COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68901 LINDA ENGLISH FKA RUBINO : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION COREY J. RUBINO, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : APRIL 4, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-201523 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Dennis G. Mille PHILLIPS AND MILLE CO., LPA 7530 Lucerne Drive, Suite 200 Middleburg Heights, Ohio 44130-6557 For defendant-appellant: Carl C. Monastra TURBOW, MONASTRA & MANDELL 75 Public Square Suite 700 Cleveland, Ohio 44113-2001 -2- NAHRA, J.: Appellant, Corey J. Rubino, is appealing the judgment of Cuyahoga County Common Pleas Court, Domestic Relations division denying appellant's motion to reduce support, granting appellee, Linda A. English's, motion to show cause for failure to pay support, finding appellant in contempt for non-payment of support, and ordering appellant to pay appellee money pursuant to the property division in the divorce decree. For the following reasons, we affirm in part and reverse in part. The parties were divorced on January 31, 1991. The agreed judgment entry of divorce required appellant pay child support of $325 per month for each of the parties' two children and spousal 1 support of $300 per month. Additionally, appellant agreed to pay certain marital debts. The parties agreed that appellant would transfer his interest in the marital home to appellee. An Equicard Loan existed against the marital home of $36,800. The parties agreed that appellee would re-finance this debt by obtaining a first mortgage on the marital home, as soon as was practicable after execution of the separation agreement. Appellee would be responsible for $30,000 of this debt. Appellant was required to pay appellee $6,800 plus interest in equal monthly installments to be computed by the mortgage table of the first mortgage, "... provided however that the entire unpaid principal balance shall be due and owing seven 1 Appellee remarried on May 2, 1992 and was not entitled to spousal support as of that date. -3- years from the effective date of this agreement." Appellee refinanced the loan on January 24, 1992. At the time of the separation agreement, appellant earned a salary of $38,600 as an assistant vice-president at Home Federal Savings Bank. Appellant attended law school part-time. On August 1, 1991, appellant was terminated from Home Federal because of a disagreement with his supervisor. The Bureau of Unemployment Compensation denied appellant's application for unemployment benefits, finding he was terminated for just cause. Appellant appealed this decision. The last support payment made by appellant was $150 in August, 1991. Appellant testified he made diligent efforts to look for work, but restricted his job search primarily to the fields of banking and law. He did apply for a few other types of jobs, such as convenience store clerk and gas station attendant. Appellant graduated from law school in the summer of 1991. In May, 1992, appellant passed the bar examination. As of the date of the hearing, June 26, 1992, appellant had not found any work. The referee found that appellant was voluntarily underemployed and was capable of working as an attorney. $36,000 annual income was imputed to appellant. The referee denied the modification of child support because the recalculated amount was less than ten percent of the current order. Appellant's arrearages in child and spousal support were computed as $10,705.30. Appellant was held in contempt for nonpayment of support and ordered to do community service unless -4- appellant could purge himself of contempt by paying an additional $100 per month towards the arrearage, and attorney fees of $2,487.50. Appellant was also ordered to pay $15,104.95 for previous division of property and debt, within 60 days of the order. Although the order does not specify, it appears from the record that the referee found appellant had to pay the following debts: Marital residence ($6,800 + interest) $ 7,839.95 Home Federal Mastercard ($5,542.47 + interest) 5,895.94 Bank Americard Mastercard ($1,320.93 + interest) 1,369.06 $15,104.95 The trial court essentially adopted the recommendations of the referee. I. Appellant's first assignment of error states: THE REFEREE AND THE TRIAL COURT ERRED AND ABUSED THEIR DISCRETION IN THE IMPUTATION OF A $36,000 ANNUAL SALARY TO THE DEFENDANT-APPELLANT ABSENT EVIDENCE THAT DEFENDANT WAS VOLUNTARILY UNDEREMPLOYED. The trial court may impute income to a parent for purposes of the child support guideline computation, only if the court first determines the parent is voluntarily unemployed or underemployed. R.C. 3113.215(A)(5), Rock v. Cabral (1993), 67 Ohio St.3d 108. "Voluntarily" means done by design or intention and not accidental. Rock v. Cabral, supra. In this case, appellant was terminated from -5- his job at Home Federal, and did not intentionally leave his employment. Appellant testified he made every effort to find work in the fields of banking and law, and also applied for a few other types of work. This testimony was uncontradicted and the referee's report did not state that this testimony was not credible. See Dixon v. Dixon (March 9, 1995), Cuyahoga App. No. 66997, unreported. The fact that appellant had not found any work in ten months is insufficient by itself to show appellant did not make diligent efforts to look for work, without any evidence of available job opportunities. The evidence does not support a determination that appellant voluntarily failed to look for work. Appellee argues that appellant was not diligent because he limited his job search to the areas of banking and law. Appellant testified that he did apply for a few other types of jobs. Additionally, the trial court imputed an income of $36,000 because appellant was capable of working as an attorney. The court did not impute income for the reason that appellant should have found a job outside his areas of expertise. The trial court erred in imputing $36,000 of income to appellant because the record did not show he failed to look for work as an attorney. Accordingly, this assignment of error is sustained. II. Appellant's second assignment of error states: -6- THE REFEREE AND THE TRIAL COURT ERRED AND ABUSED THEIR DISCRETION IN FAILING TO IMPUTE INCOME IN ACCORDANCE WITH THE CRITERIA ENUMERATED IN O.R.C. 3113.215(A)(5)(a). R.C. 3113.215(A)(5)(a) provides that potential income must be: ... determined from the parent's employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent reside[.] (Emphasis added.) R.C. 3113.215(A)(5)(a), see Rock, supra. There must be some evidence concerning the prevailing job opportunities and salary levels in the community, or the amount of imputed income determined by the court is merely arbitrary. Dixon v. Dixon (March 9, 1995), Cuyahoga App. No. 66997, unreported. In this case there was no evidence concerning the salary levels or job availability for new attorneys. The trial court's order imputing income was arbitrary and an abuse of discretion. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 142. Accordingly, this assignment of error is sustained. III. Appellant's third and fourth assignments of error are discussed together in appellant's brief. They state: III. THE REFEREEE (SIC) AND THE TRIAL COURT ERRED AND ABUSED THEIR DISCRETION IN IGNORING APPELLANT'S MOTIONS TO MODIFY SUPPORT AFTER DEFENDANT'S TERMINATION. IV. THE REFEREE AND THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST THE DEFENDANT- APPELLANT FOR A $10,705.30 SUPPORT ARREARAGE. -7- The denial of appellant's motion to modify support and determination of the support arrearage are both based upon the trial court's imputation of $36,000 of income to appellant. The trial court erred in imputing this income, so the orders flowing from this determination must be reversed. Accordingly, these assignments of error are sustained. IV. Appellant's fifth assignment of error states: THE REFEREE AND THE TRIAL COURT ERRED AND ABUSED THEIR DISCRETION IN GRANTING THE PLAINTIFF-APPELLEE'S MOTION TO SHOW CAUSE AND FINDING DEFENDANT-APPELLANT IN CONTEMPT OF COURT. A party cannot be held in contempt if it was not in their power to obey the court's order. Courtney v. Courtney (1984), 16 Ohio App.3d 329. If a parent has made a good faith effort to pay support, the parent cannot be held in contempt for non-payment of support. Id., see Allen v. Allen (1988), 59 Ohio App.3d 54. The burden is on the parent-obligor to prove he is unable to comply with the support order. Allen, supra, Pugh v. Pugh (1984), 15 Ohio St.3d 136. Appellant presented evidence that the loss of his job was not within his control, and that he made a diligent effort to look for work, at least in his area of expertise. Appellee contends appellant did not make a good faith effort to comply with the support order because appellant could have found temporary work in jobs not requiring banking or law expertise. The trial court made no determination that appellant should have looked for work outside -8- of banking or law. Whether appellant should be required to obtain work outside his area of expertise is a factual determination, depending on whether it appears appellant will be unable to find work in his area of expertise, whether temporary work will interfere with looking for a job, etc. Absent such a factual determination by the trial court, we cannot impose such a requirement on appellant. We find appellant proved he made a good faith effort to comply with the support order, but was unable to comply. Appellant should not have been held in contempt. Accordingly, this assignment of error is sustained. V. Appellant's sixth assignment of error states: THE REFEREE AND THE TRIAL COURT ERRED AND ABUSED THEIR DISCRETION IN ORDERING THAT A PAYMENT OF $15,104.95 BE MADE BY DEFENDANT-APPELLANT TO THE PLAINTIFF-APPELLEE AS A DIVISION OF PROPERTY WITHIN SIXTY DAYS OF THE JOURNALIZATION OF THE ORDER. The trial court has broad discretion and power to enforce a separation agreement incorporated into a divorce decree. See R.C. 3105.011, Saeks v. Saeks (1985), 24 Ohio App.3d 67. The trial court did not err in ordering appellant to pay marital debt to the extent required by the divorce decree. Appellant contends the trial court improperly admitted appellee's exhibits listing the balance due on the debts and computation of interest. These exhibits were not authenticated or identified by any witness. See Evid.R. 901(A). If error occurred -9- in the admission of these exhibits, the error was harmless. See Civ.R. 61. Appellee testified as to the balance due on the debts. Other properly admitted exhibits showed the applicable interest or interest rate. The court was capable of making its own calculations of interest. Appellant asserts the trial court erred in requiring appellant to pay the entire $6,800 of the mortgage debt, when the separation agreement requires only monthly payments with the entire principal due in seven years. The trial court's interpretation of the separation agreement was clearly erroneous and not in accordance with the plain, unambiguous terms of the separation agreement. See In re Dissolution of Marriage of Seders (9187), 42 Ohio App.3d 155. (The trial court has broad discretion to interpret the separation agreement if it is ambiguous.) The separation agreement did not provide for acceleration of the $6,800 principal, but stated that monthly payments would be made and the remaining unpaid principal would be due in seven years. The trial court erred in ordering appellant to pay the $6,800, but may order appellant to pay the monthly payments due from January 24, 1992. The trial court properly ordered appellant to pay the credit card debts. Accordingly, this assignment of error is sustained as to the mortgage debt and is otherwise overruled. The trial court's order that appellant pay certain credit card debts is affirmed. The trial court's orders imputing income to appellant, denying appellant's motion to modify support, determining the support arrearage, granting appellee's motion to -10- show cause and finding appellant in contempt, and ordering appellant to pay $6,800 on the mortgage debt are reversed. This case is remanded to the trial court for further proceedings consistent with this opinion. -11- This cause is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Costs to be divided equally between plaintiff-appellee and defendant-appellant. 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. HARPER, P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA 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 journalization, at which time .