Papp v. Papp

[Cite as Papp v. Papp, 2013-Ohio-506.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
EDWARD L. PAPP :
: Appellate Case No. 25333
Plaintiff-Appellant :
v. : Trial Court Case No. 1994-DR-380
:
MARLENE M. PAPP :
: (Civil Appeal from Common Pleas
Defendant-Appellee : (Court, Domestic Relations)
:
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OPINION
Rendered on the 15th day of February, 2013.
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CHARLES M. BLUE, Atty. Reg. #0074329, Murr, Compton, Claypoole & Macbeth, 401 East
Stroop Road, Kettering, Ohio 45429-2829
Attorney for Plaintiff-Appellant
DAVID M. McNAMEE, Atty. Reg. #0068582, McNamee Law Office, 42 Woodcroft Trial,
Suite D, Beavercreek, Ohio 45430
Attorney for Defendant-Appellee
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FAIN, P.J.
{¶ 1} Plaintiff-appellant Edward Papp appeals from an order denying his motion to
terminate his spousal support obligation. Mr. Papp contends that the trial court abused its
discretion in denying the motion to terminate, because it erred in finding no change in
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circumstances. He further contends that the trial court abused its discretion by failing to
recognize that a continued award of spousal support – when his only income consists of his
retirement benefits – is precluded by the provision in the divorce decree for the division of
property, which awarded him his retirement plan “free and clear” of any claims by Ms. Papp.
{¶ 2} We conclude that the trial court erred in holding that the only changes in
circumstance that could be a basis for terminating spousal support are the death or remarriage
of the obligee spouse. But we conclude that this error is harmless because, on the facts in
evidence, there was no change of circumstances justifying the termination of spousal support.
We further conclude that Mr. Papp’s income is available to pay spousal support,
notwithstanding that his income is derived from an asset that was awarded to him in the
division of property provided for in the divorce decree. Accordingly, the judgment of the trial
court is Affirmed.
I. The Papps Are Divorced
{¶ 3} Edward and Marlene Papp were married in 1970. They were divorced on
September 8, 1994. Of relevance hereto, the parties’ separation agreement, incorporated in
the divorce decree, reflects that both parties “shall retain their respective retirement accounts
free and clear of any claim of the other.” Mr. Papp was ordered to pay spousal support of
$500 per month. The language regarding the spousal support, pertinent hereto, stated:
Such support shall * * * continue until further Order of Court. * * *
Spousal support payments shall terminate upon the death of either party or the
remarriage of support obligee. * * * Spousal support shall be subject to the
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continuing jurisdiction of this court. Each party shall notify the other party in
writing of any circumstance which might modify spousal support rights,
including any variation over 10% in gross income; failure to do so may result
in a modification of spousal support effective with the date of change in
circumstances. * * * IT IS FURTHER ORDERED that [Mr. Papp] shall
maintain life insurance on his life * * * naming [Ms. Papp] as sole and primary
beneficiary. * * * This provision shall remain in effect until all spousal support
obligations are satisfied or terminated. * * * [Ms. Papp] shall have a valid
claim against [Mr. Papp’s] probate estate to the extent that this provision has
not been fully obeyed.
II. Spousal Support
{¶ 4} In 2000, Ms. Papp moved to increase spousal support which was granted.
The court increased Mr. Papp’s monthly support obligation to $775. In April, 2011, Mr. Papp
moved to terminate his spousal support obligation. Mr. Papp argued that he had retired
effective January 1, 2011, and was receiving retirement benefits from his pension plan. He
noted that the retirement benefits are his only source of income. He also noted that the
divorce decree awarded him his interest in his retirement account free and clear of any claims
from Ms. Papp. He argued that payment of spousal support constitutes an improper claim by
Ms. Papp upon his retirement account, and that Ms. Papp was not entitled “to any spousal
support arising from [his] retirement payments and the same should be terminated.”
{¶ 5} The magistrate denied the motion, concluding that the award of spousal
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support was separate from the division of property. The magistrate also found that the
reasons justifying the award of support had not changed. The magistrate went on to state:
More importantly, [Mr. Papp] does not address the simple fact that the
spousal support award provides for termination only upon death or remarriage
and no other basis is set forth. If the parties had intended for spousal support
to terminate upon [Mr. Papp’s] retirement, it seems reasonable that they would
have said so and documented it in the most important and obvious place. This
magistrate also notes that it seems very reasonable for the parties to have
(correctly) assumed that at some point [Mr. Papp] would retire but that his
retirement would not necessarily change the substantial income disparity in this
case (as it indeed has not), and that the reasons justifying spousal support
would remain generally applicable.
{¶ 6} The trial court adopted the decision of the magistrate over Mr. Papp’s
objections, agreeing generally with the magistrate, and adding that there had been no change
in circumstances that was not contemplated by the parties. From the order denying his
motion to terminate spousal support, Mr. Papp appeals.
III. Although the Trial Court Erred in Holding that Only The Death of Either Party or
Ms. Papp’s Remarriage Can Constitute a Change of Circumstances for Purposes of
Terminating Spousal Support, that Error Is Harmless, Because the Evidence in this
Record Does Not Support a Termination of Spousal Support
{¶ 7} Mr. Papp’s First Assignment of Error is as follows:
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THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING
THAT THE RETIREMENT OF PLAINTIFF DID NOT CONSTITUTE A
SIGNIFICANT CHANGE IN CIRCUMSTANCES.
{¶ 8} Mr. Papp argues that the trial court erred in holding that spousal support could
only be terminated upon the death of either party or the remarriage of Ms. Papp.
{¶ 9} The first issue is whether the decree limits the circumstances under which the
spousal support obligation can be terminated. Ms. Papp, the magistrate, and the trial court all
focus on the language in the decree stating that the obligation “shall terminate upon the death
of either party or the remarriage of [Ms. Papp],” and conclude that death and remarriage
constitute the only reasons for termination. But the decree also provides that the support shall
continue “until further order of the Court.”
{¶ 10} We conclude that the proper construction of the divorce decree is that the trial
court may terminate or modify the support order upon a change in circumstances, but that the
support order will not, in any event, survive Ms. Papp’s death or remarriage.
{¶ 11} The next issue is whether Mr. Papp’s retirement constituted a change of
circumstances requiring a change in his spousal support obligation.
{¶ 12} A trial court has the authority to modify spousal support if the court
determines that “the circumstances of either party have changed” and that the divorce decree
contains a provision authorizing the court to modify the amount or terms of spousal support.
R.C. 3105.18(E); Allread v. Allread, 2d Dist. Darke No. 2010 CA 6, 2011–Ohio–1271, ¶ 19.
{¶ 13} A change of circumstances “includes, but is not limited to, any increase or
involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical
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expenses.” R.C. 3105.18(F). The change of circumstances must be “substantial,” and cannot
have been contemplated and taken into account by the parties or the court at the time of the
original decree. Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009–Ohio–1222, 905
N.E.2d 172, ¶ 32–33. “Courts have misconstrued that standard by applying a test of
foreseeability: was the particular circumstance one reasonably to be anticipated? The better
test is one grounded in the record, and contemplates a finding that the circumstance is not one
that ‘was thoroughly considered at the time of the divorce.’ ” Allread v. Allread, 2d Dist.
Darke No. 2011-CA-14, 2012-Ohio-2093, ¶ 16 (Citation omitted).
{¶ 14} If a substantial change in circumstances has occurred, the trial court must examine
the existing order in light of the changed circumstances, considering whether spousal support
is still appropriate and reasonable and, if so, in what amount. Norbut v. Norbut, 2d Dist.
Greene No. 2006–CA–112, 2007–Ohio–2966, ¶ 15. When deciding whether the existing order
should be modified, a trial court must consider all relevant factors, including those listed in
R.C. 3105.18(C). Id. The relevant factors include (1) the income of the parties from all
sources, (2) the parties' relative earning abilities, (3) the ages and physical, mental, and
emotional conditions of the parties, (4) the retirement benefits of the parties, (5) the duration
of the marriage, (6) the standard of living established during the marriage, (7) the parties'
relative assets and liabilities, and (8) any other factor that is relevant and equitable. See R.C.
3105.18(C).
{¶ 15} Trial courts have broad discretion regarding spousal support orders. Chepp v.
Chepp, 2d Dist. Clark No. 2008 CA 98, 2009-Ohio-6388, ¶ 5. Accordingly, an appellate
court ordinarily will not disturb those orders absent an abuse of discretion. Id. A trial court
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abuses its discretion when the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 16} In the decision denying the termination, the magistrate stated that “if the
parties had intended for spousal support to terminate upon [Mr. Papp’s] retirement, it seems
reasonable that they would have said so and documented it in the most important and obvious
place.” However, it appears that neither the magistrate nor the trial court actually considered
whether retirement was a circumstance that was thoroughly considered at the time of the
divorce decree. The pleadings filed indicate that Mr. Papp considered retirement a substantial
change while Ms. Papp did not. This indicates that a question of fact existed with regard to
the original decree. Neither the magistrate nor the trial court held a hearing to take evidence
on the matter. And again, the magistrate and trial court only considered death or remarriage
as possible reasons for terminating support. Thus, we conclude that the trial court erred in
this regard.
{¶ 17} But any error in this regard is harmless. When support was increased in
2000, Ms. Papp had been diagnosed with multiple sclerosis and had retired on disability. At
that time her income was $52,348, and her monthly expenses were $3,742. Mr. Papp’s
income at that time was $81,919, and his monthly expenses were $4,318.
{¶ 18} At the time of filing the motion to terminate, Mr. Papp’s income – consisting
of his retirement benefits – was $95,484, and his monthly expenses were $4,255. Ms. Papp’s
income was relatively unchanged at $54,453. Mr. Papp was 64, with no health issues, and
Ms. Papp was 62, with serious health issues, as a result of which, she used a wheel chair for
mobility. Ms. Papp’s monthly expenses totaled $3,600, while Mr. Papp’s were $4,255.
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{¶ 19} The magistrate and trial court found that the “reasons justifying [the original
order of spousal support [including income disparity] * * * remain generally applicable.” We
agree. The financial situation of Mr. Papp, the obligor spouse, had improved significantly;
the financial situation of Ms. Papp was essentially unchanged. Obviously, then, these facts
do not provide a basis for terminating or reducing spousal support.
{¶ 20} Mr. Papp’s First Assignment of Error is overruled.
IV. Spousal Support Is Payable out of Mr. Papp’s Income, Even When
that Income Is in the Form of Periodic Payments from a Retirement
Account that Was Awarded to Him in the Division of Property
{¶ 21} Mr. Papp’s Second Assignment of Error is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING THAT AN
ASSET PREVIOUSLY DIVIDED BY THE PARTIES, WHICH WAS RETAINED
“FREE AND CLEAR” OF ANY CLAIMS OF THE OTHER SPOUSE, MAY BE
USED TO FUND SPOUSAL SUPPORT.
{¶ 22} Mr. Papp argues that since he was awarded his retirement account “free and
clear” of any claims by Ms. Papp, the trial court has erroneously given Ms. Papp an interest in
his separate property. We disagree.
{¶ 23} As noted by the magistrate:
[W]hile an equitable division of property and determination of spousal support are
certainly interrelated legal concepts, they are also separate and distinct. “[A]fter the court
determines the division or disbursement of property . . . the court of common pleas may award
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reasonable spousal support” after considering a lengthy list of factors (one of which is the
retirement benefits of the parties).
{¶ 24} In this case, Mr. Papp was awarded his retirement account free and clear of any
claims from Ms. Papp. Ms. Papp was not given any interest in the pension plan by any means,
including by means of a Qualified Domestic Relations Order. Mr. Papp now receives a substantial
income from that retirement account, and that income is properly considered when determining the
appropriateness and amount of spousal support. See, Templeton v. Templeton, 2d Dist. Montgomery
No. 18860, 2001 WL 1173340, * 2 (Oct. 5, 2001).
{¶ 25} Mr. Papp’s Second Assignment of Error is overruled.
V. Conclusion
{¶ 26} Both of Mr. Papp’s assignments of error having been overruled, the order of the trial
court denying his motion to terminate spousal support, from which this appeal is taken, is Affirmed.
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FROELICH and HALL, JJ., concur.
Copies mailed to:
Charles M. Blue
David M. McNamee
Hon. Denise L. Cross