[Cite as Gibson v. Gibson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

DAWN A. GIBSON : : Plaintiff-Appellant : Appellate Case No. 28171 : v. : Trial Court Case No. 2011-DR-1008 : ROBERT J. GIBSON : (Appeal from Common Pleas Court – : Domestic Relations Division) Defendant-Appellee : :

...........

OPINION

Rendered on the 10th day of May, 2019.

...........

PRIYA D. TAMILARASAN, Atty. Reg. No. 0086373, 175 South Third Street, Suite 200, Columbus, Ohio 43215 Attorney for Plaintiff-Appellant

MATTHEW J. BARBATO, Atty. Reg. No. 0076058, 2625 Commons Boulevard, Suite A, Beavercreek, Ohio 45431 Attorney for Defendant-Appellee

............. -2-

DONOVAN, J.

{¶ 1} This matter is before the court on the October 17, 2018 notice of appeal of

Dawn A. Gibson. Dawn appeals from the September 21, 2018 judgment of the

Montgomery County Court of Common Pleas, Domestic Relations Division, which

overruled her objections to a magistrate’s decision, reduced her former husband Robert

Gibson’s spousal support obligation, and denied her motion to enforce a suspended jail

sentence imposed on Robert for a previous finding of contempt for failure to pay spousal

support. We hereby affirm the judgment of the trial court.

{¶ 2} The parties’ final judgment and decree of divorce, filed on February 23, 2015,

stated that the parties were married in 1990 and had two emancipated children. According

to the decree, the parties agreed that Robert would pay Dawn spousal support of $2,750

per month, commencing August 1, 2014, for a period of 96 months. The spousal support

was “subject to the continuing jurisdiction of the Court as to amount only, not duration.”

{¶ 3} By way of background, we note that on April 27, 2015, the Support

Enforcement Agency issued findings related to Robert’s spousal support obligation in this

case. Robert contested the findings, and the trial court scheduled a hearing for August

12, 2015. Also, on June 26, 2015, Robert filed a motion to reduce his spousal support

obligation. On August 12, 2015, the magistrate filed an order indicating that the parties

had reached an agreement relative to the administrative order and that Robert’s attorney

was to file an agreed entry reflecting that agreement within 14 days. No agreed entry was

filed.

{¶ 4} On September 16, 2015, Dawn filed a multi-branch motion seeking, among

other things, an increase in spousal support, a finding of contempt, and attorneys fees. -3-

Again, the parties reached an agreement and, on November 24, 2015, the magistrate

ordered Dawn’s attorney to file an agreed entry within 30 days. No agreed entry was

filed and, on December 29, 2015, the magistrate issued a notice of potential dismissal of

Dawn’s motion, noting that it appeared that Dawn had “failed to prosecute the case by

not proceeding with the full evidentiary hearing or resetting the matter in a timely manner.”

Similarly, on December 31, 2015, the magistrate issued a notice of potential dismissal of

Robert’s request for a hearing on the administrative findings of April 27, 2015, because

he had also “failed to prosecute the case by not proceeding with the full evidentiary

hearing or resetting the matter in a timely manner.”

{¶ 5} On January 29, 2016, the parties filed an agreed entry which stated that

Robert voluntarily dismissed his motion to reduce spousal support and Dawn dismissed

her motion to increase spousal support. The entry also stated that the parties agreed

that Robert had a spousal support arrearage of $31,545, which included a credit in the

amount of $11,250; Robert agreed to pay the $31,545 spousal support arrearage to Dawn

by December 31, 2015.1 The agreed entry also stated that Robert would pay $802.90 in

marital debt to PNC Bank, $4,500 to Dawn for attorney fees as ordered in the final decree,

and $750 in additional attorney fees to prosecute her motion. The agreed entry stated

that it represented Robert’s “first Civil Contempt finding,” that he was sentenced to three

days in the Montgomery County Jail, and that the sentence was “held in abeyance

1 We recognize that the deadline for payment specified in the January 29, 2016 agreed entry had already passed when the entry was filed. Dawn’s brief addresses this discrepancy in a footnote, explaining that the entry was negotiated before the December 31, 2015 deadline but, due to trail court extension, the agreed entry was filed after the deadline. According to Dawn’s brief, the December 31, 2015 deadline remained the agreed-upon date for Robert to make the specified payments. -4-

pending his purge opportunity.” Finally, the agreed entry provided that Robert could

purge the contempt finding by making the above referenced payments and remaining

current on all spousal support obligations, including any arrearage repayment. The

agreed order was signed by Dawn’s attorney, the magistrate, and the judge; the following

statement appeared above the signature line for Robert’s attorney: “Seen but not

approved.”

{¶ 6} On February 4, 2016, the trial court dismissed Robert’s motion for a hearing

on the Support Enforcement Administration’s administrative order for want of prosecution,

stating that the parties’ agreed entry of January 29, 2016 addressed the spousal support

arrearage, which was the basis for the disputed administrative findings.

{¶ 7} On February 11, 2016, Robert filed objections to and a motion to vacate the

agreed entry filed on January 29, 2016, on the basis that the parties had never reached

an agreement and none was read in the record. Robert asserted that the “fact that there

was not an agreement reached is evidence [sic] by the Agreed Entry submitted to the

Court by the Plaintiff wherein Counsel for the Plaintiff indicated that there was no

agreement to sign the Entry. As such, the Agreed Order never should have been filed.”

{¶ 8} On May 11, 2016, Dawn filed a motion seeking to liquidate Robert’s Merrill

Lynch account, with a current approximate balance of $4,811.68, “in partial satisfaction

of [his] current and future spousal support arrearage and obligation” pursuant to the

January 29, 2016 agreed entry. In a separate motion filed on the same day, Dawn

sought various temporary restraining orders against Robert in order to “maintain the

status quo as it relates to the assets of the parties.” Dawn attached her own affidavit.

{¶ 9} On July 27, 2016, a magistrate filed an order stating that the parties had -5-

reached an agreement with respect to Dawn’s motion to liquidate Robert’s Merrill Lynch

account and ordered Dawn’s attorney to file an agreed entry within 14 days. On August

3, 2016, an agreed entry and order was filed, stating that the account would “be

immediately liquidated” and the proceeds paid to Dawn “in partial satisfaction of [Robert’s]

current and future spousal support arrearage and ongoing obligation.” The entry had

been signed by the trial judge and Dawn’s attorney, and by counsel for Robert “Per email

authorization.”

{¶ 10} On October 27, 2016, Dawn’s attorney filed a “Stipulated Qualified

Domestic Relations Order,” which assigned certain of Robert’s retirement benefits to

Dawn; specifically, it assigned Dawn “100% of the vested portion of [Robert’s] account

balance under the Plan” as of August 3, 2016. The order was signed by Dawn’s attorney

and the trial judge; above the signature line for Robert’s attorney was the statement “Seen

but not approved.”

{¶ 11} On January 6, 2017, Robert voluntarily dismissed the objections he had filed

on February 11, 2016, seeking to vacate the agreed entry filed on January 29, 2016.

{¶ 12} On January 20, 2017, Robert filed a motion to reduce his spousal support

obligation, asserting that his income was “significantly less than it was at the time” of the

final decree of divorce. Several continuances were granted, and this motion remained

pending in October 2017.

{¶ 13} On October 2, 2017, Dawn filed a multi-part motion. The first branch

sought “to enforce the sentence ordered by the court on January 29, 2016 and held in

abeyance,” asserting that Robert had failed to make the required payments. In the

second branch, Dawn asked the court to reduce the spousal support arrearage, which -6-

was $31,545 as of December 31, 2015, to a lump sum judgment, “in order to permit civil

enforcement and assess statutory interest.” In the third branch, Dawn sought a “finding

of a Second Contempt,” because Robert had failed to maintain current spousal support

payments since the time of the prior contempt finding for failure to pay spousal support;

“[f]rom January 1, 2016 to present, the Defendant’s spousal support obligation totals

$57,750, of which Defendant has paid $802.75.” Finally, in the fourth branch of her

motion, Dawn sought additional attorney fees for the prosecution of her motions, pursuant

to R.C. 3105.18(G).

{¶ 14} On December 11, 2017, the magistrate conducted a hearing. Robert

testified therein that, at the time of the divorce in February 2015, he was earning between

$100,000 and $200,000 a year doing consulting work for companies that work with the

Air Force at Wright Patterson Air Force Base. He had remarried in March 2015. Robert

stated that, in October 2015, he was sentenced to a prison term for first degree felony

theft and that, as a result on his conviction, he was no longer eligible for a security

clearance at Wright Patterson Air Force Base.

{¶ 15} Robert testified that, when he filed his motion to reduce his spousal support

obligation, he was employed at Dorothy Lane Market (“DLM”), working 20 to 30 hours per

week and earning $9 - $11 per hour. Robert testified that, in a year, he would earn

$15,600 at DLM. He testified that he was employed at DLM from December 2016 to

April 2017, and that he left that job for “a better opportunity” driving as an independent

contractor for Rush Delivery. Robert worked full time for Rush Delivery and was paid

weekly “by the delivery.” He testified that he made between $300 and $600 per week,

and that his expenses for gas, insurance, and car repairs consumed 50 percent of his -7-

gross income. Robert left Rush Delivery at the end of September 2017 to help his wife

with an Internet marketing company that she started. Robert testified that the Internet

marketing company “broke even at best” because of the expenses his wife had incurred.

Robert stated that his wife was also employed full time at AmeriWater as a buyer.

{¶ 16} Robert testified that, in the last week of November 2017 (a couple of weeks

before the hearing), he obtained an independent contracting job teaching English to

Chinese and Taiwanese students over the Internet. He was to be “paid on 10th of each

month for the month in the rear,” but “didn’t have enough hours to be paid December

10th,” so he would be paid on January 10th. Robert testified that he taught two to three

classes a day and was paid a “base rate of $7.50, plus a bonus for each student’s variable

rating, meaning they rate me; I get a bonus.” Robert testified that he had no other

sources of income and no assets. Regarding his spousal support obligation, Robert

testified that he had paid what he could afford, which was “50, 75 bucks a month.” He

stated that, while he was in prison, he did not make spousal support payments, but “there

was some taken out of [his] monthly prison check.”

{¶ 17} Regarding Dawn’s motion to enforce his suspended jail sentence, Robert

testified that he was in prison in January 2016 and that, before going to prison, he had

paid a total of “[m]aybe $500” to Dawn’s attorney of $4,500 owed in attorney fees.

Robert testified that he was not sure he was aware of an additional $750 obligation for

attorney fees he was ordered to pay related to contempt proceedings in January 2016.

Robert asserted that when he entered the agreement with Dawn in the summer of 2014

regarding the monthly amount of spousal support, how long it would last, and when it

would begin (as later reflected in the final decree of divorce), he was not aware that he -8-

was under criminal investigation or had been indicted; he was made aware of that fact in

December 2014 by a letter from the investigator.

{¶ 18} On cross examination, Robert testified that he had a bachelor’s degree in

political science; he and his current wife purchased their Centerville home after their

marriage. Robert acknowledged that, in his motion for judicial release from prison, he

expressed confidence in his ability to secure employment within 30 days of his release in

the role of operations management and proposal developments. He testified that he had

paid $6,000 – $7,000 in restitution since he was released from prison, and that he had

paid “[m]aybe [$]30, 40,000” prior to being convicted and sentenced. The following

exchange occurred:

Q. (DAWN’S ATTORNEY) Now, Mr. Gibson, are you aware that you

just testified that you were not aware of this investigation at the time you

were divorced?

A. I had a payment plan with my brother.

Q. So you knew you owed that money?

A. I knew I owed the money. I didn’t know it was a criminal matter.

Q. So when you agreed to pay spousal support, you were aware

that you owed over $250,000?

A. Yes.

{¶ 19} When asked about other attempts to find work, Robert testified that he had

“tried to get trucking jobs. I couldn’t qualify with a criminal background.” He had also

applied to some defense contractors, but never heard back, and had done “some

independent contracting sales jobs that didn’t pan out, not worth mentioning. Didn’t pay -9-

me. Or I couldn’t perform.” Robert stated that he probably applied to 50-100 jobs in this

timeframe. When asked what prevented him from finding a job, Robert replied, “[m]y

reputation in the community and the felony record.” Robert testified that his wife paid all

of the expenses associated with their home.

{¶ 20} The following exchange occurred with the court:

THE COURT: * * * I have a Stipulated Qualified Domestic Relations

Order that transferred all of your retirement to the plaintiff so that all of your

retirement went to her. Do you know how much that was?

THE WITNESS [ROBERT]: No.

THE COURT: Okay. And then there was a liquidation of a Merrill

Lynch account?

THE WITNESS: I think that was less than ten, but I’m not sure.

THE COURT: Okay. Because it was supposed to be applied to the

spousal support. And I don’t see any record with the SEA that they gave

you credit for that.

THE WITNESS: * * * I remember agreeing to it, but I never saw any

paperwork after I agreed to it and what the amount was.

THE COURT: * * * I don’t know if it’s the eleven two-fifty or not. I

have to inquire of the plaintiff then. * * *

{¶ 21} On redirect examination, Robert testified that he was on five years of

mandatory probation and was obligated to pay restitution of $500 per month; his

restitution payments were current.

{¶ 22} Dawn testified that Robert had a spousal support arrearage of -10-

approximately $110,000. She stated that he did not pay the marital debt to PNC Bank,

the $4,500 for attorney fees, or the $750 in additional attorney fees for the contempt

proceedings.

{¶ 23} The following exchange occurred:

THE COURT: * * * So ma’am, the Merrill Lynch Account, KPMG

PRSP that was liquidated, how much did you get?

THE WITNESS (DAWN]: * * * It still hasn’t been determined, but it’s

probably less than 3,000.

THE COURT: * * * There was an indication that he was to receive

$11,250 credit?

THE WITNESS: That isn’t for the Merrill Lynch.

THE COURT: What was that for?

THE WITNESS: That was from a possible agreement that was

made a couple years ago.

THE COURT: I’m looking at the agreed order. But he was to receive

credit for that, correct, in that amount?

THE WITNESS: I think that was payments that he made incorrectly

to me versus the - - to the CSEA, if I remember correctly, I’d have to look at

my paperwork.

THE COURT: Except that the SEA did not give him credit for that.

THE WITNESS: And I believe that might have been part of the

order that [Robert’s attorney] Dave McNamee did not agree to.

THE COURT: Except I have an agreed order that says give him -11-

credit, so.

THE WITNESS: I can’t say without looking at my paperwork

THE COURT: * * * I’m looking at the paperwork. And I’m looking

at the SEA account. And they may have gave him credit, so that would

reduce - -

THE WITNESS: I know we had a hearing with * * * SEA * * *. And

they didn’t agree to give him credit.

THE COURT: Well, but this agreed order says give him credit, so

we’ll take care of that.

{¶ 24} Dawn stated that, at the time of her divorce, she made approximately

$9,600 a year, and that she was employed at the time of the hearing at Dinsmore & Shohl

as a legal assistant, making $50,000 a year.

{¶ 25} At the conclusion of the hearing, Dawn withdrew the portion of her motion

seeking a lump sum judgment.

{¶ 26} On February 21, 2018, the magistrate filed a decision. The decision noted

that “[n]either party had firm figures on the exact arrearage.” In a section related to

Robert’s contempt, the magistrate found as follows:

Defendant has not paid spousal support as ordered. There appears

to be no dispute about this. SEA records [Exhibit 1] show an arrearage of

$105,092.25 owing to plaintiff. Small payments have been made on the

account from May 2015 through November 2017. Agreed Orders filed

January 29, 2016 and August 3, 2016 acknowledge the arrearages.

Several debts allocated in the divorce to defendant remain unpaid. -12-

Defendant is unable to pay the spousal support due to his current

employment opportunities and the fallout from his conviction.

The loss of his job was a result of his own voluntary criminal actions

and does not excuse his contempt.

Defendant is found, by clear and convincing evidence, in contempt

for failing to pay spousal support and other financial obligations imposed in

the parties’ divorce decree. Defendant is sentenced to ten days, to be

suspended.

As a result of the contempt, plaintiff is awarded $500 in attorney fees

to prosecute the contempt.

{¶ 27} Addressing the motion to reduce spousal support, the magistrate

determined as follows:

It is undisputed that defendant is not able to earn the income he was

earning in 2014. His felony conviction and incarceration has negatively

impacted his income and earning abilities. He has no assets. Defendant

has a college education and is healthy. Defendant has found employment.

It is found that defendant has experienced a substantial decrease in income.

This is found to be a change in circumstances.

Plaintiff has become fully employed and earns $50,000 annually.

This is also a change of circumstances that warrants exercise of the court’s

continuing jurisdiction.

The factors outline[d] in R.C. 3105.18(C)(1) have been carefully

considered. Defendant has earning ability between $17,160 [Dorothy -13-

Lane Market job] and $13,050 [Rush Delivery & Teaching].

Consideration of defendant’s inability to regain employment at the

level enjoyed before the divorce is both relevant and equitable in

determining whether the current amount of spousal support, or any amount

of spousal support, is appropriate and reasonable.

It is found that the monthly amount of $100 is a reasonable,

appropriate, and equitable amount of spousal support for defendant to pay

pending his search for better employment. Said reduction will be made

effective the date of service of the motion on plaintiff [7-1-17]. This date

accurately reflects defendant’s financial situation while providing due

process to plaintiff.

(Bracketed information sic.)

{¶ 28} Addressing the arrearage, the magistrate determined as follows:

The arrearage reflected in the SEA audit [Exhibit I] does not

accurately reflect the actual arrearage as it does not credit defendant with

all payments made as acknowledged in the Agreed Entry filed January 29,

2016 and the Agreed Entry filed August 3, 2016. Neither party could

confirm the balance of the Merrill Lynch account that was liquidated. The

parties through counsel should confirm the actual arrearage including

attorney fees and file an Agreed Entry requesting the SEA to correct its

records.

Defendant shall pay $50 monthly on any remaining arrearage.

{¶ 29} The magistrate made the following orders: -14-

1. Plaintiff’s Motion for Enforcement, Contempt and Attorney Fees

filed October 2, 2017 is found well-taken and granted as set forth below;

***.

2. Defendant’s Motion to Reduce Spousal Support filed January 2,

2017, is granted as set forth below.

3. Defendant is found in contempt for failing to pay spousal support

as ordered and for failing to pay marital obligations as set forth in the decree.

4. Defendant is sentenced to five (5) days in jail; jail is suspended on

condition defendant pay as ordered.

5. Plaintiff is awarded $500 in attorney fees; defendant shall pay the

fees within 180 days of the filing of any final judgment on this matter.

6. The contempt may be purged upon lump-sum payment of the

attorney fees and $500 toward the arrears.

7. Spousal support is reduced from $2,750.00 per month to $100.00

per month. Effective July 1, 2017. * * *

8. Defendant shall pay $50.00 monthly on the arrears.

9. Defendant shall seek full-time employment and report any

changes in employment and income to the plaintiff.

{¶ 30} Dawn filed objections to magistrate’s decision on March 7, 2018. Dawn

urged the trial court to review the magistrate’s decision “for error in findings of fact and

conclusions of law,” specifically with respect to the application of liquidated funds towards

spousal support arrearage, the failure to enforce the prior suspended sentence, the

determination of Robert’s earning potential, the determination of the date of service, the -15-

determination of arrearage payments, and the failure to establish a finite time for Robert

to purge the second contempt. Dawn requested the right to supplement her objections

when the transcript of the proceedings had been prepared and field a request for

preparation of the transcript.

{¶ 31} In its judgment, the trial court noted that the transcript of proceedings was

filed on March 28, 2018, that Dawn did not supplement her objections after the transcript

was filed, and that Robert had not responded to Dawn’s objections. The court noted,

pursuant to the parties’ final judgment and decree of divorce, spousal support was

“subject to the Court’s continuing jurisdiction as to amount, but not as to duration.” The

court further noted that two agreed entries had been filed subsequent to the final judgment

and decree of divorce – on January 29, 2016 and August 3, 2016 – that pertained to the

payment of the spousal support arrearage.

{¶ 32} Regarding Dawn’s objection to the “application of liquidated funds toward

spousal support arrearage,” the court determined as follows:

The Agreed Entry filed January 29, 2016 and Agreed Entry filed

August 3, 2016 state that as of December 1, 2015, Robert’s spousal support

arrearage totaled $31,545.00. The Agreed Entry states in pertinent part:

“* * * the parties agreed that as of December 1, 2015, the Defendant is in

arrears of payment of spousal support in the amount of $31,545.00 * * *[;]

this amount includes a credit to Defendant in the amount of $11,250.00

pursuant to the Agreed Entry and Order being filed simultaneously herewith.

Defendant shall pay spousal support arrears to Plaintiff * * * in the total

amount of $31,545.00, on or before December 31, 2015 * * *. ” A review -16-

of the record indicates that no Agreed Entry and Order relating to the

$11,250.00 credit was filed with this Court.

With regard to the liquidation of a Merrill Lynch account and credit

for this payment toward the arrearage, the Agreed Entry filed August 3,

2016 states in pertinent part as follows: “ * * * Defendant’s [SSN] Merrill

Lynch KPMG PRSP Account shall be immediately liquidated and the

proceeds therefrom immediately paid to Dawn A. Gibson in partial

satisfaction of Defendant’s current and future spousal support arrearage

and ongoing obligation.”

Insufficient evidence was presented at the hearing to substantiate

the amount of credit to apply toward the arrearage as a result of the

liquidation of the Merrill Lynch account.

The Magistrate Decision found that the SEA audit did not accurately

reflect the actual arrearage as it did not credit the defendant for payments

made pursuant to the Agreed Entries indicated above. The Court finds no

error in the Magistrate Decision. The Court finds that the parties through

counsel should confirm the actual arrearage including attorney fees and file

an Agreed Entry requesting the SEA to correct its records.

The Court finds Dawn’s objection as it relates to the credits on the

SEA audit is without merit and [it] is overruled.

{¶ 33} Regarding Dawn’s objection to “the failure to enforce the prior suspended

sentence,” the court found as follows:

The relief sought by Dawn with regard to her motion to enforce was -17-

not presented at the hearing. In the Magistrate Decision, Robert was found

in contempt of the Court’s orders and sentenced accordingly. In the

absence of additional argumentation explaining this objection with

particularity, the Court finds that this objection is without merit and [it] is

overruled.

{¶ 34} Regarding Dawn’s objection to the determination of Robert’s earning

potential, the court determined as follows:

Dawn does not provide her reasons disputing the determination of

Robert’s earning potential. Robert has been employed as a consultant at

Wright Patterson AFB, making between $100,000.00 and $200,000.00 per

year, at the time of the divorce. * * * Robert testified that due to his recent

felony conviction, he is currently unable to secure the clearance necessary

to perform the government contracting work he had done at the time of the

parties’ divorce. Robert testified that recently, he had worked part-time at

[DLM] at the hourly rate of $9.00 to $11.00 per hour. * * *

Pursuant to his affidavit of Financial Disclosure filed with his Motion

to Reduce Spousal Support, on January 20, 2017, Robert estimated his

annual income from DLM to be $15,600[.] Robert quit his job at DLM in

April of 2017. * * * Robert then began working at Rush Delivery, where he

testified that he was making $300.00 to $600.00 per week, with 50% of his

gross amount going toward expenses. * * * Robert stopped working at Rush

Delivery at the end of September, 2017. * * * Robert testified that he had

started teaching English to Chinese students online in November 2017, but -18-

had not yet received a paycheck at the time of the hearing. * * * Giving

consideration to the factors in R.C. 3105.18(C)(1), Robert’s earning ability

is approximately $15,600.00. This is the amount provided on the Affidavit,

as supported by Robert’s testimony, as his annual income had he remained

employed at DLM. Further, at his highest weekly gross income at Rush

Delivery, $600.00 per week, minus 50% for his expenses, this $300.00 per

week equals an annual income of $15,600.00. No evidence was

presented to support a finding of a higher income potential given the

circumstances. Based upon the evidence presented, the court finds it

reasonable to find that spousal support should be reduced to $100.00 per

month, with an additional $50.00 payment on the arrearage.

The Court finds Dawn’s objection regarding the determination of

Robert’s income to be without merit and [it] is overruled.

{¶ 35} Regarding Dawn’s objection to the “determination of the date of service,”

the court determined as follows:

In the absence of more particularity in this objection, the Court can

only surmise that this argument relates to the effective date of the decrease

in spousal support, which the Magistrate’s Decision found to be the date

Dawn was served with Robert’s motion.

The Court’s docket indicates that Dawn was served with Robert’s

Motion to Reduce Spousal Support on July 1, 2017. Typically the effective

date of a resultant order is the filing date of the motion, which in this case

would have been January 20, 2017. It appears that there was a significant -19-

delay in perfecting service of this motion. The Court finds it equitable to

order that the reduction in spousal support be effective as of the date of

service, July 1, 2017.

The Court finds Dawn’s objection related to the determination of the

date of service to be without merit and [it] is overruled.

{¶ 36} Regarding Dawn’s objection to the amount of the arrearage payments, the

court noted that Dawn withdrew her motion for a lump sum judgment at the hearing.

Based on the evidence presented at the hearing, the court found that a $50 per month

payment on the spousal support arrearage was “fair and equitable,” overruling Dawn’s

objection.

{¶ 37} Finally, regarding Dawn’s objection that the magistrate failed to set a finite

time for Robert to purge the contempt finding, the court noted that the magistrate’s

decision required Robert to pay Dawn $500 in attorney fees within 180 days of the filing

of any final judgment, and that the contempt could be purged upon the payment of the

$500 toward attorney fees and $500 toward the arrearage; the decision stated no

timeframe indicated for this “lump sum payment.” The trial court found Dawn’s objection

regarding a finite time to purge the finding of contempt to be well-taken, and ordered that

Robert pay $500 toward the arrears within 180 days of its judgment.

{¶ 38} Dawn raises three assignments of error on appeal. We will first consider her

second and third assignments of error together. They are as follows:

THE TRIAL COURT ABUSED ITS DISCRETION BY

ERRONEOUSLY CONCLUDING THAT A CHANGE OF

CIRCUMSTANCES OCCURRED JUSTIFYING A MODIFICATION OF -20-

APPELLEE’S SPOUSAL SUPPORT.

THE TRIAL COURT ERRED BY FINDING THAT AN AWARD OF

$100 PER MONTH FOR SPOUSAL SUPPORT AND $50 FOR

ARREARAGES IS REASONABLE.

{¶ 39} In her second assignment of error, Dawn asserts that the change in

Robert’s income since the time of the original spousal support award “directly and

singularly ar[ose] from his criminal conviction for stealing over $250,000 from his family”

and should not justify a reduction in spousal support. She further points out that, when

Robert agreed to pay a spousal support award as part of the divorce decree, he “was well

aware of his illegal behavior, even if he had not yet been charged.” Dawn directs our

attention to Taylor v. Taylor, 2d Dist. Miami No. 2014-CA-21,

, and asserts

that this Court and “many other Ohio courts have specifically found that incarceration due

to criminal conduct is voluntary.”

{¶ 40} Robert responds that the trial court did not abuse its discretion in finding

that a change in circumstances had occurred. At the time of the parties’ divorce, Robert

was employed earning approximately $100,000 to $200,000 per year; he was aware that

he owed over $200,000 to his mother’s estate, but he had an informal agreement with his

brother to repay the debt. As such, Robert asserts that he “was not aware, nor had

contemplated, at the time of his divorce, * * * that this debt would become a criminal matter

and that he would subsequently be convicted of a felony. Once this occurred, [Robert’s]

ability to earn an income comparable to the kind he was earning at the time of his divorce

ceased to exist.”

{¶ 41} In reply, Dawn asserts that the relevant factor before the court was not the -21-

foreseeability of the incarceration, as Robert argues, but the fact that the change in his

income was due to his own criminal conduct, and that Robert was aware of the criminal

investigation when the Final Judgment and Decree of Divorce was filed in February 2015.

{¶ 42} In her third assignment of error, Dawn argues that, even considering the

Robert’s criminal behavior and reduction in income, the spousal support award of $100

was unreasonable, especially considering Robert’s testimony that his current wife paid all

the expenses at their home and that any money he made could be paid toward spousal

support or restitution. She asserts that, even with Robert’s income of $15,600 per year

($1,300 per month) and with his restitution payment of $500 per month, he was capable

of paying at least $800 per month in spousal support and/or arrearages.

{¶ 43} “R.C. 3105.18(E) allows spousal support to be modified where there is a

change in circumstances and the court has retained jurisdiction over spousal support.”

Taylor, 2d Dist. Miami No. 2014-CA-21,

, ¶ 21. R.C. 3105.18 provides:

(F) For purposes of divisions (D) and (E) of this section and subject

to division (F)(2) of this section, 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 so long as both of the following apply:

(a) The change in circumstances is substantial and makes the

existing award no longer reasonable and appropriate.

(b) The change in circumstances was not 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 -22-

foreseeable.

In order to justify a modification of the spousal support award, a decrease or change in

income must not have been voluntary. Grosz v. Grosz, 10th Dist. Franklin No. 04AP-

716,

, citing Melhorn v. Melhorn, 2d Dist. Montgomery No. 11139,

(Jan. 30, 1989). R.C. 3105.18(C)(1) contains 14 factors for a court to consider

in determining if spousal support is appropriate.

{¶ 44} “ ‘The person seeking a reduction of spousal support bears the burden of

showing that the reduction is warranted.’ * * *.”

, quoting Young v. Young,

2d Dist. Darke No. 2012 CA 1,

. Trial courts have broad discretion

regarding spousal support orders. Accordingly, an appellate court will not disturb those

orders absent an abuse of discretion. Alexander v. Alexander, 2d Dist. Montgomery No.

26730,

. A trial court abuses its discretion when the court’s attitude

is unreasonable, arbitrary, or unconscionable.

citing

.

{¶ 45} The magistrate found that Robert had experienced a substantial decrease

in income and found this to be a change in circumstances. The magistrate further found

that Dawn had become fully employed and earned $50,000 annually, which was also a

change in circumstances. Thus, the magistrate found that these changes warranted

exercise of the court’s continuing jurisdiction over spousal support. In ruling on Dawn’s

objections, the trial court noted that “[n]o evidence was presented to support a finding of

a higher income potential [for Robert] given the circumstances”; considering the factors

set forth in R.C. 3105.18(C)(1) and based upon the evidence presented, the court found

it reasonable to reduce the spousal support to $100 per month, with an additional $50

payment on the arrearage. -23-

{¶ 46} In Taylor, 2d Dist. Miami No. 2014-CA-21,

, to which Dawn

directs our attention, Larry Taylor appealed from the trial court’s decision finding him in

contempt and refusing to modify or terminate his spousal support obligation. Id. at ¶ 16.

Larry and his wife were divorced in August 2012, and Larry had been terminated from his

position as a custodian in December 2011. Id. at ¶ 4-5. His income as a custodian in the

year before the divorce was $40,959, and he also had farm income. Id. at ¶ 5. In May

or June 2013, Larry was convicted of a felony. Id. at ¶ 12. In September 2013, Larry’s

ex-wife filed a motion seeking a finding of contempt, in part for Larry’s failure to pay

support; Larry filed a motion to modify, suspend, or terminate spousal support in

December 2013. Id. at ¶ 8.

{¶ 47} At the hearing before the magistrate, Larry admitted that he failed to pay

support and that he was in arrears in excess of $28,000. Id. at ¶ 11.

At the hearing, Larry indicated that he had last worked on December

20, 2011, when he was fired from his employment as a custodian at Miami

East Schools. He received income of about $19,000 thereafter from

unemployment compensation, but did not pay any spousal support from

those funds. He also had been convicted of a felony in May or June 2013,

based on unlawfully transporting a firearm in a motor vehicle. Although Larry

claimed to have been seeking work, he provided no documentation to

substantiate his efforts.

In addition, Larry stated at the hearing that he was unable to farm his

mother's land any longer because the bank had foreclosed on his farm

equipment. He also indicated that he was eligible to receive retirement -24-

benefits from SERS, but had chosen not to take those benefits. By doing

so, he had chosen to deprive his ex-wife of her share of the retirement

proceeds, and had also not taken money that he could have used to pay

spousal support. At the time of the hearing, Larry was living rent-free in a

house owned by his mother, and was being financially supported by Bonnie

Heaton, who lived there with him.

After hearing the evidence, the magistrate concluded that Larry did

not show a substantial change in circumstances. The magistrate noted that

Larry's termination of his employment was voluntary, and was also known

to the court at the time of the prior spousal support order. In addition, the

magistrate noted that Larry's criminal conviction was of his own choosing

and could not be used to lower or eliminate his obligation to pay spousal

support. Finally, the magistrate concluded that Larry chose not to apply for

or receive benefits from SERS even though he was eligible.

The magistrate also found Larry in contempt for failing to pay spousal

support. In this regard, the magistrate observed that Larry failed to provide

evidence of inability to work, and had willfully refused to apply for SERS

benefits, which would have given him a monthly income to pay most of his

spousal support obligations. * * *

Id. at ¶ 12-15.

{¶ 48} The trial court overruled Larry’s objections and slightly modified the

magistrate’s decision by eliminating a portion of attorney fees and court costs. Id. at

¶ 16. On appeal, this court determined that “Larry’s unemployment, both in terms of his -25-

custodial work and his failure to continue farming, was known at the time of the initial

spousal support decision,” and “these factors cannot support modification or termination

of the existing spousal support order.” Id. at ¶ 23. This court noted the “only remaining

factor is Larry’s felony record.” Id. at ¶ 24.

{¶ 49} In Taylor, we observed:

Voluntary unemployment or underemployment does not warrant a

downward modification of a child support obligation. Kreuzer v. Kreuzer,

2d Dist. Greene No. 00CA43,

, *3 (May 4, 2001), citing

Woloch v. Foster,

,

(2d Dist. 1994).

Incarceration may or may not warrant a modification, depending on the

circumstances involved, but we and many Ohio courts have found

incarceration due to criminal conduct to be voluntary. See, e.g., L.B. v.

T.B., 2d Dist. Montgomery No. 24441,

; Richardson

v. Ballard,

,

(12th Dist. 1996);

Brockmeier v. Brockmeier,

,

(1st

Dist. 1993); Cole v. Cole,

,

(6th

Dist. 1990). Whether a parent is voluntarily unemployed or

underemployed is a fact-sensitive determination that is committed to the

trial court’s sound discretion. Fischer v. Fischer, 2d Dist. Clark No. 11 CA

81,

, citing Combs v. Combs, 12th Dist. Warren No.

CA2001-11-102,

.

Taylor, 2d Dist. Miami No. 2014-CA-21,

, ¶ 24, quoting Albers v. Albers,

2d Dist. Greene No. 2012 CA 41,

. -26-

{¶ 50} The Court concluded:

The rationale in these cases applies to the situation in the case

before us, even though Larry was not apparently incarcerated as a result of

the criminal charge. To the extent that Larry blames his alleged inability to

find a job on his criminal conviction, it was “a voluntary act that does not

warrant relief from a support obligation.” Ulery [v. Ulery, 2d Dist. Clark

No.2009-CA-12,

,] at ¶ 7. Accordingly, we see no basis

upon which to conclude that the trial court abused its discretion in refusing

to modify or terminate spousal support, nor do we find that the trial court’s

decision was against the manifest weight of the evidence.”

.

{¶ 51} In affirming the finding of contempt, this Court further noted that “Larry

chose not to work – a fact that he admitted at the contempt hearing, when he indicated

that he did not work, since it would cost him money, i.e., he observed that if he worked,

he would have to pay a portion of his wages to his ex-wife, and that made ‘no sense’ to

him.” Id. at ¶ 30.

{¶ 52} Herein, Robert acknowledged that he was aware at the time of the divorce,

when he agreed to pay spousal support in the amount of $2,750 per month, that he owed

over $250,000 due to his theft, and he testified that he had a “payment plan” with his

brother. The loss of his security clearance, however, was a subsequent collateral

consequence of his conviction. The magistrate and the trial court clearly credited his

testimony that he was unable to find work comparable to his prior employment as a result

his conviction and, accordingly, found that he was entitled to a reduction in his spousal -27-

support obligation. Unlike in Taylor, Robert testified that he had made repeated efforts

to find employment and obtained some lower-paying jobs, and that he consistently paid

Dawn what he could, namely $50 to $75 a month. Court’s Exhibit I, the Support

Enforcement Agency audit, also reflects that Robert made multiple small payments from

May 2015 through November 2017. Given Robert’s change of circumstances, we see

no abuse of discretion in the reduction of Robert’s spousal support obligation to $100 a

month with an additional $50 on his arrearage. Accordingly, Dawn’s second and third

assignments of error are overruled.

{¶ 53} Dawn’s first assignment of error is as follows:

THE TRIAL COURT ERRED BY FAILING TO ENFORCE THE

PRIOR SUSPENDED SENTENCE.

{¶ 54} Dawn asked the trial court “to enforce the sentence ordered by the court on

January 29, 2016 and held in abeyance,” but the trial court failed to impose the sentence

ordered in the 2016 entry. Dawn asserts that the trial court “erroneously entertained” her

motion to enforce as an “initial charge of contempt,” and offered Robert another

opportunity to purge the contempt rather than finding that he had failed to purge the prior

contempt. “Factually, it is undisputed that the opportunity to purge offered in the 2016

Entry was not satisfied.” Dawn argues that the magistrate and the trial court “indeed

found that [Robert] failed to pay the arrearages, PNC marital debt, attorney fees for the

Divorce Decree and the attorney fees for the Motion for Contempt.”

{¶ 55} Dawn asserts that, while Robert attempted to defend his failure to purge the

contempt by arguing that he was unable to abide by the 2016 agreed entry due to his

underemployment (and also asserted that he was unaware of the 2016 entry), the -28-

magistrate found that the January 26, 2016 agreed entry was “a valid court order.” Dawn

asserts that the “trial court erred by failing to impose the sentence held in abeyance by

the 2016 Entry” after granting branch one of her motion to enforce.

{¶ 56} Robert responds that the transcript of the hearing before the magistrate

reflects that Dawn made “no specific request for any relief” regarding enforcement of the

prior sentence imposed on him, and he argues that she may not expand her argument in

the appellate court. Robert also argues that the trial court’s decision not to impose

previously ordered sanctions, and instead to impose new sanctions and another

opportunity to purge the contempt, was not an abuse of discretion.

{¶ 57} In reply, Dawn asserts that Civ.R. 53(D) and Mont.D.R. Rule 4.44 “each

state that the grounds of objection must be stated, not argued or established.” Dawn

argues that her objections “complied with these mandates.” Dawn contends that the trial

court abused its discretion in failing to enforce its previously imposed sanction, but that

she “is not arguing that the trial court erred in the sanction imposed.” Dawn argues that

Robert cited no basis or authority “to support his contention that a party must verbally

request relief,” and that he was asking this court to find “that the written contents of a

Motion are not considered by a court if it holds an evidentiary hearing.” Dawn asserts

that the trial court’s failure to treat branch one of her motion as a motion for enforcement

was an abuse of discretion, and that there was no requirement that she state the content

of her written motion on the record.

{¶ 58} As noted above, the January 29, 2016 agreed entry provided that Robert

could purge the finding of contempt by making the payments listed therein and remaining

current on any and all spousal support obligations, including any arrearage repayment. -29-

Robert testified that the order was filed while he was in prison and unable to make

payments other than from his prison account.

{¶ 59} “Failure to pay court-ordered spousal support is classified as a civil

contempt.” Murphy v. Murphy, 5th Dist. Stark No. 2007CA00069,

,

citing Pugh v. Pugh,

,

(1984). “Because the

nature of the contempt is civil, ‘willful disobedience’ (i.e. intent) is not a necessary

element.”

citing Pugh. However, the “inability to pay support is a valid defense in a

contempt proceeding.”

citing Courtney v. Courtney,

,

(1984). “The party who failed to comply with the court order to pay support

bears the burden of proving an inability to pay by the preponderance of the evidence.”

citing Pugh at 140 and State ex rel. Cook v. Cook (1902),

,

, paragraph one of the syllabus. “We will not reverse a contempt sanction absent

an abuse of discretion.” Id. at ¶ 26, citing State ex rel. Ventrone v. Birkel,

,

(1981). We see no abuse of discretion in the trial court’s

decision not to impose the three-day jail sentence, since it concluded that Robert was

unable to pay his spousal support obligation. Dawn’s first assignment of error is

overruled.

{¶ 60} Having overruled Dawn’s assigned errors, the judgment of the trial court is

affirmed.

.............

WELBAUM, P.J. and HALL, J., concur. -30-

Copies sent to:

Priya D. Tamilarasan Matthew J. Barbato Hon. Denise L. Cross