Opinion
Case No. 14-CA-00016
06-22-2015
CYNTHIA L. DOWNS Plaintiff - Appellee v. RICHARD L. DOWNS Defendant - Appellant
APPEARANCES: For Plaintiff-Appellee CAROLYN J. CARNES Morrow, Gordon and Byrd, Ltd. 33 W. Main Street P.O. Box 4190 Newark, OH 43058 For Defendant-Appellant SCOTT T. HILLIS 401 Market Street, Rm. 209 Zanesville, OH 43701
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Craig R.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 07-DV-00014 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee CAROLYN J. CARNES
Morrow, Gordon and Byrd, Ltd.
33 W. Main Street
P.O. Box 4190
Newark, OH 43058
For Defendant-Appellant SCOTT T. HILLIS
401 Market Street, Rm. 209
Zanesville, OH 43701
Baldwin, J.
{¶1} Appellant Richard L. Downs appeals a judgment of the Perry County Common Pleas Court retroactively modifying his spousal support obligation to appellee Cynthia L. Downs to $1250.00 per month.
STATEMENT OF FACTS AND CASE
{¶2} The parties were married in 1981, and divorced on June 4, 2008. The judgment entry of divorce provided that appellant pay appellee $2,500.00 in spousal support for thirty-six months while she attended school, and $1,500.00 per month from that time forward. Spousal support was made subject to the continuing jurisdiction of the court.
{¶3} Appellant filed a motion to modify support on September 16, 2009, because his employer was closing its doors effective October 2, 2009. A hearing was held on March 8, 2010. At the time of the hearing, appellant was receiving unemployment compensation. An agreed entry filed March 25, 2010, lowered appellant's support obligation to $300.00 per month effective September 16, 2009. The agreement was deemed temporary, and set forth that support could be modified retroactively by the court after a full hearing.
{¶4} Appellant returned to work in April of 2010. He did not give notice to appellee that he was again working. Appellee filed a motion to modify support on December 21, 2011. A hearing was held on November 4, 2013. Following the hearing, the court found that appellant's income for purposes of determining spousal support was $57,792.00, while appellee's income was $24,000.00. The court ordered appellant to pay spousal support of $1,250.00 per month in accordance with a FIN plan calculation, effective May 1, 2010.
{¶5} Appellant assigns two errors on appeal:
{¶6} "I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ORDERING CURRENT SPOUSAL SUPPORT IN THE AMOUNT OF $1,250.00 PER MONTH, AS SAID AMOUNT WAS ARBITRARY, UNREASONABLE AND UNCONSCIONABLE AND THE COURT FAILED TO PROVIDE AN APPROPRIATE BASIS FOR SAID AMOUNT.
{¶7} "II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ORDERING RETROACTIVE SPOUSAL SUPPORT FOR THE 20 MONTHS PRIOR TO PLAINTIFF-APPELLEE'S MOTION TO INCREASE SPOUSAL SUPPORT, AS SAID AWARD WAS ARBITRARY, UNREASONABLE, AND UNCONSCIONABLE AND THE COURT FAILED TO PROVIDE AN APPROPRIATE BASIS FOR SAID AWARD."
I.
{¶8} Appellant argues that the court erred in basing its spousal support decision solely on the income of the parties, and that the court failed to indicate its basis for the award pursuant to the factors set forth in R.C. 3105.18(B).
{¶9} Modifications of spousal support are reviewable under an abuse of discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶10} R.C. 3105.18 provides guidelines for the modification of spousal support as follows:
(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:
(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support. . .
(F) (1) For purposes of divisions (D) and (E) of this section and subject to division (F)(2) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's
wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as both of the following apply:
(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.
(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was forseeable.
(2) In determining whether to modify an existing order for spousal support, the court shall consider any purpose expressed in the initial order or award and enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court shall not modify the continuing jurisdiction of the court as contained in the original decree.
{¶11} There is no express requirement that the domestic relations court's order granting or denying a motion to modify spousal support reexamine in toto the factors listed in R.C. 3105.18(C)(1) that apply to an initial determination of spousal support. Kucmanic v. Kucmanic, 119 Ohio App. 3d 609, 613, 695 N.E.2d 1205, 1208 (8th Dist. Cuyahoga 1997). The domestic relations court should set forth the basis for its decision with enough detail to permit proper appellate review. Id., citing Graham v. Graham , 98 Ohio App.3d 396, 399-400, 648 N.E.2d 850, 851-853 (1994). As a practical matter, a change in circumstances for one spouse pursuant to R.C. 3105.18(F) will not affect, for the most part, the otherwise static factors contained in R.C. 3105.18(C)(1). Id. Consequently, a rehash of findings made in the initial spousal order would not be helpful. Id.
{¶12} In the instant case, the court modified support in 2010 pursuant to the agreement of the parties to reflect the fact that appellant lost his job. The agreed entry specifically stated, "This agreement is deemed temporary and shall not prejudice either party as to modification following discovery and a hearing." The trial court's judgment modifying support to $1,250.00 per month states that the amount was set in accordance with the FIN plan calculation, attached and incorporated therein. The court did not abuse its discretion in modifying the spousal support order based solely on the change in earnings of appellant, as at the time the parties entered the agreement reducing spousal support while appellant was unemployed, they expressly contemplated a modification when he returned to work.
{¶13} The first assignment of error is overruled.
II.
{¶14} Appellant argues that the court abused its discretion in modifying support twenty months retroactively.
{¶15} The agreed entry of March 25, 2010, specifically stated that the agreement was temporary and could be modified retroactively by the court. Appellant returned to work in April of 2010. The court did not abuse its discretion in modifying spousal support retroactively to May of 2010, the first full month in which appellant was once again employed.
{¶16} The second assignment of error is overruled. The judgment of the Perry County Common Pleas Court is affirmed. Costs are assessed to appellant. By: Baldwin, J. Gwin, P.J. and Farmer, J. concur.