Your CFL Credential has helped you with many aspects of case law, including child support. Sometimes, if the responsible party receives unusual forms of income, it can be hard to determine how much child support he or she must pay.

In the case of A.S. v. J.W., the mother had primary custody and sought a child support award from the father. As a result, Ohio laws over commissions in child support gross income calculations were put to the test.

At issue was whether the court should include a “one-time” commission the father earned in 2016. The law itself (O.R.C. 3119.05[D], below) mentions commissions, however, another passage just refers to bonuses or overtime:

“(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.)”

Lower Court Proceedings

The trial court magistrate included the commission in the gross income calculation together with the father’s average annual commission and his base salary. This made his income higher than in the three prior years.

In his appeal, the father testified that the larger commission was the result of four years of work and he wasn’t likely to receive it again. He thought the court shouldn’t use his most recent income to project his future earnings. He maintained that the statute requires that the courts look to the prior three years, not to the projections for the current year.

The appeals court considered the addition of “commissions” in subsections one and two of O.R.C. 3119.05(D) a legislative error and thought they shouldn’t be included in the gross income calculations.

It then concluded that two other statutory provisions, R.C. 3119.04(B) and 3119.05(H), gave the trial court leeway in its calculations. According to its decision, the provisions required the court to decide the child support obligation on a case-by-case basis when the parents’ combined gross incomes were more than $150,000 per year. And, when appropriate, the court “may average income over a reasonable period of years.”

The appeals court sided with the lower court and granted child support.

Ohio Supreme Court Decision

On the issue of the reference to “commissions” in O.R.C. 3119.05(D), the Supreme Court decided that the appeals court’s conclusion was itself a mistake.

In its ruling, the court added, “A fundamental canon of statutory interpretation is the presumption that each word in a statute was included by the legislature for a reason.” It further noted cases relevant to that determination.

“It is true that the use of the words ‘overtime and bonuses’ in the first portion of R.C. 3119.05(D) seems inconsistent with the dual references to ‘overtime, commissions, and bonuses’ in subsections (1) and (2). But ‘it is the duty of the court to give effect to the words used in a statute, not to delete words used or to insert words not used.’…For a court to find that the legislature committed a drafting error, such an error ‘must be manifest beyond doubt.’”

The Supreme Court concluded that commissions fall under the terms of R.C. 3119.05(D) and must be calculated as defined to determine a parent’s annual gross income. The court also ruled that the trial court shouldn’t have used the current year’s projected commissions when it calculated the average commissions to include in the father’s total annual gross income.

“Instead, the court should have used the average of the commissions earned during 2013, 2014, and 2015, or the commissions earned in 2015, whichever is lower.”

The Supreme Court reversed the decision and returned the case for a new trial, having ruled to exclude one-time commissions or awards from gross income calculations of child support. It reasoned that commissions that are likely to continue should be treated like bonuses and overtime and included.

Calculating these and other forms of income for child support can be confusing. Our CFL course explains the legal requirements and simplifies the process. Learn more in our free information packet today!


Google Scholar. Supreme Court of Ohio. A.S. v. J.W. 2019. [online]. Available at: https://scholar.google.com/scholar_case?case=13578375123599310077&q=A.S.+v.+J.W.,+2019-Ohio-2473&hl=en&as_sdt=40000006&as_vis=1 [Accessed 16 Jul. 2019].