COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67977 : MINDY F. HIRSH : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN R. HIRSH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 22, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division of Common Pleas Court Case No. D-214705 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS LAFOND, ESQ. JOHN R. HIRSH, Pro Se 1525 National City Bank Bldg. 2530 Superior Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44114 -2- O'DONNELL, J.: On June 4, 1977, John R. Hirsh and Mindy F. Hirsh were married. Two children were born as issue of the marriage, Stephanie Erin, December 20, 1978, and Michelle Robin, May 20, 1981. On November 21, 1991, Mindy Hirsh filed a complaint for divorce and John Hirsh counterclaimed seeking the same relief. Prior to final hearing, the parties separated, stipulated that they were incompatible, and entered into a shared parenting plan. John Hirsh was born on June 1, 1947. At the time of final hearing, he was owner and operator of Hirsh Manufacturing, Inc. with voting control of the company and stock valued at $45,000. He was also owner of the accounting firm of Isaacson & Kater. As the owner and operator of Hirsh Manufacturing, John Hirsh set his own salary. His earning history was as follows: 1988 $125,500.00 1989 134,633.09 1990 100,000.00 1991 64,807.78 1992 64,777.00 The corporate tax returns for Hirsh Manufacturing reveal the following gross incomes: 1987 $ 524,000 1988 789,000 1989 1,073,000 1990 985,000 1991 875,000 1992 877,000 Hirsh Manufacturing was a distributor of buttons to the garment industry. John Hirsh testified that business was down over the years due to many closings in the garment industry as well as write offs incurred when customers closed and went bankrupt. He -3- testified his company lost over $225,000 worth of business per year in the years 1990 and 1991. He also testified that the company profit margin decreased because they had to reduce prices to remain competitive. After the parties separated, but before final hearing, John Hirsh made a loan to Hirsh Manufacturing in the amount of $5,200. Mindy Hirsh was employed at Therapy Specialists since May of 1992 where she was learning the use of the computer and earned $10.00 per hour. Her earning history was as follows: 1988 $2,343.30 1989 911.91 1990 1,279.94 1991 2,213.03 1992 6,336.00 Monthly living expenses for Mindy Hirsh and the two children of the marriage living in the marital home totaled $3,895 per month. As a result of this action, Mindy Hirsh incurred $24,238.75 in attorney fees. After the final hearing, the trial court referee issued a report and recommendations to the trial court. The referee concluded the parties were incompatible and that the shared parenting plan was in the best interest of the children and should be accepted by the court. The referee recommended an equitable distribution of the marital property. Mindy Hirsh's income was imputed to be $10,000 and John Hirsh's income was imputed to be $75,000. The referee concluded Mindy Hirsh would not have the financial ability to pay all of her own attorney fees and John Hirsh would have the ability to contribute to those fees. -4- The referee recommended child support for the two children in the amount of $1,063.80 per month including 2% poundage ($531.90 per child), spousal support in the amount of $1,632 per month including 2% poundage for the first 30 months, and spousal support in the amount of $816 per month including 2% poundage for an additional 30 months, or until death of either party or Mindy Hirsh remarries. The referee also recommended that John Hirsh pay to Mindy Hirsh $10,000 as additional spousal support for attorney fees and recommended that judgment issue if John Hirsh should fail to pay the sum in full within six months from the date of the final judgment of divorce. The trial court accepted the report and recommendations of the referee and final judgment entry for divorce was ordered, adjudged, and decreed in accordance with those recommendations on August 31, 1994. This appeal followed. Defendant's first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN FINDING THE APPELLANT VOLUNTARILY UNDERPAID WHEN IMPUTING HIS EARNINGS FROM $50,000/YEAR TO $75,000/YEAR AND BASING ITS RECOMMENDATION CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. John Hirsh argues there was insufficient evidence for imputing his $75,000 as his yearly wage for purposes of calculating child support and spousal support. Mindy Hirsh argues there was sufficient evidence to impute income to John Hirsh where he was underemployed. The issue raised by this assignment of error is whether there was competent, credible evidence upon which the trial -5- court could impute income to John Hirsh for the purpose of calculating child support and spousal support. For purposes of determining child support, the "potential income" of a parent may be imputed when that parent is unemployed or underemployed. R.C. 3113.215(A)(5). The question of whether a person is voluntarily unemployed or underemployed is a question of fact for the trial court and absent an abuse of discretion, that factual determination will not be disturbed on appeal. Rock v. Cabral (1993), 67 Ohio St.3d 108. In determining whether the trial court abused its discretion, an appellate court may not substitute its judgment on factual or discretionary issues for that of the trial court. Cherry v. Cherry (1981), 66 Ohio St.2d 348. An appellate court must give deference to a trial court's finding when it is supported by competent, credible evidence. Getter v. Getter (1993), 90 Ohio App.3d 1, 9. Once it is determined that a parent is voluntarily unemployed or underemployed, the trial court may determine their potential income. R.C. 3113.215(A)(5). Potential income represents the amount a parent would have earned if he or she had been fully employed. R.C. 3113.215(A)(5)(a). In calculating potential income a trial court must consider "the parent's employment potential and probable earnings based on the parent's recent work history, job qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides." See Rock citing R.C. 3113.215(A)(5)(a). -6- The evidence revealed that, as owner and operator of Hirsh Manufacturing, Hirsh set his own salary. He claimed his current salary was $50,000. However, his average income in the five years from 1988 to 1992 was $97,943.57. While John Hirsh elected to reduce his salary by more than 50% to account for the loss of business, the company's gross income did not decrease by the same margin. In calculating the potential income of John Hirsh, the trial court considered his current salary, his average income, and the gross income of Hirsh Manufacturing. The trial court clearly took into consideration the company's decline in profits by imputing his income to be $75,000 rather than $97,943.57. The trial court's imputed income is supported by and consistent with the company's gross profits which did not decline to the same degree as his salary. Therefore, there was competent, credible evidence to support the court's imputation of a $75,000 salary to John Hirsh for purposes of child support, and there was no abuse of its discretion. The award of spousal support also is within the discretion of trial court. Buckles v. Buckles (1988), 46 Ohio App.3d 102. Among the factors the trial court must consider in awarding spousal support are the income of the parties and the relative earning abilities of the parties. R.C. 3105.18(C)(1)(a) and (b). In this case there was competent, credible evidence that John Hirsh had an earning ability equal to or greater than $75,000 per year. Therefore, the trial court's imputation of a $75,000 salary to John -7- Hirsh for purposes of spousal support was not an abuse of discretion, and the first assignment of error is not well taken. Defendant's second assignment of error states: THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE CONFLICTING TESTIMONY AND EVIDENCE IN FINDING THE APPELLEE VOLUNTARILY OVER-EMPLOYED WHEN IMPUTING HER EARNINGS FROM AN ANNUALIZED $18,300 (32 HOURS/WEEK) DOWNWARD TO $10,000 (16 HOURS PER WEEK). John Hirsh argues imputing $10,000 as the income of Mindy Hirsh was against the manifest weight of the evidence. Mindy Hirsh argues there was competent credible evidence in support the trial court's finding. Thus, the issue is whether there was competent, credible evidence in support of the trial court's finding that Mindy Hirsh's income was $10,000. This court must give deference to the trial court's finding when it is supported by competent, credible evidence. Getter at 9, supra. At the time of hearing, Mindy Hirsh was employed at Therapy Specialists and earned $10.00 per hour and worked an average of approximately 20 hours per week. The evidence also revealed Mindy Hirsh had attempted to seek more gainful employment but had been unsuccessful. The trial court determined Mindy Hirsh would be required to work at least 20 hours per week. At her rate of pay of $10.00 per hour at 20 hours per week, the court estimated that she would earn approximately $10,000 per year. While this evidence may conflict with John Hirsh's assessment of Mindy Hirsh's earning potential, it was supported by competent, credible evidence. -8- Accordingly, the trial court did not abuse its discretion and the second assignment of error is not well taken. Defendant's third, ninth, and tenth assignments of error state: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW BY VIOLATING THE CONSUMER CREDIT PROTECTION ACT 15 U.S.C., SECTION 1673 AND OHIO REVISED CODE SECTION 3113.21(B)(1)(A). THE TRIAL COURT ERRED HAVING APPELLANT PAY 85% OF THE MEDICAL AND DENTAL OUT-OF-POCKET COST AFTER THE FIRST $100.00 IS PAID BY APPELLEE FOR EACH CHILD. THE TRIAL COURT ERRED AS A MATTER OF LAW, WHEN IT FAILED TO CONSIDER ACTUAL EARNINGS OF THE TWO PARTIES WHEN COMPLETING THE CHILD SUPPORT COMPUTATION SHEET AND BONUS CALCULATION. The third, ninth, and tenth assignments of error are premised upon John Hirsh's argument that his income is only $50,000 and Mindy Hirsh's income ranges from $17,000 to $19,182. Mindy Hirsh argues that these income amounts are inconsistent with the trial court's findings. Because these assignments of error are premised upon the same argument, they will be considered together. In re Grant (1978), 56 Ohio App.2d 207. The primary issue is whether the trial court abused its discretion in determining the respective income of the parties. Appellate courts need not address assignments of error on the merits if they are made moot by a ruling on another assignment of error. App.R. 12(A)(1)(c). See, also, Id. Staff Note (July 1, 1992 Amendment). In reviewing the first and second assignments of error, this court held that the trial court's assessment of the -9- income of the parties at $75,000 for John Hirsh and $10,000 for Mindy Hirsh was supported by competent, credible evidence, and the trial court did not abuse its discretion in those findings. Consequently, John Hirsh's third, ninth, and tenth assignments of error are moot, and not well taken. Defendant's fourth assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN FAILING TO CONSIDER THE EVIDENCE AND TESTIMONY BY AWARDING TO APPELLEE AN EXCESSIVE AMOUNT OF SUPPORT. John Hirsh argues he has insufficient earnings to live and meet his spousal support obligations. His argument is premised upon the hardship he is suffering as a result of the divorce. Mindy Hirsh argues the facts in support of this assignment of error are not properly before this court. Thus, the primary issue is whether John Hirsh improperly argues facts not in evidence. "The purpose of spousal support is to mitigate the drastic and abrupt lifestyle changes occasioned upon either party by divorce." Fletcher v. Fletcher (June 28, 1995), Montgomery App. No. 90-DR- 31, unreported. The factors set forth in R.C. 3105.18(C) are tailored with that purpose in mind. See Id. However, in reviewing a trial court's decision with respect to spousal support, the appellate court can only consider the evidence that was before the trial court. See State v. Ishmail (1978), 54 Ohio St.2d 402. In order to demonstrate his financial hardship, John Hirsh makes reference to his financial status from the date of the temporary alimony hearing in May of 1992 to April 5, 1995 after -10- final judgment was issued. The appropriate remedy, when there is a change in a party's circumstances after a divorce decree, is to file a motion to modify under R.C. 3105.18(E). Nonetheless, because the evidence advanced by John Hirsh has not been considered by the trial court, we cannot review it, and must presume the trial court did not abuse its discretion. Therefore, the fourth assignment of error is not well taken. Defendant's fifth assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO CONSIDER THE EVIDENCE AND TESTIMONY IN DETERMINING THE LEVEL OF NEED AS A REQUIREMENT FOR SUPPORT. John Hirsh argues the trial court abused its discretion by accepting Mindy Hirsh's estimated monthly living expenses of $3,895. Mindy Hirsh argues her estimated monthly expenses were reasonable. Thus, the issue is whether there is competent, credible evidence to support her estimated monthly living expenses. In this case there is no dispute that Mindy Hirsh submitted a budget which indicates monthly expenses of $3,895. John Hirsh simply asked this court to find her budget to be unreasonable, but produces no evidence that it was inconsistent with their standard of living. Mindy Hirsh, however, has presented competent, credible evidence in support of her monthly household budget. Consequently, this court must give deference to the trial court's findings of fact. See Getter at 9, supra. Therefore, the fifth assignment of error is not well taken. Defendant's sixth assignment of error states: -11- THE TRIAL COURT'S AWARD OF ATTORNEY FEES IN THE LUMP-SUM AMOUNT OF $10,000 TO APPELLEE IN 6 MONTHS FROM THE DATE OF JOURNALIZATION IS UNREASONABLE, ARBITRARY AND TOTALLY UNSUPPORTED BY THE EVIDENCE AND CIRCUMSTANCES HEREIN. John Hirsh argues it was an abuse of discretion to award Mindy Hirsh $10,000 in attorney fees and make them payable within six months. Mindy Hirsh argues there was competent, credible evidence to support the $10,000 award of attorney fees and the trial court did not abuse its discretion. Thus, the issue before this court is whether the trial court abused its discretion. "Appellate review of attorney fee awards in domestic relations is limited to determine whether the factual considerations upon which the award was based are supported by the manifest weight of the evidence or whether the domestic relations court abused its discretion." Oatey v. Oatey (1992), 83 Ohio App.3d 251, 263. An "'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In this case, there was competent, credible evidence that Mindy Hirsh incurred $24,238.75 in attorney fees and in view of the relative income of the parties, it was reasonable to require John Hirsh to pay $10,000 of those attorney fees. Therefore, there was no abuse of discretion in the awarding of attorney fees, and the sixth assignment of error is not well taken. Defendant's seventh and eighth assignments of error state: -12- THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT CONSIDERED A LOAN MADE TO THE COMPANY AS A MARITAL ASSET. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN THE OUTSTANDING MORTGAGE OF THE MARITAL HOME SHOULD HAVE BEEN ADJUSTED BY THE APPELLANT'S PAYMENTS TO DATE OF JOURNALIZATION. Because these assignments of error are premised upon the same argument, they will be considered together. Grant, supra. John Hirsh argues the loan was an "after-acquired" asset in as much as it was made to the company after the parties were separated but before final judgment of divorce. He also argues it was an abuse of discretion to assign to the marital home the value it had at the time of the final hearing when its value increased by the time of the final judgment decree. Mindy Hirsh argues the marriage ended at time of the final hearing and the trial court properly considered the value of the marital home as of that date. The issue is whether, as a matter of law, the marriage ends for purposes of the division of marital assets at the date of final hearing. R.C. 3105.171(A)(2) provides: (2) "During the marriage" means whichever of the following is applicable: (a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation; (b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property.*** -13- In this case, the trial court did not designate specified dates for the duration of the marriage. Therefore, the duration of the marriage extended through the date of final hearing. Because the marriage extended to the date of final hearing, the trial court did not err in treating the loan as marital property and using the value of the home at the time of final hearing for purposes of the division of property. Therefore, the seventh and eighth assignments of error are not well taken. Defendant's eleventh assignment of error was withdrawn. Accordingly, the judgment of the trial court is affirmed. -14- Judgment affirmed. It is ordered that Appellee recover of Appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Peas 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. Exceptions. NAHRA, P.J., and KARPINSKI, J., CONCUR. TERRENCE O'DONNELL JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .