Preseren v. Preseren , 2011 Ohio 5181 ( 2011 )

[Cite as Preseren v. Preseren, 2011-Ohio-5181.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96431
ALAN J. PRESEREN
PLAINTIFF-APPELLANT
vs.
CHARLAINE PRESEREN
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Domestic Relations Division of the
Cuyahoga County Common Pleas Court
Case No. D-220198
BEFORE: Blackmon, P.J., Sweeney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: October 6, 2011
ATTORNEY FOR APPELLANT
Gary W. Eisner
3241 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Basil M. Russo
Russo, Rosalina & Co. L.P.A.
691 Richmond Road
Suite 200
Richmond Heights, Ohio 44143
Benjamin M. Cooke
Cooke & Marcis, LLP
1250 Linda Street
Suite 305
Rocky River, Ohio 44116
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Alan J. Preseren (“Alan”) appeals the trial court’s refusal to
modify or terminate his spousal support obligation and assigns the following three errors
for our review:
“I. The trial court erred and abused its discretion when it denied
appellant’s motion to terminate and/or modify his spousal support
order even though it had found appellant’s income had been drastically
reduced and appellee’s circumstances had changed to her benefit, as
said decision is against the manifest weight of the evidence, based upon
insufficient evidence and is contrary to law.”
“II. The trial court erred and abused its discretion in not modifying
the original support order when after determining that appellant’s
income had been drastically reduced since the order it failed to take
into consideration the totality of the circumstances including
appellant’s inability to pay said order.”
“III. The trial court erred and abused its discretion when it relied
upon appellant’s wife’s sharing of his living expenses as a factor in
denying a modification of appellant’s spousal support.”
{¶ 2} Having reviewed the record and pertinent law, we reverse and remand the
trial court’s decision for proceedings consistent with this opinion. The apposite facts
follow.
Facts
{¶ 3} After being married for over 22 years, the parties were divorced on March
25, 1994. The divorce decree ordered Alan to pay appellee Charlaine1 spousal support
in the amount of $1,224/month subject to further order of the court and until the death of
either party or until the wife’s remarriage or cohabitation. Soon after the divorce, Alan
married Carol Preseren to whom he is still married.
{¶ 4} For sixteen years, Alan paid Charlaine spousal support without missing a
payment. However, in 2008, Alan, who worked as a head hunter, began to suffer
financially. He was paid by commission and due to the economy, finding employment
for people was difficult. He began borrowing money from his pension and 401K in
order to make ends meet. He last received a paycheck from the head hunting agency in
1
Because Alan has remarried, we will refer to the parties by their first names
to prevent confusion.
October 2009. By 2010, there was no money left in his pension fund and in May 2010,
he failed to make a support payment due to lack of funds. In an effort to pay the support,
he took a temporary part-time job with the Census Bureau where he made approximately
$2,352.50. He made several payments of support to Charlaine, but they were less than
half of what was required.
{¶ 5} Along with the financial problems, in 2010 at the age of 63, Alan was
diagnosed with atrial fibrillation and congestive heart failure. The doctor’s determined
his condition was not reversible and informed him he had approximately five years to
live. He has no health insurance, but receives free treatment from the Veteran’s
Administration hospital. Once he reaches the age of 65, he will be required to pay
$110/month for Medicare.
{¶ 6} Alan’s current wife, Carol, is a retired teacher who receives approximately
$4,072.04/month from her teacher’s pension. She depleted her retirement funds in order
to pay living expenses. Anticipating her retirement, she used the funds to pay-off credit
card debt, make house repairs, purchase a car, and to pay off her mortgage, leaving an
equity loan in the amount of $35,000 on the house.
{¶ 7} On May 10, 2010, Alan filed a motion to terminate or in the alternative to
modify spousal support. Charlaine opposed the motion and filed a motion to show cause
for Alan’s failure to pay support and a motion for attorney fees. An evidentiary hearing
was conducted before a magistrate on September 23, 2010.
{¶ 8} On November 1, 2010, the magistrate issued a decision overruling Alan’s
motion concluding that although Alan had suffered a “drastic reduction” in his income he
was engaging in greater spending than is supported by his social security income, had
spent large sums of his inheritance, and his current wife aids him with payment of his
living expenses. The court denied Charlaine’s motion to show cause and motion for
attorney fees. Alan filed objections to the magistrate’s decision denying his motion to
terminate or modify support. On January 21, 2011, the trial court overruled Alan’s
objections and adopted the magistrate’s report denying Alan’s motion.2
Spousal Support
{¶ 9} We will address Alan’s assigned errors together as they concern the trial
court’s denial of Alan’s motion to terminate or modify spousal support in light of his
reduced income, and the fact the trial court considered Alan’s new wife’s income in
determining his ability to pay support.
{¶ 10} Trial courts have broad discretion regarding spousal support orders;
therefore, an appellate court will not disturb those orders absent an abuse of that
discretion. Reveal v. Reveal, 154 Ohio App.3d 1132, 2003-Ohio-5335, 798 N.E.2d 1132,
at ¶14, citations omitted. A trial court abuses its discretion when the court’s attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
In both the court’s judgment entry and the magistrate’s decision, the court
2
and the magistrate both deny the “plaintiff’s motion to terminate child support,”
however, the plaintiff was seeking to terminate spousal support. Their son is over
30 years old.
St.3d 217, 219, 450 N.E.2d 1140. Moreover, a reviewing court may not merely
substitute its judgment on factual or discretionary issues for that of the trial court.
Reveal at ¶14.
{¶ 11} In the instant case, the trial court concluded that there was a change of
circumstances because it found “plaintiff’s income has been drastically reduced.” We
agree. Due to the economy, Alan can no longer earn the salary he had previously earned
as a head hunter. At the time of the divorce 16 years previously, he earned $50,000/year.
His only means of income currently is the $22,392 he receives from social security. The
evidence also showed that due to heart problems Alan can no longer work the hours that
he had previously worked. He becomes easily fatigued and the prognosis is that his
condition will not improve but will deteriorate.
{¶ 12} Once a trial court finds there is a change in circumstances, the court must
then determine whether spousal support is still necessary, and if so, what amount is
reasonable. Calabrese v. Calabrese, Cuyahoga App. No. 88520, 2007-Ohio-2760;
Carnahan v. Carnahan (1998), 118 Ohio App.3d 393, 398, 692 N.E. 2d 1086. In the
instant case, there is no doubt that Charlaine is still in need of spousal support. She has
never held a job due to her having fibermyalgia. She also suffers from anxiety and
depression. She receives food stamps and assistance from social programs for her health
problems. Charlaine appears to be unable to pay her credit card debt due to a default
judgment that was entered against her in favor of Citibank in the amount of $13,000.
Thus, the issue is what amount of spousal support is reasonable under these circumstances
where both parties are financially suffering.
{¶ 13} In deciding whether the amount of spousal support is “appropriate and
reasonable,” the trial court must consider the factors listed in R.C. 3105.18(C)(1). Id.The factors the trial court must consider include each party’s income, earning capacities,
age, retirement benefits, education, assets and liabilities, and physical, mental and
emotional condition; the duration of the marriage; their standard of living; inability to
seek employment outside the home; contributions during the marriage; tax consequences;
and lost income due to a party’s fulfillment of marital responsibilities. R.C.
3105.18(C)(1)(a)-(m). In addition, the trial court is free to consider any other factor that
the court finds to be “relevant and equitable.” R.C. 3105.18(C)(1)(n).
{¶ 14} Although the trial court is not required to comment on each factor
individually unless there is a request for findings of fact and conclusions of law, the trial
court must indicate the basis for its award in sufficient detail to enable a reviewing court
to determine that the award is fair, equitable, and in accordance with the law. Kaechele
v. Kaechele (1988), 35 Ohio St.3d 93, 97, 518 N.E.2d 1197.
{¶ 15} Here, after finding that Alan’s salary had been drastically reduced, the trial
court concluded that the spousal support amount should not be terminated or modified
based on the fact that 1) Alan’s spending indicated greater spending than his social
security income would support, 2) Alan had inherited large sums of money that he claims
he spent, and 3) his current spouse earns an income that allows her to pay $2,880/month
towards the living expenses.
{¶ 16} We conclude the trial court did not abuse its discretion in considering the
availability of Carol’s income in aiding Alan in paying his living expenses. While a new
spouse’s income cannot be considered in determining an obligor’s ability to pay spousal
support, the court may consider the fact that the obligor directly benefits from sharing
living expenses with his new wife. Feldman v. Feldman, Cuyahoga App. No. 92015,
2009-Ohio-4202; Manzella v. Manzella, 12th Dist. No. 20618, 2005-Ohio-4519, ¶12,
citing McNutt v. McNutt, 12th Dist. No. 20752, 2005-Ohio-3752.
{¶ 17} However, due to Alan’s drastic change in income, we conclude the trial
court erred by not at least modifying his spousal support obligation. The court concluded
that Alan had $4,229 in monthly expenses and that his current spouse assists in paying
$2,888 of that amount. This leaves a balance of $1,349 in monthly expenses for which
he is responsible. His current salary is limited to social security payments in the gross
amount of $1,866, which leaves him approximately $517 per month after he pays his
expenses. This is not enough to pay his spousal support obligation in the amount of
$1,224 per month. There is no evidence that he has any assets beyond the 2004 Toyota
he owns that has over 123,000 miles on it. Under these circumstances, when there is not
even a possibility that Alan may again earn an income allowing him to pay his
$1,224/month support obligation, the trial court abused its discretion in denying Alan’s
motion. Moreover, at the time of the divorce, Charlaine was not earning any income; at
least now she is receiving $820 per month in social security.
{¶ 18} Although the trial court concluded it was Alan’s spending habits that
depleted his retirement pensions and inheritances, his current spending habits do not
appear to be extravagant. The inheritances he received were several years prior to his
financial problems. He inherited approximately $56,944 from his aunt in 2000. In
2004, almost six years prior to the hearing, he inherited $195,982 from his cousin. The
evidence indicated that some of this money was used to pay for his own debts and that of
his adult son. Although Alan had purchased a motorcycle with his inheritance money, he
later sold the motorcycle in order to pay for living expenses. At the time he inherited the
money, he also bought himself a new car, that he still owns seven years later, and gave
Charlaine his old car because she was in need of a car. Also, the evidence indicated that
the depletion of his retirement pension went towards paying spousal support.
{¶ 19} Notably, at the time he was allegedly engaging in this extravagant spending,
he was timely with his spousal support. In fact, although he had recently accrued an
arrearage in the months prior to the hearing, he borrowed money from Carol to pay the
arrearage so that at the time of the hearing he was not delinquent in his support payments.
{¶ 20} We acknowledge that modifying the spousal support will be detrimental to
Charlaine’s economic future as she is in dire need of financial assistance; however, it is of
no aid to her to order Alan to pay money that he does not have, nor does it appear he will
ever have. Accordingly, Alan’s three assigned errors are sustained.
Judgment reversed and remanded for proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
EILEEN A. GALLAGHER, J., CONCUR