[Cite as Delong v. Doster, 2017-Ohio-7112.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

JARROD J. DELONG, 

 PLAINTIFF-APPELLEE, CASE NO. 1-17-05 

 v. 

ASHLEIGH M. DELONG (NKA DOSTER), O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Domestic Relations Division 

Trial Court No. DR 2011 0298 

Judgment Affirmed in Part, Reversed in Part and Cause Remanded 

Date of Decision: August 7, 2017 

 

APPEARANCES: 

 

Anne Harvey for Appellant 

 Aaron Bensinger for Appellee 
Case No. 1-17-05 

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ZIMMERMAN, J., 

{¶1} Defendant-appellant, Ashleigh DeLong, nka Doster, (“Ashleigh”) 

brings this appeal from the January 20, 2017 judgment entry of the Allen County 

Common Pleas Court, Domestic Relations Division, granting Plaintiff-appellee, 

Jarrod DeLong (“Jarrod”) shared parenting of the parties’ minor child, Logan. On 

appeal, Ashleigh challenges the trial court’s: (1) award of shared parenting; (2) its 

child support determinations; and (3) its finding of contempt. 

Relevant Facts and Procedural History

{¶2} Ashleigh and Jarrod were married on October 22, 2005. (Doc. 1). One 

child, Logan, was born during their marriage. (Id.). Jarrod filed his complaint for 

divorce on May 20, 2011 in the Allen County Common Pleas Court, Domestic 

Relations Division. (Id.). At the time of the filing, Ashleigh resided in Delphos and 

Jarrod lived in Lima. 

{¶3} The final divorce hearing was held on October 18 and 21, 2011, and 

resulted in the trial court’s magistrate recommending that Ashleigh be designated 

the residential parent of Logan, with Jarrod receiving visitation pursuant to the trial 

court’s local rule. (Doc. 58). Also set forth in the final divorce decree was the 

relocation notice pursuant to R.C. 3109.051(G). (Doc. 59). Neither party appealed 

the original divorce decree. 
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{¶4} On August 3, 2015, Ashleigh filed a Notice of Intent to Relocate (to 

Leipsic, Ohio) with the trial court and on August 7, 2015, she amended her notice. 

(Docs. 86, 87). Jarrod was served with Ashleigh’s notice of intent to relocate on 

August 18, 2015, (Doc. 89) and filed an objection to it the next day. (Doc. 88). 

Ashleigh relocated to Leipsic on September 1, 2015. Thereafter, Jarrod filed a 

Motion to Modify Parental Rights and Responsibilities with the trial court on 

September 10, 2015. (Doc. 91). The trial court scheduled the motion for mediation 

and, after such mediation failed, a guardian-ad-litem was appointed. (Docs. 95, 

104). In its mediation order of October 7, 2015, the trial court ordered Ashleigh not

to relocate “at this time”. (Doc. 95). 

{¶5} On December 14, 2015 Jarrod filed a motion for contempt against 

Ashleigh because she moved to Leipsic with Logan. (Doc. 108). Further, on March 

16, 2016, Jarrod filed a proposed shared parenting plan. (Doc. 118). 

{¶6} A hearing was held in the trial court on April 21 and 22, 2016 to address 

all pending matters. On June 8, 2016, the trial court’s magistrate issued a decision 

finding Ashleigh in contempt for relocating to Leipsic, and finding that shared 

parenting was in the best interest of Logan. (Doc. 136). On June 22, 2016, Ashleigh 

objected to the magistrate’s decision, specifically objecting to the guardian-adlitem’s report and the implementation of shared parenting. (Doc. 138). The trial 

court filed an order affirming the magistrate’s decision on January 6, 2017 (Doc. 
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158), followed by its Judgment Entry adopting the shared parenting plan on January 

20, 2017. (Doc. 159). 

{¶7} Ashleigh filed her notice of appeal on February 6, 2017 and raises seven 

assignments of error for our review. (Doc. 162). For ease of discussion, we will 

first address Ashleigh’s first, second, third and fourth assignments of error together. 

Assignment of Error No. I

THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING 

A SUBSTANTIAL CHANGE IN THE CIRCUMSTANCES OF 

THE CHILD OR CUSTODIAL PARENT 

Assignment of Error No. II 

THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING 

THAT A CUSTODY MODIFICATION SERVED THE 

CHILD’S BEST INTERESTS 

Assignment of Error No. III 

THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING 

THAT THE HARM CAUSED BY THE MODIFICATION IS 

OUTWEIGHED BY THE ADVANTAGES FROM THE 

MODIFICATION 

Assignment of Error No. IV 

THE TRIAL COURT’S DECISION IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE 

Assignment of Error No. V 

THE TRIAL COURT COMMITTED PLAIN ERROR BY 

IMPUTING INCOME TO MOTHER BASED UPON HER 

EARNINGS IN 2014 
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Assignment of Error No. VI 

THE TRIAL COURT COMMITTED PLAIN ERROR IN 

TERMINATING THE CHILD SUPPORT ORDER AND 

REQUIRING A REFUND 

Assignment of Error No. VII 

THE COURT ERRED IN FINDING THE MOTHER IN 

CONTEMPT REGARDING HER NOTICE OF RELOCATION 

First, Second, Third and Fourth Assignments of Error 

{¶8} In her first, second, third and fourth assignments of error, Ashleigh 

argues that the trial court abused its discretion by finding that a change in 

circumstances occurred and that such change in circumstances was not enough to 

modify the existing order allocating parental rights and responsibilities. Ashleigh 

further contends that the trial court’s finding of a change in circumstances is against 

the manifest weight of the evidence. 

Standard of Review

{¶9} Even though Ashleigh has styled these assignments of error as being 

both against the manifest weight of the evidence and an abuse of discretion, we 

review custody determinations on an abuse of discretion standard only. Davis v. 

Flickinger, 77 Ohio St.3d 415, 418 (1997). In Davis, the court stated “[w]e are 

mindful that custody issues are some of the most difficult and agonizing decisions 

a trial judge must make. Therefore, a trial judge must have wide latitude in 

considering all the evidence before him or her * * * such a decision will not be 
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reversed absent an abuse of discretion”. Id., citing Miller v. Miller, 37 Ohio St.3d 

71 (1988). Therefore, the standard of review we will use to address these 

assignments is abuse of discretion. 

{¶10} A trial court has discretion when it allocates parental rights. Miller, 

Id. A trial court abuses its discretion in allocating parental rights when its decision 

is not “supported by a substantial amount of credible and competent evidence.” 

Fricke v. Fricke, 3d Dist. Allen No. 1-06-18, 2006-Ohio-4845, citing Davis, Id.; 

Bechtol v. Bechtol, 49 Ohio St.3d 21, syllabus. “An abuse of discretion suggests the 

trial court’s decision is unreasonable or unconscionable.” Brammer v. Meachem, 

3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 

5 Ohio St.3d 217, 219 (1983). 

{¶11} The reason for this standard of review is that the trial judge is in the 

best position to view the demeanor, attitude, and credibility of each witness and to 

weigh the evidence and testimony. Davis, supra. This is especially true in a child 

custody case, since there may be much that is evident in the parties’ demeanor and 

attitude that does not translate well to the record. Id. at 419. 

[I]t is inappropriate in most cases for a court of appeals to 

independently weigh evidence and grant a change of custody. The 

discretion which a trial court enjoys in custody matters should be 

accorded the utmost respect, given the nature of the proceeding and 

the impact the court’s determination will have on the lives of the 

parties concerned. The knowledge a trial court gains through 

observing the witnesses and the parties in a custody proceeding cannot 

be conveyed to a reviewing court by a printed record. * * * 
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 (Citations omitted). Miller, supra. 

{¶12} In applying an abuse of discretion standard, a reviewing court is not 

free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No. 

10-10-10, 2010-Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128 

(1989). 

Standard for Modifying a Prior Decree Allocating 

Parental Rights and Responsibilities 

{¶13} R.C. 3109.04(E)(1)(a) governs the modification of a decree allocating 

parental rights and responsibilities and states: 

The court shall not modify a prior decree allocating parental 

rights and responsibilities for the care of children unless it finds, 

based on facts that have arisen since the prior decree or that were 

unknown to the court at the time of the prior decree, that a change 

has occurred in the circumstances of the child, the child’s 

residential parent, or either of the parents subject to a shared 

parenting decree, and that the modification is necessary to serve 

the best interest of the child. In applying these standards, the 

court shall retain the residential parent designated by the prior 

decree or the prior shared parenting decree, unless a modification 

is in the best interest of the child and one of the following applies: 

* * * 

The harm likely to be caused by a change of environment is 

outweighed by the advantages of the change of environment to the 

child. 

{¶14} Thus, a trial court may modify an allocation of parental rights and 

responsibilities only if the court finds 1) that a change of circumstances has occurred 
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since the last decree; 2) that modification is in the best interest of the child; and 3) 

that the advantages of a modification outweigh the potential harm to the child. 

Beaver v. Beaver, 143 Ohio App.3d 1, 9 (2001). 

Analysis 

Change in Circumstances 

{¶15} In her first assignment of error, Ashleigh asserts that the trial court 

abused its discretion by finding that a substantial change in the circumstances of the 

child or herself, as the residential parent, had occurred in this case warranting 

modification of the allocation of parental rights and responsibilities of Logan. She 

argues the changes the trial court considered did not involve her or Logan, but only 

changes regarding Jarrod, the non-custodial parent. 

{¶16} While a change in a parent’s situation can sometimes effect the child’s 

well-being, “[i]t is not sufficient for the moving party to merely show that he can 

provide a better environment than the environment provided by the parent with 

custody.” Wyss v. Wyss, 3 Ohio App.3d 412, (1982). Thus, a change in 

circumstances for the non-residential parent is generally irrelevant. Morgan v. 

Morgan, 4th Dist. Highland No. 06CA15, 2006-Ohio-6615. In fact, R.C. 

3109.04(E) specifically limits a change of circumstances to situations involving “the 

child, the child’s residential parent, or either of the parents subject to a shared 

parenting decree”. See R.C. 3109.04(E)(1)(a). 
Case No. 1-17-05 

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{¶17} We agree with Ashleigh’s argument that the remarriage of Jarrod and 

the subsequent birth of his daughter do not, on their own, constitute a change in 

circumstances. However, taking into consideration the testimony of each witness, 

and the evidence produced at the hearing, the trial court found “that there has been 

a substantial change of circumstances in the residential parent and in the minor child 

* * *”. (Doc. 136, p. 18). 

{¶18} “A change of circumstances is a starting point requirement intended to 

provide some stability to the custodial status of the child.” Davis, supra, citing 

Wyss. However, appellate courts “must not make the threshold for change so high 

as to prevent a trial judge from modifying custody if the court finds it necessary for 

the best interest of the child.” Davis, at 420-421. Thus, we are required to give a 

trial court’s decision regarding a change in circumstances the utmost discretion. A 

trial court is limited to the extent that a change in circumstances cannot be based on 

a slight or inconsequential change; it must be one of substance. Id. at 418. Not only 

must the change in circumstances be of consequence, but it also must relate to the 

child’s welfare. Beaver, supra. 

{¶19} In this case, the trial court found the following facts resulted in a 

change in circumstances that warranted modification: 1) Ashleigh’s relocation to 

Leipsic; 2) the additional drive time for visitation; 3) the remarriage of both parents; 
Case No. 1-17-05 

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4) the addition of new siblings in each home; and 5) Logan’s age. Thereafter, the 

trial court found as follows: 

The Court would find the total accumulation of these factors, 

the change in the dynamics of the family structure of each of these 

parties, the increase of age of the child and the additional distance 

on top of all of those facts would certainly constitute a change of 

circumstances sufficient for this Court to examine the allocation 

of parental rights and responsibilities and make a determination 

as to what may be in the best interest of Logan currently. (Doc. 

158). 

{¶20} The trial court, sitting as the trier of fact, was in the best position to 

evaluate the minor child’s situation and the changes that occurred as a result of these 

circumstances. In our review of the record, we find nothing to indicate that the trial 

court abused its discretion by determining that a change in circumstances occurred 

regarding Logan and Ashleigh. Thus, we find Ashleigh’s first assignment of error 

lacks merit and is overruled. 

Best Interest Factors Under R.C. 3109.04(F)(1) 

{¶21} In her second assignment of error, Ashleigh argues that the trial court 

abused its discretion in finding a custody modification served the child’s best 

interests. Specifically, she contends that the trial court erred with its finding that 

“she would do anything to stop the relationship between Jarrod and Logan”, and by 

minimizing Jarrod’s past domestic violence charge. Ashleigh further contends that 

the lack of cooperation and communication between her and Jarrod does not support 

a modification of the prior parenting decree. 
Case No. 1-17-05 

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{¶22} After finding that a change of circumstances exists, the trial court next 

must consider whether the modification would serve the child’s best interest. “* * 

* subsections of [R.C. 3109.04] spell out ten factors that the court shall consider to 

determine the best interest of the child, and five more factors to determine whether 

shared parenting is in the child’s best interest.” August v. August, 3d Dist. Hancock 

No. 5-13-26, 2014-Ohio-3986, ¶23, citing R.C. 3109.04(F)(1) and (2). Those 

factors include the following: 

(1) In determining the best interest of a child pursuant to this 

section, * * *, the court shall consider all relevant factors, 

including, but not limited to: 

(a) The wishes of the child’s parents regarding the child’s care; 

(b) If the court has interviewed the child in chambers * * *, the 

wishes and concerns of the child, as expressed to the court; 

(c) The child’s interaction and interrelationship with the child’s 

parents, siblings, and any other person who may significantly 

affect the child’s best interest; 

(d) The child’s adjustment to the child’s home, school, and 

community; 

(e) The mental and physical health of all persons involved in the 

situation; 

(f) The parent more likely to honor and facilitate courtapproved parenting time rights or visitation or companionship 

rights; 

(g) Whether either parent has failed to make all child support 

payments, including all arrearages, that are required of that 
Case No. 1-17-05 

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parent pursuant to a child support order under which that parent 

is an obligor; 

(h) Whether either parent previously had been convicted of or 

pleaded guilty to any criminal offense involving any act that 

resulted in a child being an abused child or a neglected child; 

whether either parent, in a case in which a child has been 

adjudicated an abused an abused child or a neglected child, 

previously has been determined to be a perpetrator or the abusive 

or neglectful act that is the basis of an adjudication; whether 

either parent previously has been convicted or pleaded guilty to a 

violation of section 2919.25 of the Revised Code or a sexually 

oriented offense involving a victim who at the time of the 

commission of the offense was a member of the family or 

household that is the subject of the current proceeding; whether 

either parent or any member of the household of either parent 

previously has been convicted of or pleaded guilty to any offense 

involving a victim who at the time of the commission of the offense 

was a member of the family or household that is the subject of the 

current proceeding and caused physical harm to the victim in the 

commission of the offense; and whether there is reason to believe 

that either parent has acted in a manner resulting in a child being 

an abused child or a neglected child; 

(i) Whether the residential parent * * * has continuously and 

willfully denied the other parent’s right to parenting time in 

accordance with an order of the court; 

(j) Whether either parent has established a residence, or is 

planning to establish a residence, outside this state. 

(2) In determining whether shared parenting is in the best 

interest of the children, the court shall consider all relevant 

factors, including, but not limited to, the factors enumerated in 

division (F)(1) of this section, * * *, and all of the following factors: 

(a) The ability of the parents to cooperate and make decisions 

jointly, with respect to the children; 
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(b) The ability of each parent to encourage the sharing of love, 

affection, and contact between the child and the other 

parent; 

(c) Any history of, or potential for, child abuse, spouse abuse, 

other domestic violence, or parental kidnapping by either 

parent; 

(d) The geographic proximity of the parents to each other, as the 

proximity relates to the practical considerations of shared 

parenting; 

(e) The recommendation of the guardian ad litem of the child, if 

the child has a guardian ad litem. 

{¶23} In our review of the record, we find that the above factors were 

analyzed by the trial court, specifically under 3109.04(F)(1)(a)-(j), revealing the 

following: under factor a) Ashleigh desired to be designated as the residential parent 

while Jarrod requested his proposed shared parenting plan be adopted; under factor 

c) that Logan has good relationships with both parents, step-parents and siblings; 

under factor d) that Logan has no established ties to either parent’s home or 

community and had recently changed schools due to mother’s relocation; under 

factor e) there were no concerns regarding the mental or physical health of either 

parent, step-parent or of Logan; under factor f) that both parents would honor court 

ordered parenting time; under factor g) that no arrearage of child support was 

present; under factor h) that neither party has been convicted or plead guilty to a 

criminal offense resulting in Logan being found to be an abused or neglected child. 

However, there was reference to an act of domestic violence between Ashleigh and 
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Jarrod. There was also a reference in the record that Jarrod spanked Logan during 

a wrestling match. And under factor i) that neither party had denied parenting time 

to the other. (Doc. 158). 

{¶24} In addition to these findings (under R.C. 3109.04(F)(1)(a)-(j)), the trial 

court further considered R.C. 3109.04(F)(2)(a)-(e) and determined the following as 

to the proposed shared parenting plan: under factor a) Ashleigh and Jarrod have 

issues making joint decisions regarding Logan; under factor b) that both Ashleigh 

and Jarrod have the ability to encourage love, affection and contact between Logan 

and the other parent; under factor c) that there was no history of child abuse; under 

factor d) that the parties live within a close enough proximity to one another for 

shared parenting to work; and under factor e) that the guardian ad litem 

recommended that the shared parenting plan, proposed by Jarrod, be adopted. (Doc. 

158). 

{¶25} The trial court, having considered all the factors under R.C. 

3109.04(F)(1)(a)-(j) and 3109.04(F)(2)(a)-(e), determined that the shared parenting 

plan recommended by the magistrate was, in fact, in Logan’s best interest. In our 

review of the record, we find that the trial court did not abuse its discretion as 

competent and credible evidence exists, as set forth above, supporting that a 

modification of the prior allocation of parental rights and responsibilities and 

adopting the proposed shared parenting plan was in the best interest of Logan. 
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{¶26} Accordingly, Ashleigh’s second assignment of error is overruled. 

Advantages of Modification Outweigh Potential Harm 

{¶27} Ashleigh argues in her third assignment of error that the trial court 

abused its discretion by finding that the advantages of a modification outweigh the 

potential harm to Logan. We disagree. 

{¶28} In the case sub judice, the trial court found that by not adopting the 

shared parenting plan would likely cause harm to Logan. In its January 6, 2017 

Order Affirming Magistrate’s Decision, the trial court stated as follows: 

“Ashleigh objects and indicates it is adopted just to provide 

convenience for Jarrod, however that could also be phrased as to 

avoid the additional inconvenience that Ashleigh, by her move, 

has created for the relationship of Logan and Jarrod. 

Too often parties get concerned with what they refer to as 

‘my’ time instead of looking at the parenting situation as being 

the time of the child. That time of the child needs to be shared 

with the parents in the best manner they can. There are obviously 

occasions and situations where it would not be in the child’s 

interest to spend as much time as the child could with each parent, 

but there has not been sufficient establishment in this particular 

case to indicate Logan should not spend as much as he can with 

each of his parents in an appropriate environment. 

This also means that each of the parties must exercise their 

time with the child and their relationship with the other party in 

a mature, thoughtful, cooperative manner that is conducive to 

establishing an appropriate environment to teach Logan 

understanding, cooperation and consideration, rather than 

manipulation and selfishness. The parties are evolving with their 

new relationships and families and while demonstrating some of 

their old negative tendencies are also showing some positive signs 

of cooperation. The Court is fearful that not adopting the shared 
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parenting plan may work to limit this progress and unnecessarily 

limit the time Logan can utilize with both parents.” (Doc. 158). 

{¶29} Thus, we find the trial court, in its independent review of the 

objections, analyzed the harm of modification (to Logan) and did not abuse its 

discretion by overruling the objections and by adopting Jarrod’s shared parenting 

plan. Accordingly, we overrule Ashleigh’s third assignment of error. 

Manifest Weight

{¶30} Ashleigh contends in her fourth assignment of error that the trial 

court’s decision is against the manifest weight of the evidence. 

{¶31} As we stated above, we review custody determinations on an abuse of 

discretion standard only. Davis, supra. And because we have determined that 

competent and credible evidence support the trial court’s determination, we need 

not analyze Ashleigh’s fourth assignment of error, and such is overruled. 

Fifth Assignment of Error 

{¶32} Ashleigh’s fifth assignment of error addresses the imputation of child 

support. Specifically, Ashleigh argues that the trial court erred by imputing her 

income, for purposes of calculating a new child support order, by using her 2014 

earnings. 

Standard of Review 

{¶33} Although we would normally review a child support order under an 

abuse of discretion standard, however, since Ashleigh failed to object to the 
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magistrate’s decision as to child support, we are now limited to review whether the 

trial court’s determination amounted to plain error. Townsend v. Phommarath, 10th 

Dist. Franklin No. 10AP-598, at paragraph 1 of the syllabus, 2011-Ohio-1891. 

Civ.R. 53(D)(3)(b)(iv) provides: 

Waiver of right to assign adoption by court as error on appeal. 

Except for a claim of plain error, a party shall not assign as error 

on appeal the court's adoption of any factual finding or legal 

conclusion, whether or not specifically designated as a finding of 

fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the 

party has objected to that finding or conclusion as required by 

Civ.R. 53(D)(3)(b).

{¶34} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, the 

Supreme Court of Ohio addressed the application of the plain error doctrine in civil 

matters, stating “[i]n applying the doctrine of plain error in a civil case, reviewing 

courts must proceed with the utmost caution, limiting the doctrine strictly to those 

extremely rare cases where exceptional circumstances require its application to 

prevent a manifest miscarriage of justice”. Thus, “appellate courts must proceed * 

* * only * * * where the error seriously affects the basic fairness, integrity, or public 

reputation of the judicial process itself”. Unifund CCR Partners v. Hall, 10th Dist. 

Franklin No. 09AP-37, 2009-Ohio-4215, ¶ 22, quoting Goldfuss at 121. “Indeed, 

the plain error doctrine implicates errors in the judicial process where the error is 

clearly apparent on the face of the record and is prejudicial to the appellant”. 

Skydive Columbus, citing Reichert v. Ingersoll, 18 Ohio St.3d 220 (1985). 
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R.C. 3119.01(C)(5) and R.C. 3119.01(C)(11) 

R.C. 3119.01(C)(5) provides:

(5) “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. 

R.C. 3119.01(C)(11) defines potential income as follows: 

(11) “Potential income” means both of the following for a 

parent who the court pursuant to a court support order, or a child 

support enforcement agency pursuant to an administrative child 

support order, determines is voluntarily unemployed or 

voluntarily underemployed: 

a) Imputed income that the court or agency determines the 

parent would have earned if fully employed as determined from 

the following criteria: 

i) The parent’s prior employment experience; 

ii) The parent’s education; 

iii) The parent’s physical and mental disabilities, if any; 

iv) The availability of employment in the geographic area 

in which the parent resides; 

v) The prevailing wage and salary levels in the geographic 

area in which the parent resides; 

vi) The parent’s special skills and training; 

vii) Whether there is evidence that the parent has the ability 

to earn the imputed income; 

viii) The age and special needs of the child for whom child 

support is being calculated under this section; 

ix) The parent’s increased earning capacity because of 

experience; 
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x) The parent’s decreased earning capacity because of a 

felony conviction; 

xi) Any other relevant factor. 

b) Imputed income * * * 

Analysis 

{¶35} In considering Ashleigh’s fifth assignment of error whether the trial 

court improperly determined her income (for purposes of calculating her child 

support obligation), we note that “R.C. 3119.01(C)(11)(a) authorizes a court to 

impute income to a parent who the court finds is voluntarily underemployed, for 

purposes of calculating child support.” Breedlove v. Breedlove, 4th Dist. 

Washington No. 08CA10, 2008-Ohio-4887, ¶ 14. “[W]hether a parent is voluntarily 

(i.e. intentionally) unemployed or voluntarily underemployed is a question of fact 

for the trial court. * * *” Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus. 

{¶36} In calculating child support, a trial court must determine the annual 

income of each parent. For an unemployed or underemployed parent, income is the 

“sum of the gross income of the parent and any potential income of the parent”. 

R.C. 3119.01(C)(5)(b). R.C. 3119.01(C)(11) provides the definition of “potential 

income”, which is set forth above. 

{¶37} Before a trial court can impute income to a parent, it must first find the 

parent is voluntarily unemployed or underemployed. McLaughlin v. Kessler, 12th 

Dist. Fayette No. CA2011-09-021, 2012-Ohio-3317, ¶13. In deciding if an 
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individual is voluntarily underemployed “[t]he test is not only whether the change 

was voluntary, but also whether it was made with due regard to the obligor’s 

income-producing abilities and her or his duty to provide for the continuing needs 

of the child or children concerned”. Woloch v. Foster, 98 Ohio App.3d 806, at 811. 

{¶38} Ashleigh asserts that the trial court committed plain error by imputing 

income to her based upon her 2014 earnings. She contends that her former employer 

lost its contract, leaving her unemployed. We disagree. 

{¶39} In our review of the record, we find that Ashleigh’s lack of 

employment was primarily associated with her voluntary decision to be a stay at 

home mom after the birth of her twins (with her new spouse) in lieu of working full 

time. When questioned, Ashleigh testified as follows regarding this issue: 

Q. (Mr. Mansfield) Are you currently employed? 

A. (Ashleigh) No. 

Q. Um after your pregnancy leave, uh will you take employment? 

A. As of right now I’m a stay at home mother. Um after um if it 

has anything to do with my husband, he would like me to stay 

home longer. However, um my career is very important to me 

and if I do go back to work I will probably go PRN that way I 

can work it around the children’s schedule and the family life. 

Q. What is uh your educational background? 

A. I am currently an LPN and I have two um state licenses. 

(Tr., Day 2, P. 2-3). 
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and 

Q. (Mr. Mansfield) Okay. When did you start 

unemployment? 

A. I started unemployment at the end of November. November 

20th. 

Q. Of 2015? 

A. Of 2015. Yes. 

Q. Okay. That due to your pregnancy? 

A. Uh partially it was due to the pregnancy. Partially it was also 

due to the contract wasn’t re-signed in Fort Wayne. Um I was 

able to commute – possible. But with the pregnancy, talking 

to my OB doctor, he didn’t feel it was necessary to. So I took 

the severance package. 

Q. Uh you’re not employed at this time then? 

A. No. 

(Tr., Day 2, P. 5). 

{¶40} Thus, competent and credible evidence exists in the record to support 

the trial court’s determination that Ashleigh’s decision not to work was by her 

choice. Accordingly, we find the trial court reviewed and considered the 

appropriate statutory factors and its determination that Ashleigh was voluntarily 

unemployed was not in error. 

{¶41} Regarding Ashleigh’s complaint as to the income the trial court used 

in determining whether child support should be awarded pursuant to the shared 
Case No. 1-17-05 

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parenting plan, we find the trial court considered the statutory factors, relying upon 

R.C. 3119.019(C)(11)(a)(i) to impute “potential income” to Ashleigh. In the case 

sub judice, the trial court chose to impute Ashleigh’s lowest single year income 

earned as her potential income, as opposed to an average, from her previous work 

years. This is evidenced by Ashleigh’s testimony: 

Q. (Mr. Mansfield) Okay. What are those? 

A. (Ashleigh) Um my income taxes. 

Q. For what years? 

A. Um, 2013 and it looks like 2014 and 2015. 

* * * 

Q. Okay. And uh how much did you earn in 2013? 

A. In 2013 my wages – my salary was uh thirty-six thousand, eight 

hundred seventy-nine dollars. 

Q. Okay. In 2014? Did you have any other income in 2013? 

A. Um 2013, no. 

Q. Okay. 2014 were you employed? 

A. Yes. 

* * * 

Q. And what were your earnings that year? 

A. Thirty-five thousand, one hundred and sixty-three dollars. 

Q. Okay. Any other earnings that year? 
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A. No. 

* * * 

Q. Excuse me. 2015? 

A. Um yes. 

Q. And were you employed? 

A. Uh half of the year I was employed at the Allen County 

Sheriff’s Department. Um I then resigned there when I was 

offered a promotion and a job with Quad Medical. 

Q. Okay. And between those two jobs, uh what did you earn that 

year? 

A. Forty-one thousand, three hundred and ninety-six dollars. 

Q. any other income besides those two jobs? 

A. Uh the unemployment on here. 

(Tr., Day 2, P. 3-5). 

{¶42} Thus, in our review of this assignment, we find Ashleigh’s argument 

unpersuasive. As evidenced by this testimony, Ashleigh’s income for 2013 was 

$36,879, 2014 was $35,136 and 2015 was $41,396. The trial court elected to impute 

an amount less than Ashleigh’s 2014 income for the child support worksheet (see 

Doc. 159, Exhibit 1). Pursuant to R.C. 3119.01(C)(11)(a)(i), the trial court was 

proper in imputing income nearly identical to Ashleigh’s 2014 income as her 

“potential income” herein. Thus, competent and credible evidence exists in the 
Case No. 1-17-05 

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record to support the trial court’s imputation of $35,095 to Ashleigh as such amount 

was based upon her realistic earning ability. 

{¶43} Accordingly, Ashleigh’s fifth assignment of error is overruled. 

Sixth Assignment of Error

{¶44} In her sixth assignment of error, Ashleigh contends the trial court 

committed plain error in terminating the prior order of child support and ordering a 

refund to Jarrod of his overpaid child support. More specifically, by adopting 

Jarrod’s shared parenting plan, the trial court was required to issue a new child 

support order. In doing so, the trial court determined, as evidenced by its new 

support worksheet (Doc. 159, Exhibit 1), that neither party owed a duty of support. 

Thus, the trial court terminated the prior support order and ordered Ashleigh to 

“return the full amount on her child support card” and “the balance due and owing 

shall be paid at $100.00 per month” to Jarrod. (Doc. 159). 

Standard of Review 

{¶45} In appellant’s fifth assignment of error we declined to address 

appellant’s argument (of imputing income) under an abuse of discretion, the normal 

review of child support decisions, because the appellant failed to object to such 

imputation of the trial court. However, in this assignment of error appellant wasn’t 

able to object because the trial court issued the orders, not the magistrate. Thus, we 

reject using plain error as the standard of review as child support decisions are 
Case No. 1-17-05 

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within the discretion of the trial court and will not be disturbed without an abuse of 

discretion. Marek v. Marek, 158 Ohio App.3d 750, 2004-Ohio-5556, citing Rock, 

supra, at the syllabus. An abuse of discretion “implies the court’s attitude is 

unreasonable, arbitrary or unconscionable”. Marek, quoting Blakemore, supra. 

Analysis 

{¶46} The amount of child support ordered by the trial court pursuant to the 

basic child support schedule and worksheet is “rebuttably presumed to be the correct 

amount of child support”. R.C. 3119.03. The trial court is permitted to deviate from 

the basic child support schedule if it finds that basic child support would be “unjust 

or inappropriate, and would not be in the best interest of the child”. See R.C. 

3119.79(C); 3119.22. In deviating from basic child support, the court must examine 

the factors found in R.C. 3119.23, which included “[s]ignificant in-kind 

contributions from a parent”. R.C. 3119.23(J) (emphasis added). 

{¶47} As evidenced in the record, the trial court, in its journal entry, 

considered the parties’ in-kind contributions when determining child support, 

stating: 

“Child support shall cease and terminate for both parties effective 

June 1, 2016. No further support shall be ordered and this being 

in the best interest of the child and a deviation is appropriate 

based on in kind contributions of the parties.” (Doc. 159). 

 
Case No. 1-17-05 

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The trial court also found: 

“There is an overpayment of child support. Defendant shall 

return the full amount on her child support card. The balance 

due & owing shall be paid at $100 per month.” (Doc. 159). 

{¶48} As such, we find the trial court properly addressed the factors under 

R.C. 3119.23 and did not abuse its discretion by considering the in-kind 

contributions made by each party in determining that neither Ashleigh or Jarrod 

needed to pay support. Because no new support order was issued, an overpayment 

existed as to the previous child support order. Thus, a refund was due Jarrod, which 

we find proper. 

{¶49} We further note, as to this assignment of error, that appellant’s brief 

(at page 17) contains just one sentence in support of this assignment of error and 

contains no argument or authority for us to review. “It is not the duty of this court 

to search the record for evidence to support an appellant’s argument as to alleged 

error.” State ex re. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94. 

{¶50} Accordingly, Ashleigh’s sixth assignment of error is overruled. 

Seventh Assignment of Error 

{¶51} In her seventh assignment of error Ashleigh argues that the court erred 

in finding her in contempt because she moved to her new address without court 

permission. Specifically, Ashleigh argues that she complied with all of the trial 
Case No. 1-17-05 

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court’s requirements regarding her relocation and that the trial court exceeded its 

authority by finding her in contempt for moving. 

Standard of Review 

{¶52} Before analyzing the merits of this assignment of error, we note that 

Ashleigh failed to object to this matter when she objected to the magistrate’s 

decision. As we stated above, Civ.R. 53(D)(3)(b)(iv) provides: 

Waiver of right to assign adoption by court as error on appeal. 

Except for a claim of plain error, a party shall not assign as error 

on appeal the court’s adoption of any factual finding or legal 

conclusion, whether or not specifically designated as a finding of 

fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the 

party has objected to that finding or conclusion as required by 

Civ.R. 53(D)(3)(b).

{¶53} Accordingly, since Ashleigh failed to object to the magistrate’s 

decision, we are bound to review this assignment of error under the plain error 

standard. See McBroom v. Loveridge, 6th Dist. Lucas No. L-05-1391, 2006-Ohio5908, ¶ 14. Goldfuss, supra, addresses the applicability of the plain error doctrine 

to appeals of civil cases in which the Supreme Court of Ohio stated: 

“In appeals of civil cases, the plain error doctrine is not favored 

and may be applied only in the extremely rare case involving 

exceptional circumstances where error, to which no objection was 

made at the trial court, seriously affects the basic fairness, 

integrity, or public reputation of the judicial process, thereby 

challenging the legitimacy of the underlying judicial process 

itself.” Id., at the syllabus. 

 
Case No. 1-17-05 

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Analysis

{¶54} In our review of the record, we find the standard relocation language, 

pursuant to R.C. 3109.051(G), is contained in the parties’ May 4, 2012 Judgment 

Entry / Decree of Divorce. (Doc. 59). 

{¶55} R.C. 3109.051(G), which deals with the requirements of a residential 

parent intending to relocate, states, in its pertinent part: 

If the residential parent intends to move to a residence other than 

the residence specified in the parenting time order or decree of 

the court, the parent shall file a notice of intent to relocate with 

the court that issued the order or decree. * * * Upon receipt of the 

notice, the court, on its own motion or the motion of the parent 

who is not the residential parent, may schedule a hearing with 

notice to both parents to determine whether it is in the best 

interest of the child to revise the parenting time schedule for the 

child. 

{¶56} While the express terms of R.C. 3109.051(G) permits a trial court to 

schedule a hearing “to determine whether it is in the best interest of the child to 

revise the parenting time schedule for the child”, the statute does not give the trial 

court the authority to prevent the residential parent from relocating with the child. 

In re T.M., 161 Ohio App.3d 638, 2005-Ohio-3083, ¶11-12; Harris v. Harris, 9th 

Dist. Lorain No. 06CA009056, 2007-Ohio-3123, ¶ 6. 

{¶57} In the case sub judice, Ashleigh relocated prior to the trial court’s 

issuance of its order restricting her to move. Thus, the only valid provision spelled 
Case No. 1-17-05 

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out by the trial court regarding relocation was that in its Judgement Entry / Decree 

of Divorce, which reads as follows: 

RELOCATION NOTICE: Pursuant to Ohio Revised Code 

Section 3109.051(G), the parties are notified as follows: 

If the residential parent intends to move to a residence other than 

the residence specified in the court order, the residential parent 

shall file a notice of intent to relocate with this court, addressed to 

the attention of the relocation officer. Unless otherwise ordered 

pursuant to R.C. Sections 3109.051(G)(2), (3), and (4), a copy of 

such notices shall be mailed by the court to the parent who is not 

the residential parent. Upon receipt of the notice, the court, on its 

own motion or the motion of the parent who is not the residential 

parent, may schedule a hearing with notice to both parents to 

determine whether it is in the best interest of the child to revise 

the parenting time schedule for the child. (Doc. 59). 

{¶58} Thus, the notice contained in the parties’ divorce decree placed no 

restriction upon Ashleigh’s ability to relocate with the couple’s minor child. In fact, 

it merely required her, as the residential parent, to “file a notice of intent to relocate 

with this court”. As a result, and under the facts of this case, the trial court lacked 

the authority to restrict Ashleigh from relocating. Instead, pursuant to R.C. 

3109.051(G)(1), the trial court can only schedule a hearing “to determine whether 

it is in the best interest of the child to revise the parenting time schedule for the 

child”. 

{¶59} In order for plain error to exist, “* * * reviewing courts must proceed 

with the utmost caution, limiting the doctrine strictly to those extremely rare cases 

where exceptional circumstances require its application to prevent a manifest 
Case No. 1-17-05 

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miscarriage of justice”. Thus, “appellate courts must proceed * * * only * * * where 

the error seriously affects the basic fairness, integrity, or public reputation of the 

judicial process itself”. Unifund CCR Partners, supra, quoting Goldfuss. 

{¶60} In our review of this assignment, we find that the trial court’s order 

restricting Ashleigh from relocating was journalized after she relocated. Thus, the 

decision finding her in contempt for relocating was contrary to law and constitutes 

plain error. As such, the finding of contempt by the trial court must be reversed. 

{¶61} Accordingly, Ashleigh’s seventh assignment of error is sustained and 

the trial court’s contempt finding is vacated. 

{¶62} Having found no error prejudicial to Ashleigh herein in the particulars 

assigned and argued as to the first, second, third, fourth, fifth and sixth assignments 

of error, we affirm in part the judgment of the trial court. However, we sustain the 

seventh assignment error as stated above, reverse in part the judgment of the trial 

court, and vacate its finding of contempt against Ashleigh. 

Judgment Affirmed in Part, 

Reversed in Part and 

Cause Remanded 

PRESTON, P.J. and WILLAMOWSKI, J., concur. 

/jlr