Dawson v. Dawson, Unpublished Decision (9-27-1999)
Dawson v. Dawson, Unpublished Decision (9-27-1999)
Concurring Opinion
I concur in the majority's analysis and disposition of appellant's first and third assignments of error. I further concur in the majority's disposition of appellant's second assignment of error, but do so for a different reason. Unlike the majority, I find the trial court's conclusion appellee's receipt of social security disability was not a substantial change of circumstances involves a conclusion of law, not a question of fact. Appellant did not object to the magistrate's factual finding appellee had been granted social security disability in the amount of $360 per month since the divorce decree. (Magistrate Decision filed 10/21/98, Nos. 4 and 7). Rather, appellant challenged the magistrate's legal conclusion such receipt did not constitute a substantial change of circumstance. Accordingly, I find appellant's failure to provide the trial court with the transcript before the objection hearing did not violate Civ.R. 53(E) and the presumption of regularity in Knapp does not apply. Nevertheless, I concur in the decision to overrule appellant's second assignment of error. The trial court did not abuse its discretion in concluding appellee's receipt of social security disability in the amount of $4320.00 a year, offset by appellee's loss of earned income in the amount of $3,504.00 per year, is insufficient to constitute a substantial change in circumstance.
Opinion of the Court
OPINION
Appellant David Dawson appeals the decision of the Stark County Court of Common Pleas, Domestic Relations Division, that denied his motion to modify spousal support. The following facts give rise to this appeal. The parties to this appeal were married on May 26, 1964, and divorced on November 15, 1993. The separation agreement, incorporated into the final decree, required appellant to pay Appellee Joan Dawson spousal support in the amount of $850 per month for eight years. On November 1, 1997, appellant retired from InterState Brands Corporation due to his health. Upon appellant's retirement, appellee became eligible for and began receiving a pension distribution from InterState Brands Corporation in the amount of $222.25. Appellee also became eligible for social security disability payments in the amount of $367 per month. Thereafter, on November 10, 1997, appellant filed a motion for modification of his spousal support obligation. On October 14, 1998, a magistrate from the Stark County Court of Common Pleas, Domestic Relations Division, conducted a hearing on appellant's motion to modify his spousal support obligation. The magistrate issued her decision on October 21, 1998, denying, in part, appellant's motion for modification. The magistrate found that appellant's retirement was voluntary and not a change in circumstances. However, the magistrate determined that appellee's receipt of $222.25, a monthly pension payment, was a change in circumstances and accordingly reduced appellant's spousal support obligation from $850.00 to $627.75, effective the date of her decision. Appellant filed objections to the magistrate's decision on November 4, 1998. The trial court conducted a hearing on appellant's objections on February 16, 1999. That same day the trial court overruled appellant's objections and approved the magistrate's decision. Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:I. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S RETIREMENT WAS VOLUNTARY AND DENYING APPELLANT'S MOTION FOR MODIFICATION OF SPOUSAL SUPPORT BASED UPON HIS REDUCED INCOME.
II. THE TRIAL COURT ERRED IN FINDING THAT APPELLEE'S RECEIPT OF SOCIAL SECURITY DISABILITY WAS NOT A SUBSTANTIAL CHANGE OF CIRCUMSTANCES.
III. THE TRIAL COURT ERRED IN FAILING TO MAKE THE MODIFICATION RETROACTIVE TO THE DATE OF APPELLANT'S MOTION.
For the foregoing reasons, the judgment of the Court of Common Pleas, Domestic Relations Division, Stark County, is hereby affirmed. By: Wise, P.J. Gwin, J., concurs. Hoffman, J., concurs separately.
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