Reveal v. Reveal , 154 Ohio App. 3d 758 ( 2003 )

{¶ 21} I respectfully dissent from the majority's decision, and would instead hold that the domestic relations court abused its discretion when it failed to find on the record before it that a substantial change of circumstance occurred which warrants a modification of spousal support pursuant to R.C. 3105.18(E).

{¶ 22} We said in Joseph v. Joseph (1997), 122 Ohio App.3d 374, which involved facts similar to those here, that the circumstances concerning which a substantial change must be shown in order to warrant a modification of a prior spousal support order are the factors or "circumstances" set out in R.C. 3105.18(C)(1)(a)-(n), which that section directs the court to consider when it orders spousal support. We held inTremaine v. Tremaine (1996), 111 Ohio App.3d 703, that any such change must be substantial and one which was not contemplated by the court when it entered its prior spousal support order.

{¶ 23} Absent a statement by the domestic relations court when it orders spousal support that it considered some future change, whether the court then considered a change that subsequently occurs must be determined inferentially, by the effect of the change on the court's earlier determination that spousal support is needed and warranted. That determination of need is necessarily co-extensive with the court's decision to order reasonable spousal support pursuant to R.C. 3105.18(B).Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, citing Wolfe v.Wolfe (1976), 46 Ohio St.2d 399.

{¶ 24} When the domestic relations court ordered Danny Reveal to pay spousal support in the amount of $72,000 per year beginning in 1987, Lynn Reveal had no income of her own to meet her needs. She had been awarded a share of Danny Reveal's interest in a qualified retirement plan valued at $308,750 as her share of the marital property. However, she could not be expected to exhaust that asset, and by the terms of the QDRO dividing the property Lynn Reveal could not commence receiving income benefits under the plan until Danny Reveal retired or Lynn Reveal reached a designated retirement age. (Stipulated Qualified Domestic Relations Order, June 6, 1988).

{¶ 25} Lynn Reveal has now reached an age at which she may begin receiving income benefits from the plan. The value of her share has increased to $797,981. Income available to her from that sum, without any diminution of principal, would probably be in excess of $30,000 per year. However, she draws only a nominal amount of income from the plan, and apparently intends to allow the income now available to her to accumulate into principal, depending on the $72,000 she receives each year from Danny Reveal for her needs.

{¶ 26} The circumstance that has changed since the domestic relations court ordered spousal support in 1987 is not the passive increase in the value of Lynn Reveal's retirement account. The change is that Lynn Reveal now has an income available to her from that account that she did not have in 1987, which made an award of spousal support in the amount of $72,000 annually reasonable to meet her needs at the time. When a spousal support obligee who was unemployed when spousal support was ordered subsequently obtains employment, the income the employment generates for the obligee may be a change of circumstances for purposes of modification of spousal support. Blakemore v. Blakemore (1983),5 Ohio St.3d 217. There is no difference with respect to a new income that's generated by capital assets the obligee owns. The majority finds a distinction here, because the capital asset was awarded to Lynn Reveal on her share of marital property.

{¶ 27} R.C. 3105.18(C)(1)(a) directs a court that orders spousal support to consider "[t]he income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under Section 3105.171 of the Revised Code." The court is required to look to the same consideration in an R.C.3105.18(E) motion to modify. Joseph v. Joseph. Therefore, the court could not reject the relief Danny Reveal sought on a finding that the income now available to Lynn Reveal does not constitute a change of circumstances because it is derived from a share of marital property awarded to her pursuant to R.C. 3105.171, the retirement plan.

{¶ 28} R.C. 3105.18(E) is grounded on an understanding that changes occur in people's lives over the course of years. The fact that a later change was possible does not necessarily demonstrate that the court considered its later impact on a recipient's reasonable need for spousal support when spousal support was ordered. Such a narrow interpretation would confine the power conferred by R.C. 3105.18(E) to events which are accidental, fortuitous, or otherwise the product of chance.

{¶ 29} The trial court did not reach the issue of whether the new income available to Lynn Reveal is a "substantial" change, having rejected the claim that it is a change for purposes of Danny Reveal's motion to modify. It is a change, and a substantial change, because it can provide Lynn Reveal an income the amount of which is a substantial portion of the spousal support Danny Reveal was ordered to pay to help Lynn Reveal meet her needs. Whether those needs have changed and whether Danny Reveal should be required to pay some different amount of spousal support to help Lynn Reveal meet them is a matter to be determined after a merit hearing on his motion. Judge Brogan suggests that Danny Reveal, when he agreed to pay spousal support in the amount ordered, could have stipulated that it was subject to reduction when Lynn Reveal receives her retirement benefits, and because he didn't do that he can't now complain about the domestic relations court's decision to ignore those benefits. Stipulations involve facts, not law, and whether the income now available to Lynn Reveal creates a substantial change of circumstances for purposes of R.C. 3105.18(E) is a question of law, not fact. In any event, both parties agreed to reserve the power to modify to the court, and that broad reservation comfortably encompasses these facts. There was no need to be more particular. Indeed, R.C. 3105.18(E)(1) contemplates a broad authorization, not one contingent on certain events.

{¶ 30} I would reverse and remand.