Impact of Cohabitating Partners Income on Spousal Support Modification

Mustard v. Mustard
2010-Ohio-2175
Twelfth Appellate District
Warren County
-Spousal Support
Consideration of Current Spouses Income When Determining Support for Ex-Spouse

Anthony and Barbara Mustard were married in 1984. Their divorce was finalized in February of 2008. As part of the divorce decree, Anthony agreed to pay $500 per month in child support until the youngest child was emancipated, as well as $750 per month in spousal support for 72 months.

A year after the divorce, Anthony filed a motion to modify spousal support, citing a change in circumstances due to his decreased salary. Anthony, who was previously self-employed, closed his business and accepted employment at a company where he earned considerably less than he did while self-employed.

After a hearing on the issue, the magistrate decreased Anthony’s spousal support obligation to $500 after finding the requisite change in circumstances. Anthony appeals on several grounds, but for the purposes of this discussion, we will discuss the second Assignment of Error, that the trial court abused its discretion when it considered Anthony’s new spouses income for spousal support purposes. After distinguishing authority cited by Anthony, the appellate court found no merit to Anthony’s arguments when it upheld the trial court. The trial court held it was proper to consider the new spouses income “since Anthony is remarried and Barbara is not, he has help with the basic living expenses, whereas Barbara does not.”

From the Opinion:

{¶17} Essentially, Anthony argues that because the trial court considered his wife's earnings, his income was considered much greater than it actually is. However, the trial court never imputed the $45,000 salary to Anthony, and instead considered the fact that due to Angela's salary, he has help with his living expenses whereas Barbara does not.

{¶18} Anthony relies on Leopold v. Leopold, Washington App. No. 04CA14, 2005-Ohio-214, in which the Fourth District Court of Appeals upheld the trial court's decision not to consider the annual income of the appellant's live-in girlfriend when determining the proper amount of spousal support he owed his ex-wife. In determining that the girlfriend's income was not relevant, the court considered that appellant paid $500 per month in fixed living expenses and that his share of the expenses was the same regardless of how much his live-in girlfriend made. The court also refused to consider the girlfriend's earnings because there was no evidence to establish that
appellant and his girlfriend shared checking accounts or commingled their funds in anyway.

{¶19} While Anthony asks this court to apply the same logic as that applied by the Fourth District, the case at bar is readily distinguishable from Leopold. The trial court heard evidence that rather than having a live-in girlfriend who holds no legal status, Anthony has remarried and permanently resides with his new wife. Instead of trying to keep the evidence out of court as the appellant did in Leopold, Anthony testified on direct examination that his wife earned $45,000 per year. Unlike the girlfriend in Leopold who did not commingle funds with the appellant, Anthony verified on crossexamination that he deposits his earnings into a joint account with Angela and that their funds are commingled for purposes of paying household bills and expenses. The trial court's determination that Angela's income helps reduce Anthony's living expenses is markedly different than a trial court considering the income of a live-in girlfriend, and Anthony's reliance on Leopold is misplaced.

{¶20} The trial court considered Angela's earnings, as introduced by Anthony during the hearing, when considering the R.C. 3105.18 factors. However, the trial court did not include Angela's salary in Anthony's annual earnings, but rather determined that because of his wife's salary, Anthony's living expenses are reduced. See Manzella v. Manzella, Montgomery App. No. 20618, 2005-Ohio-4519, ¶12 (upholding trial court's decision to consider that an "obligor directly benefits from sharing living expenses with his new spouse," and such consideration is properly considered "as part of the 'any other factor' section of R.C. 3105.18[C][1][n]"); and Fisher v. Fisher, Fairfield App. No. 2008CA00049, 2009-Ohio-4739, ¶36, (finding no abuse of discretion where trial court considered the fact that appellant directly benefited from sharing living expenses because his new wife's income was "available for living expenses").

{¶21} Having found that the trial court did not abuse its discretion by considering the impact Angela's income has on Anthony, Anthony's second assignment of error is overruled.