Comella v. Parravano

[Cite as Comella v. Parravano, 2014-Ohio-834.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100062
ROSEANN COMELLA
PLAINTIFF-APPELLANT
vs.
WILLIAM FREDERICK PARRAVANO, JR.
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-300828
BEFORE: McCormack, J., Jones, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: March 6, 2014
ATTORNEY FOR APPELLANT
Anne C. Fantelli
Stafford Law Co. L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114
ATTORNEY FOR APPELLEE
Mark A. Ziccarelli
Ziccarelli & Martello
8754 Mentor Avenue
Mentor, OH 44060
TIM McCORMACK, J.:
{¶1} Plaintiff-appellant Roseann Comella (f.k.a. Roseann Parravano) appeals
from the trial court’s order granting defendant-appellee William Frederick Parravano,
Jr.’s motion to modify spousal support. She raises three assignments of error for our
review, which we will discuss together:
I. The trial court erred and/or abused its discretion by granting the
appellee’s motion to modify spousal support and in finding that it had
jurisdiction and that a change in circumstances not contemplated at the time
of the prior order had occurred.
II. The trial court erred and/or abused it discretion by failing to comply
with Civ.R. 53, and by adopting the magistrate’s decision without
modification.
III. The trial court decision is against the manifest weight of the evidence.
Procedural History and Substantive Facts
{¶2} Roseann Comella and William Parravano were divorced on April 24, 2007.
The judgment entry of divorce ordered Parravano to pay Comella spousal support in the
amount of $2,328.69 per month, effective January 1, 2007. He was ordered to pay
$2,000 per month as current spousal support, effective January 1, 2008. Under the
original judgment entry of divorce, the trial court retained jurisdiction over the spousal
support obligation for purposes of modification.
{¶3} On January 14, 2010, Parravano filed a motion to modify spousal support,
stating that there had been a change in circumstances since April 24, 2007, in that his
income decreased substantially and he is now on social security.
{¶4} The parties entered into an agreed judgment entry on Parravano’s motion on
February 10, 2011. Pursuant to the agreed judgment entry, the parties agreed to decrease
Parravano’s monthly support obligation to $750 per month, effective the date of the entry.
They also agreed that there was a support arrearage of $41,500, for which Parravano was
found in contempt and could purge the contempt by paying $25,000. Parravano was
ordered to pay an additional $250 per month toward the remaining arrearage. At the time
the parties signed the agreed judgment entry, Parravano was not working. He testified,
however, that he was expecting to return to work with Schirmer Construction.
{¶5} On November 23, 2011, Parravano filed a second motion to modify spousal
support, stating that since February 10, 2011, his income has decreased in that he has
been on social security since December 2009 and he had not been employed throughout
2011. At the time this second motion was filed, Parravano had not been called back to
work by Schirmer.
{¶6} Following a hearing on the matter, on January 7, 2013, the magistrate
granted Parravano’s motion, finding that spousal support should be reduced to $200 per
month, effective December 17, 2012. Comella filed objections and supplemental
objections to the magistrate’s decision, stating that there has been no substantial change in
circumstances that was not contemplated by the parties at the time of the prior order
modifying spousal support and, therefore, the court does not have jurisdiction to modify
the spousal support obligation. Comella further argued that Parravano’s request for
modification was barred by res judicata. On May 30, 2013, the trial court issued a
judgment entry overruling Comella’s objections and adopting the magistrate’s decision
without modification. Comella now appeals the trial court’s decision.
Standard of Review
{¶7} A magistrate’s decision on the issue of modification is subject to a de novo
review by the trial court. Potter v. Potter, 8th Dist. Cuyahoga No. 99247,
2013-Ohio-3531, ¶ 11; Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 94456,
2011-Ohio-2255, ¶ 9. The trial court must therefore conduct an independent analysis of
the evidence in order to reach its own conclusions about the issues in the case and
determine whether the magistrate properly determined the factual issues and appropriately
applied the law. Id.; Civ.R. 53(D)(4)(d). A trial court’s ruling on objections to a
magistrate’s decision will not be reversed absent an abuse of discretion. Gobel v. Rivers,
8th Dist. Cuyahoga No. 94148, 2010-Ohio-4493, ¶ 16.
{¶8} With respect to spousal support, a trial court has broad discretion in
determining what is proper based upon the facts and circumstances of each case. Kunkle
v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). A reviewing court cannot
therefore substitute its judgment for that of the trial court absent an abuse of discretion.
Id. Furthermore, this court will not reverse a decision of the domestic relations court if
there is competent, credible evidence in the record supporting the trial court’s decision.
Abernethy v. Abernethy, 8th Dist. Cuyahoga No. 92708, 2010-Ohio-435, ¶ 39.
Law and Analysis
{¶9} Comella contends that the trial court had no jurisdiction to entertain
Parravano’s request for modification of spousal support.
{¶10} A trial court lacks jurisdiction to modify a prior order of spousal support
unless the decree of the court expressly retained jurisdiction to make the modification and
the court finds that (1) that a substantial change in circumstances has occurred, and (2)
that the change was not contemplated at the time of the original decree. Mandelbaum v.
Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, paragraph two of
the syllabus; R.C. 3105.18(F).
{¶11} To “contemplate” means that a party had to “intend” that an event happened
for it to preclude a modification of spousal support. Javidan-Nejad v. Navadeh, 8th Dist.
Cuyahoga No. 97661, 2012-Ohio-3950, ¶ 20, citing Kaput v. Kaput, 8th Dist. Cuyahoga
No. 94340, 2011-Ohio-10, ¶ 22. The test is not whether the event is foreseeable, but
rather, whether the circumstance is one that “was thoroughly considered at the time of the
divorce.” Id., citing Palmieri v. Palmieri, 10th Dist. Franklin No. 04AP-1305,
2005-Ohio-4064, ¶ 19. The movant bears the burden of proving that the parties did not
contemplate the substantial change in circumstances at the time of the divorce. Potter,
8th Dist. Cuyahoga No. 99247, 2013-Ohio-3531, at ¶ 13, citing Tremaine v. Tremaine,
111 Ohio App.3d 703, 676 N.E.2d 1249 (2d Dist.1996).
{¶12} If the court retained jurisdiction for modification in the divorce decree, the
trial court must consider the factors set forth in R.C. 3105.18(C)(1) in order to determine
whether the existing support order should be modified in light of a significant change in
circumstances. Mandelbaum at ¶ 31. Such factors include: (1) the parties’ income
from all sources, including income derived from the property division made by the court;
(2) the relative earning abilities of the parties; (3) the parties’ ages and physical, mental,
and emotional conditions; (4) the parties’ retirement benefits; (5) the duration of the
marriage; (6) the relative extent of education of the parties; (7) the relative assets and
liabilities of the parties; and (8) the tax consequences of an award of spousal support for
each party. See R.C. 3105.18(C)(1).
{¶13} The trial court is not required to comment on each statutory factor; rather,
the record must only show that the court considered the statutory factors when making its
award. Neumann v. Neumann, 8th Dist. Cuyahoga No. 96915, 2012-Ohio-591, ¶ 17,
citing Carman v. Carman, 109 Ohio App.3d 698, 703, 672 N.E.2d 1093 (12th Dist.1996).
Moreover, in considering a motion to modify a spousal support order, “[t]he court need
only consider the factors which have actually changed since the last order.” Mizenko v.
Mizenko, 8th Dist. Cuyahoga No. 78409, 2001 Ohio App. LEXIS 2514 (June 7, 2001).
{¶14} Here, Comella concedes that the judgment entry of divorce expressly
reserved the trial court’s jurisdiction to modify the spousal support obligation. She
maintains, however, that because there was no substantial change in circumstances that
occurred since the prior order of February 2011 that were not contemplated by the parties
at the time of the prior order, the trial court lacked jurisdiction to modify the spousal
support upon Parravano’s November 2011 motion for modification. In support of her
argument, Comella contends that Parravano was unemployed and receiving social security
at the time of the February 2011 order and he is currently unemployed and receiving
social security benefits, which is neither a substantial nor unforeseen change of
circumstances.
{¶15} A review of the record demonstrates that Parravano was, in fact,
unemployed and receiving social security benefits at the time he filed his first motion to
modify in January 2010. He was employed by Schirmer Construction from January 2010
to June 2010, earning $11,922.26. He testified that he had been unemployed since June
2010, he had not sought employment elsewhere, and he had been receiving social security
benefits since 2009.
{¶16} The record also shows that Parravano was unemployed at the time he filed
his second motion for modification in November 2011 and when he and Comella signed
the agreed judgment entry in February 2011. Parravano testified that when he signed
the agreement, he was expecting to return to work. He stated, however, that due to his
failing health, he was ultimately unable to return to work. At the time he signed the
agreed judgment entry, Parravano was receiving social security benefits.
{¶17} In reaching its decision, the magistrate considered the above evidence and
noted that, while Parravano’s first motion to modify was based upon his expecting to
continue to work, Parravano was not working when he signed the agreed judgment entry.
The magistrate further noted that the affidavits attached to both motions to modify “were
based on [Parravano’s] receiving social security,” and in fact, his social security benefits
increased minimally since the prior order modifying spousal support from $24,792 to
$26,118.
{¶18} The magistrate, however, did not consider Parravano’s income as a basis for
modification. Rather, the magistrate found that based on the totality of the evidence
presented, there has been a change in circumstances not contemplated by the parties since
the last order with respect to Comella’s financial position. Specifically, the magistrate
found that Comella’s financial position “improved by way of her receipt of social security
benefits, unemployment benefits, and additional interest income * * *.” The magistrate
further concluded that Comella can “meet her monthly household expenses presented at
the hearing without dipping into her assets,” with the exception of the interest income.
{¶19} At the time Parravano filed the first motion to modify, Comella was
employed by Chuppa’s Marketplace, earning $9 per hour, or approximately $9,360 per
year. At the time Parravano filed the second motion to modify, in November 2011, she
was employed at Midtown Farmers Market, earning $11 per hour, for approximately one
year, before Midtown Farmers Market closed its doors. At the time of the hearing,
Comella was receiving $135 per week in unemployment benefits, or $7,020 per year.
{¶20} The magistrate found, and the record supports, that Comella’s receipt of
social security benefits was a change since the prior order that was not contemplated,
since she began receiving the benefits in March 2011. Comella testified that she applied
early for benefits because of the decrease in her monthly income. Comella was,
therefore, receiving $826.80 per month in combined social security benefits from her
earnings as well as Parravano’s earnings. When these benefits are combined with her
unemployment benefits, Comella received $16,941.60 annually. Additionally, she
received $460 per month in interest income from her Seaway investment. In imputing a
“reasonable” 1% interest on Comella’s Vanguard investment, the magistrate found
Comella’s income increased an additional $2,000 per year. Therefore, Comella’s annual
income since March 2011, totaled $24,461, plus approximately $400 per year from a
retirement investment.
{¶21} In addition to the parties’ income, the magistrate considered other factors
necessary in order to determine whether to modify the existing spousal support. The
magistrate considered the living expenses of both parties, noting that Comella lived in a
smaller home “that she owns free and clear, with lower utilities and lower property taxes
and property insurance[,] and she earns interest on the proceeds.” The magistrate
considered that Parravano no longer contributes $1,000 per month in living expenses to
his girlfriend with whom he was living; however, he was contractually obligated in an
apartment lease, which lease has been extended, and he will start paying taxes, insurance,
and utilities, effective January 1, 2013.
{¶22} The magistrate further considered the ages of both parties, that the marriage
was of a very long duration with three grown children, and that both parties have a 12th
grade education. Parravano also acquired skills in the military, and he did excavation
work for 35 years. However, as the magistrate notes, Parravano “is in fairly poor
health,” is recovering from back surgery, and has had knee surgery. On the other hand,
Comella was in good health, with the exception of some arthritis for which she required
over the counter medication. Comella was still capable of doing some office work,
possessing secretarial skills. The magistrate also noted that Comella had more retirement
assets than Parravano.
{¶23} Based upon its review of the evidence, the magistrate concluded that there
was a change not contemplated by the parties since the last order and spousal support
should therefore be reduced to $200 per month based on the length and duration of the
marriage, subject to the same terms and conditions contained in the parties’ divorce
decree.
{¶24} In accordance with Civ.R. 53(D)(4)(d), the trial court conducted an
independent review of the matter, reviewing the magistrate’s decision, the transcript of
the hearing, and Comella’s objections and supplemental objections to the magistrate’s
decision. The court found Comella’s objections not well taken, thereby overruling the
objections and adopting the magistrate’s decision.
{¶25} In adopting the magistrate’s decision, the trial court considered all of the
relevant factors set forth in R.C. 3105.18(C)(1)(a)-(n) and made its own findings of fact
regarding such factors:
[T]he court considered the income of both parties. The court found it
significant that [Comella] is now receiving social security benefits based on
both her and her husband’s earnings. At the time of the previous agreed
judgment entry in this case, [Comella] was not receiving these * * *
benefits.
The court continued to note that neither party had significant earning abilities due to their
advanced age, both parties were of retirement age, Comella “is in relatively good health
while [Parravano] is in relatively poor health,” and while both parties had retirement
assets, Comella had more retirement assets than Parravano. The court also considered
the 37-year duration of the marriage and the education and training of the parties.
Finally, the court considered the fact that Comella had more assets and fewer liabilities
than Parravano, and both parties had minimal tax consequences.
{¶26} After reviewing the record in this case, we find that the trial court did not
abuse its discretion in adopting the magistrate’s decision. We further find that the trial
court’s judgment adopting the magistrate’s decision was not against the manifest weight
of the evidence because there is competent, credible evidence in the record to support the
finding that there was a substantial change in circumstances not contemplated by the
parties since the prior order of February 2011 such that a modification of spousal support
was warranted.
{¶27} Comella also contends that Parravano’s request for modification is barred by
the doctrine of res judicata because the trial court had previously considered his
arguments regarding his income upon Parravano’s first motion to modify and rendered
judgment on this issue. We find no merit to this argument.
{¶28} The doctrine of res judicata “involves both claim preclusion (historically
called estoppel by judgment in Ohio) and issue preclusion (traditionally known as
collateral estoppel).” Grava v. Parkman Twp., 73 Ohio St.3d 379, 380, 653 N.E.2d 226(1995). Both theories of res judicata are used to prevent relitigation of issues already
decided by a court on matters that should have been brought as part of a previous action.
Lasko v. Gen. Motors Corp., 11th Dist. Trumbull No. 2002-T-0143, 2003-Ohio-4103,
¶16. “[A] valid, final judgment rendered upon the merits bars all subsequent actions
based upon any claims arising out of the transaction or occurrence that was the subject
matter of the previous action.” Grava at 382.
{¶29} Principles of res judicata provide that “‘material facts or questions that were
in issue in a former suit, and were there judicially determined by a court of competent
jurisdiction, are conclusively settled by a judgment therein so far as concerns the parties
to that action and persons in privity with them.’” Mlakar v. Mlakar, 8th Dist. Cuyahoga
No. 98194, 2013-Ohio-100, ¶ 11, quoting Goodson v. McDonough Power Equip., Inc., 2
Ohio St.3d 193, 195, 443 N.E.2d 978 (1983). Res judicata has been applied to bar
claims in motions to modify support obligations that were previously made between the
same parties and finally decided by the court. Id. at ¶ 12.
{¶30} In this case, the magistrate’s decision to modify Parravano’s spousal support
for the second time was based upon Comella’s new financial position, including
Comella’s new unemployment benefits, additional interest income, and receipt of social
security benefits in the amount of $826.80 per month since March 2011. These were
material facts that were not at issue at the time of the court’s prior order. Therefore,
because the court did not consider Comella’s receipt of unemployment benefits,
additional interest income, and social security benefits previously, we cannot now find
that Parravano’s second motion for modification had been fully litigated.
{¶31} As such, Comella’s three assignments of error are overruled.
{¶32} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
___________________________________________________
TIM McCORMACK, JUDGE
LARRY A. JONES, SR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR