Mitchell v. Mitchell

[Cite as Mitchell v. Mitchell, 2014-Ohio-1745.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ralph I. Mitchell, :
Plaintiff-Appellant, :
v. : No. 13AP-656
(C.P.C. No. 78DR-01-03)
Alice J. Mitchell, :
(REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on April 24, 2014
Wolinetz Law Offices, and Barry H. Wolinetz, for appellant.
Gerrity and Burrier, Ltd., and Timothy D. Gerrity, for
appellee.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
TYACK, J.
{¶ 1} This is an appeal from a decision and entry by the Franklin County Court of
Common Pleas, Division of Domestic Relations, overruling objections to a magistrate's
decision and denying the motion of plaintiff-appellant, Ralph I. Mitchell, Ph.D. ("Dr.
Mitchell"), for termination of spousal support. For the reasons that follow, we affirm the
judgment of the trial court.
Factual and Procedural Background
No. 13AP-656 2
{¶ 2} Dr. Mitchell and defendant-appellee, Alice J. Mitchell ("Ms. Mitchell"), were
married on September 8, 1945 and were divorced on June 19, 1978. Dr. Mitchell worked
at Battelle Memorial Institute ("BMI") as an inhalation toxicologist. In addition, the
Mitchells owned a farm in Delaware County. At the time of the divorce, Dr. Mitchell
bought out Ms. Mitchell's interest in the property. Ms. Mitchell purchased an annuity
with her proceeds.
{¶ 3} The decree ordered Dr. Mitchell to pay $800 per month in indefinite
spousal support to Ms. Mitchell. The trial court retained jurisdiction to modify the
spousal support order upon a showing of a substantial change in circumstances.
{¶ 4} Dr. Mitchell retired from BMI in 1989. He receives a pension that currently
pays approximately $1,800 per month. The Mitchells were divorced at a time when
pensions were not subject to division. At the time of his retirement, Dr. Mitchell sought a
reduction in his spousal support payment, and the obligation was reduced to $500 per
month, effective November 1, 1989.
{¶ 5} In 1990, Dr. Mitchell married Hedwig Goldsmith ("Ms. Goldsmith"). Ms.
Goldsmith lives in Manchester, England, and she and Dr. Mitchell have a long-distance
relationship with some overlap of their finances.
{¶ 6} In 2007, Dr. Mitchell sought to terminate spousal support. His request was
denied on August 31, 2009.
{¶ 7} On July 26, 2011, Dr. Mitchell again sought to terminate spousal support
contending a substantial change in circumstances had taken place since 2007. He
indicated that his poor health had caused an increase in his expenses, and his income had
decreased.
{¶ 8} Dr. Mitchell is 87 years old. He owns 52 acres consisting of the former
marital home and the farm. The property is mortgage free. He uses a contract farmer to
work the land, but he claims he receives no income from the farm because of the flooding
of his property and an ongoing dispute with M/I Homes. He claimed a loss of $10,570 on
his 2010 tax return. His property was valued at $1,078,400 by the Delaware County
Auditor in 2011. He maintains a checking/savings account of approximately $20,000.
On cross-examination he admitted that he had a number of BMI Credit Union Accounts
totaling more than $100,000. Some accounts were in his name, others were held jointly
No. 13AP-656 3
with Ms. Goldsmith, although Dr. Mitchell testified that they keep their financial affairs
separate. He did admit that Ms. Goldsmith paid for some of his international travel-
related expenses to Europe, South America, and Latin America.
{¶ 9} Dr. Mitchell testified that he receives $1,677 per month from his pension at
BMI. In 2009 and 2010, his tax returns showed a gross annual pension income of $21,561
or $1,796.75 per month. He testified that he receives $1,110 per month from Social
Security net from Medicare. His tax returns showed his annual non-taxable Social
Security benefits were $15,653 or $1,304.42 per month, and his Form SSA1099 reflected
payment of $14,496 per year net of Medicare deduction or $1,208 per month.
{¶ 10} Ms. Mitchell is in good health at age 92. The only medications she takes are
for high blood pressure. She lives alone in an apartment at the Northland Senior Village
where she has resided for the last 23 years. She buys her clothes at a thrift store, and
relies upon her adult children for transportation. She receives spousal support of $500
per month and $739 per month from Social Security net of Medicare costs. Her sole
investment is an annuity with Pacific Life. The annuity is currently worth $88,491.27.
She currently withdraws $439 per month from that annuity to meet her monthly budget
of $1,523.28. She testified that she had incurred $3,000 in attorney fees defending Dr.
Mitchell's motion, but that amount did not include trial preparation and hearing time.
{¶ 11} A magistrate found that the trial court retained jurisdiction to modify the
award in accord with R.C. 3105.18(E). After a full hearing, the magistrate found
insufficient information to demonstrate a substantial change of circumstances to warrant
termination or any reduction in Dr. Mitchell's spousal support obligation.
{¶ 12} Dr. Mitchell filed objections to the magistrate's decision. The trial court
overruled the objections on July 1, 2013. This appeal followed with Dr. Mitchell assigning
the following as error:
I. The trial court erred and abused its discretion when it
found that there was not a substantial change of
circumstances.
II. The trial court erred as a matter of law when it failed to
conduct an analysis of the factors contained in R.C.
3105.18(C).
No. 13AP-656 4
III. The trial court erred and abused its discretion when it
awarded $4,000 in attorney's fees to appellee.
Standard of Review
{¶ 13} We review the modification of spousal support under an abuse of discretion
standard. Piliero v. Piliero, 10th Dist. No. 10AP-1142, 2012-Ohio-1153, ¶ 29.
Legal Analysis
Substantial Change of Circumstances
{¶ 14} In his first assignment of error, Dr. Mitchell argues that his health has
deteriorated substantially since 2009 when he last sought to terminate his spousal
support. He also argues that his medical expenses have increased dramatically. He
maintains that his income has gone down because he is no longer able to fully operate his
farm which was flooded in 2011 by M/I Homes. He is currently in litigation with M/I
Homes regarding the damages to his farm.
{¶ 15} The trial court found that Dr. Mitchell suffers from various conditions such
as a collapsed lung, atrial fibrillation, significant arthritis, numbness in his hands, various
tumors, macular degeneration and an enlarged prostate. Dr. Mitchell testified that he
takes 14 different medications. But a review of the record shows that in 2009 he had
many of the same conditions: two teeth implants; loss of use of his hands; a spinal cord
injury; cataracts; back pain; hypertension; foot pain; macular degeneration and prostate
problems. At that time, he took 11 different medications. The trial court found that there
had not been a sufficient deterioration in Dr. Mitchell's health conditions to warrant
finding of a change of circumstances.
{¶ 16} Additionally, the trial court did not find much of Dr. Mitchell's evidence
regarding his medical expenses to be credible. He introduced medical bills and testimony
that his additional medical expenses were $24,341. On cross-examination, it was revealed
that his insurance payments and write-offs reduced his out-of-pocket expenses to
$1,066.07. Again, the trial court did not find the lesser amount to rise to the level of a
change of circumstances necessary to trigger termination or modification of spousal
support.
No. 13AP-656 5
{¶ 17} In 2009, the court recognized the seriousness of Dr. Mitchell's health
problems. Nevertheless, the court held that the modification in 1989 took into
consideration the health of the parties, and that it would have been contemplated at that
time that the parties would continue to age.
{¶ 18} The trial court found that Dr. Mitchell inflated his monthly budget by
including one time expenses as monthly expenses, and that accounted for the alleged
deficit in his monthly budget. The trial court indicated that Dr. Mitchell was essentially in
the same position as he was in 2009 when there was not a substantial change in
circumstances from the prior spousal support order.
{¶ 19} As the trial court noted in 2009: "The Plaintiff is essentially requesting the
Court to force the Defendant to use the annuity to meet her expenses to relieve him of his
spousal support obligation while he claims a hardship as he sits upon a valuable piece of
real estate." (Decision and Judgment Entry to Plaintiff's Objection to the Decision of the
Magistrate, August 31, 2009, 6-7.) These circumstances have not changed significantly in
the interim.
{¶ 20} Our review of the record convinces us that the trial court was within its
discretion in failing to find a substantial change in circumstances. The first assignment of
error is overruled.
Factors contained in R.C. 3105.18
{¶ 21} In his second assignment of error, Dr. Mitchell contends that the trial court
erred in failing to conduct an analysis as set forth in R.C. 3105.18(C). R.C. 3105.18(C)(1)
provides that when determining whether spousal support is appropriate and reasonable,
the trial court shall consider a list of 14 factors.
{¶ 22} Pursuant to the Supreme Court Ohio's decision in Mandelbaum v.
Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, paragraphs one and two of the
syllabus, the trial court may not modify a prior order of spousal support unless the court
finds that a substantial change in circumstances has occurred and that the change was not
contemplated at the time of the original decree.
{¶ 23} Here, the trial court made a determination that a substantial change in
circumstances had not occurred, and therefore there was no need to go further in its
analysis. In Faulkner v. Faulkner, 10th Dist. No. 00AP-473 (Nov. 21, 2000), this court
No. 13AP-656 6
held that, in granting or denying a motion to modify spousal support, there is no express
requirement that the trial court re-examine all of the factors listed in R.C. 3105.18(C)(1).
The second assignment of error is overruled.
Attorney Fees
{¶ 24} The trial court awarded Ms. Mitchell $4,000 in attorney fees. Ms. Mitchell
testified before the magistrate that she had spent approximately $3,000 in opposing Dr.
Mitchell's most recent motion to terminate spousal support.
{¶ 25} An award of attorney fees in a domestic relations action is committed to the
sound discretion of the trial court. Flowers v. Flowers, 10th Dist. No. 10AP-1176, 2011-
Ohio-5972, ¶ 21. "This court will not reverse an award of attorney fees absent a finding
that the trial court abused its discretion." Id.{¶ 26} Here, the trial court awarded attorney fees pursuant to R.C. 3105.73(B)
which provides:
In any post-decree motion or proceeding that arises out of an
action for divorce, dissolution, legal separation, or
annulment of marriage or an appeal of that motion or
proceeding, the court may award all or part of reasonable
attorney's fees and litigation expenses to either party if the
court finds the award equitable. In determining whether an
award is equitable, the court may consider the parties'
income, the conduct of the parties, and any other relevant
factors the court deems appropriate, but it may not consider
the parties' assets.
The trial court stated, "the record is clear that an award of fees was appropriate given the
income and budgets of the parties and that equity would allow such an award viewing the
evidence as a whole." (Decision and Entry, July 1, 2013, at 8.) The trial court also cited to
Babka v. Babka, 83 Ohio App.3d 428, 435 (9th Dist.1992), which held that "[w]hen the
amount of time and work spent on the case by the attorney is evident, an award of
attorney fees, even in the absence of specific evidence, is not an abuse of discretion."
{¶ 27} In Conley v. Conley, 10th Dist. No. 89AP-826 (Apr. 26, 1990), this court
indicated that in order to support an award of attorney fees in a domestic relations action,
there must be some evidence contained in the record to support the reasonableness of the
fee. Yet, as this court has stated, "[t]he trial court is able to evaluate, in a large measure,
No. 13AP-656 7
the work performed by an attorney in a domestic relations case by merely looking at the
record before the court." Ward v. Ward, 10th Dist. No. 85AP-61 (June 18, 1985). A trial
court may use its own knowledge and experience to determine the reasonableness of the
amount claimed. Id.{¶ 28} Here, the magistrate took Ms. Mitchell's testimony that she had expended
$3,000 thus far in the litigation, and that Dr. Mitchell had expended approximately
$19,000 in bringing the action. It was within the trial court's discretion to award an
additional amount of $1,000 in fees for in-court time and the amount of time expended in
preparing for trial, and the additional time and preparation for the hearing before the trial
court arguing the objections to the magistrate's decision.
{¶ 29} The third assignment of error is overruled.
{¶ 30} Based on the foregoing, Dr. Mitchell's three assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, is affirmed.
Judgment affirmed.
SADLER, P.J., and CONNOR, J., concur.