[Cite as DiPasquale v. DiPasquale,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

LYN D. DiPASQUALE n.k.a. DOLL, :

Plaintiff-Appellee, : CASE NO. CA2016-04-024

: OPINION - vs - 12/28/2016 :

PETER M. DiPASQUALE, :

Defendant-Appellant. :

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 09DR33138

John D. Smith, 140 North Main Street, Suite B, Springboro, Ohio 45066, for plaintiff-appellee

Mitchell W. Allen, P.O. Box 227, Mason, Ohio 45040, for defendant-appellant

PIPER, P.J.

{¶ 1} Defendant-appellant, Peter DiPasquale ("Husband"), appeals a decision of the

Warren County Court of Common Pleas, Domestic Relations Division, denying his request to

terminate or reduce the amount of spousal and child support he pays plaintiff-appellee, Lyn

DiPasquale n.k.a. Lyn Doll ("Wife").

{¶ 2} Husband and Wife were divorced in 2011, and had two minor children at the

time. Husband was ordered to pay Wife $49,000 per year in spousal support, plus a Warren CA2016-04-024

percentage of his bonuses, for 102 months, and $13,091.74 a year in child support. At the

time the trial court first ordered Husband's support obligations, he earned $155,500 plus

bonuses, and Wife earned $16,000 working for a family-owned business.

{¶ 3} Since that time, one of the parties' children has become emancipated and

Husband retired from his employment at Procter & Gamble ("P&G"). Husband received one

year of severance pay at the time he retired. Once the one-year period passed during which

Husband's severance pay was equal to his regular earnings, Husband filed a motion to

reduce child support based on his child's emancipation, and to reduce or terminate his

spousal support based on his retirement.

{¶ 4} During a hearing on the matter, Husband argued that his retirement from P&G

was not voluntary, and that he retired in lieu of being fired for poor performance. Husband,

who worked in human resources, asserted that he had received multiple poor reviews, and

that P&G's common practice was to terminate the employment of employees after

successive poor reviews. Husband testified that he accepted P&G's offer of a voluntary

separation package as an alternative to termination without any benefits.

{¶ 5} The magistrate issued a decision, finding that no change of circumstances had

occurred warranting a reduction of spousal support. The magistrate also determined a new

amount for child support given that one child was emancipated. Husband filed objections to

the magistrate's decision regarding both spousal and child support, but did not provide the

trial court with a transcript of the hearing. The trial court adopted the magistrate's decision in

full, thus making it an order of the court. Husband now appeals the trial court's decision,

raising the following assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO CHANGE IN

CIRCUMSTANCES WITH RESPECT TO SPOUSAL SUPPORT. -2- Warren CA2016-04-024

{¶ 8} Husband argues in his first assignment of error that the trial court erred in

determining that his retirement from P&G did not constitute a change of circumstances to

warrant reduction or termination of spousal support.

{¶ 9} A trial court has broad discretion in determining a spousal support award,

including whether or not to modify an existing award. Burns v. Burns, 12th Dist. Warren No.

CA2011-05-050,

, ¶ 17. Thus, a spousal support award will not be disturbed

on appeal absent an abuse of discretion.

An abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore,

(1983).

{¶ 10} According to R.C. 3105.18(E), a trial court can modify spousal support if the

court determines that the circumstances of either party have changed and the parties' divorce

decree contained a provision specifically authorizing the court to modify the spousal support

order. R.C. 3105.18(F)(1) provides that "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 * * *." The

statute further requires that the change in circumstances be "substantial and makes the

existing award no longer reasonable and appropriate." R.C. 3105.18(F)(1)(a). The change in

circumstances must have not been "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 [sic]."

{¶ 11} Before we address the trial court's decision, we first note that Husband failed

to file a transcript with the trial court of the magistrate's hearing. As such, the trial court was,

and this court is, limited in a review of the magistrate's decision.

{¶ 12} Civ.R. 53(D)(4)(d) provides that when ruling on timely filed objections, "the

court shall undertake an independent review as to the objected matters to ascertain that the -3- Warren CA2016-04-024

magistrate has properly determined the factual issues and appropriately applied the law." An

appellate court must presume that a trial court has performed an independent review of the

magistrate's recommendations unless the appellant affirmatively demonstrates the contrary.

Pietrantano v. Pietrantano, 12th Dist. Warren No. CA2013-01-002,

.

{¶ 13} Civ.R. 53(D)(3)(b)(iii) provides that an objection to a magistrate's factual

finding, whether or not specifically designated as a finding of fact, must be supported by a

transcript or affidavit of the evidence submitted to the magistrate.1 It is well-established that

when an objecting party fails to file a transcript with the objections, the court is "free to adopt

the magistrate's findings without further consideration of the objections." Stevens v. Stevens,

12th Dist. Warren Nos. CA2009-02-028 and CA2009-06-073,

, ¶ 23. In such

circumstances, the trial court is limited to examining only the magistrate's conclusions of law

and recommendations and has the discretion to adopt the factual findings of the magistrate.

Bartlett v. Sobetsky, 12th Dist. Clermont No. CA2007-07-085,

.

{¶ 14} In addition, although transcripts of the proceedings are included in the record

on appeal, as an appellate court, we are precluded from considering evidence that was not

before the trial court during its independent review. Finkelman v. Davis, 12th Dist. Butler No.

CA2003-07-173,

. An appellate court cannot add matter to the record

before it, which was not a part of the trial court's proceedings, and then decide the appeal on

the basis of the new matter.

. Consequently, because Husband failed to file

transcripts of the proceedings below, he is precluded from challenging on appeal the trial

1. Husband argues that his assignments of error are strictly issues of law, not of fact, so that a lack of a transcript was inconsequential to his objections and to his arguments on appeal. However, whether a person is voluntarily unemployed and whether to impute income for purposes of child support involve issues of fact. See Cooper v. Cooper, 12th Dist. Clermont No. CA2003-05-038,

("Whether a parent is voluntarily unemployed is a question of fact for the trial court"); and Rock v. Cabral,

(1993) ("the question whether a parent is voluntarily underemployed within the meaning of R.C. 3113.215[A][5], and the amount of 'potential income' to be imputed to a child support obligor, are matters to be determined by the trial court based upon the facts and circumstances of each case"). -4- Warren CA2016-04-024

court's adoption of the magistrate's factual findings regarding his retirement from P&G.

{¶ 15} The magistrate determined that Husband's circumstances based upon an

involuntary decrease in salary did not occur because Husband's retirement was voluntary.

The magistrate further determined that Husband's circumstances, even with retirement, had

not otherwise changed to warrant a reduction or termination of his spousal support.

{¶ 16} Regarding the voluntary nature of Husband's retirement, the magistrate

indicated that Father executed a voluntary separation package as an alternative to his being

terminated for poor performance. The terms of the separation agreement provided Husband

with one year of pay equal to his base salary of $155,500. While the magistrate considered

that Husband received multiple poor performance reviews, the magistrate determined that

Husband did not make any attempt to improve his performance or to otherwise negotiate

continued employment with P&G despite the poor performance. While a voluntary retirement

does not outright bar consideration of a party's decrease in income when determining if there

was a substantial change of circumstances, the magistrate did not stop its analysis at

whether Husband's retirement was voluntary. Robinson v. Robinson, 12th Dist. Brown Nos.

CA93-02-027 and CA93-03-047,

, *1; Mlakar v. Mlakar, 8th Dist. Cuyahoga

No. 98194,

.

{¶ 17} Instead, the magistrate determined that even if Husband's retirement was

involuntary, Husband chose to remain voluntarily unemployed. The magistrate addressed

Husband's retirement agreement, and that it provided Husband with "extensive free

outplacement services, and reimbursement of up to $5,000 for any education or job-training

[Husband] chose to pursue." While the agreement also included a noncompete clause, the

magistrate noted that Husband had a right to seek a release from P&G from the non-

compete clause according to the terms of the separation agreement. However, and despite

the agreement providing additional resources to assist Husband in becoming re-employed, -5- Warren CA2016-04-024

the magistrate found that Husband "did not avail himself" of the outplacement services or

additional education/job training.

{¶ 18} The magistrate also found that Husband, who was 60 years old at the time of

the hearing, did not have physical or mental disabilities that would prevent him from seeking

employment. However, Husband neither sought employment after his retirement, nor did he

"plan to look for a job" despite being in good mental and physical heath, and having "lengthy

experience with a renowned global corporation." Despite Husband's plans to stay

unemployed, the magistrate found that Husband did not make any strides to lower his

budget. Instead, Husband continues to live in his mortgaged home, valued at $1,300,000,

and his expenses reach $10,000 per month.

{¶ 19} We agree with the trial court that the magistrate's findings support its decision

that Husband's retirement was voluntary and that even if it were not, Husband remains

voluntarily unemployed. Additionally, the magistrate further determined that regardless of,

and aside from, Husband's voluntary retirement, Husband's financial circumstances had not

changed to warrant a spousal support modification.

{¶ 20} The magistrate determined that Husband failed to show a change in

circumstances given that Husband has access to income from his investments capable of

producing an amount similar to his previous earnings from P&G. Specifically, the magistrate

found that Husband's investment portfolio has a value of approximately $4,000,000 and that

according to Husband's testimony, a "reasonable rate of return" on his investments would be

approximately three to four percent. As such, the magistrate found that Husband has access

to earnings equal to approximately $160,000 per year based on his portfolio without being

employed in any capacity.

{¶ 21} Husband argues that the magistrate erred by considering investment income

because he chooses to reinvest the interest income on a continual basis rather than -6- Warren CA2016-04-024

withdraw, or realize, that income. However, and according to R.C. 3105.18(C)(1)(a) & (b),

when determining spousal support, the court is to consider "the income of the parties, from all

sources, including, but not limited to, income derived from property divided, disbursed, or

distributed" during the division of property subsequent to a divorce, as well as the "relative

earning abilities of the parties".2 (Emphasis added.)

{¶ 22} Despite his choice to reinvest his interest income, Husband has undisputed

income from his portfolio, and has an admitted earning ability of three to four percent on his

$4,000,000 in assets.3 Given that Husband will earn as much, or more than, what he earned

while employed with P&G, the magistrate determined that no change of circumstances

occurred to warrant a change in Husband's spousal support obligation. We find no abuse of

discretion in the trial court's adoption of this finding, nor in the overall decision to deny

Husband's motion to modify his spousal support obligation. As such, Husband's first

assignment of error is overruled.

{¶ 23} Assignment of Error No. 2:

{¶ 24} THE COURT ERRED IN FAILING TO CONSIDER MS. DOLL'S INVESTMENT

INCOME FOR CHILD SUPPORT PURPOSES.

{¶ 25} Husband argues in his second assignment of error that the trial court erred in

not imputing income to Wife for purposes of the child support calculation.

2. As pertinent to the second assignment of error, income for purposes of child support calculations for a voluntarily unemployed parent includes "the sum of the gross income of the parent and any potential income of the parent." (Emphasis added.) R.C. 3119.01(5)(b).

3. Husband also argues that the magistrate's decision equates to "double dipping" and is otherwise barred by res judicata because the trial court divided the interest-earning assets after the parties' divorce, but did not otherwise include the interest earnings in Husband's income calculations. After the divorce, Husband chose to purchase Wife's claim in stock options, which the trial court awarded as Wife's portion of the marital property. Thus, Husband paid Wife $1,000,000 for her share. However, the magistrate's decision is not a case of double dipping where the original divorce decree divided the assets, but did not include the interest income from those sources when determining what spousal and child support were proper. Since that time, however, Husband turned the required age and can now withdraw his principal and interest income without any penalty, and that interest income is properly considered when determining spousal support issues. -7- Warren CA2016-04-024

{¶ 26} The magistrate recalculated Husband's child support obligation given the

emancipation of one of his children, but in doing so, did not impute additional income to Wife.

As previously stated, the magistrate considered Husband's income potential for purposes of

establishing spousal and child support, and set his income at $155,500 for child support

calculation purposes.

{¶ 27} Regarding Wife's salary, the magistrate determined that Wife's salary had

increased from $16,000 at the time of the divorce to $26,520 working in a business she and

her sister own and operate. However, the trial court did not find that Wife was voluntarily

under or unemployed, which is a predicate to income imputation. See R.C. 3119.01(C)(11);

McLaughlin v. Kessler, 12th Dist. Fayette No. CA2011-09-021,

, ¶ 13.

Without a finding of involuntary under or unemployment, the magistrate could not have

imputed income to Wife, and thus did not abuse its discretion in not imputing income to Wife.

{¶ 28} Moreover, the income Husband wants imputed to Wife is not yet reachable by

Wife. Wife has retirement benefits of approximately $1,633,000, but cannot access the

principal or interest on these assets without incurring a ten percent penalty. This prohibition

is in place until 2017 when Wife reaches a certain age. As such, the magistrate determined

that Mother's income was limited to the $26,520 she earns from the family business, but did

not include any interest income given Wife's ineligibility to withdraw such without penalty.

{¶ 29} The magistrate made these findings after considering the factors set forth in

R.C. 3119.01(C)(11) regarding Husband's potential income. The statute provides that

potential income, upon a finding of voluntary unemployment or underemployment includes

"imputed income that the court or agency determines the parent would have earned if fully

employed as determined from the following criteria:"

(i) The parent's prior employment experience;

(ii) The parent's education; -8- Warren CA2016-04-024

(iii) The parent's physical and mental disabilities, if any;

(iv) The availability of employment in the geographic area in which the parent resides;

(v) The prevailing wage and salary levels in the geographic area in which the parent resides;

(vi) The parent's special skills and training;

(vii) Whether there is evidence that the parent has the ability to earn the imputed income;

(viii) The age and special needs of the child for whom child support is being calculated under this section;

(ix) The parent's increased earning capacity because of experience;

(x) The parent's decreased earning capacity because of a felony conviction;

(xi) Any other relevant factor.

{¶ 30} As previously stated, we find that the magistrate's determination that Husband

was voluntarily unemployed was properly adopted by the trial court. Based on the testimony

and evidence before the magistrate, Husband's imputed income for purposes of child support

calculations was $155,500, or the amount he was able to earn while employed with P&G.

The magistrate's decision makes clear that it had made a determination that Husband was

"voluntarily unemployed and imputes to him his prior earned income of $155,500." The trial

court, however, never found Wife to be under or unemployed, and thus did not impute

income to Wife based on possible income she could not yet access from her investments.

{¶ 31} Given our limited review of the record, and our adherence to the magistrate's

factual findings, we find that the trial court did not abuse its discretion in adopting the

magistrate's determination of Wife's income for the purposes of child support. The

magistrate found that Wife could not access the principal of her retirement accounts, or the -9- Warren CA2016-04-024

interest income from these assets, until she reaches a certain age given the penalty

associated with early withdrawal. Moreover, the magistrate found that both parties had

income from stock options since the time of the divorce, but that Husband provided no

evidence regarding whether income from the stock options was recurring, and thus, such

income was not considered in either party's income calculation.

{¶ 32} Without a transcript of the proceedings, we are bound to accept the

magistrate's findings, and agree with the trial court that the magistrate's decision supports its

findings that Mother could not access her interest income prior to 2017. Husband,

conversely, had reached the required age, and was permitted to and had unfettered access

to his principal and interest income. As such, we find no abuse of discretion in the incomes

imputed, or not imputed, to the parties for purposes of child support calculations. Husband's

second assignment of error is therefore, overruled.

{¶ 33} Judgment affirmed.

RINGLAND and HENDRICKSON, JJ., concur.

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