Abbott v. Abbott , 2020 Ohio 5599 ( 2020 )

[Cite as Abbott v. Abbott, 2020-Ohio-5599.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DINISE A. ABBOTT : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
TERRY L. ABBOTT : Case No. CT2020-0016
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Domestic
Relations Division Case No. DB
2017-0968
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: December 8, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROSE M. FOX JOHN H. COUSINS IV
Fox Law Office Grossman Law Offices LLC
233 Main Street 32 W. Hoster Street, Suite 100
Zanesville, Ohio 43701 Columbus, Ohio 43215
Muskingum County, Case No. CT2020-0016 2
Baldwin, J.
{¶1} Defendant-appellant Terry L. Abbott appeals from the February 27, 2020
Judgment Entry of the Muskingum County Court of Common Pleas, Domestic Relations
Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Terry L. Abbott and appellee Dinise A. Abbott were married on
August 22, 1990. On November 28, 2017, appellee filed a complaint for divorce against
appellant. Appellant filed an answer on December 6, 2017.
{¶3} A Decision and Judgment Entry was filed on August 31, 2018. The trial
court, in the same, found that appellant had worked numerous positions in the
construction pipeline field and had recently earned in the range of $71,000.00 to
$160,000.00 per year. The trial court further found that in 2017, appellant earned
$121,418.00 and that his projected net pay for 2018 was $109,974.00.
{¶4} Pursuant to a Divorce Decree filed on September 28, 2018, appellant was
ordered to pay spousal support to appellee in the amount of $1,000.00 per month until
the death of either party or cohabitation by appellee with an unrelated adult. The trial court
retained jurisdiction over spousal support.
{¶5} Thereafter, on August 23, 2019, appellant filed a Motion for Modification of
Spousal Support. Appellant, in his motion, argued that his gross annual wages had not
met the court’s expectations and that, effective August 7, 2019, he had a new employer
and no longer was receiving per diem or truck pay.
Muskingum County, Case No. CT2020-0016 3
{¶6} A hearing on appellant’s motion was held on February 14, 20201. At the
hearing, appellant testified that he was living with his new wife and her daughter. When
asked if his income had changed since he was ordered, in September of 2018 to pay
spousal support in the amount of $1,000.00 a month, stated that it had changed
“drastically.” Transcript at 6. Appellant testified that he had been laid off from his pipeline
job the last week of July of 2019 and was unable to find other positions that were similarly
situated with respect to earnings. He testified that he went to work for Trucco
Construction.
{¶7} Appellant testified that his 2018 gross earnings from MG Dyess were
$34,300.00 as reflected on his W-2, but that at that time he also received per diem and
truck pay. Appellant testified that the total for all of the different places that he was
employed in 2018 was $118,136.60 but that his take home pay was only $70,000.00.
Appellant testified that, in 2019, his gross pay from ProGro Environmental was
$29,450.00 for pipeline work. He testified that he was forced into accepting a position at
Trucco Construction as an excavator and that he was presently employed there, but was
actively attempting to get back on the pipeline. He testified that he did not receive any
pay from December 22, 2019 through January 6, 2020 from Trucco and that he did not
receive any overtime pay and was not guaranteed 40 hours a week. When asked,
appellant testified that his current rate of pay at Trucco was $37.14 an hour.
{¶8} Appellant testified that he commuted approximately 70 miles to his job and
that he did not receive per diem or truck pay from Trucco. All of his expenses traveling to
and from the job was an expense to him. He testified that on average, he spent $190.00
1While numerous exhibits were introduced at the hearing, when a Staff Attorney called to have the same
sent to this Court, she was advised that they had been destroyed .
Muskingum County, Case No. CT2020-0016 4
a month on vehicle maintenance, $547.44 on his vehicle loan, $73.67 for insurance, and
around $800.00 a month for fuel. Appellant testified that he let repairs go because he
was unable to afford them, but that he had repairs totaling $3,991.80 done on the truck
between March of 2018 and September of 2019.
{¶9} Appellant testified that he had maxed out his credit cards because he did
not have any money in his monthly budget for these expenses. According to him, at the
time of the divorce, his cards were not maxed out and they were not behind on payments.
He testified that he was going into debt to pay the bills. He testified that since his divorce,
he had not saved funds for retirement. Appellant was 51 years old at the time of the
hearing. He had no retirement available through Trucco, and was not vested in his union.
{¶10} Appellant testified that his wife was employed and earned around
$32,000.00 a year and assisted with household expenses. He testified that he broke a
bone in his foot, but delayed surgery because of the costs associated with not working
for at least three weeks to recover.
{¶11} Appellant testified that in January of 2019, his gross income was $10,376.00
and in 2020, it was $4,178.25 and that in January of 2019, his net income was $9,168.42
and in 2020, it was $3,118.84. He asked the trial court to terminate his spousal support
obligation so that he could ger back on his feet. He testified that he was not earning
enough to support a $1,000.00 a month withdrawal from his paycheck for spousal
support.
{¶12} Appellant also testified that he took out a home equity line of credit through
Huntington Bank in September of 2019 because he “needed something to fall back on to
pay bills to make it through the winter and be able to survive. “ Transcript at 31. He never
Muskingum County, Case No. CT2020-0016 5
had a line of credit during his marriage to appellee. He used the line of credit to meet his
monthly obligations. He testified that the current balance on his line of credit was listed
as $13,964.42, but that he thought it was actually down to around $10,000.00 by the time
of the trial. Appellant also testified that, in September of 2019 and October of 2019, he
was operating at a net monthly deficit. In September the deficit was $2,447.17 and in
October it was an excess of $2,000.00.
{¶13} On cross-examination, appellant testified that he took a weekend trip to
Tennessee in October and that his wife paid for the lodging. He testified that he did not
use his truck to do his work but used it as transportation to work. He testified that between
August and December of 2019, he grossed $26,385.00 and part of the money was from
overtime. According to appellant, there had since been a ban on overtime. Appellant
testified that when he was working on the pipeline, the per diem was for living expenses
since he had to live on the road and that he was not living on the road at the time of the
trial so did not have to pay for a hotel or housing away from work.
{¶14} He testified that the home equity line was taken out in August or October of
the last year and that he was behind $4,000.00 in spousal support and that he was behind
on spousal support when the divorce was finalized.
{¶15} Appellee testified that she lived at her parents’ property and that, at the time
of the divorce, was not employed and it was not anticipated that she was going to become
employed. She testified that she had been employed as a housekeeper at Genesis
Hospital since January of 2018. She testified that her wages for 2018 were $18,502.00
and that, other than her wages, she had income of $19,479.00 for 2018. Her rate of pay
was $10.96 an hour and she worked 40 hours a week. Appellee testified that she did not
Muskingum County, Case No. CT2020-0016 6
have any other sources of income and lived alone. She asked that spousal support remain
the same because she had nothing left after paying her bills. Appellee testified that her
electric budget was around “two something” every month and that she split the bill for
property taxes with her father and brother. Transcript at 56. Appellee did not pay any rent.
The full year for property taxes was $608.24. She testified that she was paying monthly
on a credit card from T.J. Maxx and had a balance on her credit card to Lowe’s in the
amount of $929.69 after purchasing a washer and dryer. She also had a Kohl’s credit
card that she was paying on.
{¶16} Appellee testified that she paid $89.33 a month for car insurance. She
testified that she had on ongoing bill with Genesis Healthcare for treatment for bladder
cancer. She had health insurance through her employer and had a plan to pay Genesis
$26.50 a month. Her balance was around $923.00. Appellee testified that she was still
undergoing treatment for bladder cancer. She testified that there was a Genesis bill that
appellant was to pay as part of the divorce and that he had not paid the same and it was
added to her bill. Appellee pays $16.30 a month for life insurance, $42.50 a month for
trailer insurance, and approximately $76.00 for trash pickup. She pays $60.00 a month
for phone and between $200.00 and $300.00 a month for groceries.
{¶17} Appellee testified that she purchased a 2016 Ford Escape in August of 2019
because her other vehicle kept breaking down and that she paid $354.76 a month for the
car. She testified that her home was in poor condition and needed roof repairs but that
she could not afford repairs. She testified that her only retirement was a 403(b) through
her current employer and social security. She testified that she could not afford her
monthly expenses without the spousal support award. Appellee testified that she had to
Muskingum County, Case No. CT2020-0016 7
buy uniforms for work and was not reimbursed for them and that she spent around $30.00
a week on gasoline. She testified that in April of 2019 she got a 30 cent an hour raise and
that they usually got a yearly raise. Appellee tested that she had gross pay of $883.20
and net pay of $633.29 every two weeks.
{¶18} On cross-examination, appellee testified that she grossed around
$20,000.00 from Genesis according to her 2019 W-2. She testified that her 2019 W-2
reflected a couple of thousand dollars more than her 2018 W-2. Appellee testified that
she was contributing $58.14 a month to her 403(b). At the time of the divorce, the balance
on her TJ Maxx card was $5,242.51 but the Lowe’s account was a new account since
the divorce. She further testified that the balance owed on her Kohl’s account was around
$900.00 with a $27.00 a month minimum payment.
{¶19} Appellee testified that her monthly expenses were approximately $1,500.00
and her net take home pay was approximately $1,300.00. Appellee, at the time of the
divorce, was spending approximately $500.00 a month on cigarettes and admitted that
that would have been included as part of her budget. She testified that she spent two or
three hundred dollars a month on cigarettes and alcohol, but was unsure of the amount
except to testify that it was probably less than the $500.00 she disclosed at the time of
the divorce. Appellee testified that she was getting around a $1,200.00 tax refund.
{¶20} Appellee testified that when she was married to appellant, they did not take
vacations but that since the divorce, she had gone camping and had traveled to the Outer
Banks and Put-In-Bay. Appellee testified that she only had to pay for her food and drink.
She testified that she did not have to take out any personal loans to make her monthly
expenses and that the trailer she lived in was the trailer that she lived in during her
Muskingum County, Case No. CT2020-0016 8
marriage. There was no line of credit attached to her home and appellee was not maxed
out on her credit cards. She testified that the vehicle that she purchased was used.
Appellee testified that the expenses that she had for smoking was known by the court at
the time of the divorce, but that spousal support was awarded anyway.
{¶21} The trial court, as memorialized in Judgment Entry filed on February 27,
2010, denied appellant’s Motion to Modify. The trial court found that while there had been
a change in appellant’s income, “the original spousal support award remains reasonable
and appropriate…”
{¶22} Appellant now appeals, raising the following assignments error on appeal:
{¶23} “I. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND RULED
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN DENYING APPELLANT’S
MOTION TO MODIFY SPOUSAL SUPPORT.”
{¶24} “II. ALTERNATIVELY, THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT MISCALCULATED APPELLANT’S ANNUALIZED INCOME
FROM HIS NEW EMPLOYMENT.”
II
{¶25} Appellant, in his second assignment of error, argues that the trial court erred
and abused its discretion when it miscalculated appellant’s annualized income from his
new employment. We agree.
{¶26} A trial court's decision to modify spousal support will not be reversed absent
an abuse of discretion. Brzozowski v. Brzozowski, 8th Dist. Cuyahoga No. 101013, 2014-
Ohio-4820, ¶ 20. In order to find an abuse of discretion, we must determine that the trial
Muskingum County, Case No. CT2020-0016 9
court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983). Dist.1996).
{¶27} In the case sub judice, trial court found that, while there had been a change
in appellant’s income, the original spousal support remained reasonable and appropriate
and denied appellant’s motion to modify the same.
{¶28} With respect to appellant, the trial court found that, at the time of the divorce,
appellant had a work history including numerous positions in the construction pipeline
field earning $71,000.00 to $161,000.00 annually. The trial court found that, in 2017,
appellant earned $121,418.00 and, in 2018, he was projected to earn approximately
$110,000.00. The trial court further found that after the divorce, appellant was laid off from
his position with the pipeline company and was unable to find equivalent employment. At
the time of the hearing, appellant was earning $37.14 an hour or $77,251.00 annually
based on a forty hour work week. The trial court found that although overtime was not
currently available to appellant, it would likely be available again in the future.
{¶29} The trial court further found that for the period of August 6, 2019 through
December 6, 2019, appellant grossed the sum of $26,385.00 which it annualized to
$105,540.00. The trial court stated, in relevant part, as follows: “The Court finds
Defendant cannot be certain with regard to his income with Trucco Construction. As is
stated above, at a straight forty hour week he would earn $77,251.00. Based upon his
history with Trucco Construction for the last four months of 2019 he would earn
$105,540.00. The Court finds that actual earnings of 2019 represents a reasonable
expectation of Defendant for 2020 and in the future and finds that to be $88,9070.00.
(sic)”
Muskingum County, Case No. CT2020-0016 10
{¶30} However, the period from August 6, 2019 through December 6, 2019 is a
four month period. Thus, the trial court erred when it multiplied $26,385.00 by four in
arriving at an annualized income of $105.540.00 for appellant. The trial court should have
multiplied the $26,385.00 by three and arrived at a figure of $79,155.00. We believe this
mathematical miscalculation is of sufficient size to merit reversal of the trial court's
decision. Nevertheless, we find fundamental fairness mandates a reversal and remand
to the trial court to reconsider appellant’s motion using the corrected annualized income
figure for appellant. It is clear that the trial court relied on the $105,540.00 figure in
determining appellant’s earning capacity in this case.
{¶31} Appellant’s second assignment of error is, therefore sustained. Based on
our disposition of appellant’s second assignment of error, appellant’s first assignment of
error is premature.
Muskingum County, Case No. CT2020-0016 11
{¶32} Accordingly, the judgment of the Muskingum County Court of Common
Pleas, Domestic Relations Division, is reversed and this matter is remanded for further
proceedings consistent with this Opinion.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.