[Cite as Jackson v. Jackson,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

BRIAN R. JACKSON, : OPINION

Plaintiff-Appellant/ : Cross-Appellee, CASE NOS. 2013-L-035 : and 2013-L-037 - vs - : ROBIN S. JACKSON, : Defendant-Appellee/ Cross-Appellant. :

Appeals from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 07 DR 000384.

Judgment: Affirmed.

James R. Skirbunt and Sharon A. Skirbunt, Skirbunt & Skirbunt Co., L.P.A., One Cleveland Center, Suite 3150, 1375 East Ninth Street, Cleveland, OH 44114 (For Plaintiff-Appellant/Cross-Appellee).

Joseph G. Stafford, Stafford Law Co., L.P.A., 55 Erieview Plaza, 5th Floor, Cleveland, OH 44115 (For Defendant-Appellee/Cross-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Brian R. Jackson, appeals the judgment of the Lake County

Court of Common Pleas, Domestic Relations Division, adopting the decision of its

magistrates on Brian’s motion to modify spousal support and child support. Appellee,

Robin S. Jackson, cross-appeals the same judgment. The principal issue in this appeal

is whether the trial court had jurisdiction to modify the court’s prior order of spousal support. This is the second appeal arising out of the Jacksons’ divorce. For the

reasons that follow, we affirm.

{¶2} The Jacksons were married in 1996, and have one son who was born in

1998. Brian was an executive with Lincoln Electric. Robin did not work during the

marriage. Brian filed for divorce in 2007. Trial was held on July 13, 2009; October 9,

2009; and November 30, 2009, before a magistrate. The parties eventually resolved

most issues and, at the final hearing on November 30, 2009, they entered an

agreement regarding the remaining issues involving child support, spousal support, and

Brian’s bonus and stock options. On that date, Brian’s counsel read the agreement into

the record. On May 10, 2010, the trial court journalized the divorce decree

incorporating the parties’ in-court agreement.

{¶3} According to the agreement, Brian was to continue paying temporary

spousal support until December 31, 2009. Effective January 1, 2010, he was to pay

spousal support for 48 months at $4,700 per month. Brian’s retirement plans subject to

ERISA were to be divided equally by QDROs. His various other retirement benefits,

including various stock options, were also to be divided equally. Child support was set

at $1,250 per month, a 38% downward deviation, to which the parties agreed, as their

son spent half of his time with Brian, who was also the child’s residential parent for

school purposes. It was contemplated in the agreement that Brian would retire in

January 2011. He suffers from a severe vision impairment. The trial court retained

jurisdiction to modify support.

{¶4} The trial court ordered Robin’s counsel to prepare the QDROs regarding

Brian’s defined benefit plan with Lincoln Electric and his 401(k) plan. He failed to do so.

2 Thus, Brian’s counsel prepared proposed QDROs and submitted them to Robin’s

counsel for approval on June 15, 2010. Robin filed various objections with the trial court

to the QDROs. On January 5, 2011, the trial court entered two judgments adopting

Brian’s proposed QDROs. Robin appealed, and on February 21, 2012, this court

affirmed the trial court’s judgment in Jackson v. Jackson, 11th Dist. Lake Nos. 2011-L-

016 and 2011-L-017,

, ¶23, 46.

{¶5} On March 5, 2011, Brian retired from Lincoln Electric. A few days later, he

filed a motion to modify spousal support and child support. Trial was held before two

magistrates on October 3, 2011; May 30, 2012; and May 31, 2012, on Brian’s motion to

modify. On August 29, 2012, the magistrates issued an exhaustive, 23-page decision

ruling on Brian’s motion to modify. Initially, the magistrates noted the parties had

stipulated Brian was owed a credit of $39,800 against his support arrearages, and the

magistrates ordered the Lake County Child Support Enforcement Agency (“CSEA”) to

adjust its records accordingly. This credit originated from Brian’s bankruptcy, which

occurred during the divorce proceedings. This was the amount of money Brian paid to

the bankruptcy trustee to be paid toward his support arrearages as a priority claim.

{¶6} The magistrates further concluded that Brian was entitled to a modification

of both spousal support and child support. They conducted a detailed analysis of the

reduction in Brian’s income due to his retirement. They concluded his retirement was a

“triggering event,” allowing for modification of his support obligations. They reduced his

spousal support obligation from $4,700 per month to $3,300 per month, effective March

9, 2011. They further reduced it to $1,100 per month, effective January 1, 2012, until

the end of the 48-month-spousal-support term set forth in the divorce decree. Brian’s

3 child-support obligation was also reduced, taking into consideration Brian’s lower

income and applying the previously-established 38% downward deviation to the

reduced child-support calculation.

{¶7} Both parties filed objections to the magistrates’ decision. By its judgment,

filed March 29, 2013, after making a detailed analysis of the parties’ objections, the trial

court adopted the magistrates’ decision. Brian timely filed an appeal, assigning two

errors, and Robin filed a cross-appeal, assigning seven errors.

{¶8} For Brian’s first assigned error, he alleges:

{¶9} “The trial court erred when it did not specifically order Lake County CSEA

to credit [Brian] with $39,800.00 [Robin] received from the Bankruptcy Trustee in

satisfaction of [Robin’s] priority bankruptcy claim for support.”

{¶10} A trial court’s decision to adopt, reject, or modify a magistrate’s decision is

reviewed for an abuse of discretion. In re Gochneaur, 11th Dist. Ashtabula No. 2007-A-

0089,

. This court has stated that the term “abuse of discretion” is

one of art, connoting judgment exercised by a court, which does not comport with

reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011, 2010-Ohio-

2156, ¶24.

{¶11} Brian argues the trial court erred in not ordering CSEA to credit him with

the $39,800 Robin received from the bankruptcy trustee in satisfaction of Brian’s

support arrearages. However, the magistrates and, by adoption of the magistrates’

decision, the trial court decided that Brian was to receive a credit in this amount against

his support arrearages and ordered CSEA to adjust its records accordingly. In fact,

Brian concedes that by adopting the magistrates’ decision, the trial court ordered CSEA

4 to credit him with $39,800. The trial court ordered CSEA to make an adjustment in its

calculation of the support arrearages; prepare an account summary; and submit it to the

parties and their counsel. Thus, contrary to Brian’s argument, there is no realistic

concern he will have to pay this amount twice if the court does not enter another order

repeating the court’s original order that CSEA adjust its records to give him credit for

this amount.

{¶12} Since the trial court adopted the magistrates’ decision, which includes the

order Brian seeks, he has failed to demonstrate an abuse its discretion by the trial court.

{¶13} Brian’s first assignment of error is overruled.

{¶14} For his second assignment of error, Brian alleges:

{¶15} “The trial court erred by including stock option proceeds as income

attributable to [Brian] when those stock options were property of [Robin], who received

the proceeds from exercise of the options.”

{¶16} Brian argues the trial court abused its discretion by including the proceeds

he realized from his exercise of Lincoln Electric stock options in 2011 in his 2011 gross

income for support purposes because he turned over the proceeds, i.e., $56,137, to

Robin. He asks that the proceeds be allocated to Robin’s income, rather than to his.

{¶17} Brian argues the proceeds from his exercise of these stock options

constituted “nonrecurring” income and thus were not includable as part of his gross

income for support purposes. “Nonrecurring * * * income * * *’ means an income * * *

item the parent receives in any year or for any number of years not to exceed three

years that the parent does not expect to continue to receive on a regular basis.” R.C.

5 3119.01(C)(8). Such income is not part of gross income for support purposes. R.C.

3119.01(C)(7)(e).

{¶18} In support of its finding that these proceeds were part of Brian’s gross

income, the trial court noted that the stock options accrued to Brian over the years and

were exercised by him in multiple years prior to 2011. Moreover, Brian exercised other

stock options in 2012. Thus, Brian received such income in more than three years.

{¶19} In these circumstances, the trial court did not abuse its discretion in

adopting the magistrates’ decision to include the proceeds realized by Brian from his

2011 exercise of stock options in his 2011 gross income.

{¶20} Brian’s second assignment of error is overruled.

{¶21} As noted above, for her cross-appeal, Robin asserts seven assignments

of error. She consolidates her first three assignments of error for argument and, thus,

we shall review them together. They allege:

{¶22} “[1.] The trial court erred and/or abused its discretion in its analysis

relating to spousal support, in finding the court had jurisdiction to modify the spousal

support, and its modification of spousal support.

{¶23} “[2.] The trial court erred and/or abused its discretion in its analysis

relating to the circumstances known at the time of the divorce, the circumstances in

regard to the parties’ settlement, and its analysis of Mandelbaum v. Mandelbaum,

(2009), and Ohio case law in regard to a voluntary retirement, especially

one that was contemplated at the time of the prior support order.

{¶24} “[3.] The trial court erred and/or abused its discretion by denying [Robin’s]

motion to dismiss.”

6 {¶25} Robin argues the trial court did not have jurisdiction to modify the

provision in the parties’ in-court agreement that Brian would pay her $4,700 per month

for four years in spousal support, effective January 1, 2010. As grounds, she argues

that Brian failed to prove the second element of the Mandelbaum test because the

parties contemplated Brian’s retirement at the time they entered their agreement.

{¶26} The Supreme Court of Ohio in

held:

{¶27} 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 at second paragraph of

the syllabus.

{¶28} The term “contemplated” in the Mandelbaum test has been defined to

mean that the matter was “taken into account” by the parties or the court in resolving an

issue. Piliero v. Piliero, 10th Dist. Franklin No. 10AP-1142,

, ¶18.

Here, Brian’s retirement was contemplated by the parties in reaching their settlement

agreement because the agreement itself provided it was anticipated Brian would retire

in one year, i.e., in January 2011. Thus, the parties clearly took Brian’s retirement into

account in settling the spousal support issue.

{¶29} However, while Brian’s retirement was obviously contemplated by the

parties, the trial court found that Brian’s retirement income was not taken into account

because that income was not fully determinable at the time of their separation

7 agreement. In support, the court noted that Brian’s retirement income included a

Supplemental Executive Retirement Plan (“SERP”) payment, which was available to

some Lincoln Electric executives on retirement, but which was discretionary and not

guaranteed as of the time of the parties’ agreement. Also, Brian’s retirement income

included a substantial social security disability payment of which he was unaware at the

time of the agreement.

{¶30} The trial court’s finding that Brian’s retirement income was not

contemplated by the parties is supported by Piliero, supra, in which the Tenth District

stated:

{¶31} Although both the trial court and the parties may have been aware

of appellant’s probable future cost-of-living raises and anticipated

the eventual termination of child support, neither the trial court nor

the parties “contemplated,” or took into account, these factors in

fashioning the spousal support award in the original decree

because the extent of change over a significant period of time is not

ascertainable. Instead, the trial court chose to retain jurisdiction to

reconsider and modify, if necessary, the spousal support amount as

these circumstances presented themselves in the future.

(Emphasis added.) Id. at ¶18.

{¶32} In Piliero, the Tenth District stated that even if a divorce decree identifies a

specific change of circumstances, such as a party’s bankruptcy, loss of job, poor health,

or the termination of child support, the consequences of such change will allow for a

8 modification of spousal support if such consequences were not ascertainable at the time

of the original decree. Id. at ¶9-10, 12.

{¶33} While Brian may not have been aware of the exact value of his retirement

income when he entered the agreement, Lincoln Electric informed him of his retirement

benefits and their estimated value two years before the agreement. Moreover, he was

aware of his vision problems before he entered the agreement, and they have

apparently not worsened since that time. It therefore appears that the parties also took

Brian’s retirement income into account in reaching their settlement agreement.

{¶34} However, our standard of review regarding whether Brian’s retirement

income was contemplated is limited. In Piliero, supra, the Tenth District stated that

“review of such a determination as to whether something was contemplated at the time

of divorce would be subject to an abuse of discretion standard.” Id. at ¶19, citing Hines

v. Hines, 3d Dist. Marion No. 9-10-15,

, and Ballas v. Ballas, 7th

Dist. Mahoning No. 08 MA 166,

, ¶44.

{¶35} Thus, while the trial court’s finding that Brian’s retirement income was not

contemplated is subject to debate, since the trial court, in adopting the magistrates’

decision, provided reasons for this finding, which are supported by the record, our

standard of review does not warrant reversal of the modification of spousal support.

{¶36} Robin also argues that Brian was not entitled to a modification of spousal

support because he voluntarily retired early to defeat his spousal support obligation.

However, we agree with the trial court’s finding that this argument is defeated by the

determination of the Social Security Administration following Brian’s retirement that he is

disabled. Further, Robin knew about Brian’s planned retirement when the settlement

9 and divorce decree were entered, and Brian retired after a lengthy career at Lincoln

Electric at a point when his retirement benefits were available to him. Allan v. Allan, 6th

Dist. Sandusky Nos. S-12-017 and S-12-023,

, ¶20. Moreover, there is

no evidence in the record that Brian retired simply to defeat his spousal-support

obligation. Thus, the trial court did not abuse its discretion in rejecting this argument.

{¶37} We therefore hold the trial court did not abuse its discretion in adopting the

magistrates’ decision finding Brian was entitled to a modification of spousal support.

{¶38} Robin’s first, second, and third assignments of error are overruled.

{¶39} For her fourth assignment of error, Robin alleges:

{¶40} “The trial court erred and/or abused its discretion in the factual finding

relating to the parties’ incomes and circumstances, and in regard to the retirement

benefits.”

{¶41} Robin argues the magistrates and the trial court erred in adding to her

income for purposes of calculating child and spousal support her half of Brian’s various

retirement benefits, which, she argued, she has not received. Aside from those funds

subject to the two QDROs, Brian has various other retirement benefits from Lincoln

Electric that are non-qualified. According to the parties’ in-court agreement, all of

Brian’s retirement benefits were to be divided equally between the parties.

{¶42} Robin argues that, because Brian has failed to pay her one-half of his

retirement benefits as ordered, the magistrates and the trial court should not have

imputed the income from her half of these benefits to her, but, instead, should have

imputed it to Brian to recalculate spousal support and child support. However, in

determining spousal support, the trial court is required to consider the income of the

10 parties from all sources, including income derived from property awarded in a property

division. R.C. 3105.18. Robin was awarded one-half of Brian’s retirement assets as

part of her property division in the divorce decree. Thus, the trial court did not abuse its

discretion in adopting the magistrates’ decision imputing this income to Robin.

{¶43} Further, in the trial court’s March 29, 2013 judgment, the court found the

magistrates’ calculations as to what Brain was paid and what he actually paid to Robin

are accurate. However, the court found that Brian failed to follow the court’s orders as

to payouts owed to Robin from annual bonuses, the SERP plan, and spousal support.

The trial court found:

{¶44} Pursuant to CSEA’s audit, the total child support and spousal

support arrearage [Brian] owes [Robin] as of February 28, 2013 is

the sum of $172,906.34, exclusive of processing fees. Frankly, the

arrearage due [Robin] at the time of trial is shocking, along with

[Brian’s] unilateral decision-making after his retirement in parceling

out what he determined was due [Robin] as and for property

division in the decree of divorce filed May 10, 2010.

{¶45} As a result, the trial court, in adopting the magistrates’ decision, entered

an order requiring Brian to pay his enormous arrearages at a set rate. Thus, the

retirement benefits owed to Robin will be paid to her. For this additional reason, Robin

has not demonstrated the trial court abused its discretion in adopting the magistrates’

decision regarding Brian’s retirement benefits.

{¶46} Robin also argues the trial court erred in not attributing the social security

benefits paid to the Jacksons’ son due to Brian’s disability to Brian’s income for child

11 support purposes. However, contrary to Robin’s argument, the magistrates’ decision,

approved by the trial court, does, in fact, include the derivative social security benefits

received by the parties’ son as part of Brian’s income for child support purposes.

{¶47} Robin’s fourth assignment of error is overruled.

{¶48} For her fifth assigned error, Robin contends:

{¶49} “The trial court erred and/or abused its discretion in regard to the

determination and calculation of child support, and the tax dependency exemptions.”

{¶50} Robin argues the magistrates and, by adoption of their decision, the trial

court abused their discretion in applying a downward deviation in calculating Brian’s

child support because the parties never agreed to a downward deviation based on

extended parenting time.

{¶51} R.C. 3119.22 mandates that when a deviation in the amount of child

support is ordered, the trial court must make “findings of fact supporting that

determination.” R.C. 3119.23 sets forth factors a trial court may consider when granting

such a deviation. These include “[e]xtended parenting time.” R.C. 3119.23(D). In this

case, by agreement of the parties, Brian was granted a downward deviation of 38% in

the divorce decree filed on May 10, 2010. This was due to the fact that the couple’s

son lives with Brian half of the time. In support of this downward deviation, in the

divorce decree, the parties referenced an exhibit attached to the decree entitled, “Child

Support Deviation Findings of Fact and Conclusions of Law.” Item four of this document

sets forth the reason for the deviation in this case as “extended parenting time.” Thus,

contrary to Robin’s argument, the parties entered an agreement with respect to the 38%

downward deviation in the amount of child support based on extended parenting time.

12 {¶52} Because the parties in fact agreed to the downward deviation due to

extended parenting time and the trial court found there was no evidence presented that

the child’s parenting time schedule with Brian had changed since the 2010 divorce

decree, the trial court did not abuse its discretion in finding that the downward deviation

would continue as originally ordered.

{¶53} Regarding Robin’s claim to the tax dependency exemption, Robin makes

no argument in her brief, and cites neither the record nor any authority in support.

Thus, we do not consider this issue, pursuant to App.R. 16(A)(7). Hammond v.

Cleveland, 8th Dist. Cuyahoga No. 97174,

. In any event, the trial

court found no evidence was presented to the magistrates regarding the allocation of

the tax exemption. Thus, the trial court did not abuse its discretion in overruling Robin’s

objection to the magistrates’ decision regarding the tax exemption.

{¶54} Robin’s fifth assignment of error is overruled.

{¶55} For her sixth assignment of error, Robin alleges:

{¶56} “The trial court erred and/or abused its discretion in various evidentiary

issues, to the prejudice of [Robin].”

{¶57} We review a trial court’s evidentiary rulings for an abuse of discretion.

State v. Golding, 11th Dist. Lake No. 2008-L-049,

; Dzina v. Dzina,

8th Dist. Cuyahoga No. 90936, etc.,

.

{¶58} First, Robin argues that the magistrates improperly excluded certain

records from Lincoln Electric in evidence, which she had received prior to the November

2009 in-court settlement and the May 10, 2010 divorce decree. Robin argued the

documents would show Brian was aware of his retirement benefits prior to the divorce,

13 but she did not explain how these documents would support her argument. The

magistrates concluded the documents at issue were not relevant to the issues before

them. The magistrates found these documents could not be used to show Brian’s

knowledge of his benefits prior to the divorce decree because there were no records in

evidence to which the proffered documents could be compared to show Brian’s prior

knowledge. The trial court found the proffered documents were immaterial based on

the transcript of the original proceeding.

{¶59} Second, Robin argues the trial court abused its discretion regarding

certain e-mails between the parties concerning the exercise of stock options because

Brian’s counsel failed to offer them in evidence despite his agreement to do so. Robin

does not explain how opposing counsel’s inaction could equate to an abuse of

discretion by the trial court. Nor does she explain how her own failure to offer these

exhibits in evidence, which were in her possession, could evidence an abuse of

discretion by the trial court. In any event, Robin does not explain why these documents

were material or how their absence prejudiced her. Moreover, the court found the e-

mails were irrelevant because they did not address any disputed issues.

{¶60} Third, Robin challenges the magistrates’ decision not to admit certain

other documents, which Robin had requested from Brian in discovery, but which he

never produced. However, Robin’s attorney did not file a motion to compel discovery

pursuant to Civ.R. 37. For this reason, the magistrates refused to allow the documents

into evidence. “The party seeking discovery must take ‘affirmative action’ by filing a

motion to compel discovery. Staff Notes to Civ.R. 37.” Kurtz Bros. v. Ace Demo, Inc.,

14 11th Dist. Portage No. 2014-P-0027,

. Thus, Robin failed to

properly raise this issue by filing a motion to compel.

{¶61} In light of the forgoing analysis, we hold the trial court did not abuse its

discretion in adopting the magistrates’ decision regarding these evidentiary rulings.

{¶62} Robin’s sixth assignment of error is overruled.

{¶63} For Robin’s seventh and final assignment of error, she contends:

{¶64} “The trial court’s decision is against the manifest weight of the evidence.”

{¶65} Robin argues that the errors and abuses of discretion recounted in her first

six assigned errors render the trial court’s judgment against the manifest weight of the

evidence.

{¶66} In C.E. Morris Co. v. Foley Constr. Co.,

, the Supreme

Court of Ohio held: “Judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed by a reviewing court as

being against the manifest weight of the evidence.”

at syllabus. An appellate court

should not substitute its judgment for that of the trial court when there exists competent

and credible evidence supporting the findings of fact and conclusions of law rendered

by the trial judge. Seasons Coal Co., Inc. v. Cleveland,

(1984). In

determining whether the trial court’s judgment is against the manifest weight of the

evidence in civil cases, a court of appeals must be guided by a presumption that the

findings of the trier-of-fact were correct.

{¶67} Applying this highly-deferential standard, we cannot find the trial court’s

judgment is against the manifest weight of the evidence. We agree with the trial court’s

finding that Robin’s manifest-weight objections were broad and ambiguous and failed to

15 provide any specific ground in support. Further, the magistrates painstakingly reviewed

the complex legal and financial issues involved, and the trial court gave a thorough

review to the parties’ objections to the magistrates’ decision.

{¶68} Robin’s seventh assignment of error is overruled.

{¶69} For the reasons stated in this opinion, the assignments of error and cross-

assignments of error lack merit and are overruled. It is the order and judgment of this

court that the judgment of the Lake County Court of Common Pleas, Domestic

Relations Division, is affirmed.

THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.

_____________________

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.

{¶70} I concur with the majority’s well-reasoned disposition of Robin’s

assignments of error. However, finding merit in Brian’s assignments of error, I would

reverse and remand on those.

{¶71} By his first assignment of error, Brian objects to the trial court’s failure to

order the Lake County CSEA to credit him specifically with the money he paid to his

bankruptcy trustee for support purposes. The majority notes the magistrates

recognized the parties stipulated to this, and ordered the CSEA to adjust its records,

and that in adopting the magistrates’ decision, the trial court adopted this finding as well,

16 and ordered the CSEA to adjust its account, and submit the account to the parties’

counsel. However, it is impossible to tell from the record before us whether this has

occurred. I would remand, with instructions that the trial court specifically order the

CSEA to adjust its account, and verify that the adjustment has been made.

{¶72} By his second assignment of error, Brian contends the trial court

improperly included the exercise of certain stock options in his gross income for support

purposes, since they were “nonrecurring income.” The majority notes Brian exercised

these options in more than three years, and concludes this removed the options from

the definition of nonrecurring income under R.C. 3119.01(C)(8). However, nothing in

the record contradicts Brian’s testimony that Robin received the monies from her half of

the 2011 options he exercised on her behalf. She should not receive a windfall from

double counting. I would remand for the trial court to determine the value of any stock

options exercised by Brian on Robin’s behalf, and adjust the parties’ incomes

accordingly.

{¶73} I respectfully concur in part and dissent in part.

17