Spousal Support Modification - Examining the Obligee's "Need" for Spousal Support

Hutchinson v. Hutchinson
2010-Ohio-597
Twelfth District Court of Appeals
Clermont County
-Spousal Support

Defendant-Appellant, Pamel S. Hutchinson, appeals an order of the Clermont County DR Court reducing the spousal support obligation paid to her by Plaintiff-Appellee, Dennis R. Hutchinson upon his retirement.

After 31 years of marriage, the parties divorced in 1995. By Decree of Divorce, Dennis was ordered to pay Pamela 1k per month in spousal support until death with the TC retaining jurisdiction. Dennis retired in 2007 at the age of 62.

In 2008, Dennis moved to modify his spousal support obligation on the ground that his retirement had significantly decreased his annual income. Pamela moved to increase Dennis’ spousal support obligation on the grounds that she was unable to afford housing and that retirement had not significantly impacted Dennis’ income.

At a hearing held November 17, 2008, Dennis testified regarding the reduction in his income after divorce and also testified that after the divorce, Pamela’s gambling habits spun out of control. By his calculations, Pamela had spent up to 54k at local casinos in 2007. The magistrate found that there was a change in the parties’ circumstances justifying a reduction in, but not a termination of, Dennis’ spousal support obligation.

The magistrate found that Pamela had been gambling excessively and has been dissipating not only her income, but her assets and as such, Dennis should not be expected to subsidize Pamela’s excessive gambling. The magistrate found that $607 per month would provide for Pamela’s current needs but did not subsidize her gambling.

Pamela asserted two assignments of error on appeal. First, Pamela stated that the TC lacked jurisdiction to reduce Dennis’ spousal support obligation under Mandelbaum and the TC erred by reducing her spousal support. The Twelfth District affirmed the TC’s decision.

From the Opinion:

{¶19} Here, the change of circumstances for Dennis was his retirement from Ethicon in 2004. Pamela argues that Dennis' retirement was "voluntary" and therefore cannot be considered in determining whether a substantial change in circumstances occurred. However, this court has held that voluntary retirement "does not bar consideration of [a party's] decrease in income when determining if there was a substantial change of circumstances." Robinson v. Robinson (Apr. 4,
1994), Brown App. Nos. CA93-02-027, CA93-03-047, 1994 WL 110197, at *1.

{¶20} In evaluating the effects of Dennis' retirement upon his ability to pay spousal support, the magistrate concluded that "all of [Dennis'] investments have been declining in value." In addition, the magistrate accounted for the sharp decline in Dennis' annual income after retirement. Before retirement, Dennis made roughly $70,000 annually; after retirement, Dennis made only $36,300 annually, consisting of Social Security benefits of $1,600 per month ($19,200 per year) and a pension of $1,425 per month ($17,100 per year). In essence, Dennis' gross annual income after retirement was cut in half – a substantial change in circumstances by any standard.
See Carnahan, 118 Ohio App.3d 393 (the trial court did not abuse its discretion in finding a substantial change in circumstances where an obligor spouse made $72,000 annually before retirement and $19,000 afterward); Reveal v. Reveal, Montgomery App. No. 19812, 2003-Ohio- 5335, ¶18 ("a reduction in income due to voluntary retirement is literally a change of circumstances").

{¶21} Upon considering the foregoing, we cannot say that the trial court abused its discretion in upholding the magistrate's finding that Dennis' retirement caused a change in circumstances warranting a modification of the spousal support award.

{¶22} However, this does not end our examination of the change in Dennis' circumstances. Pamela also argues that Dennis' retirement was contemplated at the time of the divorce. At the divorce hearing in 1995, Dennis testified that he anticipated Ethicon would offer him an "early retirement package" on his 50th birthday, which fell in the fourth quarter of that year. However, when the offer failed to come, Dennis continued to work for Ethicon for nine more years until 2004. It is clear that the retirement Dennis contemplated at the time of the divorce was his "early retirement" in 1995 and not his actual retirement in 2004. Thus, Pamela's argument that Dennis' retirement in 2004 was necessarily contemplated at the time of divorce is without merit.

{¶23} Pamela next argues that even if the trial court had authority to review the spousal support award based on a change in circumstances, the trial court abused its discretion in adopting the magistrate's modification. Pamela claims that the magistrate failed to consider all relevant factors under R.C. 3105.18(C)(1) when he determined an unreasonably low spousal support figure. Pamela argues that in modifying the support award, the magistrate erred on three distinct fronts: (1) the modification was erroneously based solely on Pamela's "needs," [edited].

{¶31} In calculating the new spousal support award, the magistrate determined Pamela's "need" by totaling her monthly expenses and comparing them to her current assets, social security income, and benefits she received from Dennis' pension plan. The magistrate also assessed Dennis' post-retirement ability to pay spousal support by reviewing his pension benefits, social security income, and investment assets. Based on the totality of the parties' circumstances, the magistrate concluded that $607 per month was an appropriate amount of spousal support to
support Pamela's lifestyle, minus her gambling habits, and that Dennis had the "ability to pay" this amount, based on his reduced income.

{¶32} In sum, the magistrate factored Pamela's former standard of living into his calculations and determined that Dennis was not responsible for Pamela's deteriorated lifestyle; rather, Pamela's mismanaged finances and gambling habits were clearly to blame. Upon review of the record, we find that the magistrate's decision modifying the spousal support award is supported by the evidence, and that the trial court did not abuse its discretion in upholding the modification.