[Cite as Wuscher v. Wuscher,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

MARK R. WUSCHER C.A. No. 26924

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE SUSAN WUSCHER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. 2010-01-0275

DECISION AND JOURNAL ENTRY

Dated: February 5, 2014

CARR, Judge.

{¶1} Appellant Susan Wuscher appeals the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division. This Court reverses and remands.

I.

{¶2} Susan Wuscher (“Wife”) and Mark Wuscher (“Husband”) were married in 1999

and adopted a child during the course of their marriage. Husband later filed a complaint for

divorce and Wife counterclaimed for divorce. On December 9, 2010, the domestic relations

court issued a judgment entry decree of divorce which attached and incorporated the parties’

agreement regarding all financial matters. Wife was named as the “sole custodial parent” of the

child, while Husband, who had expatriated to Asia, was granted visitation with the child via

Skype and at least two visitations in person to occur at Husband’s parents’ home in Seattle. 2

Child Support

{¶3} Per the parties’ agreement, Husband acknowledged that he would be employed by

JP Morgan Chase, earning a gross yearly base salary of $230,000.00. Husband agreed to pay

child support directly to Wife in the amount of $1,095.00 per month.

Spousal Support

{¶4} The parties agreed that Husband would pay spousal support directly to Wife in the

amount of $5,000.00 per month from October 2008, through May 2012. Wife acknowledged the

partial monthly payments that Husband had made through October 2010, and Husband agreed to

pay Wife a spousal support arrearage of $29,507.60 within one year. The agreement provided

expressly that the domestic relations court would retain jurisdiction to modify the amount of

spousal support, but not the duration.

Property Division

{¶5} As part of the division of marital property, the parties agreed that Wife would

receive fifty percent of Husband’s gross cash bonus from JP Morgan Chase for the year 2010,

which would be paid in 2011.

{¶6} The parties invoked the continuing jurisdiction of the trial court to resolve various

disputes as they arose. The matter that gives rise to instant appeal concerns Wife’s motions to

increase child support and spousal support. The magistrate heard the motions on August 16,

2012, and granted both. The magistrate ordered Husband to pay child support in the amount of

$3,336.92 per month, effective August 1, 2012, and to pay spousal support in the amount of

$7,750.00 per month from August 1, 2011, through May 31, 2012. The trial court adopted the

magistrate’s decision the same date it was issued. 3

{¶7} Husband filed timely objections to the magistrate’s decision, as well as a praecipe

to the court reporter. Husband declined to supplement his objections after the transcript of the

hearing was filed. Wife filed a response in opposition to Husband’s objections. The domestic

relations court sustained Husband’s objections and ordered that Husband’s “spousal support

obligation shall remain unmodified” and that Husband “shall continue to pay child support per

the December 9, 2010 Divorce Decree.” Wife appealed and raises two assignments of error for

review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO CONSIDER ALL OF [HUSBAND’S] INCOME AND IN NOT MODIFYING THE AMOUNT OF SPOUSAL SUPPORT.

{¶8} Wife argues that the trial court abused its discretion by failing to consider all of

Husband’s income, rather than only his base salary, in refusing to modify spousal support. This

Court agrees.

{¶9} This Court reviews the domestic relations court’s decision regarding the

modification of spousal support for an abuse of discretion. Michaels v. Michaels, 9th Dist.

Medina No. 12CA0029-M,

. An abuse of discretion is more than an error of

judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore,

(1983).

{¶10} The Ohio Supreme Court has held 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.” 4

Mandelbaum v. Mandelbaum,

,

, paragraph two of the

syllabus. In this case, the parties’ agreed entry, attached to and incorporated into the divorce

decree, expressly conferred ongoing jurisdiction on the domestic relations court to modify the

amount of spousal support, although not the duration.

{¶11} R.C. 3105.18(F), in effect at the time relevant to this matter below, stated that “a

change of 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.”

{¶12} At the time the parties entered into their agreement regarding spousal support,

Husband was working for JP Morgan Chase in Hong Kong, earning a base annual salary of

$230,000.00. When Wife filed her motion to modify spousal support, JP Morgan had

reorganized and relocated Husband to Singapore and raised his base annual salary to

$275,000.00. In addition, Husband received a housing allowance, a foreign assignment pay

differential, a long-term incentive bonus paid out as dividends, a leave allowance for travel, and

an annual bonus paid in January for the previous year. Specifically, in 2012, Husband’s

annualized income included a $275,000 base salary, a $104,300 housing allowance, a $25,300

foreign assignment differential, $7,200 in dividends, a $12,300 travel/leave allowance, and a

$149,500 bonus, for a total of $573,600.

{¶13} The parties clearly recognized Husband’s indeterminate annual bonuses as part of

Husband’s income, as evidenced by their agreement to divide equally his 2010 cash bonus

(which was to be paid to Husband approximately one month after the divorce decree was filed)

as part of the division of property. Accordingly, there was no indication that the parties intended

to disregard any of Husband’s income outside of his base salary. That they chose to divide the

bonus which was to be paid shortly after they executed their agreement as part of the division of 5

marital property does not indicate that they did not intend for the trial court to consider future

bonuses for purposes of future modifications of spousal support. In fact, the parties’ agreement

to equally divide Husband’s forthcoming indeterminate cash bonus for 2010 supports the

conclusion that the parties implicitly recognized the inequity in reserving unto Husband the full

amount of his future annual cash bonuses while he maintained a support obligation to Wife.

{¶14} This is further evidenced by Husband’s testimony that the parties agreed that

Husband would pay Wife fifty percent of his annual cash bonuses for three years in addition to

$5000 per month in spousal support. He testified that he was not obligated to pay Wife a portion

of his bonuses after 2011. He admitted that he did not pay her anything from his 2011 bonus, but

asserted that that was not part of the parties’ decree. A careful reading of the decree and parties’

agreement indicates that there was no provision that Husband ever pay Wife fifty percent of his

annual bonuses, except as to the 2010 cash bonus pursuant to the parties’ division of marital

property. However, that he believed that Wife was entitled to a payment of a portion of his

annual bonuses reasonably constituted Husband’s tacit understanding that income outside of his

base salary could be considered by the court for purposes of modifying the spousal support

award.

{¶15} Moreover, it is clear that the parties did not contemplate substantial changes to

their respective incomes at the time of their agreement which was incorporated into the decree.

Husband did not present any evidence that either party contemplated that his employment

situation would change within mere months of the filing of the decree. In fact, he testified that

his move to a position in Singapore was technically a demotion, despite the increase in his base

salary and other payments and allowances, and that he was compelled to accept the new position

if he wished to remain employed with JP Morgan. By agreeing that the domestic relations court 6

would retain jurisdiction to modify the amount of spousal support, however, the parties indicated

their clear intent for the trial court to address substantial changes in the parties’ incomes that they

did not contemplate at the time of the decree. Accordingly, the domestic relations court acted

unreasonably in refusing to consider Husband’s income from sources other than his base pay in

considering whether a modification of spousal support was warranted.

{¶16} This Court does not here determine whether the change in Husband’s employment

situation contemplated a substantial change. We conclude only that the domestic relations court

abused its discretion and acted unreasonably in refusing to consider Husband’s income outside of

his base salary when considering Wife’s motion to modify spousal support. Accordingly, Wife’s

first assignment of error is sustained and the matter is remanded for a determination of whether

the change in Husband’s employment situation constituted a substantial change of circumstances

and, if so, to what extent Husband’s spousal support obligation should be modified.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN FAILING TO COMPLETE A CHILD SUPPORT WORKSHEET AND IN NOT MODIFYING [HUSBAND’S] CHILD SUPPORT OBLIGATION.

{¶17} Wife argues that the trial court erred by failing to consider all of Husband’s

income and to complete a child support worksheet to determine whether a modification of

Husband’s child support obligation was warranted. This Court agrees.

{¶18} The domestic relations court refused to modify Husband’s child support

obligation in the mistaken belief that the parties agreed to never calculate the child support

obligation on income above $150,000. A simple reading of the parties’ agreement supports no

such conclusion. By the plain language of the parties’ agreement, Husband and Wife agreed that

Husband would pay $1,095.00 per month for child support “until the child dies, attains the age of 7

eighteen (18) years and is no longer enrolled in high school, until the child is earlier

emancipated, or until further order of the Court, whichever event occurs first.” (Emphasis

added.) There is no provision in the parties’ agreement that the child support obligation could

only ever be premised on a combined maximum income of $150,000. Had the parties wished to

so provide, they could have incorporated such limitation into the terms of their agreement. They

did not. Instead, they left open the opportunity for a modification of child support by the court.

See In re Whitman,

(1998) (recognizing the trial court’s ability to enforce

a provision “[where] the parties have incorporated into the separation agreement a clause that

allows the court to modify the agreement by court order, and the court has approved this

agreement and incorporated it into the decree * * *.”)

{¶19} In this case, the domestic relations court refused to consider Husband’s income

inasmuch as it, in conjunction with Wife’s income, exceeded $150,000. In doing so, the trial

court disregarded the parties’ agreement that the court had the authority to modify the original

child support obligation to which they agreed.

{¶20} Moreover, after failing to properly consider the parties’ incomes, the domestic

relations court failed to employ the requisite child support computation worksheet. R.C.

3119.022. The Ohio Supreme Court has held that the domestic relations court “must apply the

Child Support Guidelines” and complete a child support worksheet both when establishing an

initial order of support and when determining whether and how to modify an existing child

support order. DePalmo v. DePalmo,

(1997), paragraph one of the syllabus.

{¶21} Because the domestic relations court refused to recognize that the parties agreed

that the court had the authority to modify their initial child support order, Wife’s second

assignment of error is sustained. 8

III.

{¶22} Wife’s assignments of error are sustained. The judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded for

further proceedings consistent with this opinion.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

MOORE, P. J. CONCURS. 9

BELFANCE, J. CONCURRING IN JUDGMENT ONLY.

{¶23} I concur in the majority’s judgment. I agree that there is nothing in the divorce

decree that would limit the sources of income that should be considered when determining

whether a child or spousal support modification is appropriate. However, with respect to

Mother’s first assignment of error, I would conclude that a substantial change of circumstances

not contemplated at the time of the divorce was demonstrated, thereby providing the trial court

with jurisdiction to consider whether spousal support should be modified. See Mandelbaum v.

Mandelbaum,

,

, paragraph two of the syllabus. Thus, I

would remand the matter so that the trial court could make the required findings and determine

whether spousal support should be modified in light of the changed circumstances. See Tufts v.

Tufts, 9th Dist. Summit No. 24871,

, ¶ 8 (“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.”).

APPEARANCES:

RANDAL A. LOWRY and KENNETH L. GIBSON, Attorneys at Law, for Appellant.

BARBARA J. ROGACHEFSKY, Attorney at Law, for Appellee.