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Date: 05-29-2020
Case Style:
KIM M. MANLEY NKA ROSE v. JAMES M. MANLEY
Case Number: 19 CO 0023
Judge: BEFORE: Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
Court: IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY
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The parties were divorced on March 16, 2015. Appellant was 60, and
Appellee was 54 years old. The duration of the marriage was 35 years. The court evenly
divided the assets, including the following retirement investments: the retirement benefits
payable in the future from Appellant’s fully vested pension at Vallourec; a retirement
1 We present the facts, procedural history, and arguments as relevant to Appellant’s modification motion
before we present these topics as relevant to Appellee’s contempt motion.
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Case No. 19 CO 0023
savings plan worth nearly $400,000; and Ameriprise accounts worth almost $230,000.
Each party ended up receiving $80,000 from the sale of the marital residence.
{¶4} Appellant’s income was said to average almost $75,000, and Appellee’s
income was imputed at $15,600. The court awarded Appellee $2,000 per month in
spousal support for an indefinite period, finding this amount would equalize the incomes.
Each party was required to notify the other of any income change of more than 10%. The
court reserved jurisdiction over the amount and duration of spousal support, noting
Appellant may retire, his job situation may change, or the Plaintiff may become eligible
for disability benefits. There was no appeal from the divorce decree.
{¶5} On April 7, 2015, less than a month after the divorce decree was issued,
Appellant filed a motion to modify spousal support. Initially, he accepted a voluntary
layoff. He then retired in August 2015. On October 9, 2015, the magistrate denied
Appellant’s modification motion because he voluntarily took an early retirement. On June
6, 2016, the trial court overruled Appellant’s objections and adopted the magistrate’s
decision. Appellant did not appeal that decision.
{¶6} On October 17, 2016, Appellant filed a motion to terminate spousal support
due to his retirement. He cited the clause in the divorce decree reserving jurisdiction to
modify spousal support and mentioning retirement; he suggested the clause made a
termination of support automatic upon retirement and was comparable to the clause
saying spousal support would terminate upon either party’s death or Appellee’s
remarriage or cohabitation. On May 1, 2017, the magistrate denied the modification
motion pointing to the differences in the clauses and finding the motion was res judicata
to the extent it sought modification on the same basis as his 2015 motion. On September
20, 2017, the trial court overruled Appellant’s objections and adopted the magistrate’s
decision.
{¶7} On appeal, this court affirmed. Manley v. Manley, 7th Dist. Columbiana No.
17 CO 0036, 2018-Ohio-2773. We agreed that retirement was not a reason listed in the
decree for automatic termination (i.e., retirement was not a condition subsequent for
termination). See id. at ¶ 26-28. We also agreed that the modification request based on
the 2015 voluntary retirement was barred by res judicata as it was decided in the June 6,
2016 judgment which was not appealed. Id. at ¶ 29-33. It was additionally noted:
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Case No. 19 CO 0023
That conclusion, however, does not necessarily mean Appellant's
retirement is foreclosed forever as forming any basis for modification. For
instance, when Appellant reaches full retirement age, he could move for
modification indicating he is now at full retirement age and seeks
modification based on his full retirement age and the fact that he is retired.
The magistrate and trial court's decisions were based on the fact that
Appellant took a voluntary early retirement. However, once he reaches the
age of full retirement that fact may create a new basis for a change in
circumstance so that res judicata would not act as a bar.
Manley, 7th Dist. No. 17 CO 0036 at ¶ 34, citing Comella v. Parravano, 8th Dist.
Cuyahoga No. 100062, 2014-Ohio-834, ¶ 30 (second motion to modify spousal support
was not barred by res judicata as material facts that were not at issue at the time of the
court's prior order were raised in the second motion.).
{¶8} Appellant immediately filed a modification motion on July 11, 2018. This
new (third) motion asked to modify spousal support retroactive to June 16, 2016, which
is when he turned 62 years of age. As changed circumstances, he said he reached the
“required age of retirement that being sixty-two (62) as well as having completed the years
of service required to receive said benefits without reduction.” He argued he should not
be obligated to continue working after he was eligible to retire under his employer’s
pension plan. It was also noted that Appellee was receiving her share of his monthly
pension.
{¶9} At the October 4, 2018 motion hearing, Appellant was 64. He testified: he
was entitled to 100% of the pension benefits at age 60; the parties were receiving 100%
of the available pension benefit; a person who retired early would receive less than this;
he took a buyout to avoid layoffs at a mill adversely affected by an oil and gas downturn
and to obtain a severance package (paying his base rate and insurance for six months);
and he did not apply for social security benefits. He said he received $350 a month from
his pension and Appellee received less than $300 (due to the date of the retirement being
after the date of the divorce decree which evenly split the pension benefit). Appellee
argued Appellant’s full retirement age should be 66 because that is the age at which he
will be eligible for full social security benefits.
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{¶10} On November 27, 2018, the magistrate denied Appellant’s modification
motion. The magistrate found: Appellant took early retirement hoping it would terminate
or reduce his spousal support; he was physically and mentally able to work; his retirement
benefits were fixed when he chose to retire; he was not looking for work; he had not yet
applied for social security benefits; and the parties’ income and expenses did not change
when he reached 62. The magistrate noted that some cases found a normal retirement
age was 65 when that was the age for full social security benefits. It was pointed out that
the age for full social security benefits is now 66 for a person with Appellant’s date of birth.
The magistrate concluded Appellant’s full retirement age should be 66 (for purposes of
using his retirement as a basis for modifying spousal support).
{¶11} Appellant objected to this decision. He argued the magistrate erred by
finding his full retirement age was 66 merely because that was the age for full social
security benefits and by failing to use the “normal retirement age” of 62 as (allegedly)
defined by his private pension.
{¶12} On June 13, 2019, the trial court overruled the objections and adopted the
magistrate’s decision. To the extent Appellant sought to retroactively terminate his
spousal support obligation due to retirement, the court found res judicata applied. To the
extent he sought to prospectively modify (or terminate) his spousal support based on his
current age or his surpassing of age 62, the court concluded that he failed to show a
substantial change of circumstances. In finding the attainment of age 62 was a distinction
without a difference in this case, the trial court observed: Appellant was entitled to his full
pension at age 60; he began to collect 100% of his pension benefit when he retired in
2015 at age 61; the pension benefit was fixed when he chose to retire; and Appellant’s
retirement age for the purpose of collecting full social security benefits is 66. By adopting
the magistrate’s decision and finding the reasoning sound, the court essentially assigned
66 as Appellant’s full retirement age for purposes of spousal support modification.
Appellant filed a timely notice of appeal.
Spousal Support Assignments of Error
{¶13} Appellant’s first and second assignments of error, which he addresses
together, make the following allegations:
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Case No. 19 CO 0023
“THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
WHEN IT FAILED TO CONSIDER NEW MATERIAL FACTS WHICH
FORMED THE BASIS FOR A CHANGE OF CIRCUMSTANCES
SUPPORTING APPELLANT’S MOTION TO MODIFY HIS SPOUSAL
SUPPORT OBLIGATION.”
“THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT FAILED TO FIND APPELLANT’S FULL (NORMAL)
RETIREMENT AGE TO BE BASED ON THE TERMS AND CONDITIONS
OF HIS EMPLOYMENT ENTITLING HIM TO HIS FULL RETIREMENT
BENEFITS.”
{¶14} If spousal support is awarded in a divorce, the court has jurisdiction to
modify the amount or the terms of the spousal support if the decree contains a provision
authorizing the court to modify the amount or terms and the court determines the
circumstances of either party have changed. R.C. 3105.18(E). A change in
circumstances includes any increase or involuntary decrease in income or expenses.
R.C. 3105.18(F)(1). The change must be substantial and must make the existing award
no longer reasonable and appropriate. R.C. 3105.18(F)(1)(a). In addition, the change
must be one that was not taken into account as a basis for the existing award when it was
established (regardless of whether it was foreseeable). R.C. 3105.18(F)(1)(b). These
provisions are “subject to division (F)(2),” which provides, “the court shall consider any
purpose expressed in the initial order” in determining whether to modify spousal support.
R.C. 3105.18(F)(1), citing R.C. 3105.18(F)(2).
{¶15} In general, a trial court's judgment in evaluating the changed circumstances
in a spousal support modification motion cannot be disturbed on appeal absent a showing
that the trial court abused its discretion. Blakemore v. Blakemore, 5 Ohio St.3d 217, 218,
450 N.E.2d 1140 (1983). The appellate court cannot substitute its judgment for that of
the trial court and can only reverse if the modification decision was unreasonable,
arbitrary or unconscionable. Id. at 219.
{¶16} Initially, we must point out that the trial court could not have modified
spousal support retroactively to a date before Appellant’s motion was filed (such as the
date he reached age 62 as he requested). The decision that retirement was not an event
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Case No. 19 CO 0023
resulting in automatic termination is the law of the case and is res judicata. Manley, 7th
Dist. No. 17 CO 0036 at ¶ 26. The automatic termination clause in the divorce decree
applied to either party’s death and Appellee’s remarriage or cohabitation with an unrelated
adult male; it did not encompass retirement. Id. The mention of Appellant’s future
retirement under a different clause (reserving jurisdiction to modify the amount and
duration of spousal support) was more akin to an expression of purpose as contemplated
by R.C. 3105.19(F)(2).
{¶17} When a court modifies spousal support, it can make the modification
retroactive to the date of the motion (if sufficient circumstances had changed by that
point), or the court can choose a reasonable date after the motion. Filicky v. Filicky, 7th
Dist. Mahoning No. 99 C.A. 212, 2000-Ohio-2600 (modification of spousal obligations
may be made retroactive to the date of the filing of the motion to modify spousal support).
See also Flauto v. Flauto, 7th Dist. Mahoning No. 02-CA-12, 2002-Ohio-6430, ¶ 32
(where unemployment had not yet occurred at the time the motion was filed, it was
unreasonable to modify retroactively to the date of the motion). However, the court cannot
choose a date before the modification motion was filed. Merkle v. Merkle, 115 Ohio
App.3d 748, 754, 686 N.E.2d 316 (7th Dist.1996) (“accrued and unpaid support could not
be modified retroactively to a date prior to the filing of a request for modification”), citing
Rowland v. Mann, 7th Dist. Jefferson No. 95-JE-26 (Aug. 29, 1996).
{¶18} Moreover, a statute provides: “Except as provided in section 3119.84 of the
Revised Code, a court or child support enforcement agency may not retroactively modify
an obligor's duty to pay a delinquent support payment.” R.C. 3119.83. An exception to
this statute is contained in R.C. 3119.84. Byrd v. Knuckles, 120 Ohio St.3d 428, 2008-
Ohio-6318, 900 N.E.2d 164, ¶ 3-4. This exception provides: “A court with jurisdiction
over a court support order may modify an obligor's duty to pay a support payment that
becomes due after notice of a petition to modify the court support order has been given
to each obligee and to the obligor before a final order concerning the petition for
modification is entered.” R.C. 3119.84. Together, these statutes prohibit the modification
of a court support order to retroactively extend back to a date before the obligor made the
petition to modify and gave notice to the obligee. See Byrd, 120 Ohio St.3d 428 at ¶ 5
(unless the parties agreed to retroactive modification).
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Case No. 19 CO 0023
{¶19} These modification restrictions in R.C. 3119.83 and 3119.84 apply to
spousal support as well as child support orders. See Powell v. Powell, 2d Dist.
Montgomery No. 19537, 2003-Ohio-1050, ¶ 13-18 (on a 2001 motion, the trial court could
not retroactively modify the spousal support arrearage back to when the obligor filed a
prior motion to terminate spousal support as that motion was already denied in 1994).
This can be seen in the plain language used. For instance, R.C. 3119.83 speaks of a
court (or child support enforcement agency) modifying a “delinquent support payment”
(not a “delinquent child support payment”). Moreover, one of the statutes cited in R.C.
3119.84 is R.C. 3105.18, which is the statute providing for spousal support and spousal
support modification. Most notably, the term “court support order” in R.C. 3119.84 is
specifically defined as “either a court child support order or an order for the support of a
spouse or former spouse issued pursuant to” various statutes. (Emphasis added.) R.C.
3119.01(C)(3), now (C)(5).
{¶20} Appellant turned 62 on June 16, 2016 and filed his latest modification
motion on July 18, 2018 (at age 64). He sought retroactive modification to June 16, 2016,
which was the date he turned 62 (and which was also the date of the trial court’s order
denying the first modification motion). In accordance with this district’s case law and the
aforementioned statutory law, Appellant could not have received modification of spousal
support retroactive to the date on which he turned 62; the date of his motion would have
been the earliest date within the trial court’s discretion but would still not have been
required.
{¶21} As to Appellant’s retirement being labeled voluntary, early, or not a change
warranting modification, his testimony that he was at risk of job elimination near the time
of the divorce was not dispositive in the proceedings on his third motion. In earlier
proceedings, the trial court already found Appellant voluntarily reduced his income by
retiring early and essentially imputed pre-retirement income to Appellant in finding no
change of circumstances. See, e.g., Ogle v. Ogle, 2018-Ohio-5141, 128 N.E.3d 775, ¶
22 (10th Dist.) (early retirement can be considered an involuntary decrease in salary if
the obligor demonstrates it was economically sound, but if he retires with the intent to
defeat a spousal support obligation, then the retirement is considered voluntary
underemployment and his pre-retirement income is attributed to him); Chepp v. Chepp,
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Case No. 19 CO 0023
2d Dist. Clark No. 2008 CA 98, 2009-Ohio-6388, ¶ 11 (if it is reasonable to find there was
no intent to escape a spousal support obligation, then the trial court should not impute
additional income to the retired party); Friesen v. Friesen, 10th Dist. Franklin No. 07AP110, 2008-Ohio-952, ¶ 42 (if the obligor retires with intent to defeat a spousal support
obligation, then the retirement is considered voluntary underemployment and preretirement income is attributed to the obligor).
{¶22} This matter was decided by the trial court, was not appealed, and was
already considered res judicata by this court in reviewing Appellant’s second modification
motion. Manley, 7th Dist. No. 17 CO 0036 at ¶ 32-33. A final judgment on the merits
bars subsequent actions based on claims arising out of the occurrence that was the
subject of the prior action. Id. at ¶ 30, citing Grava v. Parkman Twp., 73 Ohio St.3d 379,
381, 653 N.E.2d 226 (1995). There are not multiple transactions merely because there
are different legal theories for liability that may apply to a given event. Grava, 73 Ohio
St.3d at 382-383 (a primary consideration is the identity of the evidence relevant to
proving the claim in each action).
{¶23} Notably, Appellant was 60 at the time of the divorce hearing and decree; he
retired soon thereafter causing his income to decrease dramatically; and the trial court
refused to modify spousal support twice, essentially finding his retirement so soon after
the divorce was not done for sound economic or personal/medical reasons and was done
with an intent to decrease the spousal support award. Whether the original spousal
support award and the denial of modification based on retirement were unreasonable
cannot be relitigated.
{¶24} Appellant’s latest modification motion claimed a new occurrence: reaching
the “required age of retirement” of 62 and having sufficient years of service to receive full
benefits. He objected to the magistrate’s decision and said the private retirement plan
defined “normal retirement age” as 62. However, in addition to the fact that the delinquent
support accruing prior to the July 2018 motion could not be modified, a prospective
modification based on the terms of the private pension was unsupported (to the extent it
was not res judicata).
{¶25} Appellant had the burden to prove the allegations he made in his motion
(and reiterated in his objection). See Adams v. Adams, 7th Dist. Jefferson No. 96 JE 12
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Case No. 19 CO 0023
(Aug. 6, 1997) (“burden of showing that modification of spousal support is warranted is
on the party who seeks it.”). Contrary to Appellant’s contention, there was no evidence
presented at the magistrate’s hearing that Appellant’s former employer placed any
emphasis on age 62. No testimony supported the contention in his motion or objection
regarding the significance of the age of 62 under the terms of the private pension plan,
and no exhibit was introduced regarding the pension plan.
{¶26} In fact, Appellant testified that he was eligible to retire with unreduced
benefits at age 60 due to his years of service, a condition that existed at the time his last
two motions for modification of spousal support were decided. And again, he was already
62 when he filed the October 2016 motion regarding spousal support, the denial of which
was affirmed on appeal. When this court affirmed and spoke in dicta of his future full
retirement age as a potential for avoiding the res judicata bar, Appellant was 64 years of
age. It was not unreasonable for the trial court to refrain from assigning significance to
the fact that he was over 62; i.e., it was reasonable to find the reaching of age 62 was not
a changed circumstance and was not what this court intended in speaking of Appellant’s
ability to seek modification upon reaching full retirement age. See Manley, 7th Dist.
Columbiana No. 17 CO 0036 at ¶ 34 (“when Appellant reaches full retirement age, he
could move for modification indicating he is now at full retirement age and seeks
modification based on his full retirement age and the fact that he is retired”).
{¶27} In addition to the attainment of age 62, Appellant says other new facts
supported modification of spousal support in addition to his age. He points out that both
parties were receiving their share of his pension benefit and his retirement savings plan
had been divided. However, in objecting to the magistrate’s decision, the retirement
savings plan was not mentioned, and it was not clear Appellant was relying on Appellee’s
receipt of a $293 monthly pension benefit as some independent reason for modification
as opposed to a supporting argument about how the pension was not reduced by early
retirement. See Civ.R. 53 (D)(3)(a)(iii), (b)(ii) (object with specificity). Moreover, as to the
savings plan: this was a marital asset that was already ordered split under the property
division in the 2015 divorce decree; it was contemplated as a future asset with a principal
amount determined; and Appellee testified that she could not yet fully access the
retirement savings account because she was 58 years old.
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Case No. 19 CO 0023
{¶28} As to the monthly pension benefit, the trial court pointed out that the pension
was divided in the divorce as a marital asset and continued to be paid to the parties.
Appellant retired in August 2015, and there was no testimony that Appellee’s receipt of
her share of the monthly pension benefit ($293) was an event that was not in existence
at the time of Appellant’s prior motion. Additionally, the decrease in Appellant’s income
due to his receipt of the pension (instead of wages) was a pre-existing fact in prior
proceedings where his pre-retirement income was essentially being imputed to him. We
also note the pension benefit did not actually add to Appellees’ monthly income as she
was not working at the time of the divorce and a minimum wage income was imputed.
She testified about the rejection of her application for disability benefits and her attempts
to find employment. The addition of the monthly pension benefit need not be considered
to have substantially changed Appellee’s income (e.g., just as Appellant was not
considered to be making more than his imputed income due to his receipt of the pension
benefit).
{¶29} Nevertheless, the totality of the circumstances can be considered in
reviewing the allegation of substantial changed circumstances, which Appellant based
mostly on his increased age. Although it was not unreasonable to reject Appellant’s age
62 argument, we must also review whether the trial court abused its discretion in declaring
that 66 will be considered Appellant’s full retirement age (when applying the dicta in our
prior decision). Appellant was 64 years old when he filed the latest modification motion
and during the proceedings on this motion.
{¶30} As observed by the magistrate and the trial court, some cases consider the
age at which unreduced benefits can be claimed under social security in determining the
normal retirement age in divorce (and other) contexts. See, e.g., Alexander v. Alexander,
5th Dist. Stark No. CA-4515 (Feb. 9, 1977) (also considering the age at which the obligee
could claim reduced social security benefits).2 In ruling on an initial modification motion
2 The magistrate cited other cases as support for using the age at which full social security benefits are
payable (which was previously 65). However, some of the cited cases merely said age 65 was the normal
age of retirement under the terms of the private pension plan. See Estate of Darnell v. Darnell, 6th Dist.
Wood No. WD-88-46 (May 12, 1989); Consolidated Gas Supply Corp. v. Ohio Bur. of Emp., 1st Dist. Warren
No. 52 (July 7, 1975). Another cited case upheld the choice of age 62 in a civil suit (after an economist
testified to various work expectancies for the lost wages recovery). Fisher v. Univ. of Cincinnati Med. Ctr.,
10th Dist. Franklin No. 14AP-188, 2015-Ohio-3592, ¶ 33-34.
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Case No. 19 CO 0023
upon retirement, the First District said the social security age for full benefits need not be
used as the date for determining whether an obligor retired too early. Smith v. Smith, 1st
Dist. Hamilton No. C-140391, 2015-Ohio-2258, ¶ 24 (noting the standards for social
security were not statutory factors for spousal support and finding no support for requiring
the use of the social security age of 67 as the date until which the obligor should work).
{¶31} However, this does not mean a trial court is prohibited from using that date
depending on the circumstances of a particular case. The issue is one to be determined
on a case-by-case basis. On an original motion, a court could consider items such as:
age at the time of divorce; the time between the spousal support award and the retirement
(here preceded by a voluntary leave of absence within days of the divorce decree); the
physical, psychological, or medical reasons for retiring; the economic justifications for
retiring or remaining employed; the validity of concerns over continued employment; and
the assets from which spousal support could continue.
{¶32} This case evaluates the third motion for modification filed after the trial court
already found Appellant retired early to avoid spousal support and essentially imputed
pre-retirement income to him. His intent behind retiring only months after the divorce was
res judicata, as was the effect of his retirement, i.e., whether to impute his pre-retirement
income notwithstanding the retirement which the court considered early. In addition to
these pertinent items, there is the lack of evidence that 62 (or any later age) was a defined
retirement age under the terms of his private pension plan. His main argument concerned
his reaching a new age (62), which he said had importance under the terms of his private
pension, but the evidence presented at the hearing to confirm this claim was non-existent.
{¶33} Appellant’s age for receiving unreduced social security benefits was 66. He
did not file for reduced social security benefits. His employment was not of the type that
exempted him from social security contributions (such as certain government employment
which may result in a pension but no social security benefits). Appellant stopped working
immediately after the divorce and then retired and sought a spousal support reduction.
Considering the amount of the monthly pension benefit totaled less than $670 per month
(to be divided between the parties), it is rational to contemplate that social security
benefits will be an important income source. Appellant was 60 at the time of his divorce,
when he averaged more than $6,000 per month at his long-time employer. Although the
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2015 decree contemplated a future modification upon his retirement, later rulings on
modifications showed the trial court did not believe his immediate retirement warranted a
reduction. We also note Appellant was 64 at the time we released our prior decision
stating he could seek modification upon reaching full retirement age.
{¶34} There was no indication the court’s use of age 66 was unconscionable, and
the date was not arbitrary as it was aligned with a national standard particularly relevant
to this specific obligor. As for the reasonableness of the decision, we acknowledge that
some judges may have found it reasonable to stop imputing pre-retirement income to
Appellant at the time of his 2018 motion (after he turned 64), and other judges may have
found it reasonable to stop at age 65 (at the time of the trial court’s judgment). Yet, others
may still reasonably find age 66 to be an appropriate standard in this case based on the
distinct history of the case and the entirety of the evidence (or lack thereof). We cannot
substitute our judgment for that of the trial court on this matter in this situation. (We
emphasize that we are not adopting a rule that courts should deny all requests to
decrease support if the obligor retired before reaching the age for full social security
benefits.)
{¶35} After evaluating the totality of the circumstances, this court concludes it was
within the trial court’s sound discretion to overrule Appellant’s modification motion and
assign 66 as Appellant’s full retirement age. Appellant’s first two assignments of error
are overruled.
Statement of the Case: Contempt
{¶36} While Appellant’s motions for modification of spousal support were pending,
Appellee filed various contempt motions. For instance, on February 26, 2016, she filed a
contempt motion for failure to pay spousal support. At the time of the hearing, Appellant’s
arrearage was over $27,000. He was found in contempt in 2016 and could have purged
by promptly paying the arrearage in full. He failed to do so despite being provided with
multiple opportunities. At one purge hearing, he said he would pay his arrearage from
his half of the Ameriprise account. It was disclosed that a QDRO was provided to
Ameriprise for pre-approval. In January 2017, the court warned Appellant that he should
explore an alternative way to pay his arrearage in case he did not receive the funds from
Ameriprise by the next review hearing.
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Case No. 19 CO 0023
{¶37} At the next hearing in February 2017, defense counsel said they had hoped
the Ameriprise funds would have been released. He suggested ordering Ameriprise to
pay the arrearage before releasing Appellant’s half to him, but opposing counsel noted
the added expense this would create. On February 21, 2017, Appellant was sentenced
to 20 days in jail, fined $250, and order to pay $500 for attorney’s fees. Appellant
appealed that decision, and this court affirmed. Manley v. Manley, 7th Dist. No. 17 CO
0006, 2018-Ohio-255, 104 N.E.3d 183, ¶ 12.
{¶38} In 2017, Appellee filed motions for contempt, to compel, and for sanctions.
The motions were heard in October 2018, when the latest spousal support modification
motion was heard. The magistrate decision found Appellant in contempt on November
27, 2018 (at the same time it denied his modification motion). The magistrate listed three
grounds for contempt: Appellant continually failed to pay spousal support resulting in an
arrearage over $65,000; the Ameriprise accounts were not yet divided by QDRO as
ordered in the March 2015 divorce decree; and Appellant withdrew over $33,000 from
those accounts after the divorce (without paying half to Appellee). As to the funds
available to pay toward the arrearage, the magistrate noted that Appellant received
$80,000 from the sale of the marital home and almost $200,000 from the retirement
savings plan after it was evenly divided. Considering these funds and those held by
Ameriprise, the magistrate found Appellant was able to pay his spousal support
obligation, eliminate his arrearage, and correct the improper withdrawal.
{¶39} As this was his second contempt, the magistrate found a sentence of 60
days in jail to be warranted. Appellant was given the opportunity to purge by promptly
paying his arrearage in full, dividing his Ameriprise account by QDRO, and curing the
improper withdrawal. He was also ordered to pay $500 for Appellee’s attorney’s fees. In
objecting to the magistrate’s decision, Appellant argued the magistrate failed to consider
his efforts at dividing the Ameriprise account and Appellee’s failure to execute the form
allowing Ameriprise to transfer to a separate account additional amounts equaling the
spousal support arrearage and half of the amount he improperly withdrew.
{¶40} On June 13, 2019, the trial court overruled Appellant’s objection and
adopted the magistrate’s decision. The court found Appellant did not meet his burden of
proving a defense such as inability to pay and pointed out that an obligor’s pending
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Case No. 19 CO 0023
modification motion does not allow the obligor to ignore prior court support orders. It was
also noted that he could have paid spousal support with the assets he had available
(instead of buying a motorcycle and paying for a garage on his son’s property). The
failure to divide the Ameriprise account by QDRO as ordered more than three years prior
was described as unreasonable and willful disobedience. Appellant appealed from this
judgment (which also contained the denial of his motion to modify spousal support).
{¶41} The trial court thereafter held a sentencing review hearing. Appellant made
reference to how the amount needed to cure the arrearage would be less if his
modification motion was successful on appeal. The court noted Appellant was still in
contempt on the matter of the arrearage and on the issues with the Ameriprise account.
Defense counsel argued it was reasonable for Appellant to wait to see how much spousal
support was owed and have that amount along with half of his improper withdrawal placed
by Ameriprise in a separate account for Appellee. He reiterated the complaint that
Appellee would not sign the forms to accomplish this transaction. Appellee’s counsel
pointed out this offer was already rejected by the court. It was suggested that Appellant’s
attempt to shift tax consequences to Appellee for his arrearage was unreasonable as the
divorce decree called for an equal division of the Ameriprise account by QDRO and no
further formulas were required for compliance with this clause. The court found Appellant
failed to purge any of the conditions and sentenced him to 60 days in jail for his contempt.
(J.E. 6/28/19).3
Contempt Assignment of Error
{¶42} The assignment of error set forth by Appellant to contest the ruling on
Appellee’s contempt motion alleges:
“THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE
APPELLANT-DEFENDANT WHEN IT FOUND THE APPELLANT IN CONTEMPT FOR
3 Rather than filing an original notice of appeal from the sentencing judgment, Appellant filed an amended
notice of appeal in the appeal from the judgment denying modification and finding him in contempt. As we
pointed out in Appellant’s last contempt appeal, the finding of contempt with purge conditions is a final
appealable order; the subsequent purge hearing imposing a sentence is its own final appealable order
where the issue is compliance (and the finding of contempt and the propriety of the purge conditions are
not at issue). Manley, 2018-Ohio-255 at ¶ 13, citing The Docks Venture LLC v. Dashing Pacific Group Ltd.,
141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 20-23, and Liming v. Damos, 133 Ohio St.3d 509,
2012-Ohio-4783, 979 N.E.2d 297, ¶ 30.
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HIS FAILURE TO PROMPTLY DIVIDE THE REMAINING AMERIPRISE ACCOUNT AND
FAILURE TO REPAY THE ARREARAGE PRIOR TO SENTENCING HIM TO JAIL.”
{¶43} The trial court’s decision on contempt is not disturbed on appeal unless the
appellant can show an abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio
St.3d 69, 75, 573 N.E.2d 62 (1991). A court abuses its discretion if the decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). A decision is unreasonable if it is unsupportable by any
sound reasoning process. See AAAA Ents., Inc. v. River Place Community Urban Redev.
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990) (abuse of discretion review typically
involves a determination of whether a decision was unreasonable). “When applying the
abuse of discretion standard, a reviewing court is not free to merely substitute its judgment
for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181
(1991).
{¶44} Appellant argues the trial court abused its discretion by failing to consider
the effort made by him to divide the Ameriprise funds, repay the improper withdrawal (with
interest), and bring his spousal support arrearage current. He complains that Appellee
prevented him from accomplishing these three requirements by refusing to sign a release
form he presented to her so the division of the Ameriprise accounts could directly satisfy
his other obligations. He says Appellee’s only reason for refusing to sign was that she
did not want to extinguish her right to proceed against him for contempt. (Tr. 33).
{¶45} However, Appellee subsequently explained that she meant she did not wish
to extinguish her right to the full amount of spousal support as ordered. (Tr. 35). She
testified: the divorce decree required Appellant to pay monthly spousal support and divide
the Ameriprise account evenly by QDRO; the account had no relation to spousal support
(except to show that he had funds from which he could pay his arrearage after they were
evenly divided by QDRO); he owed processing fees to the government agency where his
support was required to be paid; and he had no right to change the QDRO to shift the tax
consequences of the Ameriprise withdrawals to her for his spousal support arrearage.
(Tr. 32-33, 39-40).
{¶46} As stated in the prior section, a modification motion cannot eliminate an
arrearage accumulated prior to its filing. Appellant acknowledged that he had not paid
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any amount toward spousal support or the arrearage in a long time, even though he
improperly withdrew over $33,000 from the Ameriprise account. His arrearage was
$40,000 higher than when he was last found in contempt. He filed a modification motion
immediately after losing the appeal of his prior modification motion. He had been warned
in a prior contempt appeal that a modification motion does not justify continued refusal to
pay spousal support.
{¶47} In his last contempt appeal, we explained: “The fact a party has a motion
to modify or terminate support pending in a case does not allow the party to ignore prior
court orders on support; even if the motion is subsequently granted, the acts in contempt
remain.” Manley, 2018-Ohio-255 at ¶ 15, citing R.C. 2705.031(E) (“The court shall have
jurisdiction to make a finding of contempt for the failure to pay support and to impose the
penalties set forth in section 2705.05 of the Revised Code in all cases in which past due
support is at issue even if the duty to pay support has terminated”), Barton v. Barton,
2017-Ohio-980, 86 N.E.3d 937, ¶ 76 (2d Dist.) (while an order for payment is in place, the
obligor is required to follow it, and the failure to pay under the order can be punished as
contempt regardless of whether the order is later reversed on appeal), and Hickox v.
Hickox, 4th Dist. No. 15CA15, 2016-Ohio-3514, ¶ 28 (whether the court might ultimately
modify support was irrelevant as the obligor must at least attempt to pay the support with
available funds).
{¶48} Contrary to Appellant’s contention, his case is not similar to a non-binding
Second District case he cites. See Doerr v. Doerr, 2d Dist. Greene No. 2004-CA-15,
2005-Ohio-438. In that case, the appellate court found: “the trial court mistakenly stated
that he had not submitted a payment plan on the arrearage issue” when in fact he had
submitted a repayment plan. Id. at ¶ 16. Here, Appellant’s repayment ability had been
discussed for years; his plan for repayment was part of the prior contempt action and
appeal where we noted the trial court considered it but did not adopt it (instead instructing
him to find another plan in case the Ameriprise funds did not get released by the next
hearing). See Manley v. Manley, 2018-Ohio-255, 104 N.E.3d 183, ¶ 7-8, 18, 22 (7th
Dist.). Appellant had the assets to repay the arrearage and said he would do so, but then
he refused to do so without Appellee’s acceptance of an asset transfer under a QDRO
that would place the burden of the withdrawal taxes on her for his spousal support
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arrearage. Appellee’s refusal to submit to this tactic does not excuse Appellant’s refusal
to divide the Ameriprise account or his refusal to pay spousal support. And, there was no
compelling reason for the trial court to reconsider his proposal at the purge hearing.
{¶49} In sum, Appellant argues that Appellee prohibited him from complying with
the court order and the trial court should have implemented his proposal to allocate more
than half of the Ameriprise account to Appellee through QDRO (rather than expecting him
to use his half of the account after it was distributed to him by QDRO to pay what he owed
pursuant to court order). Under the totality of the circumstances, including the past
proceedings in this case, it was not unreasonable to reject Appellant’s offer to pay the
arrearage through a QDRO at odds from the one ordered in the divorce decree (which
would shift the tax burden on the additional percentage allocated to Appellee). The
argument set forth by Appellant does not demonstrate the trial court abused its discretion
in rejecting his proposal and finding him in contempt. Based on the argument set forth
by Appellant, this assignment of error is overruled.
Outcome: For the foregoing reasons, the trial court’s judgment on modification and
contempt is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: