potential future income, the Supreme Court of Ohio ruled today.

The Supreme Court ruled that the Wood County Domestic Relations Court skipped a legal step when it determined a man who lost his job during the COVID-19 pandemic could pay child support at an amount similar to a calculation based on his eliminated position. The decision reversed a Sixth District Court of Appeals decision, which found the  judge’s divorce decree implied that the father of three was voluntarily unemployed.

Writing for the Court majority, Justice Michael P. Donnelly stated that based on the domestic relations  court’s scant record , it appeared that the judge found David Ayers was “involuntarily unemployed” at the time the child support order was issued. Justice Donnelly wrote that state law requires a domestic relations court to issue a court order expressly determining a parent is voluntarily unemployed or underemployed before “imputing a potential income” for child support payments.

Justices Patrick F. Fischer, Melody Stewart, and Jennifer Brunner joined Justice Donnelly’s opinion.

Chief Justice Sharon L. Kennedy concurred in judgment only with an opinion, writing that an appellate court must be able to determine from the entry imputing potential income to a parent that the parent’s unemployment was voluntary. However, the domestic relations court failed to make a finding that Ayers was voluntarily unemployed, and it misstated the statutory standard for imputing potential income to a parent. The chief justice explained that because the domestic relations court may have misunderstood the law, it could not be inferred that the court had made the statutory findings necessary to impute income to Ayers.

In a separate concurring opinion, Justice R. Patrick DeWine maintained that the majority is adding a requirement that trial courts must “expressly” find unemployment is voluntary. He wrote while that may be a best practice for trial judges, R.C. 3119.01 does not require it. The law only requires a court to determine the parent was voluntarily unemployed, he stated.

Justice Joseph T. Deters joined Justice DeWine’s concurrence.

Child Support Determined During Divorce Proceedings
Ayers and Deborah Belleville, formerly Deborah Ayers, had been married for 13 years before she filed for divorce in July 2019. The couple had three children. Both were employed with comparable incomes when the case began.

Ayers had been employed by CSX Transportation as a load-engineering and design-services coordinator since 2011. In February 2020, his position was eliminated because of organizational changes. He was unemployed during the course of the divorce hearings in August through October 2020.

Ayers testified at his final divorce hearing that he was seeking a new job, but the market was “very small” during the pandemic. Belleville testified that she believed Ayers could get a new job. Ayers told the court that he was unemployed through no fault of his own, while Belleville asserted that Ayers’ ability to find new employment was very likely.

Belleville asked the domestic relations court to award child support and that it should be calculated on Ayers’ 2019 base pay along with the average annual bonus he received over the previous three years.

The domestic relations court designated Belleville as the residential parent and ordered Ayers to pay child support. The judge stated that under R.C. 3119.01(C)(9)(b), it could calculate the “potential income” of a parent who is unemployed or underemployed. The judge pointed to a list of factors in R.C. 3119.01(C)(17) that could be used to determine potential income. The order did not note that under R.C. 3119.01(C)(17), the court must first determine if the parent is “voluntarily unemployed or underemployed” before consulting the factors to determine a potential income.

The domestic relations court’s findings indicated that Ayers lost his job at CSX because of organizational changes and that the availability of employment opportunities was tight because of the pandemic. The court noted a vaccine was estimated to be available within the next six months. The court also found Ayers had substantial prior experience at CSX, was well educated, had no physical or mental disabilities, no felony convictions, and “there was no evidence that David does not have the ability to earn the imputed income.”

The judge used the formula Belleville suggested for child support amounts based on the potential income Ayers could earn.

Ayers appealed the decision to the Sixth District, arguing the trial court determined he was involuntarily unemployed and not eligible to have his future income estimated. The Sixth District affirmed the domestic relations court, ruling that state law did not require the court to expressly state that it found he was voluntarily unemployed and that the court’s efforts to calculate a potential income “implied” it found he was voluntarily unemployed.

The Sixth District certified that its decision was in conflict with a 2007 Ninth District Court of Appeals decision. The Supreme Court agreed to resolve the conflict.

Supreme Court Analyzed Potential Income Calculation Law
Justice Donnelly explained the Court has previously ruled the laws governing child support orders are “mandatory in nature and must be followed literally and technically.” To determine the amount of child support owed, a domestic relations court must first determine the annual income of each parent. For a parent who is unemployed, the definition of income can also include “any potential income of the parent.”

Under R.C. 3119.01(C)(17), “potential income” applies to a parent “who the court pursuant to a court order” determines is voluntarily unemployed or voluntarily underemployed.” Once the court determines a parent is voluntarily unemployed, the court considers a list of factors to calculate a potential income.

Justice Donnelly wrote the issue before the Court is whether the trial court must expressly state that it found the parent was voluntarily unemployed before calculating a potential income or the employment status can be implied.

The Ninth District had ruled in its case that if a domestic relations court fails to make an explicit finding of voluntary unemployment, it cannot move on to the next step to calculate potential income.

The majority opinion stated the law is not as strict as the Ninth District’s approach but found a domestic court’s order cannot be completely silent on the issue of voluntary unemployment. The Supreme Court stated that the law requires voluntary unemployment be determined “pursuant to a court order.” There is no requirement that a court use particular words, “but a domestic-relations court’s order must clearly evince a finding that a parent’s unemployment or underemployment is voluntary,” the opinion stated.

Because none of the trial court statements can be interpreted as finding Ayers was voluntarily unemployed, the court’s decision was a reversible error, the opinion stated. The Court remanded the case to the trial court to determine whether Ayers was voluntarily unemployed and to conduct further proceedings based on the finding on that issue.

Concurrence Argues Trial Court Compounded Potential Income Error
In her concurring opinion, Chief Justice Kennedy noted that the trial court stated that it could compute the potential income of a parent who is unemployed or underemployed.

“But that is not true. A trial court cannot impute income to a parent simply because he or she is unemployed – the parent must be voluntarily unemployed,” she wrote.

In addition to misstating the standard to determine whether the court could calculate a potential income for Ayers, the trial court compounded the problem by shifting the burden of proof to Ayers to prove he had been unable to find a job. The majority opinion and the concurrence both noted that Ayers did not have the burden to prove he was unable to earn an income, but rather the burden was on Belleville to prove that her ex-husband was voluntarily unemployed.

The concurrence concluded that Belleville had provided no evidence but only conclusory statements that Ayers has the ability to get a job and that “there are jobs out there.”

“But Belleville was not qualified to give an expert opinion on the labor market, and she provided no evidence, such as local unemployment data or job postings, to support her statements,” the concurrence stated.

Concurrence Contends That Majority Creates New Requirements for Trial Courts
In his concurring opinion, Justice DeWine took aim at the way the majority “edits R.C. 3119.01(C)(17) to add a requirement that trial courts must ‘expressly’ find that unemployment is voluntary. This new requirement, he pointed out, is found nowhere in the statute.

Justice DeWine added that “one can imagine a number of circumstances where an order makes it clear that the court determined that the parent was voluntarily unemployed, even though the order doesn’t expressly recite words to that effect.” While such a determination would be sufficient under the plain language of the statute, it would fail to pass the majority’s new test, the concurrence maintained.

Noting that it is the Supreme Court’s duty to apply a statute as the General Assembly drafts it – rather than rewriting the statute – Justice DeWine concluded that the Court “should be reviewing court orders for compliance with statutes, not with atextual judge-made requirements.”

2022-0560. Ayers v. Ayers, Slip Opinion No. 2024-Ohio-1833.

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