Haynie v. Haynie

I concur in the determination of the majority opinion. It is well-settled law in Ohio that in order for a court to grant a modification of support payments or alimony, there must be a showing of changed circumstances which have occurred since the original support decree. Peters v. Peters (1968), 14 Ohio St.2d 268 [43 O.O.2d 441]. The changed circumstances relied upon by appellant to justify the modification of support provisions or alimony must: (1) not be within the knowledge or contemplation of the court when the decree was entered; and (2) the conditionsmust not be temporary. Stauffer v. Stauffer (1965), 4 Ohio App.2d 339,341 [33 O.O.2d 395]. The issue for determination in the case at bar is whether the trial court abused its discretion in denying a modification of the alimony and child support payments.

The record discloses that appellant filed the motion to modify one day before he terminated his $90,000 a year position with Mt. Sinai Medical Center. The hearing date on the motion to modify was only six weeks after appellant had entered into private practice. Nevertheless, appellant allegedly could testify with certainty that his income would be only $30,000 for the first year. The referee stated in his report, "that while defendant's income may presently be less than what he previously realized, most certainly the potential for continuing substantial income isobvious." (Emphasis added.) As with all new businesses, appellant's private medical practice may experience an initial, temporary economic lag. However, as indicated by the referee, the established potential of appellant's income is substantial. The referee found that appellant was "largely responsible for his predicament." The referee further found that there was a change of circumstances, but not one which would support a reduction in child support.

I am persuaded that the evidence supports this conclusion. The appellant did not meet his burden of showing that his financial problems were more than temporary or that he was not responsible for his income decrease. Moreover, I consider the following finding of the referee to be significant: "Plaintiff is without the home which the Court awarded to her [as part of the divorce decree], and because of the defendant's [appellant's] failure to maintain the home during the marriage and the resulting 44 building code violations, plaintiff [appellee] was unable to obtain a loan per her testimony, and his failure to comply with the order for payment of child support and alimony, plaintiff was unable to keep up the payments and is losing the marital residence through foreclosure." The above finding is indicative of appellant's lack of good faith in this matter.