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A.S. v. J.W.

Supreme Court of Ohio

June 25, 2019

A.S., Appellee,
v.
J.W., Appellant.

          Submitted January 30, 2019

          Appeal from the Court of Appeals for Lucas County, No. L-17-1099, 2018-Ohio-1001.

          Julianne Renee Krell Pickard and Jay E. Feldstein, for appellee.

          Jeffrey P. Nunnari, for appellant.

          DeWine, J.

         {¶ 1} This case presents a question of statutory construction relevant to the calculation of child support. Under R.C. Chapter 3119, in order to set the amount of a child-support award, a court must calculate the annual income of each parent. The issue here concerns the manner in which earnings from commissions figure into this calculation. The parties disagree about the proper construction of a statute, R.C. 3119.05(D), and, specifically, whether it prescribes how to calculate earnings from commissions. We conclude that this provision does cover commissions and that the courts below erred by failing to apply its mandatory terms.

         I. The statutory provision at issue: R.C. 3119.05(D)

         {¶ 2} We will get to the facts shortly, but before doing so it is helpful to say something about R.C. 3119.05(D), the statutory provision upon whose construction the outcome of this case turns.[1]

         {¶ 3} In order to determine a child-support award, a court must calculate the gross incomes of each parent. See R.C. 3119.021. R.C. 3119.05 contains a number of provisions relevant to the calculation of a parent's income and the determination of a child-support award. Among these is R.C. 3119.05(D).[2] That provision provides:

(D) When the court * * * calculates the gross income of a parent, it shall include the lesser of the following as income from overtime and bonuses:
(1) The yearly average of all overtime, commissions, and bonuses received during the three years immediately prior to the time when the person's child support obligation is being computed;
(2) The total overtime, commissions, and bonuses received during the year immediately prior to the time when the person's child support obligation is being computed.

(Emphasis added.)

         {¶ 4} The reader will note that subsections (1) and (2) refer to "overtime, commissions, and bonuses" but the introductory language speaks only of "overtime and bonuses." What to make of this difference-and specifically whether R.C. 3119.05(D) applies to income earned from commissions-is the nub of this appeal. We will return to this question after we explain what happened below.

         II. The proceedings below

         {¶ 5} In September 2015, A.S. ("Mother") filed a complaint against J.W. ("Father") asking the juvenile court to allocate parental rights and responsibilities and to establish a child-support award for their minor child. An evidentiary hearing was held in August 2016 to determine, among other matters, the incomes of the parties. Father testified that he had received a larger commission than usual that year based on the culmination of four years of work on a single account, but that such a commission was unlikely to recur. Following the hearing, the magistrate calculated the parties' relevant incomes as follows, including projected amounts for 2016:

YEAR

INCOME

2013

$122, 619

Mother

2014

$132, 147

2015

$131, 506

2016

$140, 000

YEAR

SALARY

COMMISSIONS

2013

$90, 000

$85, 280

2014

$90, 000

$246, 332

Father

2015

$90, 000

$212, 898

2016

$94, 000

$368, 794

         {¶ 6} In September 2016, the magistrate awarded child support to Mother in different amounts covering two time periods. The magistrate ordered that Father pay past child support in the amount of $3, 044.39 a month for the period from September 2015, when the complaint was filed, through the end of that year. The magistrate then increased the support award to $4, 372.32 a month effective January 1, 2016, an amount intended to reflect the ...


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