COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66997 BARBARA W. DIXON : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CARL F. DIXON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-209811 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOYCE E. BARRETT, ESQ. RON TONIDANDEL, ESQ. 800 Standard Building SPEITH, BELL, MCCURDY & 1370 Ontario Street NEWELL CO., L.P.A. Cleveland, Ohio 44113 2000 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 - 2 - DYKE, J.: Defendant-Appellant Carl F. Dixon, appeals a judgment of the Court of Common Pleas, Domestic Relations Division, entered one and one half years after the court granted a decree of divorce to him and his former wife, Plaintiff-Appellee, Barbara W. Dixon. In eighteen assignments of error, appellant claims that the trial court abused its discretion and or erred in determinations it made with respect to imputation of income, property division, child and spousal support, attorney's fees and arrearages. Appellant also claims that the court erred in failing to apportion marital debts. Upon review, we find appellant's assignments of error to be well taken. Accordingly, we reverse the judgment of the trial court and remand this cause for proceedings consistent with this opinion. On April 12, 1991, appellee filed a Complaint for Divorce. Appellant answered and filed a Counter Claim for same on August 6, 1991. On September 23, 1991, the parties entered into an agreed temporary support order providing for spousal and child support of $955.00 and $845.00 per month. On August 19, 1992, the trial court bifurcated proceedings, granted the parties a divorce on the ground of non-cohabitation, ordered support per the above cited agreement and reserved jurisdiction to rule on attendant matters. (Judgment Entry, Vol. 2041, Pg. 478, 9/17/92 Case No. D-209811) On September 9, 1992, appellant filed a Motion to Modify Support. On October 2, 1992, appellee filed a Motion to Show Cause - 3 - for Contempt for failure to pay alimony. On December 10, 1992 appellant was served with process in Chicago and on December 11, 1992, the court scheduled a hearing for March 3, 1992 to respond to 1 a Determination of Property Division motion. These motions and matters were continued on several occasions until November 23, 1993 and January 31, 1994 when a bench trial was conducted. The trial court journalized its Judgment Entry on February 9, 1994 which, inter alia, granted custody of the parties' minor 2 children to the appellee, ordered child and spousal support payments of $1044.58 and $306.00 per month, granted $8,000 in attorney's fees and $20,892 in arrearages to the appellee and imputed $75,544 of income to the appellant on the grounds of "voluntary unemployment." The entry stated that the $75,554 figure represented the "average income for a nonpartner attorney in the Chicago, Illinois area as determined by Survey Law Firm Economics, 1993, Alman Yewyl Pensa, Publisher: Newton Square, Pennsylvania" and that the figure was equitable "in light of the fact that the Defendant resigned from an $85,000 position as an attorney in Cleveland to accept a $60,000 attorney position in Chicago from which he was terminated." The entry further stated that "no evidence on the issue of division of property was introduced at trial." (Id., Pgs. 170, 171) The instant appeal followed. 1 The docket indicates Motion No. 212252 was filed on 4/12/91. 2 Clare was sixteen and Jane was thirteen at the time of the hearings. - 4 - I IT WAS ERROR TO IMPUTE $75,544 PER YEAR INCOME TO DEFENDANT. In his first assignment of error, appellant claims that there was no factual or legal basis for imputing $75,544 of annual income to the appellant. We agree with appellant's argument in part. [I]n calculating and awarding child support, a trial court must consider the 'potential income' as well as the gross income of a parent the court determines to be voluntarily unemployed or voluntarily underemployed. The 'potential income' to be imputed to such parent for purposes of calculating his or her support obligation is to be determined based upon the amount the parent would have earned if he or she had been 'fully employed.' R.C. 3113.215(A)(5)(a). That amount is to be determined by the parent's employment potential and probable earnings based on recent work history, job qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides. Rock v. Cabral (1993), 67 Ohio St.3d 108, 111. See, also, R.C. 3113.215(A)(1)(a)(b) and R.C. 3113.215(A)(5). Rock, specifically directs the trial court to base its com- putation of imputed income on three distinct criteria. Our review of the record demonstrates that the court based its computation on only two of the three criteria, to wit, appellant's work history 3 and occupational qualifications, glossing over appellant's testimony regarding recent work history in Chicago. Also, no 3 Appellant admitted to having developed a specialty practice in real estate law and having obtained three professional degrees in addition to his Juris Doctorate. - 5 - evidence appeared in the record with respect to prevailing job opportunities or salary levels in Chicago. Significantly, appellant testified that he was "let go" from an $85,000 position with Weston Inc., a Cleveland based real estate firm on September 30, 1990 (Tr. 18); that he was terminated from a $60,000 position with Beeler, Schad & Diamond, a Chicago based law firm two years later, to wit, on August 31, 1992; that he was permitted to continue to work with the firm as an independent contractor paid on the basis of fees generated less overhead (Affidavit, Carl F. Dixon, Motion to Modify Support, Tr. 18, 274) and that based upon this arrangement, he earned $37,475.18 in 1992 4 (1992 Tax Return - Exhibit H) and approximately $13,000 in 1993. The appellant also testified that he actively sought employment, mailing over 135 resumes to potential employers in various fields; that he declined no offers and remained self-employed at the time of the hearings. This testimony was neither challenged nor refuted by the appellee and unlike the court in Rock, the trial court made no express findings with respect to appellant's credibility. In light of appellant's uncontroverted testimony with respect to a decline in income and professional employment opportunities and the absence of expert testimony on the issue of prevailing job 4 Appellant remained salaried at the $60,000 level for eight of the twelve month period reflected in his 1992 return. While the appellant had not filed a return for 1993 at the time of the hearing to wit, January 31, 1994, he stated that he could verify an income of approximately $13,000 via a register of fees and a W-2 Form from his 401K plan. - 6 - opportunities and salary levels in Chicago, we find the court's imputation of $75,544 of annual income to the appellant to be arbitrary. Appellant's first assignment of error is sustained. II IT WAS ERROR TO FIND DEFENDANT IS VOLUNTARILY UNEMPLOYED. VI IT WAS ERROR TO FIND THAT DEFENDANT RESIGNED FROM AN $85,000 POSITION AS AN ATTORNEY IN CLEVELAND. Appellant's second and sixth assignments of error raise similar issues of fact and law and shall be addressed together. Whether a parent is "voluntarily under- employed" within the meaning of R.C. 3313.215(A)(5) and the amount of "potential income" to be imputed to child support obligor are matters to be determined by the trial court based upon facts and circumstances of each case. The determination will not be disturbed on appeal absent an abuse of 5 discretion. Rock v. Cabral, supra, syllabus. In Rock, the trial court imputed $14,000 of additional income to the appellant finding she had made a personal decision to establish a weaving business in lieu of pursuing a more lucrative career in accounting. Appellee advances a similar argument claiming that appellant's personal decision to move to Chicago supports the trial court's finding that he "resigned" from an $85,000 position in Cleveland thereby justifying its imputation of $75,544 in annual 5 While Rock involves a finding of "voluntary unemployment" the standard set forth for doing so is equally applicable to the instant case. - 7 - income. (Judgment Entry, Vol. 2321, Pg. 171) However, the following exchange elicited during cross-examination demonstrates that while the appellant made a personal decision to locate to Chicago, he did not make a personal decision to resign from his position. Counsel: Now, at the time that you moved, you decided personally to move to Chicago, didn't you. That was your personal decision, right? Appellant: I was told to move out of my house, so I had to move someplace. So, if you are asking as a result of being told I had to move out of my house, and being let go from Weston, and not having a job in Cleveland, I decided to take the only job offer I had which was in Chicago, and move there, yes. Against that background, Mr. Reddy, the answer would be yes. Counsel: But, at the time you left Weston, you hadn't pursued any jobs here in Ohio, had you. Appellant: Absolutely. I had pursued a number of jobs here in Ohio, Mr Reddy. Counsel: But nonetheless you were offered a job in Chicago with Beeler, Schad and Diamond? Appellant: The only job offer I had was with Beeler, Schad and Diamond in Chicago. Counsel: And didn't you advise your ex-wife that the reason you were leaving Weston is because they were closing their real estate section or closing your department? Appellant: I don't recall advising her of that. (Tr. 17, 18) Appellant's testimony that he was "let go;" that his department was closing and that he accepted the only job he was offered remained unrefuted by the appellee. Moreover, appellee indicated in her statement of facts that the appellant was "terminated" from - 8 - 6 his position with Weston. On this record, we must sustain appellant's second and sixth assignments of error. On remand the issue of whether the appellant is "voluntarily underemployed" in Chicago shall be determined. Expert testimony on the issue of prevailing job opportunities and salary levels for an experienced attorney in the Chicago area must be adduced at trial. III IT WAS ERROR TO DERIVE AN IMPUTED INCOME FIGURE FROM A SOURCE OUTSIDE THE RECORD. IV IT WAS ERROR TO DERIVE AN IMPUTED INCOME FIGURE FROM OUTDATED INFORMATION. V IT WAS ERROR TO IMPUTE THE AVERAGE INCOME OF A NONPARTNER ATTORNEY IN THE CHICAGO, ILLINOIS AREA TO DEFENDANT. Appellant's third, fourth and fifth assignments of error are well taken. As discussed, supra, R.C. 3113.215(A)(5)(a) speci- fically directs the trial court to base its determination of imputed income on "... the prevailing job opportunities and salary levels in the community in which the parent resides." As dis- cussed, no evidence with respect to job opportunities and salary levels in Chicago was adduced at trial. The only basis for the 6 At page 4 of her Answer Brief, appellee states: Appellant was subsequently employed by Weston, Inc., a real estate development and management company, located in Cleveland from June 1, 1987 until his employment was terminated on September 30, 1990. - 9 - court's determination appears to be a citation in its judgment entry to a "Survey of Law Firm Economics." While appellee argues that the survey is competent to prove salary pursuant to Evid.R. 902, we find that a privately published document does not fall within the "Official Publications" or "Newspaper or Periodical" exceptions cited in the rule. We further find that the court's utilization of this survey effectively amounts to a post-trial admission of evidence. Such admission is prejudicial to the appellant because it occurred without his knowledge and because it precluded from challenging the applicability and timeliness of the survey. While the court pursued a pragmatic route in its attempt to ascertain income for purposes of imputation, we find the burden of proving income should fall to the parties, particularly to the obligee where the obligor resides in another state and contests support. Accordingly, we must sustain appellant's third, fourth and fifth assignments of error. VII IT WAS ERROR TO ORDER DEFENDANT TO PAY PLAINTIFF $1,044.58 EVERY MONTH FOR CHILD SUPPORT. VIII IT WAS ERROR TO COMPUTE CHILD SUPPORT IN THE MANNER DONE IN EXHIBIT B ATTACHED TO THE LOWER COURT'S JUDGMENT. Because an improperly computed imputation figure of $75,544 was utilized in preparing the instant Child Support Computation Worksheet, we must sustain appellant's seventh and eighth assignments of error. We note however, that the financial burden - 10 - this order represents amounts to only $12,500 per year. Daily payments amount to less than $20 per child. In light of appellant's significant occupational qualifications and legal experience, even the most conservative imputation of income would be sufficient to maintain this level of support. Under other circumstances, we would simply affirm the trial court's order. However, in addition to the basis problem, we find nothing in the transcript or judgment entry to indicate that the trial court actually considered and ruled upon appellant's Motion to Modify Support. (See, appellant's eleventh assignment of error.) In light of these defects, we decline to presume regularity and remand for a confirmation or recalculation of child support payments. IX IT WAS ERROR TO ORDER DEFENDANT TO PAY $306 EVERY MONTH FOR SPOUSAL SUPPORT FOR SIX YEARS. We sustain appellant's ninth assignment of error not upon his claimed inability to pay support or his claim that appellee lacks need for same, but upon the trial court's failure to set forth, in sufficient detail, the basis and rationale for its award as mandated by R.C. 3105.18 and Kaechele v. Kaechele (1988), 35 Ohio St.3d 93. On remand, the basis and rationale for an award of alimony must be stated in the court's judgment entry. X IT WAS ERROR TO ENTER JUDGMENT AGAINST DEFENDANT FOR $8,000 FOR PLAINTIFF-APPELLEE'S ATTORNEY'S FEES. - 11 - We sustain appellant's tenth assignment of error not for the reason set forth in his assignment, to wit, his claim that the appellee's ability to pay fees is greater than his. We sustain appellant's assignment because the trial court failed to indicate in its judgment entry its determination and conclusion as to the reasonableness and need for fees pursuant to Swanson v. Swanson (1976), 48 Ohio App.2d and DR 2 106(b), Code of Professional Responsibility. While appellee's counsel testified as to the complexity of the case and the protracted nature of the litigation, the record is devoid of evidence as to total number of hours 7 expended or hourly rate. On remand, evidence must be adduced on these issues and the trial court must state in its judgment entry the rationale and basis for its award as well as its conclusion that fees were reasonable based upon the above cited authority. See, Ranz v. Ranz (1988), 51 Ohio App.3d 66 and Dodenhoff v. Dodenhoff (August 25, 1994), Cuyahoga App. No 66100, unreported. XI IT WAS ERROR TO IGNORE DEFENDANT'S MOTION TO MODIFY SUPPORT FILED SEPTEMBER 9, 1992, AFTER DEFENDANT'S EMPLOYMENT WAS TERMINATED, WHICH MOTION WAS NEVER HEARD BY THE LOWER COURT. We sustain appellant's eleventh assignment of error based upon the trial court's failure to indicate that it had considered appellant's Motion to Modify Support due to a change in 7 Exhibit 21 which ostensibly itemized Ms. Barrett's and Mr. Reddy's hourly rate and total number of hours expended could not be located in the instant record. - 12 - circumstance, to wit, appellant's termination from Beeler, Schad and Diamond in Chicago on August 31, 1992. On remand, the trial court shall request the appellant to provide documentary evidence of termination as well as documentary evidence of income for 1993, 1994 and 1995. XII IT WAS ERROR TO ENTER JUDGMENT AGAINST DEFENDANT-APPELLANT FOR $20,892 SUPPORT ARREARAGE. We sustain appellant's twelfth assignment of error and remand for confirmation or recalculation of the amount of arrearages based upon the trial court's determination as to whether the appellant is "voluntarily underemployed" in Chicago, its determination as to the amount of income it should impute based upon the criteria set forth in Rock, supra, and 3113.215 (A)(5)(a) and its consideration of appellant's Motion to Modify Support. XIII IT WAS ERROR TO FIND THAT NO EVIDENCE ON THE ISSUE OF DIVISION OF PROPERTY WAS INTRODUCED AT TRIAL. XIV IT WAS ERROR NOT TO MAKE FINDINGS CONCERNING THE VALUE OF MARITAL ASSETS. XV IT WAS ERROR TO AWARD EACH PARTY THE MARITAL PROPERTY CURRENTLY IN THEIR POSSESSION, WITHOUT ANY FURTHER EQUALIZING ADJUSTMENT. R.C 3105.17.1(C)(3) states that: The court shall provide for an equitable division of marital property under this section prior to making any award of spousal support to - 13 - either spouse under section 3105.18 of the Revised Code and without regard to any spousal support so awarded. The record demonstrates that a substantial amount of testimony was adduced with respect to the value of certain property retained by the parties. Appraiser, Mary Jo Feighan testified that the contents of the marital residence had a fair market value of $16,000. Appellant testified that based upon values stated in the appraisal, he retained property valued at approximately $3,000. While the most substantial marital asset, to wit, the parties' home was lost to foreclosure, its contents and their value remain undetermined. There is no evidence that the parties' waived the duty of the court to place a value on such property. See, Pawlowski v. Pawlowski (1992), 83 Ohio App.3d 794. On remand, some ruling as to the value and division of marital property shall be determined and specified in the court's judgment entry. Appellant's thirteenth and fourteenth assignments of error are sustained. Appellant's fifteenth assignment of error is sustained not because of his equalization argument but because the court failed to determine value and apportion marital property pursuant to R.C. 3105.17.1 XVI IT WAS ERROR NOT TO MAKE ANY FINDING REGARDING THE EXTENT OF MARITAL DEBTS, WHICH EXCEEDED $55,255. XVII IT WAS ERROR NOT TO DETERMINE EACH PARTY'S RESPONSIBILITY FOR PAYING MARITAL DEBTS. - 14 - In Ohio, alimony is comprised of two com- ponents: a division of marital assets and liabilities, and periodic payments for sustenance and support. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 352 (Additional citations omitted) Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 95. The court's judgment entry is silent with respect to division of marital liabilities alleged to exceed $55,255. Appellant's seventeenth assignment of error is sustained. On remand, a ruling with respect to alleged liabilities shall be set forth in the court's judgment entry. XVIII IT WAS ERROR TO GRANT VISITATION TO DEFENDANT WITH THE TWO MINOR CHILDREN IN ACCORDANCE WITH THE LOWER COURT'S STANDARD VISITATION SCHEDULE, WHERE THE CHILDREN LIVE IN GEORGIA WITH PLAINTIFF AND THE DEFENDANT RESIDES IN ILLINOIS. The record demonstrates the appellee is employed as an obstetrical nurse stationed at Robbins Air Force Base near Macon, Georgia. She receives an annual salary of $26,404.68 with a dependency allowance of $140 per month plus free housing and utilities. In light of the substantial distance between the parties, the instant visitation schedule which specifies inter alia, midweek, and weekend visitation is unrealistic. On remand, a workable visitation schedule which takes into consideration the best interests and desires of the parties' teenage children as well as the frequency and costs associated with long distance visitation shall be ordered. Appellant's eighteenth assignment of error is sustained. - 15 - The judgment of the trial court is reversed in all aspects except for orders regarding custody, relocation notice, release of restraining orders and allocation of costs for the proceeding. This cause is remanded. It is so ordered. - 16 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is therefore, considered that said appellant and said appellee share equally the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., AND KARPINSKI, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court .