Gross v. Gross , 64 Ohio App. 3d 815 ( 1990 )

Finding that the judgment of the trial court should be affirmed rather than reversed, I must respectfully dissent from the majority opinion.

This case has had an unfortunate history, compounding the situation which is now before us. However, in light of the evidence adduced in the trial court which fully supports the decision of that court, it is inappropriate for this court to substitute its judgment, as to the factual findings, for that of the trial court and render a different conclusion. The trial court made a factual finding of change of circumstances, which is fully supported by the evidence.

All parties agree that the mere fact that appellant, Thomas Gross, has enjoyed a substantial increase in income does not constitute a change of circumstances. Contrary to the statement in the majority opinion, the trial court did not find that appellant's substantial increase in income constitutes a substantial change in circumstances. Appellee has repeatedly stated through counsel that she agrees with the general rule that an increase in the obligor's income alone does not suffice as a change of circumstances so as to allow an increase in periodic alimony payments.

Although there are some comments in the trial court's opinion adopting the referee's report alluding to the substantial increase in income, it is further clarified by the statement that:

"* * * [O]rdinarily, the alimony recipient will not be entitled to share in the increased earnings of the alimony obligor, except to the extent that these increased earnings now enable the obligor to pay a share which will support a reasonable predivorce standard of living for the alimony recipient. * * *" Leighner v. Leighner (1986), 33 Ohio App.3d 214, 515 N.E.2d 625.

What the trial court did state is that "[a] careful review of the record reveals that Plaintiff's current standard of living is well below that which she enjoyed during the marriage," and proceeded to make an award "sufficient to provide Plaintiff with a reasonable pre-divorce standard of living." The substantial increase in appellant's earnings was only one of several factors bearing upon the change-of-circumstances issue.

The referee also referred to plaintiff's exhibit F, which compares the reductions in standard of living that appellee has been forced to make over the years because of inadequate income to meet her needs to maintain her standard of living. Even by continually reducing her standard of living, appellee still has been forced to utilize her limited savings and other funds in order to meet living expenses. Also in evidence was defendant's exhibit 2, defendant's exhibit 4 and plaintiff's exhibits G, H, and I.

Defendant's exhibit 2 was originally plaintiff's exhibit 11 and was the predicate for the original trial court award of $2,500 per month alimony and the affirmance thereof by this court. Such exhibit shows appellee's average monthly expenses to be $3,256.15. This was the express basis for the original trial court award of $2,500 per month alimony and the affirmance thereof by this court in Gross v. Gross (1985), 23 Ohio App.3d 172, 23 OBR 415, 492 N.E.2d 476, wherein it is stated at 174, 23 OBR at 417, 492 N.E.2d at 479:

"The trial court did not abuse its discretion in making the sustenance alimony award that it made. * * * At the time of the original trial, plaintiff submitted an exhibit indicating monthly expenses of about $3,250. Part of those expenses related to the support of a son, which was provided for separately. While there were no vacation expenses included in that exhibit and there was evidence that the parties took expensive vacations during their marriage, the trial court's order allows enough income for plaintiff to enjoy vacations reasonably consistent with her lifestyle during marriage if she supplements the sustenance alimony provided by defendant with her own earnings by the exercise of her reasonable earning potential, which the evidence showed that she has. Those earnings, if moderate, will not result in a reduction of her alimony."

Defendant's exhibit 4 was a list of appellee's current needs for expenses and totals $4,929.70 per month. Although appellant at trial attempted to deduct certain items from such exhibit, a comparison of defendant's exhibit 4 with defendant's exhibit 2 shows a substantial change of circumstances. Defendant's exhibit 2 (the original predicate for alimony) includes at least $600 in expenses which are not provided for in defendant's exhibit 4 (the current monthly expense estimate), including the funds for support of the parties' son alluded to by this court in the prior opinion. An example of the change of circumstances and reduction in standard of living is the elimination of the expense of $212 per month for cleaning help, which was included on defendant's exhibit 2 but is not included on defendant's exhibit 4, which appears to be identical to plaintiff's exhibit G. In short, these two exhibits of appellant alone demonstrate that there has been a substantial change in the circumstances predicated upon appellee's needs. If plaintiff's exhibit F and exhibit I are also considered, there is ample support for the trial court's conclusion that a change of circumstances has occurred, especially when coupled with appellant's substantial increase in income.

Plaintiff's exhibits H and I both indicate that, in order to maintain the standard of living that she enjoyed during the marriage, appellee would need an after-tax income of approximately $6,500 per month. This evidence was not adduced before the trial court at the original trial. However, upon remand from the Supreme Court, it was proffered but not considered by the trial court. Even that amount does not include payment for automobiles or income taxes. The dissent from the original alimony award following remand from the Supreme Court was predicated primarily upon the trial court's refusal to consider evidence of the amount it would take to maintain the standard of living established during the marriage because such evidence had not been presented during the original trial.

Appellee's testimony that there had been no dramatic change was with respect to the amount needed to maintain the standard of living established during the marriage, but not with respect to the amount necessary to meet her day-to-day expenses. In other words, the original trial court finding, as affirmed by this court upon appeal, was that appellee's needs could be met by an expenditure of $3,250 per month in after-tax dollars. There is evidence that now it would take $4,900 per month to meet her necessary expenses, and that she has supplemented her income by disposing of her assets in order to meet her day-to-day living expenses. There was ample evidence of change of circumstances and evidence to support the trial court increase in alimony to $4,500 per month.

Finding no abuse of discretion on the part of the trial court, whose evidence is fully supported by competent credible evidence, I would overrule the assignments of error and affirm the judgment.