[Cite as Martindale v. Martindale , 2019-Ohio-3028.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

LISA ANN MARTINDALE, : Plaintiff-Appellant, : Case No. 18CA17

vs. : ERIC JOHN MARTINDALE, : DECISION AND JUDGMENT ENTRY

Defendant-Appellee. :

APPEARANCES: Sierra Meek, Nelsonville, Ohio, and Micaela C. Deming, Bluffton, Ohio, for appellant. Eric J. Martindale, Quakertow n, Pennsylvania, pro se appellee. 1

CIVIL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED:7-22-19 ABELE, J.

1 Appellee has not filed an appellate brief. When an appellee fails to file an appellate brief, App.R. 18(C) authorizes us to accept an appellant’s statement of facts and issues as correct, then reverse a trial court’s judgment as long as the appellant’s brief “reasonably appears to sustai n such action.” In other words, an appellate court may reverse a judgment based solely on consideration of an appellant’s brief. Harper v. Neal , 4th Dist. Hocking No. 15CA25, 2016-Ohio-7179, 2016 WL 5874628, ¶ 14, citing Fed. Ins. Co. v. Fredericks , 2nd Dist., 2015-Ohio-694, 29 N.E.3d 313, 330–31, ¶ 79; Sites v. Sites , 4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748, 2010 WL 2391647, ¶ 13; Sprouse v. Miller , Lawrence App. No. 06CA37, 2007-Ohio-4397, 2007 WL 2410894, fn. 1. In the case sub judice, however, we do not believe that appellant’s brief reasonably appears to support a reversal of the trial court’s judgment. {¶ 1} This is an appeal from an Athens C ounty Common Pleas Court judgment that granted a divorce between Lisa A nn Martindale, plaintiff below a nd appellant here in, and Eric John Martindale, defe ndant below and appellee herein.ATHENS, 18CA17 2 {¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY IMPUTING INCOME TO DEFENDANT AFTER FINDING THAT DEFENDANT WAS NOT VOLUNTARILY UNDEREMPLOYED.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT WAS NOT VOLUNTARILY UNDEREMPLOYED.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED WHEN IT CALCULATED DEFENDANT’S INCOME FOR CHILD AND SPOUSAL SUPPORT PURPOSES.”

FOURTH ASSIGNMENT OF ERROR:

“THE COURT ERRED BY FAILING TO AWARD SANCTIONS AND COSTS REIMBURSEMENTS TO PLAINTIFF FOR DEFENDANT’S FINANCIAL MISCONDUCT, I.E. CONCEALMENT AND NON-DISCLOSURE, THROUGHOUT THIS COURT ACTION PURSUANT TO R.C. 3105.171 AND R.C. 2323.51.”

FIFTH ASSIGNMENT OF ERROR:

“THE COURT ERRED IN DETERMINING THAT A DOMESTIC VIOLENCE SURVIVOR IS NOT ENTITLED TO CHILD OR SPOUSAL SUPPORT DUE TO COOPERATION WITH LAW ENFORCEMENT.”

SIXTH ASSIGNMENT OF ERROR:

“THE COURT ERRED IN FAILING TO PROTECT THE RECORDS FOR THE CHILDREN DESPITE A COURT FINDING THAT THE PROTECTION WAS WARRANTED.”ATHENS, 18CA17 3

I

BACKGROUND {¶ 3} Appellant and appellee married in March 2011. 2 In November 2013, appellant and the parties’ two young children le ft the Pennsylvania marital resi dence and returned to Athens, appellant’s hometown. At the time, appellee was employed as a Major in the United States Marine Corps and earned a pproximately $126,000 per year. {¶ 4} Once appellant arrived in Ohio, a series of protracted legal proceedings began.

A

DOMESTIC VIOLENCE CIVIL PROTECTION ORDER {¶ 5} In December 2013, appellant f iled a petition for a domestic violence civil protection order in the Athens County Court of Common Pleas . The trial court granted an ex parte civil protection order and set the matter for a full hearing. In December 2015, the trial court denied appellant’s request for a domestic violence civil protection order and terminated the ex parte

order.

2 The present appeal is the third appeal involving the par ties and we used our prior decisions to help formulate the background facts. Martindale v. Martindale , 4th Dist. No. 17CA5, 2017-Ohio-9266, 102 N.E.3d 19, 2017 WL 6616980 ( Martindale II ); Martindale v. Martindale , 4th Dist. Athens No. 14CA30, 2016-Ohio-524, 2016 WL 562864 ( Martindale I ). {¶ 6} In January 2016, appellant filed a motion fo r a new trial and asserted that she recently discovered new evidence re levant to her petition. In par ticular, appellant claimed that on December 7, 2015, appellee admitted in a military court proceeding that he had struck appellant. At that point, the tr ial court granted appellant’s mo tion and held a new hearing toATHENS, 18CA17 4

consider the new evidence. {¶ 7} At the hearing, appellant introduced appellee’s written stipulation entered in the military court proceedings. In the stipulati on, appellee agreed that in July 2013, “events escalated into a physical confront ation and [he] struck [appellant ] one occasion. As a result of this altercation [appellant] developed a black eye.” Martindale II at ¶ 27. {¶ 8} The trial court subsequently granted the civ il protection order and set it to expire in December 2018. Appellee appeal ed and we affirmed. Id.

B

COMPLAINT FOR LEGAL SEPARATION AND DIVORCE PROCEEDINGS {¶ 9} In January 2014, appellant f iled a complaint for legal separation in the Athens County Common Pleas Court. Appellee filed a complaint for a divorce in Pennsylvania and a motion to dismiss appellant’s complaint for le gal separation. Appellee claimed that, under the Uniform Child Custody Jurisdiction and Enfor cement Act, the Athens County Common Pleas Court lacked jurisdiction over a ppellant’s complaint. In July 2014, the trial court dismissed appellant’s complaint. {¶ 10} Around the same time, a ppellant gave birth to twins. One of the twins was born with muscular dystrophy and re quires extensive medical care. {¶ 11} Approximately one month after the twins’ birth, appellant appealed the trial court’s decision that dismissed her complain t for legal separation. In February 2016, we reversed and remanded the matter to the trial court so that it could consider all of the appropriate statutory factors regarding whet her the Athens County Common Pl eas Court is an inconvenient

forum. Martindale I at ¶ 43.ATHENS, 18CA17 5 {¶ 12} On remand, appellee (1) waived any jurisd ictional argument, (2) filed an answer, (3) filed a counterclaim for divorce and (4) request ed genetic testing of the twins. The test results indicated that appellee is the father of the twins.

C

FINAL HEARING {¶ 13} In April 2017, the parties reached an ag reement on all issues involved in the divorce proceedings, except appellee’s child and spousal support obligati ons and the dependency exemption. The matter proceeded to a final hearing before a magistrate. {¶ 14} The primary dispute at the hearing c oncerned the total amount of appellee’s income for child support purposes. Appellant soug ht to show that appellee earned income from, not only his position with the Marine Corps, but also from two businesses that he formed. Appellant alleged that the tria l court should include appellant’s military inco me and the income

he earned from the two businesses when it calcu lated his child support obligation. Appellant claimed that, when combined, th e trial court should c onclude that appellee’ s gross income was $192,720.95 for 2015, and $470,592.56 for 2016. Appellant arri ved at these figures by arguing, in part, that appellee did not properl y substantiate his business expenses. {¶ 15} At the hearing, appellee testified that he was employed as a Major in the United States Marine Corps and that he earned $126,339.96 per year. Appellee further explained, however, that due to military court proceedings arising out of the allegations appe llant made in her domestic violence civil protec tion order petition, he had to resi gn from the Marine Corps. Appellee later learned that his official date of separation from the military would be May 25,

2017.[Cite as Martindale v. Martindale , 2019-Ohio-3028.] {¶ 16} Appellee also stated that he currently operates two busine ss: Suburban Street Trading, LLC aka American Integrity Products, an internet resale busin ess through Amazon.com; and Legend Soap. Appellee testif ied that, although his businesse s have struggled to make a profit, he hoped to be able to begin withdrawing an annual sala ry in the amount of $50,000 by the

middle of 2017. {¶ 17} Appellee introduced his 2015 American Integr ity Products tax return that showed gross receipts in the amount of $113,093; costs of goods sold in the amount of $62,632; and gross profit in the amount of $50,462. The tax retu rn showed total expenses in the amount of $53,868 and itemized each expense by category: adve rtising; car and truck; mortgage interest; legal and professional se rvices; office expenses; rent of l ease of business property; supplies; travel; meals and entertainment; tolls; Amazon se rvices; website; phone a nd iPad; software; and shipping. Schedule C showed a net loss in th e amount of $3,406. A Passive Activity Loss form showed that Legend Soap had a loss of $4,820. {¶ 18} Appellee’s 2016 tax return showed th at Suburban Street Trading Co. LLC 3 had $312,637 in gross receipts, $203,629 in cost of goods sold, and $109,008 in gross profit. The expenses totaled $137,698. The return showed a loss of $28,690. Legend Soap again reported a loss of $4,820.

3 We observe that although the 2015 tax return referred to the entity as American Integrity Products, the 2016 tax return referred to the entity as Suburban Street Trading Co. LLC. {¶ 19} Appellee stated that, to obt ain the numbers for his tax return, he “count[ed] up all [his] receipts.” He explained that twice per m onth he would reconcile his personal and business expenses on the credit card. Appellee indicat ed that every time he received his military paycheck, he reviewed the previous two weeks to locate all of the personal charges on his creditATHENS, 18CA17 7 card. He stated that he used his military income to pay for the personal charges and that the rest of the charges he paid as business expens es with the income received from Amazon. {¶ 20} Appellee testified that he calculated the cost of goods sold through Amazon’s sellers central. Appellee relate d that going through each item was extremely time-consuming, so he did not calculate each item individually. A ppellee explained that he instead took a “cross

selection” to arrive at the co st-of-goods-sold figure. Appellee a dditionally related that, although he had not brought any evidence to the hearing to document his claimed business expenses, he had provided a box of receipt s to appellant’s counsel. {¶ 21} Bryan C. Daulton testified that appellant retained him to help determine appellee’s total income for child support purposes. Dau lton explained that a ppellee did not follow generally accepted accounting practices and that th e lack of an accounting system left Daulton unable to accurately determine appe llee’s income. Daulton stated that although he could review the tax returns, he could not explain the source of the numbers that a ppellee reported on the tax

returns. Daulton did indicate that a business ordi narily would maintain a general ledger or some other method of tracking expenses. Daulton re lated that he reviewed the receipts appellee provided, but Daulton could not determine which receipts were for personal expenses and which receipts were for business expenses. Daulton testified that based upon the evidence appellee provided, Daulton could not determine the gro ss receipts appellee’s businesses generated, the business expenses, or the cost of goods sold. {¶ 22} Daulton also explained that he does not know whether appellee arbitrarily reported

the numbers on his tax return or whether appellee had back-up doc umentation that appellee gave to the accountant who prepared his tax returns. Daulton stated that he does not believe thatATHENS, 18CA17 8 appellee’s tax preparer had a duty to audit appellee, but rather, th e tax preparer has an obligation to believe that the data appe llee provided is reasonable. {¶ 23} In sum, Daulton testified that he could not verify appellee’s income based upon the documentation appellee provide d. Daulton reported: “[T]he accounting documents weren’t provided that would have a llowed [him] to verify what [appellee’s] income is.” {¶ 24} Appellant testified and explained that she is a stay-at-home mother to the parties’ four children: a five-year-old; a four-year-old; and twin two-year-olds. Appellant stated that one of the twins has been diagnosed with Muscular Dystrophy and that the child requires extensive and expensive medical care. {¶ 25} Following the hearing, the magistrate entered a decision that found appellee’s income to be $126,339.96 through the date of his separation from the military, and $50,000 effective May 26, 2017. The magistra te also determined that appe llant had failed to pursue her claim for spousal support and, thus, did not address spousal support. {¶ 26} Appellant filed timely objec tions to the magistrate’s decision. Although she raised several objections, appe llant’s objections primarily centered upon the magistrate’s calculation of appellee’s income for child support purposes. In particular , appellant objected to the magistrate’s determination that appellee’s income before he separated from the military did not include any income from the two businesses that appellee operated. She alleged that appellee did not produce evidence to substantiate his claimed business expenses and cost of goods sold and that, without substantiation, the court must allocate the amount of gross receipts

as income. {¶ 27} Appellant additionally objected to the magistrate’s failure (1) to find that appelleeATHENS, 18CA17 9 is voluntarily unemployed; (2) to consider whet her to award appellant spousal support; (3) to grant an upward deviation of child support due to the medical expe nses incurred on behalf of the child with muscular dystrophy; (4) to award sa nctions and cost reimbur sements for appellee’s purported financial mis conduct; and (5) to restrict access to the children’s records. Appellant further claimed that the magistrate mischaracterized Daulton’s testimony. {¶ 28} The trial court subsequen tly overruled all of appella nt’s objections, except her objection to the magistrate’s finding that appe llant chose not to pursue her claim for spousal support. The court determined that appellant did not waive he r claim for spousal support and reviewed appellant’s argument that the court should award spous al support. Subsequently, the

court determined not to award a ppellant spousal support. In maki ng its determination, the court

first stated that it considered all of the statutor y factors set forth in the spousal support statute, R.C. 3105.18. Additionally, the court observed that the parties were married for a short period of time (approximately two and one-half years). The court also noted that appellee no longer has the stability of his military income and that he is self-employed. The court stated that it considered the parties’ available sources of income, the resources used to litigate the case, the parties’ education, the parties’ assets, and the tax consequences. The court concluded: “Considering all the statutory factors including, but not limited to the short period of time the parties were together, the cour t finds that [appellant] should not receive spousal support from [appellee] and that [appellee] shall not pay any amount in spousal support to [appellant] for any length of time.” {¶ 29} The trial court also considered appellant’s objection to the magistrate’s failure to find that appellee is voluntarily unemployed. The court found that a ppellee’s separation fromATHENS, 18CA17 10 the military resulted from “an incident” that occu rred around the time of the parties’ separation. The court observed that appellant ’s domestic violence allegations resulted in appellee being court

martialed. The court further noted that appellee agreed to a non- judicial punishment on a charge of disorderly conduct and that a ppellee’s admission meant that he would have to resign from the military. The court thus deter mined that appellee’s separati on from the military was involuntary and explained: “Although it is arguable that [appellee] caused his own discharge from the military as a result of an incident complained of by [appellant], the court finds that he resigned from the military over [appellant]’s pursuit of the allegations before a military court. The ‘splitting of hairs’ over whether [appellee] was coerced into forcing to resign to avoid a more deleterious outcome being imposed upon him does not sit well with the court.” The court thus determined that appellee failed to establish that appellee’s separation from the military was voluntary. As such, the cour t concluded that appellee is not voluntarily underemployed. {¶ 30} The trial court next considered appellant’s objections regarding the magistrate’s calculation of appellee’s gross income. The court agreed with the magistrate that appellee’s annual gross income through the date of his separation from the military is $126,339.96. {¶ 31} The court determined that appellee’s bus inesses “have operated at a loss since their inception.” The court did not believe that appellant introduced any evidence to show that appellee’s tax returns are unreliable evidence of the businesses’ income . The court observed that a licensed tax preparer completed the tax re turns and, that as appe llant’s expert witness testified, a licensed tax preparer “has an indepe ndent duty * * * to be of the opinion that the information provided on the return is accurate provided that the information provided to the tax preparer is accurate.” The court concluded that appellee’s “tax returns are an accurate reflectionATHENS, 18CA17 11

of his annual income at the time.” {¶ 32} The court also noted appella nt’s assertion that appell ee provided the information to the tax preparer and that appellee did not provide accurate numbers. The court nevertheless concluded that appellee’ s testimony is “credible coupled w ith the other information provided concerning the operation of the business.” The court specifically found that even though appellee’s financial records “may not have been exemplary,” a ppellee’s “busine ss and personal financial records were of sufficient detail for the court to determine both gross income and income for purposes of making calculations.” The court also recognized that appellee commingled funds, but concluded that the amount of personal purchases “were not of such monetary significance to cause the court any great concern in determining [appellee’s] income.” {¶ 33} The trial court also overruled appellant’s objection to the magistrate’s failure to appropriately credit her expert w itness’s testimony. The court f ound that the expert’s testimony was “of very limited value” and that the magist rate appropriately re lied upon appellee’s tax returns when calculating his income. The court thus determined that it “may reasonably” rely upon the tax returns as evidence of appellee’s income. {¶ 34} The trial court further noted that appellee “offered little evidence, if any, to contradict [appellee]’s asserti ons but relies more upon argument why the figures should not be relied upon.” The court concl uded that the “child support calculation based upon the evidence presented at [the] hearing was reasonable.” The court thus overruled appe llant’s objection to the magistrate’s decision not to retroactively modify appellee’s gross income to includeATHENS, 18CA17 12 self-employment income of $66,380.99. 4

4 We observe that when the trial court overruled appellant’s objection to the magistrate’s determination of appellee’s gross income, the court’s language could suggest that the court may not have complied with its duty to independently review the evidence and the magistrate’s decision. The cour t stated: “this court finds that it is within the sound discretion of the court to determine [appellee]’s income. The court finds that the Magistrate’s determination is supported by competent and credible evidence.” We point out, however, that Civ.R. 53(D)(4)(d) requires a trial court when ruling on objections to “undertake an independen t review as to the objected matters to ascertain that the magistrate properly determined the factual issues and appropriately applied the law.” Although the court’s statements, when read in isolation, may suggest that the court did not undertake an independent review, we further observe that “‘[a] presumptio n of regularity attaches to all judicial proceedings.’” Faulks v. Flynn , 4th Dist. Scioto No. 13CA3568, 2014-Ohio-1610, 2014 WL 1510155, ¶ 27, quoting State v. Raber , 134 Ohio St.3d 350, 2012–Ohio–5636, 982 N.E.2d 684, ¶ 19. Appellate courts thus presume that a trial court independently reviewed a magistrate’s decision. More over, the party claiming that the trial court did not independently review the magistrate’s decision bears the burden of rebutting the presumption. Faulks at ¶ 27. In the case at bar, appellant did not argue that the trial court fa iled to comply with its duty to independently review the magistrate’s decision. We thus will presume the regularity of the trial court’s decision and presume that the trial court independently reviewed the magistrate’s decision. We also recognize that other parts of the trial court’s decision indicate that the court recognized its duty to independently review the magistrate’s decision and that the language used in this instance appears to be an oversight. {¶ 35} The trial court next determined that appellee’s testimony regarding his business expenses is credible. The court also credite d appellee’s testimony that by the summer of 2017, he hoped to earn an annual sala ry of $50,000 from his business. The court thus found that effective May 26, 2017, appellee’s income is $50,000 per year. Th e court additionally overruled appellant’s objection that the magistrate failed to consider appellee’s potential income. The court stated that “the magistrate properly considered any potential income when coming to the conclusion that Defendant’s yearly income was imputed to be $50,000.” {¶ 36} The trial court also reviewed the stat utory child support calculation worksheet, using $50,000 as appellee’s “self-employment income .” The court noted that the worksheet shows that appellee’s monthly child support ob ligation is $1,061.33 when health insurance is provided, and is $1,061.33 plus cash medical support of $179.17 when private health insurance is not provided. The court deter mined, however, that an upward deviation is warranted. TheATHENS, 18CA17 13 court noted that the child with muscular dystr ophy requires specialized care and that appellant spends $2,256 annually to provide for some of the child’s special n eeds. The court thus ordered an upward deviation in the amount of $188 per month. {¶ 37} The trial court further overru led appellant’s objection to the magistrate’s decision declining to grant her request for sanctions a nd costs reimbursements due to appellee’s alleged

financial misconduct. The cour t first observed that the magi strate had, in fact, awarded appellant $720 in sanctions. The court next determined that a ppellant did not meet her burden to prove financial misconduct, concealment , or non-disclosure. {¶ 38} Next, the trial court overruled appellant’s objection to the magistrate’s failure to

restrict access to the children’s r ecords. The court found that a ppellant failed to show that it should restrict appellee’s access to the children’s records. {¶ 39} The court thus granted the parties a di vorce and ordered appellee to pay child support. This appeal followed.

II {¶ 40} Because appellant’s first tw o assignments of error invol ve related issues, for ease of discussion we review them together. {¶ 41} In her first assignment of error, appellant asserts that the trial court erred by imputing income to appellee without also findi ng that appellee is voluntarily underemployed. Appellant contends that a trial court cannot impute income to a parent for child support purposes unless the court first finds the parent voluntar ily unemployed or voluntarily underemployed. In her second assignment of error, a ppellant argues that the trial c ourt erred by failing to find that appellee is voluntarily underemplo yed. Appellant submits that appellee voluntarily chose toATHENS, 18CA17 14 engage in acts of domestic violence that ultimately led to his separation from the military. Appellant thus alleges that appellee’s underemployment resulte d from a voluntary decision and that the trial court, therefor e, should have found appellee to be voluntarily underemployed.

A

STANDARD OF REVIEW {¶ 42} Trial courts possess broa d discretion when ruling on child support matters, including whether a parent is volunt arily unemployed or underemployed. Rock v. Cabral , 67 Ohio St.3d 108, 112, 616 N.E.2d 218 (1993), citing Booth v. Booth , 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). Thus, appellate courts will not reverse trial c ourt decisions relating to child support matters, unless the trial court abus ed its discretion. Morrow v. Becker , 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, 2013 WL 5645778, ¶ 9 (2013); Booth v. Booth , 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). {¶ 43} “‘[A]buse of discretion’ [means] an ‘ unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action th at no conscientious judge could honestly have

taken.’” State v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady , 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “An abuse of

discretion includes a situation in which a trial court did not engage in a ‘“sound reasoning process.”’” State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34, quoting State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Co mmunity Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The abuse-of-discretion standard is “highly deferential” and does not permit an appellate court to simply substitute its judgment for that of the trial court. State exATHENS, 18CA17 15 rel. Cincinnati Enquirer v. Hunter , 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, ¶ 29 (explaining that reviewing court “will not lightly substitute [its] interpretation for that of the issuing court”). Indeed, “[d]iscr etion necessarily connotes a wide latitude of freedom of action on the part of the trial court, and a broad range of more or less tang ible or quantifiable factors may

enter into the trial cour t’s determination. [Thus], two trial courts coul d reach opposite results on roughly similar facts and neither be gu ilty of an abuse of discretion.” McGee v. C & S Lounge , 108 Ohio App.3d 656, 661, 671 N.E.2d 589 (10th Dist. 1996). Moreover, to find that a trial court abused its discretion, “the re sult must be so palpably and gro ssly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias.” Nakoff v. Fairview Gen. Hosp. , 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996). Accordingly, an appellant seeking to show that a trial court abused its discretion ordinarily bears a heavy burden.

Eichenlaub v. Eichenlaub , 2018-Ohio-4060, 120 N.E.3d 380, 4th Dist.), ¶ 11.

B

IMPUTED INCOME {¶ 44} In the case at bar, appellant initially alleges that the trial court incorrectly imputed income to appellee. She asserts that the trial court did not first find that appellee is voluntarily underemployed, and, in fact, the court found the oppos ite. Appellant thus c ontends that, without a finding that appellee is voluntarily underemp loyed, the court could not impute an annual income of $50,000 to appellee. {¶ 45} We readily agree with appellant that, before a trial court may impute income to a parent, it first must find that the parent is voluntarily unemployed or underemployed. Inscoe v.ATHENS, 18CA17 16

Inscoe , 121 Ohio App.3d 396, 424, 700 N.E.2d 70 (4 th Dist. 1997), citing Rock v. Cabral , 67 Ohio St.3d 108, 616 N.E.2d 218 (1993), syllabus; R. C. 3119.01(C)(17)(a). As we explain below, however, we do not agree with appellant that the trial court actually imputed income to appellee. Instead, the entirety of the trial court’s decision indicates that the court treated the $50,000 salary appellee wished to begin draw ing as “potential cash flow” under R.C. 3119.01(C)(7), and not as “potential inco me” imputed under R.C. 3119.01(C)(17)(a). {¶ 46} R.C. 3119.01(C)(9) defines “income” to mean 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 unemploye d or underemployed, the sum of the gross income of the parent and an y potential income of the parent. R.C. 3119.01(C)(12) defines “gross income” as follows: “Gross income” means, except as excluded in division (C)(12) of this section, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pa y, and bonuses to the extent described in division (D) of section 3119.05 of the Revised Code; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; benefits that are not means-tested and that are received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a prog ram or law administered by the United States department of vetera ns’ affairs or veterans’ ad ministration; spousal support actually received; and all other sources of income. “Gross income” includes income of members of any branch of the United States armed services or national guard, including, amounts representing base pay, basic allowance for quarters, basic allowance for subsiste nce, supplemental subsiste nce allowance, cost of living adjustment, specialty pay, variable housing allowance, and pay for training or other types of required drills; self-generated income; and potential cash flow from any source. {¶ 47} Thus, “‘[t]he statutory definition of in come is very broad and includes * * *ATHENS, 18CA17 17 potential cash flow from any source.’” Corwin v. Hammer , 4th Dist. Highland No. 07CA17, 2008-Ohio-2691, 2008 WL 2308899, ¶ 15, quoting Howell v. Howell , 167 Ohio App.3d 431, 2006-Ohio-3038, 855 N.E.2d 533 (2d Dist.), ¶ 50. “The definition of ‘income’ is intended to be

both broad and flexible” in order “‘to ensure th at the best interests of children, the intended beneficiaries of child suppor t awards, are protected.’” Murray v. Murray (1999), 128 Ohio App.3d 662, 666-668, 716 N.E.2d 288 (c itation omitted), quoting McQuinn v. McQuinn (1996), 110 Ohio App.3d 296, 300-301, 673 N.E.2d 1384, 1387. {¶ 48} In Howell , the Second District Court of Appeal s noted that tria l courts sometimes incorrectly identify “potential cash flow” as “imputed income.” Id. at ¶ 54. The Howell court stated that even though trial courts may “s ometimes use the phrase ‘imputed income’ when referring to potential cash flow, * * * that does not mean they have made a finding of voluntary unemployment or underemploymen t under R.C. 3119.01(C)(11).” Id. The court explained that “[u]sing the word ‘imputed’ is simply one way of describing potential in come and does not mean that a Court has made a finding under R.C. 3119.01(C)(11) that income should be imputed because the obligor is unemp loyed or underemployed.” Id. ; accord Smart v. Smart , 3rd Dist. Shelby No. 17-07-10, 2008-Ohio-1996, 2008 WL 1849631, ¶¶ 25-26 (citing Howell and recognizing that trial court’s incorrect classification of income as “imputed” rather than “potential cash flow” did not mean that c ourt was required to fi nd parent voluntarily underemployed)

. {¶ 49} In the case at bar, we believe that, although the trial court used the phrase “imputed income,” a review of the record indicates that the trial court calculated appellee’s $50,000 annual salary as potential cash flow. Appellee stated that he hoped to beginATHENS, 18CA17 18 withdrawing a $50,000 annual salary from his self-employment. Appellee thus identified his self-employment as generating potential cash flow. The court also recognized that appellee identified $50,000 as the amount of cash he hoped to withdraw from the business. Although the trial court did not utter the phrase, “potential cash flow,” the record suggests that the trial court intended to classify appellee’ s $50,000 annual salary as potential cash flow and not as imputed income. Had the court actually intended to impute income to appellee, then the court would have stated that appellee is voluntarily underemployed. Instead, the court specifically found that appellee is not voluntarily underemployed. We theref ore believe that the tr ial court simply made an error in form, but not in substance, when it classified appellee’ s $50,000 annual salary as imputed income. {¶ 50} Consequently, we disagree with appellant that the trial court incorrectly imputed income to appellee.

C

VOLUNTARILY UNDEREMPLOYED {¶ 51} Appellant next claims that the trial court abused its discretion by failing to determine that appellee is voluntarily underemployed. {¶ 52} Whether a parent is voluntarily underemplo yed, and the amount of any income to be imputed to the parent, are matters that a trial court must determine based on the particular

facts and circumstances of each case. Rock v. Cabral , 67 Ohio St.3d 108, 616 N.E.2d 218, 615 N.E.2d 218 (1993), syllabus. Furthermore, a parent claiming that the other parent is voluntarily underemployed has the burden of proof on the issue. E.g., King v. King , 4th Dist. Jackson No. 12CA2, 2013-Ohio-3426, ¶ 21; accord Ketchum v. Coleman , 2d Dist. Miami No. 2013CA28,ATHENS, 18CA17 19 2014-Ohio-858, ¶17. {¶ 53} For purposes of the child support statute, the term “voluntary” means “done by design or intention, inte ntional, proposed, intended, or not acci dental. Intentionally and without

coercion.” Collins , 2011–Ohio2087, at ¶ 27, quoting Rock , 67 Ohio St.3d at 111, fn. 2. In determining whether an individua l is voluntarily underemployed, “‘[t]he test is not only whether the [underemployment] 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.’” King v. King , 4th Dist. Jackson No. 12CA2, 2013-Ohio-3426, ¶ 21, quoting Woloch v. Foster , 98 Ohio App.3d 806, 811, 649 N.E.2d 918 (2d Dist.1994). Additionally, a trial court need not find that a parent “intended to evade a higher support obligation by not obtaining employment comme nsurate with educati on, qualifications and ability” before it may find a pare nt voluntarily underemployed. Rock , 67 Ohio St.3d at 111. Instead, the principal “design and purpose” of the imputed income statute “are to protect and

ensure the best interests of children.” Id. Accordingly, “[t]he parent’s subjective motivations for being voluntarily unemployed or underemployed play no part in the determination whether potential income is to be imputed to that pare nt in calculating his or her support obligation.” Id. {¶ 54} In the case sub judice, appellant asserts that the trial court abused its discretion by failing to determine that appellee voluntarily resigned from his high-paying military job and that he thus is voluntarily underemployed. She cont ends that appellee chose to resign from the military in exchange for a non-judicial punishment . Appellant further a lleges that appellee’s resignation ultimately resulted from his voluntary decision to engage in domestic violence. For these reasons, appellant argues that the trial court should have found a ppellee to be voluntarilyATHENS, 18CA17 20 underemployed. {¶ 55} Some Ohio courts have determined that a parent who engages in an act of

domestic violence or other misdeed that results in the termination of employment to be a voluntary act that allows a trial court to fi nd the parent voluntarily under- or unemployed. Courtney v. Courtney , 12th Dist. Warren No. CA2013-09-087, 2014-Ohio-4281, 2014 WL

4802864 (sexual harassment) Hahn v. Hahn , 9th Dist. Medina No. 11CA0064-M, 2012-Ohio-2001, 2012 WL 1581824 (domestic violence) ; L.B. v. T.B. , 2d Dist. Montgomery No. 24441, 2011-Ohio-3418, ¶ 16 (unspecifi ed felony offenses); Heropulos v. Heropulos , 5th Dist. Stark No. 99CA00236, 2000 WL 700285 (May 8, 2000) (domestic violence); Richardson v.

Ballard , 113 Ohio App.3d 552, 554, 681 N.E.2d 507 (12th Dist. 1996) (probation violation);

Brockmeier v. Brockmeier , 91 Ohio App.3d 689, 693, 633 N.E.2d 584 (1st Dist. 1993) (misappropriation of funds). The underlying reason for fi nding a parent voluntarily underemployed or unemployed due to that parent’s criminal c onduct or other misdeeds is to protect the child’s best interest. Brockmeier , 91 Ohio App.3d at 693–94. Allowing a parent to evade the parent’s duty of support based upon voluntary criminal conduct or other misdeed

would violate “‘the fundamental and equitable principle that wr ongdoers ought not benefit from their own wrongdoing.’” Id. , quoting Williams v. Williams , 10th Dist. Franklin No. 92AP-438, 1992 WL 246020, *1. As the Williams court aptly explained: A parent cannot, by inten tional conduct or mere irresponsibility, seek relief from this duty of support. Defendant, who by his own wrongful conduct placed himself in a position that he is no longer available for gainful employment, is not entitled to relief from his obligation to support his child. Incarceration was a foreseeable result of his cr iminal conduct and is thus deemed a voluntary act in and of itself.ATHENS, 18CA17 21

Id. at *1. {¶ 56} In Heropulos , 5th Dist. Stark No. 99CA00236, 2000 WL 700285, for example, the father, a police officer, was charged and later convicted of domestic violence. After his conviction, the police department terminated his employment. The father later obtained a minimum wage job. The trial c ourt determined that the fath er was voluntarily underemployed

and refused to reduce the amount of his child support payment to account for his minimum wage job. The father appealed. {¶ 57} On appeal, the court affirmed. The court not ed that it had held in prior cases that “a violation of the law and subsequent incarcera tion are voluntary acts, not beyond the control of a child support obligor.” Id. at *2, citing Stewart v. Clay , Stark App. No.1997CA00161, unreported (Dec. 15, 1997). Based upon its prior holding, the court thus determined that the

father’s “conviction for domestic violence and his subsequent termination based upon that conviction [was] a voluntary act.” Id. The court additionally noted that the father “did not testify to any other specific, significant attempt to gain employment at an appropriate wage.” Id.

The court thus concluded that th e trial court did not abuse its disc retion by finding the father to be voluntarily underemployed. {¶ 58} In Courtney v. Courtney , 12th Dist. Warren No. CA2013-09-087, 2014-Ohio-4281, 2014 WL 4802864, the court likewise dete rmined that the trial court did not abuse its discretion by finding the parent to be voluntarily underemployed as a result of the parent’s misdeeds. In Courtney , the father’s employer terminated him after a co-worker alleged

sexual harassment. Before his termination, the father had been employed as general counsel and earned an annual salary of $161,967. Following his termination, the father’s employerATHENS, 18CA17 22

discovered that the father had st olen thousands of dollars from th e company and the father later pleaded guilty to aggravated theft. After his c onviction, the father’s law license was suspended. The father subsequently obtained a job workin g at a retail store where he earned $10.50 an hour plus some unemployment compensation. {¶ 59} In the divorce proceedings, the trial c ourt found the father to be voluntarily underemployed for child support purposes and im puted income to him in the amount of $161,967. The father appealed. On appeal, the cour t affirmed the trial court’s decision that the father was voluntarily underemploye d. The court concluded that th e father’s “felony conviction and suspension from the practice of law can all be attributed to his voluntary and admittedly illegal acts.” Id. at ¶ 12. The court thus dete rmined that the trial court did not abuse its discretion by concluding that the father wa s voluntarily underemployed. The court further concluded, however, that the tria l court had abused its discretion in determining the amount of income to impute to the father. The court reviewed the factors that a trial court must consider when determining the amount of income to imput e to a parent and conc luded that the court’s decision to impute the same amount of income that the father earned while employed as a highly-compensated attorney was unreasonable and constituted an abus e of discretion. The court noted that although the father is highly -educated, his “ability to earn the imputed income [is] highly unlikely.” Id. at ¶ 15. The court additionally obs erved that the father’s “earning capacity is greatly reduced due to his felony c onviction for aggravated theft.” The court thus

reversed the trial court’s deci sion to impute potential income to the father in the amount of $161,967. Id. {¶ 60} In Hornbeck v. Hornbeck , 2nd Dist. Clark No. 2018-CA-75, 2019-Ohio-2035,ATHENS, 18CA17 23 2019 WL 2237041, on the other hand, the c ourt determined that the tr ial court did not abuse its discretion by refusing to find a husband volunt arily underemployed for spousal support purposes.

In Hornbeck , a few months before filing for divor ce, the husband had been earning $52,000 per year. The husband, however, was forced to resign after his employer learned that the husband had not been following company directives. La ter, the husband obtained a job that paid $11 per hour. During the divorce proceedings, the wi fe argued that the husband was voluntarily underemployed. The trial court di sagreed, and the wife appealed. {¶ 61} On appeal, the court determined that the trial court did not a buse its discretion by failing to find that the husband was voluntarily underemployed. The cour t concluded that the trial court was free to assess the husband’s credibility when evaluating the husband’s efforts to locate employment and that the court reasonably could have determined that the husband “was realizing his full employment capacity.” Hornbeck v. Hornbeck , 2nd Dist. Clark No. 2018-CA-75, 2019-Ohio-2035, 2019 WL 2237041, ¶ 48. Acco rdingly, the court decided that

the trial court did not abuse its discretion by refusing to fi nd the husband to be voluntarily underemployed. {¶ 62} In the case at bar, we, like the Hornbeck court, do not believe that we can

characterize the trial court’s re fusal to recognize appellee as voluntarily underemployed as an abuse of discretion. Instead, the trial court reasonably could have concluded that appellee is not voluntarily underemployed. Appellee explained th at he lost his military job as a result of agreeing to resign his commission in exchange for receiving a non-judici al punishment for the disorderly conduct charge. The record show s that, during the military court proceedings, appellee agreed that on one occasion in 2013, he struck the appellant. Additionally, appelleeATHENS, 18CA17 24 stated that his military training is specialized and that he could not obtain a similarly high-paying position in the civilian workforce. Based upon the foregoing evidence, and considering that the trial court is in the best positi on to assess each witness’s credibility , we cannot conclude that the trial court acted unreasonably by refusing to find that appe llee is voluntarily underemployed. {¶ 63} Moreover, even if we might have reach ed a different conclusion based upon the facts presented, the abuse-of-discretion standard does not allow us to simply substitute our judgment for that of the trial c ourt. Rather, to find an abuse of discretion, an appellant must show that the trial court’s decision is grossly viol ative of fact or logic. Here, we do not believe that appellant has demonstrated that the trial court’ s decision is grossly violative of fact or logic. {¶ 64} Although we also recognize that other c ourts have conclude d that a parent’s voluntary misdeeds warrant a findi ng of voluntary underemploymen t, we are unaware of any Ohio case stating that a parent’s voluntary misdeeds require a finding of voluntary underemployment. Instead, as the Oh io Supreme Court recognized in Rock v. Cabral, supra , the ultimate decision whether a parent is voluntarily underemployed rests within the sound discretion

of the trial court to consider , based upon the unique facts and circumstances of each case. Again, in the case sub judice we do not believe that the trial court abused its discretion when it evaluated the unique facts and circumstances of this case and concluded that appellee is not voluntarily underemployed. 5

5 We also recognize that R.C. 3119.05(I) sets forth circumstances when a court should not find a parent to be voluntarily unemployed or underemployed. The statutes provides: (I) Unless it would be unjust or inappropriate and therefore not in the best interests of the child, a court or agency shall not determine a parent to be voluntarily unemployed or underemployed and shall not impute income to that parent if any of the following conditions exist: (1) The parent is receiving recurring monetary income from means-tested publicATHENS, 18CA17 25 {¶ 65} Accordingly, based upon the foregoing reas ons, we overrule appe llant’s first and second assignments of error.

III

assistance benefits, including cash assistance payments under the Ohio works first program established under Chapter 5107. of the Revised Code, general assistance under former Chapter 5113. of the Revised Code, supplemental security income, or means-tested veterans’ benefits; (2) The parent is approved for social security disability insurance benefits because of a mental or physical disability, or the court or agency determines that the parent is unable to work based on medical documentation that includes a physician’s diagnosis and a physician's opinion regarding the parent’s mental or physical disability and inability to work. (3) The parent has proven that the parent has made continuous and diligent efforts without success to find and accept employment, including temporary employment, part-time employment, or employment at less than the parent’s previous salary or wage. (4) The parent is complying with court-ordered family reunification efforts in a child abuse, neglect, or dependency proceeding, to the extent that compliance with those efforts limits the parent’s ability to earn income. (5) The parent is incarcerated or institutiona lized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offe nse relating to the abuse or neglect of a child who is the subject of the support order or an offense under Title XXIX of the Revised Code against the obligee or a child who is the subject of the support order. {¶ 66} In her third assignment of error, appellant asserts that the trial court failed to correctly calculate appellee’s in come for child and spousal suppor t purposes. In particular, she contends that the trial court erred by failing to include the income appellee generated from his self-employed earnings when calculating his gross income. More specifically, appellant argues

that the trial court should not ha ve credited appellee’s testimony regarding his business expenses. Appellant claims that without supporting documentation, the trial court could not accept appellee’s testimony and tax returns as evidence of his gross income. Appellee thus submits that

the trial court should have found that between January 1, 2015 and May 25, 2017, appellee earned $66,380.99 as gross income from self-employment. {¶ 67} Appellant additionally raises many other issues within her third assignment of error, including: (1) the trial court “erred by incorrectly finding that ‘[i]n anticipation of hisATHENS, 18CA17 26 separation from the military, [appellee] began to pursue an on-line sales business”; (2) the court “erroneously concluded that” appe llee’s businesses have operated at a loss since inception; (3) the court mischaracterized her expert witness’s testimony; (4) the court should have found that appellee is voluntarily underemp loyed and imputed income in the amount of $192,720.95; and (5) the court erred by failing to award appellant spousal support.

A

FAILURE TO SEPARATELY ARGUE ASSIGNMENTS OF ERROR {¶ 68} We initially point out that appellant did not raise the five alleged errors identified in the preceding paragraph as separate assignment s of error. The Appellate Rules require each assignment of error to be pr esented separately. Also, App.R . 12(A)(2) allows a court to “disregard an assignment of error presented for review if the party raising it * * * fails to argue the assignment separately in the brief, as required under App. R. 16(A).” Moreover, App.R. 16(A)(3) requires an appellant’s brief to include “[a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected.” We further note that appellate courts determine an appeal “on its merits on the assignment of error[s]” and not on “mere argu ments.” App.R. 12(A)(1)(b); State v. Johnson , 4th Dist. Scioto No. 17CA3814, 2018-Ohio-4516, 2018 WL 5892659, ¶ 8; State v. Ross , 4th Dist. No. 16CA3771, 2017-Ohio-9400, 103 N.E.3d 81, ¶ 53. {¶ 69} In the case at bar, we point out that appellant did not raise each error as a separate assignment of error. Therefore we may disreg ard any of the issues that appellant did not separately argue. However, when practical, we will address the issues appellant raises.

BATHENS, 18CA17 27

INCOME {¶ 70} We again observe that we review a tria l court judgment in child support matters

for an abuse of discretion. Morrow v. Becker , 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, 2013 WL 5645778, ¶ 9. Thus, we should not dist urb a trial court’s decision regarding a parent’s income, unless the court abused its discretion. {¶ 71} In calculating child support, a trial court’s startin g point is the pare nt’s “income.”

Morrow v. Becker , 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, 2013 WL 5645778, ¶ 11; Sweeney v. Sweeney , 1st Dist. Hamilton No. C-180076, 2019-Ohio-1750, 2019 WL 2028714, ¶ 24; King v. King , 4th Dist. Jackson No. 12CA2, 2013-Ohio-3426, 2013 WL 4011916, ¶ 20. “Income” means “either gross income (for those em ployed to full capacity) or gross income plus potential income (for those not employed to full capacity).” Id. ; R.C. 3119.01(C)(9). As we previously noted, the statutory de finition of “gross income” is ex pansive and includes “the total

of all earned and unearned in come from all sources during a calendar year.” R.C. 3119.01(C)(12). The definition of “gross income” also includes “self-gen erated income.” Id. “Self-generated income” means gross receipts received by a parent from self-employment, proprietorship of a busine ss, joint ownership of a partnership or closely held corporation, and rents mi nus ordinary and necessary expenses incurred by the parent in generating the gross receipts. “Self-generated income” includes expense reimbursements or in-ki nd payments received by a parent from self-employment, the operation of a busine ss, or rents, including company cars, free housing, reimbursed meals, and othe r benefits, if the reimbursements are significant and reduce personal living expenses. R.C. 3119.01(C)(19). Thus, a trial c ourt that is determining the gr oss income of a self-employed parent must deduct “ordinary a nd necessary expenses incurred by the parent in generating the gross receipts.” Id.; accord Foster v. Foster , 150 Ohio App.3d 298, 303, 2002-Ohio-6390.ATHENS, 18CA17 28 (15)(a) “Ordinary and necessary expenses incurred in generating gross receipts” means actual cash items expended by the parent or the parent’s business and includes depreciation expenses of business equipment as shown on the books of a business entity. (b) Except as specifically included in “ordinary and necessary expenses incurred in generating gross receipts” by division (C)(15)(a) of this section, “ordinary and necessary expenses incurre d in generating gross receipts” does not include depreciation expenses and othe r noncash items that are allowed as deductions on any federal tax return of the parent or the parent’s business. R.C. 3119.01(C)(15). {¶ 72} Additionally, a court that is calculating the amount of child support must ensure that the “parents’ current and past income and personal earnings [are] verified by electronic means or with suitable documents, including, but not limited to, paystubs, employer statements, receipts and expense vouchers rela ted to self-generated income, tax returns, and all supporting

documentation and schedules fo r the tax returns.” R.C. 3119.05(A). Testimonial evidence concerning a parent’s income is genera lly insufficient to satisfy R.C. 3119.05(A). Basham v.

Basham , 3d Dist. Allen No. 1-02-37, 2002-Ohio-4694, 2002 WL 31007154, ¶ 7; Brose v. Copeland , 3d Dist. Seneca No. 13–13–08, 2013–Ohio–3399, ¶¶ 15–17; accord Ellis v. Ellis , 7th Dist. Mahoning No. 08 MA 133, 2009-Ohio-4964, 2009 WL 2999354, ¶ 60 (“[P]ursuant to R.C. 3119.05(A) a trial court is re strained to review documents, not te stimony, to establish income.”). {¶ 73} Ohio courts have held that a trial court abuses its discretion by calculating income for child support purposes without requiring some form of documentary evidence listed in R.C. 3119.05(A). In re M.C.M. , 2018-Ohio-1307, 110 N.E.3d 694 (8 th Dist.), ¶ 32 (concluding that

trial court abused its discretion by failing to rely upon su fficient documentary evidence when calculating parent’s income); In re K.R.B. , 2017-Ohio-7071, 95 N.E.3d 799 (8 th Dist.), ¶ 26 (finding an abuse of discretion when record failed to contain documentary evidence to supportATHENS, 18CA17 29 income-calculation); Montgomery v. Montgomery , 3rd Dist. Union No. 14-14-22, 2015-Ohio-2976, 2015 WL 4510904, ¶ 50 (determining that trial court abus ed its discretion when fixing income based so lely upon parent’s testimony); Rymers v. Rymers , 11th Dist. Lake No. 2011-L-064, 2012-Ohio-1675, 2012 WL 1288726, ¶ 29 (conc luding that trial court abused its discretion when court failed to verify th e parents’ incomes with proper documentation);

Basham v. Basham , 3d Dist. Allen No. 1-02-37, 2002-Ohio-4694, 2002 WL 31007154, at ¶ 8 (finding that trial court abused its discre tion when record did not contain sufficient documentation to verify parent’s income). As the Montgomery court explained: “‘Allowing a party in a divorce proceeding to reduce his gross income level, and ther efore his child support obligation, by testimony alone, without proper verification as required under R.C. 3119.05(A), is

an abuse of the trial court's discretion.’” Montgomery v. Montgomery , 3rd Dist. Union No. 14-14-22, 2015-Ohio-2976, 2015 WL 4510904, ¶ 51, quoting Ornelas v. Ornelas , 12th Dist. Warren No CA2011–08–094, 2012–Ohio–4106, ¶ 25. {¶ 74} Likewise, “[a] party claiming a business expense has the burden of providing suitable documentation to establish the expense.” Ockunzzi v. Ockunzzi , 8th Dist. Cuyahoga No. 86785, 2006-Ohio-5741, at ¶ 53. We also note that a trial court is not required to “blindly accept all of the expenses appellant deducted in pr evious [tax] returns as ordinary and necessary expenses incurred in generating gross receipts.” Dressler v. Dressler , Warren App. No. CA2003–05–062, 2004–Ohio–2072; Flege v. Flege , Butler App. No. CA2001–09–225, 2002–Ohio6105; Cutter v. Cutter (Jan. 31, 1994), Butler App. No. CA93–05–091. {¶ 75} We recognize that some courts require a self-employed parent to “submit documentation in the form of receipts and expens es” to the trial court to verify the amountsATHENS, 18CA17 30 reported on the parent’s tax returns. In re I.A.G. , 8th Dist. Cuyahoga No. 98088, 2012-Ohio-4403, 2012 WL 4462875, ¶ 18. The I.A.G. court reasoned that without receipts and expenses, a trial court cannot po ssibly “determine if the amounts set forth on the tax documents

are valid.” Id. We note, however, that “[i]t is not the duty of the trial court to ferret out those expenses that qualify as or dinary and necessary.” In re Sullivan , 11th Dist. No. 2005-G-2641, 167 Ohio App.3d 458, 2006-Ohio-3206, 855 N.E.2d 554, 2006 WL 1725967, ¶ 25. Additionally, the Ohio Departme nt of Jobs and Family Services’ Child Support Guideline Manual states that a trial court may determine self-employed income by examining income and expenses as reported on Schedule C. 6 The Manual does not, however , indicate that a parent must produce receipts or other documents in order to prove the validity of the expenses reported on Schedule C. Furthermore, this court previously determined th at a trial court does not abuse its discretion by allowing a parent to esta blish self-employment in come without producing receipts. Douglass Makni v. Makni , 4th Dist. Pike No. 01CA680, 2002-Ohio-5098, 2002 WL

31131877. In Makni , the parent produced a document entitled, “Occasional Income,” to establish his self-employment income. The appellant asserted that the trial court could not rely upon the figures the parent reported in the documen t and alleged that the parent is required to submit evidence to illustrate how the parent arrived at the income figures. We did not agree.

We stated: “In the absence of evidence to th e contrary except for appellant’s undocumented assertions, we cannot say that the tr ial court abused its discretion.” Id. at ¶ 17.

6 See http://www.odjfs.state.oh.us/forms/num/JFS 07766/pdf/ at 7. {¶ 76} In the case at bar, we likewise disagree with appellant that the trial court abused its discretion when it calculated appellee’s self-employment income and deducted the businessATHENS, 18CA17 31 expenses he claimed on his 2015 a nd 2016 tax returns. The trial c ourt acted within its discretion by relying upon the figures reporte d on appellee’s tax returns and is not required to dig through receipts or other documents to determine whet her appellee properly reported the figures. Instead, the court noted that appellee had provi ded receipts to the accountant who prepared his

tax returns. The court thus determined that appellee’s tax returns accurately reported his business expenses. {¶ 77} Moreover, we disagree with appellant that Siferd v. Siferd , 3rd Dist. No. 5-17-04, 2017-Ohio-8624, 100 N.E.3d 915, 2017 WL 5565495, requires us to find that the trial court abused its discretion when determining that a ppellee’s businesses had not produced any income during the years 2015 and 2016. In Siferd , “the extent of the info rmation that [the parent] provided to the court was one ta x return from 2014, one financial di sclosure form that recorded his monthly personal expenses for 2015, and one expense report from 2016.” Id. at ¶ 22. In contrast, in the case at bar, appellee produced his 2015 and 2016 tax returns, as well as bank

statements and documents obtained from Amazon’s seller services center. We therefore find Siferd inapposite.

{¶ 78} Consequently, we disagree with appellant that the trial court abused its discretion by rejecting her request to modify the past child support order and find that appellee had self-employment income in the amount of $66,380.99.

C

VOLUNTARILY UNDEREMPLOYED {¶ 79} Within the argument section of her third assignment of error, appellant also asserts that the trial court erred by failing to find that appellee is voluntarily underemployed. WeATHENS, 18CA17 32 believe, however, that we ad equately addresse d the issue earlier in this opinion. 7 {¶ 80} Accordingly, based upon the foregoing r easons, we overrule appellant’s third assignment of error.

IV

7 Also within her third assignment of error, appellant asserts that the trial court erred by failing to award spousal support. For ease of discussion, however, we will address the spousal support issue in the context of appellant’s fifth assignment of error. {¶ 81} In her fourth assignment of error, appellant asserts that the trial court erred by failing to award sanctions and cost reimbursements for appell ee’s financial misconduct. She contends that appellee repeatedly failed to comp ly with discovery requests and states that she “fully explained her request for sanctions via her Proposed Findings of Facts #42-56 and reiterates those arguments as if fully re-written herein.” Appellant does not otherwise elaborate upon her claim of fi nancial misconduct. {¶ 82} R.C. 3105.171(E)(4) authorizes a trial cour t to make a distributive or greater award of marital property to one spouse upon a finding that the other spouse “has engaged in financial misconduct, including but not limited to, the dissipation, destruction, concealment, or fraudulent disposition of assets.” The burde n of proving financia l misconduct is on the complaining spouse. Jacobs v. Jacobs , 4th Dist. Scioto No. 02CA2846, 2003–Ohio–3466, ¶ 25. “There must be a clear showing that the o ffending spouse either pr ofited from the alleged misconduct or intentionally de feated the other spouse’s di stribution of assets.” Id. at ¶ 23, citing

Wideman v. Wideman , 6th Dist. Wood No. WD–02–30, 2003–Ohio–1858, ¶ 34; accord Murphy v. Murphy , 4th Dist. Lawrence No. 07CA35, 2008–Ohio–6699, 2008 WL 5265673, ¶ 45.ATHENS, 18CA17 33 {¶ 83} We also observe that R.C. 3105.171(E)(5 ) permits a trial court to make a distributive award “[i]f a spouse has substantia lly and willfully failed to disclose marital property, separate property, or other assets, debts, income, or expenses.” {¶ 84} Appellate courts will review a trial court’s decision concerning a distributive award under R.C. 3105.171(E)(4) or (5) for an abuse of discretion. Vulgamore v. Vulgamore , 4th Dist. Pike No. 16CA876, 2017-Ohio-4114, 2017 WL 2427595, ¶ 30. In the case sub judice,

after our review of the evidence we are unable to conclude that the trial court abused its discretion by denying appellant’s request for a distribu tive award under R.C. 3105.171(E)(4) or (5). The trial court was in the best position to evaluate all of the circumstances of the case, and we are ill-suited to second-guess th e trial court’s finding that appe llee did not engage in financial

misconduct or substantia lly and willfully failed to disc lose property and other items. {¶ 85} For similar reasons, we disagree with appellant that the trial court abused its discretion by failing to award her sanc tions beyond the $720 already awarded. {¶ 86} Accordingly, based upon the foregoing r easons, we overrule a ppellant’s fourth assignment of error.

V {¶ 87} In her fifth assignment of error, appellant challenges the trial court’s failure to award spousal support. She charges that the c ourt denied her request for spousal support based upon her decision to report appellee’s domes tic violence to law enforcement. {¶ 88} Trial courts generally have broad discretion and “wide latitude” when evaluating the appropriateness, reasona bleness, and amount of a spousal support award. E.g., Kunkle v.

Kunkle , 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990); Bolinger v. Bolinger , 49 Ohio St.3d 120,ATHENS, 18CA17 34 122, 551 N.E.2d 157 (1990); Cherry v. Cherry , 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981); Clifford v. Skaggs , 4th Dist. Gallia No. 17CA6, 2017-Ohio-8597, 2017 WL 5513569, ¶ 9. Consequently, a reviewing court will not reverse a tria l court’s spousal support decision absent

an abuse of discretion. Clifford at ¶ 9; e.g., Bechtol v. Bechtol , 49 Ohio St.3d 21, 24, 550 N.E.2d 178 (1990); Holcomb v. Holcomb , 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989). {¶ 89} R.C. 3105.18(B) allows trial courts, upon a party’s request and after distributing property, to award reasonable spousal support. R.C. 3105.18(C)(1) sets forth the factors that a

trial court must consider wh en “determining whether spousal support is a ppropriate and reasonable, and [when] determin ing the nature, amount, and terms of payment, and duration of spousal support”: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental , and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professiona l degree of the other party; (k) The time and expense necessary fo r the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropria te employment, provided th e education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each part y, of an award of spousal support;ATHENS, 18CA17 35 (m) The lost income production capacity of either party that resulted from that party's mar ital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. {¶ 90} A trial court evaluating the propriety of a spousal suppor t award must consider all of the statutory factors and not base its determina tion upon any one factor taken in isolation.

Kaechele v. Kaechele , 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988), paragraph one of the syllabus. Additionally, although a trial c ourt possesses broad di scretion to determine whether a spousal support is reasonable and a ppropriate, it must consider the stat utory factors and must indicate the basis for a spousal support award in sufficient detail to enable a reviewing c ourt to determine that the award complies with the law. Kaechele at paragraph two of the syllabus. If the record reflects that the trial court considered the statutory factors, and if the judgment contains details sufficient for a reviewing court to determine that the support award is fa ir, equitable, and in accordance with the law, the reviewing court will uphold the award. Eichenlaub v. Eichenlaub , 2018-Ohio-4060, 120 N.E.3d 380 (4th Dist.), ¶ 13. {¶ 91} In the case at bar, we do not agree with appellant that the trial court determined that “due to [appellant] reporting the domestic violence perpetrated by [appellee] to law enforcement and cooperating with their investiga tion and subsequent prosecution, she is per se not entitled to an award of spousal support.” In stead, the trial court’s decision reveals that it considered the appropriate statut ory factors and did not base its decision on any one factor in isolation. Specifically, the tria l court found that appellee “is no longer employed as a Marine and is self employed” and that “t he parties were married a relativel y very short period of time.” The court also explained that it considered the par ties’ sources of income, the resources they usedATHENS, 18CA17 36 to litigate the case, the parties’ education levels, the parties’ assets, and the tax consequences. The court concluded: “Considering all the statutory factors including, but not limited to the short period of time the pa rties were together, the court finds that [appellant] should not receive spousal support from [appellee].” We therefore disagree with appellant that the trial court denied her request for spousal support based upon her decision to report appellee’s domestic

violence to law enforcement. {¶ 92} As an aside, we do not intend to minimize appellant’s position and her assertion

that the trial court’s decision has the effect of denying spous al support to a domestic violence survivor. Rather, we simply are unable to conclude that the tria l court denied a ppellant spousal support based upon her decision to report appellee’s domestic viol ence to law enforcement. Other evidence adduced during the trial court pr oceeding supports the tr ial court’s conclusion. {¶ 93} Accordingly, based upon the foregoing r easons, we overrule appellant’s fifth assignment of error.

VI {¶ 94} In her sixth assignment of error, appellant asserts that the trial court erred by failing to protect the children’s records. She contends that the court’s failure to protect the children’s records conflicts with its findings in the domestic violence civil protection order. {¶ 95} R.C. 3109.051(H)(1) states that a non-reside ntial parent is entitled to access to a child’s records, “unless the court determines that it would not be in the best interest of the child for the parent who is not the re sidential parent to have access to the records under those same

terms and conditions.” As with other parenting issues, we re view a trial court’s decision regarding a parent’s access to a child’s records for an abuse of discretion. Gisslen v. Gisslen ,ATHENS, 18CA17 37 2nd Dist. Montgomery No. 25666, 2013-Ohio-3840, 2013 WL 4782138, ¶ 22 (concluding that

trial court did not abuse its di scretion in prohibiting parent from directly contacting school employees and medical providers). {¶ 96} In the case at bar, we are unable to conclude that the trial court abused its discretion by failing to restrict appellee’s access to the children’ s records. Although appellant alleges that restricting appellee’s access is necessa ry due to his prior domestic violence, appellant did not provide the court with any evidence that appellee continues to pose a threat to the

children’s welfare. We further note that the civil protection order expired in December 2018.

Martindale II at ¶ 13. {¶ 97} Accordingly, based upon the foregoing r easons, we overrule appellant’s sixth assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.[Cite as Martindale v. Martindale , 2019-Ohio-3028.] JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs

herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Smith, P.J. & McFarland, J.: Concur in Judgment & Opinion For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.