Tyler v. Tyler
2010-Ohio-1428
Eighth Appellate District
Cuyahoga County
-Spousal Support - "Tacking" of previous marriage
Plaintiff-appellant Kenneth Tyler appeals the portion of his divorce decree dividing property and awarding spousal support to Diana Tyler. Specifically, Kenneth objects to the lifetime award of spousal support.
Kenneth and Diana were first married in February 1989 and divorced in 1993. They reunited, began living together again in 1996 and were remarried in July of 2002. The couple separated in 2008. At the time of their second divorce, Diana was receiving permanent disability in the amount of $753 per month while Kenneth anticipated earning $74,000 in that respective calendar year.
After a hearing, the trial court determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court. Kenneth asserts that the trial court erred when it ordered him to pay "lifetime spousal support for a marriage lasting 6.5 years." The appellate court affirmed.
From the Opinion:
{¶ 13} Specifically, Kenneth argues that the trial court’s decision — making the spousal support indefinite — was not consistent with the Ohio Supreme Court’s holding in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83. in Kunkle, the Ohio Supreme Court held, at paragraph one of the syllabus:"Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties’ rights and responsibilities."
{¶ 14} Notably, however, the Kunkle court also recognized that "providing a termination date is not legally mandated and, in some situations, it could work a hardship on either the payor or payee. " Id. at 68, quoting Koepke v. Koepke (1983), 12 Ohio App.3d 80, 81, 466 N.E.2d 570. The high court further pointed out that "if under reasonable circumstances a divorced spouse does not have the resources, ability or potential to become self-supporting, then an award of
sustenance alimony for life would be proper." (Emphasis sic.) Id. at 69.
{¶ 15} In the present case, the trial court found that Diana suffered from obsessive compulsive disorder with depression and "has been deemed by the Social Security Administration to be permanently disabled." The court further found that Diana’s disability prevents her from seeking gainful employment and that she "cannot complete her daily activities of life." And based on a report from the SSA, the court also determined that Diana "cannot maintain employment," and that her income from Social Security disability was $9,036 per year.
{¶ 16} The trial court considered that Kenneth’s income was $74,000 per year and that he was "gainfully employed in an area that is highly specialized."
{¶ 17} The trial court then determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court.
{¶ 19} Although the trial court in this case found the duration of the marriage to be 6.5 years, it also heard evidence that the parties were previously married and that they lived together all but three years since they were first married in 1989 (thus, all but three out of 20 years). Under similar circumstances, the Ninth District upheld an indefinite spousal support. See Moore v. Moore (1992), 83 Ohio App.3d 75, 613 N.E.2d 1097. In Moore, the parties were married twice, with the second marriage lasting only four years. The court found that "the previous legal, marital relationship [was] relevant to the trial court’s decision to award spousal support" under R.C. 3105.18(C)(1)(n) ("any other factor that the court *** finds to be relevant and equitable"). See, also, Jernigan v. Jernigan (July 2, 1998), 8th Dist. No. 72899 (recognizing the principle set forth in Moore that the parties’ first marriage may be considered in determining spousal support for the second marriage); Swartz v. Swartz (Feb. 24, 1997), 12th Dist. No. CA96-07-063 (parties’ first marriage may be relevant to a spousal support determination).
{¶ 20} Moreover, the trial court (unlike the trial court in Kunkle) reserved jurisdiction to modify the amount and the term of the spousal support award pursuant to R.C. 3105.18(E). The failure to assign a termination date is not a lifetime award where the court retains continuing jurisdiction to decrease or terminate the spousal support based on a change in either party’s circumstances. Donese v. Donese (Apr. 10, 1998), 2d Dist. No. 97CA70. And at a modification hearing, the court can once again determine if it is appropriate to set a termination date. See Vanke v. Vanke (1992), 80 Ohio App.3d 576, 581, 609 N.E.2d 1328. Accordingly, appellant is not without a remedy should future facts demonstrate a modification is warranted.
Monday, April 26, 2010
Termination of Parenting Time (Juvenile Visitation)
Dubec v. Pochiro
2010-Ohio-1293
Seventh District Court of Appeals
Mahoning County
Juvenile Visitation
Defendant-appellant Christopher Pochiro appeals a decision terminating visitation with his fourteen-year-old daughter (Lana) and reducing his contact to weekly phone calls. The parties were never married. Several years of battling and one relocation resulted in Pochiro being granted the Standard Order of Visitation with visitation to take place at the paternal grandmother’s residence. The Order was effective September 15, 2008.
On October 8, 2008, less than a month after the Order took effect, Pochiro’s mother died. Pochiro exercised his regularly scheduled visitation the weekend of the funeral. During the weekend, the police were called to Pochiro’s residence. After Lana expressed concerns regarding her safety, the police decided to remove her from Pochiro’s care and placed her in the temporary custody of her maternal aunt. Venuto (Plaintiff-appellee) filed a motion to suspend visitation. After a hearing the court terminated Pochiro’s physical visitation with Lana, but did allow weekly telephone contact. On appeal, Pochiro asserted three assignments of error. All of which were found to have merit.
From the Opinion:
{¶23} Generally, the trial court looks only to the factors enumerated in R.C. 3109.051(D) and determines if modification of visitation is in the best interest of the child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist. No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction with other factors derived from caselaw to protect against infringement upon an individual’s constitutional rights. Id.
{¶24} This court has specifically held that "[t]he nonresidential parent has a fundamental and natural right to visitation." Anderson v. Anderson (2002), 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. "The child also has a fundamental right to visitation with the nonresidential parent." Id., citing Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.
{¶25} Concerning this fundamental right of the nonresidential parent to visitation with their child, this court has also noted that the right should be denied only under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of proof is on the one contesting visitation to demonstrate extraordinary circumstances by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d 213.
{¶26} Pettry identified two extraordinary circumstances that would qualify: (1) if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child. Another court has held that it would be an extraordinary circumstance if the noncustodial parent were imprisoned for a term of years for a crime of violence. In re Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry and Hall are not meant to provide an exclusive list of possible extraordinary circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual battery against subject child’s stepsister). Once the custodial parent proves the existence of an extraordinary circumstance, the burden shifts back to the noncustodial parent to prove that any visitation would be in the best interests of the child. Id.
{¶30} Given that the trial court terminated Pochiro’s constitutionally protected visitation rights, we must now review the court’s judgment based on the standard elucidated above. The trial court did review Lana’s best interests under the factors enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4); her adjustment to home, school, and community; R.C.3109.051(D)(5); her wish to not spend time with Pochiro, R.C. 3109.051(D)(6); and the "perceived safety of the child," R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment entry reveals that it did not make the required initial finding that there was clear and convincing evidence of extraordinary circumstances that would justify terminating Pochiro’s visitation rights. The trial court skipped that step and instead limited its review to R.C. 3109.051(D)’s best interests of the child factors.
2010-Ohio-1293
Seventh District Court of Appeals
Mahoning County
Juvenile Visitation
Defendant-appellant Christopher Pochiro appeals a decision terminating visitation with his fourteen-year-old daughter (Lana) and reducing his contact to weekly phone calls. The parties were never married. Several years of battling and one relocation resulted in Pochiro being granted the Standard Order of Visitation with visitation to take place at the paternal grandmother’s residence. The Order was effective September 15, 2008.
On October 8, 2008, less than a month after the Order took effect, Pochiro’s mother died. Pochiro exercised his regularly scheduled visitation the weekend of the funeral. During the weekend, the police were called to Pochiro’s residence. After Lana expressed concerns regarding her safety, the police decided to remove her from Pochiro’s care and placed her in the temporary custody of her maternal aunt. Venuto (Plaintiff-appellee) filed a motion to suspend visitation. After a hearing the court terminated Pochiro’s physical visitation with Lana, but did allow weekly telephone contact. On appeal, Pochiro asserted three assignments of error. All of which were found to have merit.
From the Opinion:
{¶23} Generally, the trial court looks only to the factors enumerated in R.C. 3109.051(D) and determines if modification of visitation is in the best interest of the child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist. No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction with other factors derived from caselaw to protect against infringement upon an individual’s constitutional rights. Id.
{¶24} This court has specifically held that "[t]he nonresidential parent has a fundamental and natural right to visitation." Anderson v. Anderson (2002), 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. "The child also has a fundamental right to visitation with the nonresidential parent." Id., citing Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.
{¶25} Concerning this fundamental right of the nonresidential parent to visitation with their child, this court has also noted that the right should be denied only under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of proof is on the one contesting visitation to demonstrate extraordinary circumstances by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d 213.
{¶26} Pettry identified two extraordinary circumstances that would qualify: (1) if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child. Another court has held that it would be an extraordinary circumstance if the noncustodial parent were imprisoned for a term of years for a crime of violence. In re Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry and Hall are not meant to provide an exclusive list of possible extraordinary circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual battery against subject child’s stepsister). Once the custodial parent proves the existence of an extraordinary circumstance, the burden shifts back to the noncustodial parent to prove that any visitation would be in the best interests of the child. Id.
{¶30} Given that the trial court terminated Pochiro’s constitutionally protected visitation rights, we must now review the court’s judgment based on the standard elucidated above. The trial court did review Lana’s best interests under the factors enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4); her adjustment to home, school, and community; R.C.3109.051(D)(5); her wish to not spend time with Pochiro, R.C. 3109.051(D)(6); and the "perceived safety of the child," R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment entry reveals that it did not make the required initial finding that there was clear and convincing evidence of extraordinary circumstances that would justify terminating Pochiro’s visitation rights. The trial court skipped that step and instead limited its review to R.C. 3109.051(D)’s best interests of the child factors.
Thursday, April 8, 2010
Social Security Benefits to Offset Public Pension
Obar v. Obar
2010-Ohio-1333
Fifth District
Ashland County
-Social security benefits evaluated in relation to the other party’s interest in a public pension
Plaintiff-Appellant, Richard Don Obar appeals from the Decree of Divorce entered by the Ashland County DR Court. The appellant raised two assignments of error, but for the purposes of this review, we will only discuss the social security offset.
Appellant argues that the trial court erred by not considering the hypothetical Social Security offset against appellants PERS pension. Specifically, appellant argues that because appellee’s social security retirement benefits are not subject to division then the fact that appellant’s PERS is subject to division, and was, in fact, divided by the trial court, such division would obviously be unfair unless the PERS value is adjusted for the discrepancy.
After determining that "illumination of this issue is warranted," the court examines several approaches to considering social security benefits when dividing a public pension. The court examined Cornbleth v. Cornbleth, 580 A.2d 369, 372 (calculation of a hypothetical social security benefit to deduct from the public pension), Neville v. Neville, 791 N.E.2d 434 (the trial court may consider the parties’ future Social Security benefits in relation to all marital assets) and R.C. 3105.171(F)(9).
The trial court’s decision was upheld on the basis of R.C. 3105.171(F)(9) which, when enacted in April of 2009, made it clear that the trial court has discretion as to whether to consider social security benefits in dividing a public pension.
From the Opinion:
{¶18} "In the leading case of Cornbleth v. Cornbleth (1990), 397 Pa.Super. 421, 427, 580 A.2d 369, 372, the court stated:
{¶19} "’To facilitate a process of equating [public pension participants] and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the [public plan] participant been participating in the Social Security system. This present value should then be deducted from the present value of the [public pension] at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.'
{¶20} "This formula, which calculates a ‘hypothetical Social Security benefit’ for a party who has, in reality, participated in a public retirement plan, not Social Security, and then deducts that hypothetical amount from the public pension, has been adopted by several appellate districts in Ohio.
{¶21} "[T]he Cornbleth method seems to be both the most thorough and the most equitable under the circumstances presented herein. Specifically, this method appears to give both parties comparable credit in terms of the years of participation in their respective programs, whereas, in practice, the other methods may well penalize the PERS participant by subjecting a larger proportionate share of that spouse's retirement to division as a marital asset. On remand, the trial court should apply the Cornbleth formula of calculation* * *." Id. at 30-32.
{¶25} "However, as appellant concedes, the Ohio Supreme Court has not mandated the Cornbleth approach as the preferred method of addressing these types of private/public retirement benefit scenarios. Moreover, our most recent ruling in this realm can be found in Back v. Back (Dec. 29, 1999), Richland App. No. 99 CA 46, unreported. In that case, appellant wife was employed by the City of Mansfield and participated in PERS, the public employees' retirement plan. Appellee husband worked for a waste management company, participating in social security but not in any pension plans. We held: Upon reconsideration, we find the trial court did not abuse its discretion in calculating the division of retirement benefits on remand even though the trial court did not follow the mandate of this court. We conclude, as did the trial court, the proper division of retirement benefits is to subtract appellee's potential social security benefit from appellant's potential PERS benefit and divide the remaining portion of the potential monthly PERS benefit equally between the parties. Id. at 2." Id at 2.
{¶27} The cases appellant cites pre-date the Ohio Supreme Court's decision in Neville. In Neville, the Court held that "to make an equitable distribution of marital property, [the trial court] may consider the parties' future Social Security benefits in relation to all marital assets." (Emphasis added.) Id at paragraph 11. As noted by the court in Rorick v. Rorick, Lorain App. No. 09CA009533, 2009-Ohio-3173. "Neville clearly does not mandate that the trial court consider Social Security benefits when equitably dividing marital assets." Id at paragraph 12.
{¶28} Subsequent to Neville, R.C. 3105.171(F)(9) was adopted, effective April 7, 2009. It states, "In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: …. (9) Any retirement benefits of the spouse, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension,…" While Neville allowed social security benefits to be considered against all martial assets, this section limits social security benefits to be considered "as may be relevant" in dividing public pensions. This statute took effect only days before the decree in this case. And this statute still seems to leave it to the
discretion of the trial court as to whether to consider said benefits in dividing a public pension. In addition, the statement of this assignment of error by the appellant specifically argues for the Cornbleth method, not the procedure set forth by us in Bourjaily or by the Ohio Supreme Court in Neville or by R.C. 3105.171(F)(9).
{¶29} We find, therefore, that the trial court did not err in refusing to consider appellant’s ypothetical social security offset against appellant’s PERS pension.
2010-Ohio-1333
Fifth District
Ashland County
-Social security benefits evaluated in relation to the other party’s interest in a public pension
Plaintiff-Appellant, Richard Don Obar appeals from the Decree of Divorce entered by the Ashland County DR Court. The appellant raised two assignments of error, but for the purposes of this review, we will only discuss the social security offset.
Appellant argues that the trial court erred by not considering the hypothetical Social Security offset against appellants PERS pension. Specifically, appellant argues that because appellee’s social security retirement benefits are not subject to division then the fact that appellant’s PERS is subject to division, and was, in fact, divided by the trial court, such division would obviously be unfair unless the PERS value is adjusted for the discrepancy.
After determining that "illumination of this issue is warranted," the court examines several approaches to considering social security benefits when dividing a public pension. The court examined Cornbleth v. Cornbleth, 580 A.2d 369, 372 (calculation of a hypothetical social security benefit to deduct from the public pension), Neville v. Neville, 791 N.E.2d 434 (the trial court may consider the parties’ future Social Security benefits in relation to all marital assets) and R.C. 3105.171(F)(9).
The trial court’s decision was upheld on the basis of R.C. 3105.171(F)(9) which, when enacted in April of 2009, made it clear that the trial court has discretion as to whether to consider social security benefits in dividing a public pension.
From the Opinion:
{¶18} "In the leading case of Cornbleth v. Cornbleth (1990), 397 Pa.Super. 421, 427, 580 A.2d 369, 372, the court stated:
{¶19} "’To facilitate a process of equating [public pension participants] and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the [public plan] participant been participating in the Social Security system. This present value should then be deducted from the present value of the [public pension] at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.'
{¶20} "This formula, which calculates a ‘hypothetical Social Security benefit’ for a party who has, in reality, participated in a public retirement plan, not Social Security, and then deducts that hypothetical amount from the public pension, has been adopted by several appellate districts in Ohio.
{¶21} "[T]he Cornbleth method seems to be both the most thorough and the most equitable under the circumstances presented herein. Specifically, this method appears to give both parties comparable credit in terms of the years of participation in their respective programs, whereas, in practice, the other methods may well penalize the PERS participant by subjecting a larger proportionate share of that spouse's retirement to division as a marital asset. On remand, the trial court should apply the Cornbleth formula of calculation* * *." Id. at 30-32.
{¶25} "However, as appellant concedes, the Ohio Supreme Court has not mandated the Cornbleth approach as the preferred method of addressing these types of private/public retirement benefit scenarios. Moreover, our most recent ruling in this realm can be found in Back v. Back (Dec. 29, 1999), Richland App. No. 99 CA 46, unreported. In that case, appellant wife was employed by the City of Mansfield and participated in PERS, the public employees' retirement plan. Appellee husband worked for a waste management company, participating in social security but not in any pension plans. We held: Upon reconsideration, we find the trial court did not abuse its discretion in calculating the division of retirement benefits on remand even though the trial court did not follow the mandate of this court. We conclude, as did the trial court, the proper division of retirement benefits is to subtract appellee's potential social security benefit from appellant's potential PERS benefit and divide the remaining portion of the potential monthly PERS benefit equally between the parties. Id. at 2." Id at 2.
{¶27} The cases appellant cites pre-date the Ohio Supreme Court's decision in Neville. In Neville, the Court held that "to make an equitable distribution of marital property, [the trial court] may consider the parties' future Social Security benefits in relation to all marital assets." (Emphasis added.) Id at paragraph 11. As noted by the court in Rorick v. Rorick, Lorain App. No. 09CA009533, 2009-Ohio-3173. "Neville clearly does not mandate that the trial court consider Social Security benefits when equitably dividing marital assets." Id at paragraph 12.
{¶28} Subsequent to Neville, R.C. 3105.171(F)(9) was adopted, effective April 7, 2009. It states, "In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: …. (9) Any retirement benefits of the spouse, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension,…" While Neville allowed social security benefits to be considered against all martial assets, this section limits social security benefits to be considered "as may be relevant" in dividing public pensions. This statute took effect only days before the decree in this case. And this statute still seems to leave it to the
discretion of the trial court as to whether to consider said benefits in dividing a public pension. In addition, the statement of this assignment of error by the appellant specifically argues for the Cornbleth method, not the procedure set forth by us in Bourjaily or by the Ohio Supreme Court in Neville or by R.C. 3105.171(F)(9).
{¶29} We find, therefore, that the trial court did not err in refusing to consider appellant’s ypothetical social security offset against appellant’s PERS pension.
Sunday, March 28, 2010
Relocation of the Custodial Parent - What is the Trial Court Supposed to Determine?
Acus v. Acus
2010-Ohio-856
Twelfth District Court of Appeals
Madison County
-Custody: Relocation of Custodial Parent
Appellant-Mother appeals from the decision of the Madison County DR Court denying her request to relocate to Cleveland with her daughter following her divorce from Appellee-Father. Mother, as residential parent argues that pursuant to R.C. 3109.051, the DR Court erred in its decision preventing her from relocating.
The Appellate Court, after reviewing R.C. 3109.051 reversed and remanded finding that the DR Court did not comply with the required statute. In short, the statute gives the DR Court the authority to determine, at a hearing, whether it is in the best interest of the child to revise the parenting time schedule for the child. The statute does not give the DR Court the authority to prevent the residential parent from relocating with the child.
From the Opinion:
{¶12} R.C. 3109.051(G)(1), which deals with the requirements of a residential parent intending to relocate, states, in pertinent part:
{¶13} "If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. * * * Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child." (Emphasis added.)
{¶14} In turn, while the express terms of R.C. 3109.051(G)(1) permit the trial court to schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child," the statute "does not give the trial court the authority to prevent the residential parent from relocating with the child."[citations omitted].
{¶15} In this case, there were no prior agreements preventing Mother from relocating, nor were there any provisions in the dispositional order regarding her ability to relocate.2 See In re T.M. at ¶13, citing Williams v. Williams, Trumball App. No. 2002- T-0101, 2004-Ohio-3992; Kassavei, 2001 WL 589392 at *2; see, also, Zimmer v. Zimmer, Franklin App. No. 00AP-383, 2001-Ohio-4226, 2001 WL 185356, at *2-*4. As a result, and under the facts of this case, the trial court did not have the authority to prevent Mother from relocating to Cleveland with her minor daughter. Instead, pursuant to R.C. 3109.051(G)(1), the court could merely schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child."3 See In re Noble, 2001 WL 314889 at *2; Kassavei, 2001 WL 589392 at *2; Spain, 1995 WL 380067 at *2. Therefore, because the trial court's decision preventing Mother from relocating with her daughter outside of the "Madison County area" was contrary to law, appellant's assignments of error are sustained and this matter is remanded for further proceedings. Kassavei, 2001 WL 589392 at *2.
2010-Ohio-856
Twelfth District Court of Appeals
Madison County
-Custody: Relocation of Custodial Parent
Appellant-Mother appeals from the decision of the Madison County DR Court denying her request to relocate to Cleveland with her daughter following her divorce from Appellee-Father. Mother, as residential parent argues that pursuant to R.C. 3109.051, the DR Court erred in its decision preventing her from relocating.
The Appellate Court, after reviewing R.C. 3109.051 reversed and remanded finding that the DR Court did not comply with the required statute. In short, the statute gives the DR Court the authority to determine, at a hearing, whether it is in the best interest of the child to revise the parenting time schedule for the child. The statute does not give the DR Court the authority to prevent the residential parent from relocating with the child.
From the Opinion:
{¶12} R.C. 3109.051(G)(1), which deals with the requirements of a residential parent intending to relocate, states, in pertinent part:
{¶13} "If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. * * * Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child." (Emphasis added.)
{¶14} In turn, while the express terms of R.C. 3109.051(G)(1) permit the trial court to schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child," the statute "does not give the trial court the authority to prevent the residential parent from relocating with the child."[citations omitted].
{¶15} In this case, there were no prior agreements preventing Mother from relocating, nor were there any provisions in the dispositional order regarding her ability to relocate.2 See In re T.M. at ¶13, citing Williams v. Williams, Trumball App. No. 2002- T-0101, 2004-Ohio-3992; Kassavei, 2001 WL 589392 at *2; see, also, Zimmer v. Zimmer, Franklin App. No. 00AP-383, 2001-Ohio-4226, 2001 WL 185356, at *2-*4. As a result, and under the facts of this case, the trial court did not have the authority to prevent Mother from relocating to Cleveland with her minor daughter. Instead, pursuant to R.C. 3109.051(G)(1), the court could merely schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child."3 See In re Noble, 2001 WL 314889 at *2; Kassavei, 2001 WL 589392 at *2; Spain, 1995 WL 380067 at *2. Therefore, because the trial court's decision preventing Mother from relocating with her daughter outside of the "Madison County area" was contrary to law, appellant's assignments of error are sustained and this matter is remanded for further proceedings. Kassavei, 2001 WL 589392 at *2.
Amending a QDRO That Does Not Reflect a Divorce Decree's Intent
Schneider v. Schneider
2010-Ohio-534
Fifth Appellate District
Stark County
-Qualified Domestic Relations Orders (QDRO)
Appellant, Paul and Appellee Helen were divorced on November 7, 1996. The decree divided appellant’s pension equally (50/50). A QDRO was filed and approved by the trial court on March 4, 1997. Upon retiring on December 31, 2008, appellant discovered appellee woudl receive fifty percent of his pension for the entire period of his employment rather than for the years of the parties’ marriage.
On October 28, 2008, appellant filed a motion for clarification. On March 30, 2009, the trial court found no ambiguity in its order and denied appellant’s motion for clarification. Appellant appealed claiming the QDRO incorrectly applied a coverture formula because of an ambiguity in the divorce decree’s award of pension benefits.
The QDRO language included the 50% of the "Marital Portion of the Partifipant’s Accrued Benefit," but the denominator as defined extended the benefit to the entire time the appellant participated in the plan. The ultimate result was that appellee would receive a benefit for some twelve years beyond the termination of marriage.
After finding that the QDRO acknowledged it pertained only to the marital portion the appellate court reversed and remanded the trial court to modify the QDRO to correct the clear error in the denominator.
From the Opinion:
{¶10} "The trial court has broad discretion in clarifying ambiguous language by considering not only the intent of the parties but the equities involved.***An interpretive decision by the trial court cannot be disturbed upon appeal absent a showing of an abuse of discretion.***" Bond v. Bond (1990), 69 Ohio App.3d 225, 227-228, citations omitted. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶11} In Mckinney v. Mckinney (2001), 142 Ohio App.3d 604, 608, our brethren from the Second District explained the following:
{¶12} "A QDRO is a current distribution of the rights in a retirement account that is payable in the future, when the payee retires. It is ordinarily issued subsequent to and separate from the decree of divorce itself, after the employer payor has approved its terms as conforming with the particular pension plan involved. A QDRO is, therefore, merely an order in aid of execution on the property division ordered in the divorce decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which R.C. 3109.171(I) prohibits, and the court does not lack jurisdiction to issue it. Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036, unreported."
{¶16} The QDRO filed March 4, 1997 specifically stated the following:
{¶17} "7. Amount of Alternate Payee's Benefit: This Order assigns to Alternate Payee an amount equal to the actuarial equivalent of Fifty Percent (50%) of the Marital Portion of the Participant's Accrued Benefit under the Plan as of the Participant's benefit commencement date, or the Alternate Payee's benefit commencement date, if earlier. The Marital Portion shall be determined by multiplying the Participant's Accrued Benefit by a fraction (less than or equal to 1.0), the numerator of which is the number of months of the Participant's participation in the Plan earned during the marriage (from June 8, 1968 to November 7, 1996), and the denominator of which is the total number of months of the Participant's participation in the Plan as of the earlier of his date of cessation of benefit accruals or the date that Alternate Payee commences her benefits hereunder."
{¶18} The QDRO language includes the fifty percent of the "Marital Portion of the Participant's Accrued Benefit," but the denominator as defined extends the benefit to the entire time appellant participated in the plan. The ultimate result is that appellee will receive a benefit for some twelve years beyond the termination of the marriage.
{¶19} As explained in McKinney, supra, a QDRO is basically a vehicle to effectuate the provisions of a divorce decree. It is the equivalent of a quitclaim deed. A trial court therefore has the right and privilege to amend a QDRO that does not reflect a divorce decree's intent.
{¶20} As we read the divorce decree in toto, paragraph five cited supra divided a marital asset; therefore, the retirement benefit should be determined by the amount of time the parties were married. See, R.C. 3105.171(A)(3)(a). Even the QDRO acknowledges it pertains to the marital portion.
2010-Ohio-534
Fifth Appellate District
Stark County
-Qualified Domestic Relations Orders (QDRO)
Appellant, Paul and Appellee Helen were divorced on November 7, 1996. The decree divided appellant’s pension equally (50/50). A QDRO was filed and approved by the trial court on March 4, 1997. Upon retiring on December 31, 2008, appellant discovered appellee woudl receive fifty percent of his pension for the entire period of his employment rather than for the years of the parties’ marriage.
On October 28, 2008, appellant filed a motion for clarification. On March 30, 2009, the trial court found no ambiguity in its order and denied appellant’s motion for clarification. Appellant appealed claiming the QDRO incorrectly applied a coverture formula because of an ambiguity in the divorce decree’s award of pension benefits.
The QDRO language included the 50% of the "Marital Portion of the Partifipant’s Accrued Benefit," but the denominator as defined extended the benefit to the entire time the appellant participated in the plan. The ultimate result was that appellee would receive a benefit for some twelve years beyond the termination of marriage.
After finding that the QDRO acknowledged it pertained only to the marital portion the appellate court reversed and remanded the trial court to modify the QDRO to correct the clear error in the denominator.
From the Opinion:
{¶10} "The trial court has broad discretion in clarifying ambiguous language by considering not only the intent of the parties but the equities involved.***An interpretive decision by the trial court cannot be disturbed upon appeal absent a showing of an abuse of discretion.***" Bond v. Bond (1990), 69 Ohio App.3d 225, 227-228, citations omitted. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶11} In Mckinney v. Mckinney (2001), 142 Ohio App.3d 604, 608, our brethren from the Second District explained the following:
{¶12} "A QDRO is a current distribution of the rights in a retirement account that is payable in the future, when the payee retires. It is ordinarily issued subsequent to and separate from the decree of divorce itself, after the employer payor has approved its terms as conforming with the particular pension plan involved. A QDRO is, therefore, merely an order in aid of execution on the property division ordered in the divorce decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which R.C. 3109.171(I) prohibits, and the court does not lack jurisdiction to issue it. Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036, unreported."
{¶16} The QDRO filed March 4, 1997 specifically stated the following:
{¶17} "7. Amount of Alternate Payee's Benefit: This Order assigns to Alternate Payee an amount equal to the actuarial equivalent of Fifty Percent (50%) of the Marital Portion of the Participant's Accrued Benefit under the Plan as of the Participant's benefit commencement date, or the Alternate Payee's benefit commencement date, if earlier. The Marital Portion shall be determined by multiplying the Participant's Accrued Benefit by a fraction (less than or equal to 1.0), the numerator of which is the number of months of the Participant's participation in the Plan earned during the marriage (from June 8, 1968 to November 7, 1996), and the denominator of which is the total number of months of the Participant's participation in the Plan as of the earlier of his date of cessation of benefit accruals or the date that Alternate Payee commences her benefits hereunder."
{¶18} The QDRO language includes the fifty percent of the "Marital Portion of the Participant's Accrued Benefit," but the denominator as defined extends the benefit to the entire time appellant participated in the plan. The ultimate result is that appellee will receive a benefit for some twelve years beyond the termination of the marriage.
{¶19} As explained in McKinney, supra, a QDRO is basically a vehicle to effectuate the provisions of a divorce decree. It is the equivalent of a quitclaim deed. A trial court therefore has the right and privilege to amend a QDRO that does not reflect a divorce decree's intent.
{¶20} As we read the divorce decree in toto, paragraph five cited supra divided a marital asset; therefore, the retirement benefit should be determined by the amount of time the parties were married. See, R.C. 3105.171(A)(3)(a). Even the QDRO acknowledges it pertains to the marital portion.
Termination of Spousal Support Based on a Change in Circumstances
Tufts v. Tufts
2010-Ohio-641
Ninth District Court of Appeals
Summit County
-Spousal Support
Defendant-Appellant, Frederick N. Tufts ("Husband") appeals from the judgement of the Summit County DR Court denying his motion to terminate/modify spousal support being paid to Plaintiff-Appellee, Sandra L. Tufts ("Wife").
The parties were married for 35 years before divorcing in March of 1995. The Decree of Divorce awarded $2,500 per month to wife with the TC retaining jurisdiction to modify the amount of spousal support based on a change in circumstances. At the time of the divorce, Husband’s base salary was 107k, with his total compensation reaching 240k annually.
In 2000 Husband’s income dropped to approximately 64k. He filed a motion to modify and his spousal support obligation dropped to $1,600 per month. In May 2008, Husband filed a motion to modify on the basis of a change in circumstances as his income had dropped to 48k annually. Following a hearing, the magistrate denied Husband’s motion. Husband objected and the TC overruled those objections and adopted the magistrate’s findings.
On appeal, Husband asserted four assignments of error. The Ninth Circuit reversed after finding the TC erred by not making the requisite findings to establish jurisdiction over Husband’s motion to terminate. The reversal was based on what constitutes a "change in circumstances" under the recently decided Mandelbaum v. Mandelbaum.
From the Opinion:
{¶8} It is well established that R.C. 3105.18 requires a two-step analysis before an award of spousal support may be modified. Malizia v. Malizia, 9th Dist. No. 22565, 2005-Ohio-5186, at ¶8, citing Leighner v. Leighner (1986), 33 Ohio App.3d 214, 215. The first step is jurisdictional and requires the trial court to determine whether the original divorce decree provided continuing jurisdiction to modify the spousal support award, and if so, whether the circumstances of either party have changed. Malizia at ¶8. See, also, R.C. 3105.18(E). With respect to this jurisdictional hurdle, the Ohio Supreme Court has clarified that "[a] trial court lacks jurisdiction to modify a prior order of spousal support unless the decree of the court expressly reserved jurisdiction to make the modification and unless the court finds (1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree." (Emphasis added.) Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, at paragraph two of the syllabus. Once jurisdiction is established, the second step of the analysis requires the trial court to determine whether the existing support order should be modified in light of the change in circumstances that has occurred. Johnson v. Johnson, 9th Dist. No. 24159, 2008-Ohio-4557, at ¶7. Such a determination is conducted in consideration of the factors set forth in R.C. 3105.18(C). Id.
{¶9} Recently, this Court considered the implications of Mandelbaum when deciding appeals related to spousal support modification. Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, at ¶6-11. In doing so, we noted that "we are bound by the Supreme Court’s precedent which abrogated our holding in Kingsolver [reasoning that any change in circumstance could warrant a modification to spousal support] and concluded that in order to modify spousal support a trial court must have continuing jurisdiction and must find ‘(1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree.’" Johns at ¶8, quoting Mandelbaum at ¶33. In doing so, we held that, "because the trial court’s entry d[id] not include these findings, *** the trial court erred in modifying the spousal support award[.]" Id. at ¶10
{¶11} Upon review of the trial court’s July 2009 entry, it is apparent that the trial court did not make the requisite findings under Mandelbaum because it did not recount whether there was a substantial change in circumstances and that the change was not contemplated by the parties at the time of the divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10. Given that the trial court failed to make such findings to properly establish jurisdiction over this matter, it further erred in proceeding to the second step of the analysis where it determined whether the existing support order should be terminated or reduced. Mandelbaum v. Mandelbaum, 2d Dist. No. 21817, 2007-Ohio-6138, at ¶95 (concluding that a court may only proceed to the second step in the spousal support modification analysis once it has satisfied the first).
{¶12} Pursuant to the Supreme Court’s holding in Mandelbaum and this Court’s application of Mandelbaum in Johns, this matter must be remanded to the trial court for a determination of whether there was a substantial change in circumstances and whether the change was contemplated by the parties at the time of their divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10.
2010-Ohio-641
Ninth District Court of Appeals
Summit County
-Spousal Support
Defendant-Appellant, Frederick N. Tufts ("Husband") appeals from the judgement of the Summit County DR Court denying his motion to terminate/modify spousal support being paid to Plaintiff-Appellee, Sandra L. Tufts ("Wife").
The parties were married for 35 years before divorcing in March of 1995. The Decree of Divorce awarded $2,500 per month to wife with the TC retaining jurisdiction to modify the amount of spousal support based on a change in circumstances. At the time of the divorce, Husband’s base salary was 107k, with his total compensation reaching 240k annually.
In 2000 Husband’s income dropped to approximately 64k. He filed a motion to modify and his spousal support obligation dropped to $1,600 per month. In May 2008, Husband filed a motion to modify on the basis of a change in circumstances as his income had dropped to 48k annually. Following a hearing, the magistrate denied Husband’s motion. Husband objected and the TC overruled those objections and adopted the magistrate’s findings.
On appeal, Husband asserted four assignments of error. The Ninth Circuit reversed after finding the TC erred by not making the requisite findings to establish jurisdiction over Husband’s motion to terminate. The reversal was based on what constitutes a "change in circumstances" under the recently decided Mandelbaum v. Mandelbaum.
From the Opinion:
{¶8} It is well established that R.C. 3105.18 requires a two-step analysis before an award of spousal support may be modified. Malizia v. Malizia, 9th Dist. No. 22565, 2005-Ohio-5186, at ¶8, citing Leighner v. Leighner (1986), 33 Ohio App.3d 214, 215. The first step is jurisdictional and requires the trial court to determine whether the original divorce decree provided continuing jurisdiction to modify the spousal support award, and if so, whether the circumstances of either party have changed. Malizia at ¶8. See, also, R.C. 3105.18(E). With respect to this jurisdictional hurdle, the Ohio Supreme Court has clarified that "[a] trial court lacks jurisdiction to modify a prior order of spousal support unless the decree of the court expressly reserved jurisdiction to make the modification and unless the court finds (1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree." (Emphasis added.) Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, at paragraph two of the syllabus. Once jurisdiction is established, the second step of the analysis requires the trial court to determine whether the existing support order should be modified in light of the change in circumstances that has occurred. Johnson v. Johnson, 9th Dist. No. 24159, 2008-Ohio-4557, at ¶7. Such a determination is conducted in consideration of the factors set forth in R.C. 3105.18(C). Id.
{¶9} Recently, this Court considered the implications of Mandelbaum when deciding appeals related to spousal support modification. Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, at ¶6-11. In doing so, we noted that "we are bound by the Supreme Court’s precedent which abrogated our holding in Kingsolver [reasoning that any change in circumstance could warrant a modification to spousal support] and concluded that in order to modify spousal support a trial court must have continuing jurisdiction and must find ‘(1) that a substantial change in circumstances has occurred and (2) that the change was not contemplated at the time of the original decree.’" Johns at ¶8, quoting Mandelbaum at ¶33. In doing so, we held that, "because the trial court’s entry d[id] not include these findings, *** the trial court erred in modifying the spousal support award[.]" Id. at ¶10
{¶11} Upon review of the trial court’s July 2009 entry, it is apparent that the trial court did not make the requisite findings under Mandelbaum because it did not recount whether there was a substantial change in circumstances and that the change was not contemplated by the parties at the time of the divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10. Given that the trial court failed to make such findings to properly establish jurisdiction over this matter, it further erred in proceeding to the second step of the analysis where it determined whether the existing support order should be terminated or reduced. Mandelbaum v. Mandelbaum, 2d Dist. No. 21817, 2007-Ohio-6138, at ¶95 (concluding that a court may only proceed to the second step in the spousal support modification analysis once it has satisfied the first).
{¶12} Pursuant to the Supreme Court’s holding in Mandelbaum and this Court’s application of Mandelbaum in Johns, this matter must be remanded to the trial court for a determination of whether there was a substantial change in circumstances and whether the change was contemplated by the parties at the time of their divorce. Mandelbaum at paragraph two of the syllabus; Johns at ¶9-10.
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.
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.
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