[Cite as Schley v. Gillum, 2012-Ohio-2787.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ROBERT M. SCHLEY : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Julie A. Edwards, J. 

-vs- : 

 : Case No. 11 CAF 10 0098 

CATHERINE MARIE GILLUM : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas, Juvenile Division, Case 

No. 07-01-0092 

JUDGMENT: REVERSED AND REMANDED 

DATE OF JUDGMENT ENTRY: June 20, 2012

APPEARANCES: 

For Appellant: For Appellee: 

 

STACI K. THOMAS 

142 W. Center St. 

P.O. Box 6029 

Marion, OH 43301-6029 

 
Delaney, P.J. 

{¶1} Defendant-Appellant Catherine Marie Gillum appeals the September 27, 

2011 judgment entry of the Delaware County Court of Common Pleas, Juvenile 

Division. Plaintiff-Appellee is Robert M. Schley. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Plaintiff-Appellee Robert M. Schley has not filed a brief opposing this 

appeal. App.R. 18(C) states in pertinent part: “If an appellee fails to file his brief within 

the time provided by this rule, or within the time as extended, the appellee will not be 

heard at oral argument * * * and in determining the appeal, the court may accept the 

appellant's statement of the facts and issues as correct and reverse the judgment if 

appellant's brief reasonably appears to sustain such action.” 

{¶3} Defendant-Appellant Catherine Marie Gillum and Plaintiff-Appellee 

Robert M. Schley are Mother and Father to B.A.E.S., born October 16, 2004. 

Pursuant to a magistrate’s decision journalized April 19, 2010, the parties entered into 

a shared parenting plan where Father was designated the residential parent for school 

purposes. Father was ordered to pay Mother child support in the amount of $642.33 

per month if private health insurance was not available for the child or $665.00 per 

month if private health insurance covered the child. The child support worksheet 

attached to the magistrate’s decision determined the annual gross income for Father 

to be $68,000 per year. Mother worked at Homewood Corporation, a housing 

construction business, because of which her annual gross income was established at 

$26,000 per year. 
{¶4} Father filed a motion for modification of child support based on new day 

care costs and other costs associated with parenting the child. A hearing was held 

before the magistrate on March 4, 2011. The magistrate issued her findings of facts 

and conclusions of law on May 18, 2011. Pertinent to this appeal, the magistrate 

found: 

* * * 

 To the best of the Plaintiff’s knowledge and belief the Defendant 

works at a pub. There is no reason why the Defendant cannot work full 

time. 

* * * 

 The Defendant is working at Screaming Willies part time. She 

starts on Saturday, March 5, 2011. The Defendant will be paid $3.40 per 

hour, plus tips. The Defendant was offered every weekend (fifteen (15) 

hours per weekend). The Defendant accepted only alternating 

weekends in which she does not have [B.A.E.S.]. 

 The Defendant previously earned $26,000 per year at Homewood. 

She was laid off at the end of 2010. Since the Defendant was laid off 

she has received $150.00 per week in Unemployment Compensation. 

The Defendant does not know what, if any, Unemployment 

Compensation Benefits she would be eligible with her current job. 

* * * 

 The Defendant has been seeking full time work since she was laid 

off. The Defendant has continued to seek full time work. 
The Defendant uses the resource center at DCDJFS, the internet in her 

job search. The Defendant does not have a high school diploma. She 

has an extensive history in customer service. 

* * * 

 Since [B.A.E.S.] has been born the Plaintiff has made more 

money than the Defendant. The Defendant has struggled financially 

since she has been unemployed. There is always a bill due. 

 The Defendant struggles to make ends meet even with guidelines 

child support. 

 The Defendant receives $250.00 per month in food stamps. 

* * * 

 The Defendant is guaranteed one night per weekend at 

Screaming Willies for eight (8) to ten (10) hours per shift. 

 The Defendant has taken the GED test and the classes to prepare 

for the test. The classes were for two weeks. 

 The Defendant has been a customer service representative on 

and off over the last ten (10) years. The longest the Defendant worked 

for the employer was at JC Pennys, in 2005 and 2006. The Defendant 

earned $8.00 per hour plus commissions. 

 The Defendant cannot reach the highest income that she ever 

reported. 

(Magistrate’s Decision, May 18, 2011.) 

{¶5} The magistrate then determined: 
 Based on the information provided to the Court, the Court finds 

that the Plaintiff’s annual income for child support calculation purposes is 

$71,122.00. The Defendant’s annual income for child support calculation 

purposes is $26,000.00. 

* * * 

 The Plaintiff is requesting a deviation of his child support 

obligation based on the financial hardship that it presents to him. Under 

Section 3119.22 of the Ohio Revised Code, a child support deviation is 

appropriate only when the deviation is in the best interest of the child. 

Although the Court is cognizant of the hardship that a child support 

obligation places on any family, this alone is not enough to warrant a 

deviation. A deviation must be based solely on the best interests of the 

minor child, not the financial burdens of either party. The amount of 

parenting time exercised by the Plaintiff is insufficient to support a 

deviation to the child support obligation. The Court has not been 

presented with sufficient evidence to demonstrate that a deviation in the 

Plaintiff’s child support obligation would be in the minor child’s best 

interest. The Court did complete a shared parenting deviation analysis, 

however, there is now a huge disparity in the parties’ actual income 

much greater than when an imputed income is assigned to the 

Defendant. Due to this disparity, it is unlikely that the Defendant would 

be able to provide adequately for the minor child while [B.A.E.S.] is in her 

care absent guideline support. 
(Magistrate’s Decision, May 18, 2011.) 

{¶6} The magistrate concluded the Father’s motion for modification of child 

support should be granted. Effective November 12, 2010, Father was ordered to pay 

child support in the amount of $550.25 per month if private health insurance was in 

effect. If no private health insurance was in effect, Father was ordered to pay $542.00 

per month. 

{¶7} Mother filed objections to the magistrate’s decision on June 1, 2011. 

Mother argued the magistrate erred when she imputed income of $26,000 to Mother 

without finding Mother was voluntarily unemployed or underemployed. She also 

argued that pursuant to statute, the magistrate could not impute income to Mother 

because she is receiving mean-tested public benefits in the form of food stamps. 

{¶8} On September 27, 2011, the trial court overruled Mother’s objections. 

{¶9} It is from this decision Mother now appeals. 

ASSIGNMENTS OF ERROR 

{¶10} Mother raises one Assignment of Error: 

{¶11} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPUTING 

INCOME TO MS. GILLUM FOR THE PURPOSES OF CALCULATING CHILD 

SUPPORT WITHOUT FIRST FINDING THAT SHE WAS VOLUNTARILY 

UNEMPLOYED OR VOLUNTARILY UNDEREMPLOYED.” 
ANALYSIS 

{¶12} Mother argues the trial court erred in imputing income to her without 

making a finding she was voluntarily unemployed or underemployed. Based on the 

record presented in this case, we agree. 

{¶13} A trial court has discretion in the calculation of child support and the 

appellate court will not disturb a child support order absent a showing of an abuse of 

discretion. Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997). In order to 

calculate child support, the trial court must determine the parent’s income. The 

imputation of income is a matter “to be determined by the trial court based upon the 

facts and circumstances of each case.” Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 

218 (1993), paragraph one of the syllabus. A determination with respect to these 

matters will only be reversed upon a showing of abuse of discretion. Id. In order to find 

an abuse of discretion, we must determine the trial court's decision was unreasonable, 

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. 

Blakemore, 5 Ohio St.3d 317, 219, 450 N.E.2d 1140 (1983).

{¶14} This Court stated in Farrell v. Farrell, 5th Dist. No. 2008-CA-0080, 2009-

Ohio-1341, ¶ 20: “In deciding if an individual is voluntarily under employed or 

unemployed, the court must determine not only whether the change was voluntary, but 

also whether it was made with due regard to obligor's income-producing abilities and 

his or her duty to provide for the continuing needs of the child. Woloch v. Foster

(1994), 98 Ohio App.3d 86, 649 N.E.2d 918. A trial court does so by weighing the 

circumstances of each particular case. Rock v. Cabral (1993), 67 Ohio St.3d 108, 616 

N.E.2d 218.” 
{¶15} R.C. 3119.01(C)(5) defines “income,” for purposes of calculating child 

support, as follows:

(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.

{¶16} In turn, R.C. 3119.01(C)(11) defines “potential income” as follows:

“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;

(x) Any other relevant factor.

(b) Imputed income from any nonincome-producing assets of a parent, as 

determined from the local passbook savings rate or another appropriate 

rate as determined by the court or agency, not to exceed the rate of 

interest specified in division (A) of section 1343.03 of the Revised Code, if 

the income is significant .

{¶17} The Ninth District Court of Appeals holds that the trial court must make 

an explicit finding of voluntary unemployment or underemployment before it imputes 

income to a parent for child support purposes. See, e.g., Musci v. Musci, 9th Dist. No, 

23088, 2006-Ohio-5882, at ¶ 17; Ramskogler v. Falkner, 9th Dist. No. 2286, 2006-

Ohio-1556, at ¶ 15; Misleh v. Badwan, 9th Dist. No. 23284, 2007-Ohio-5667, at ¶ 5.

{¶18} The Fifth District Court of Appeals has not adopted the “explicit finding” 

standard as established by the Ninth District Court of Appeals. Rather, in Snyder v. 

Snyder, 5th Dist. No. 2008CA00219, 2009-Ohio-5292, at ¶ 37, we held there is no 

“magic language” requirement in deciding if an individual is voluntarily unemployed or 

underemployed. See also Winkelman v. Winkelman, 11th Dist. No. 2008-G-2834, 

2008-Ohio-6557; Thaher v. Hamed, 10th Dist. No. 09AP-970, 2010-Ohio-5257.
{¶19} In Snyder, we reviewed a case where the appellant argued the trial court 

erred by failing to explicitly find he was either voluntarily unemployed or 

underemployed before imputing income to the appellant for child support purposes. 

The trial court reviewed the appellant’s education and employment history, in relation 

to his health circumstances and his school-age children’s needs. Id. at ¶ 32-34. The 

appellant had an associate’s degree in electrical engineering and communications, a 

bachelor’s degree in psychology, and he was pursing his MBA. The appellant was not 

employed full-time but did some part-time substitute teaching. The appellant 

submitted to an occupational wage evaluation, which concluded he had an earning 

potential to earn $32,500 and $79,227. The trial court found, based on the facts and 

circumstances, there was no “valid reason for the [appellant] not to be employed fulltime” and therefore imputed an income to the appellant of $32,500 for child support 

purposes. Id. at ¶ 34, 37. We held the trial court’s review of the facts and 

circumstances coupled with the statement there was no valid reason for the appellant 

not be employed full time was sufficient to comply with the R.C. 3119.01(C)(11) 

requirement that a finding of voluntary unemployment or underemployment must be 

made before imputing income for child support purposes. Id. at ¶ 37. 

{¶20} The present case is distinguishable from Snyder. Like Snyder, the 

magistrate reviewed the facts and circumstances of Mother’s employment history, 

educational background, and the needs of her child. But unlike Snyder, the magistrate 

imputes an income to Mother in the amount of $26,000 without any related statement, 

explicit or otherwise, as to the voluntary nature of Mother’s unemployment or 

underemployment. 
{¶21} The weighing of the facts and circumstances of the present case further 

distinguishes this case from Snyder. The facts and circumstances cited by the 

magistrate do not support a finding that Mother is voluntarily unemployed or 

underemployed. The findings of facts made by the magistrate show that Mother was 

actively searching for a job and seeking full time work, but could only secure part-time 

employment as a server. The magistrate specifically finds, “[t]he Defendant cannot 

reach the highest income that she ever reported.” The weighing of the facts and 

circumstances in this case show that Mother’s change in income was not voluntary 

and Mother has limited income-producing abilities. 

{¶22} Based on our above analysis, we find the trial court abused its discretion 

in finding the magistrate did not err in imputing income to Mother. 

{¶23} We further find the trial court erred in imputing an income to Mother 

based on R.C. 3119.05(I). Subsection (I) states the following: “(I) A court or agency 

shall not determine a parent receiving means-tested public assistance benefits to be 

voluntarily unemployed or underemployed and shall not impute income to that parent, 

unless not making such determination and not imputing income would be unjust, 

inappropriate, and not in the best interest of the child.” 

{¶24} The magistrate found Mother was currently receiving $250 per month in 

food stamps. 

{¶25} R.C. 3119.01(C)(7) defines “gross income” as used in Chapter 3119. “It 

does not include any of the following: (a) Benefits received from means-tested 

government administered programs, including Ohio works first; prevention, retention, 

and contingency; means-tested veterans' benefits; supplemental security income; 
supplemental nutrition assistance program; disability financial assistance; or other 

assistance for which eligibility is determined on the basis of income or assets.”1

{¶26} Pursuant to this Court’s decision in Barton v. Barton, 5th Dist. No. 

08CA000120, 2009-Ohio-6000, absent a specific finding with supporting reasoning 

why not imputing income would be unjust, inappropriate and not in the best interest of 

the child, the trial court abused its discretion and is in contravention of R.C. 3119.05(I) 

by imputing income to Mother. 

{¶27} Accordingly, we find the trial court abused its discretion in imputing 

income to Mother. Mother’s sole Assignment of Error is sustained. 

 

1

2009 H.B. 1 substituted “supplemental nutrition assistance program” for “food stamps” in division R.C. 

3119.01(C)(7)(a). 
CONCLUSION 

{¶28} For the foregoing reasons, the sole Assignment of Error of DefendantAppellant Catherine Marie Gillum is sustained. 

{¶29} The judgment of the Delaware County Court of Common Pleas, Juvenile 

Division, is reversed and the matter remanded for further proceedings consistent with 

this opinions and law. 

By: Delaney, P.J. 

Hoffman, J. and 

Edwards, J. concur. 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. JULIE A. EDWARDS 

PAD:kgb 

 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ROBERT M. SCHLEY 

 

 Plaintiff - Appellee 

:

:

:

: JUDGMENT ENTRY 
 

-vsCATHERINE MARIE GILLUM 

 Defendant - Appellant 

 

:

:

:

:

:

:

:

:

 Case No. 11 CAF 10 0098 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Delaware County Court of Common Pleas, Juvenile Division, is reversed and 

remanded. Costs assessed to Appellee. 

 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. JULIE A. EDWARDS