Skerness v. Skerness

[Cite as Skerness v. Skerness, 2015-Ohio-3467.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VICKI ANN SKERNESS : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
EDWARD G. SKERNESS : Case No. 2015CA0002
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County
Court of Common Pleas, Case No.
2009DV0506
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 24, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT E. WEIR BRIAN W. BENBOW
Frase, Weir, Baker 605 Market Street, Suite 1
and McCullough Co., L.P.A Zanesville, OH 43701
305 Main Street
Coshocton, OH 43812
Coshocton County, Case No. 2015CA0002 2
Baldwin, J.
{¶1} Defendant-appellant Edward Skerness appeals from the January 15, 2015
Decision and Order of the Coshocton County Court of Common Pleas granting plaintiff-
appellee Vicki Ann Skerness’ Motion to Modify Spousal Support.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Edward Skerness and appellee Vicki Ann Skerness were
married on November 19, 1988. No children were born as issue of such marriage.
{¶3} On June 12, 2009, appellee filed a complaint for divorce against appellant.
Pursuant to a Judgment Entry filed on October 19, 2009, the trial court ordered
appellant to pay appellee $1,045.00 per month in temporary spousal support plus
poundage. At the time, appellant was earning approximately $60,000.00 a year and
appellee $12,000.00 a year.
{¶4} Appellant, on December 18, 2009, was found guilty of various crimes and
was sentenced to four years in prison.
{¶5} A Judgment Entry Decree of Divorce was filed on November 16, 2010 that
incorporated the parties’ October 11, 2010 Separation Agreement. Article Two of the
Separation Agreement states as follows:
Husband shall pay spousal support to Wife as follows:
temporary spousal support in the amount of One Thousand
Forty Five and 00/100 Dollars ($1,045.00) per month,
effective until March 31, 2010, and thereafter the order shall
be modified and reduced to One Hundred ($100.00) per
month as a temporary order until July 31, 2010. Upon the
Coshocton County, Case No. 2015CA0002 3
payment of $3,535.00 provided for in ARTICLE THREE, part
E., Husband will have paid all amounts ordered as
temporary spousal support; and therefore, no amount shall
be preserved as an arrearage accumulating under the
temporary orders. Commencing August 1, 2010, Husband
shall pay spousal support to Wife in the amount of One
Hundred ($100.00) per month plus 2% processing charge for
a period of one hundred seven (107) consecutive months.
Said payment shall be made by Husband to Wife through the
Child Support Enforcement Agency of Coshocton County
(CSEA). The Court shall retain jurisdiction to modify the
amount of spousal support, but it shall not retain jurisdiction
to modify the duration of spousal support.
The parties acknowledge that the amount of spousal
support was determined in consideration of the following
factors. Husband is currently incarcerated in a state penal
institution with his only source of income being a reduced
amount of Veterans Administration benefits, which may be
restored to a greater amount upon Husband’s release. The
Court has determined that Husband’s Veterans
Administration benefits shall not be considered an asset for
property division purposes and shall not be subject to
attachment for the payment of spousal support; either during
Coshocton County, Case No. 2015CA0002 4
Husband’s incarceration or upon his release; however, said
benefits may be considered as income for purpose of
computing Husband’s gross income as a factor in
determining modification of spousal support. In
consideration of the reduced amount of spousal support to
be paid as a result of Husband’s reduced income due to
incarceration, Wife shall receive a disproportionately greater
property division amount of two-thirds (2/3) of the marital
property to Husband’s one-third (1/3) of the marital property.
In the event a motion to modify and increase spousal
support is filed by Wife, Husband may argue that the
disproportionate property division should be a factor to be
considered by the Court.
{¶6} On August 25, 2014, appellee filed a motion seeking an increase in
spousal support. Appellee, in her motion, alleged that appellant had been released from
prison and that his income had increased “above the amount he received while
incarcerated.” A hearing on such motion was held on December 11, 2014.
{¶7} At the hearing, appellant testified on cross-examination testified that he
was released from prison on December 18, 2013. He testified that before his prison
sentence, he earned approximately $60,000.00 a year in 2008 working for Stone
Container and had made over $50,000.00 at the time of his criminal trial in 2009.
Appellant testified that he was in contact with Central Pension about his Stone
Container pension and testified that he would receive approximately $1,500.00 a month
Coshocton County, Case No. 2015CA0002 5
from that pension. Appellant testified that he received $1,912.00 a month in Social
Security benefits and $1,525.55 in benefits from the Veteran’s Administration (“VA”).
When asked, appellant stated that he did not have any other sources of income or
potential income. He was not working at the time of the hearing and had not sought any
employment since his release from prison. He offered no evidence of his monthly living
expenses. Appellant testified that he did not receive his VA benefits while in prison.
{¶8} Appellee testified that during the four years that her ex-husband was in
prison, she did not receive spousal support. She testified that she worked at a bank
earning $12.15 an hour and she received approximately $600.00 a month in pension
benefits. Appellee testified that she worked 37 hours a week. According to appellee,
her monthly living expenses were $2,058.00 and she had to dip into some of the
retirement benefits that she received in the divorce to make ends meet.
{¶9} At the conclusion of the hearing, the trial court asked the parties to file
post-hearing closing arguments. Pursuant to a Decision and Order filed on January 15,
2015, the trial court found that there had been a substantial change in circumstances
and ordered that appellant pay spousal support to appellee in the amount of $600.00 a
month retroactive to August 25, 2014.
{¶10} Appellant now raises the following assignments of error on appeal:
{¶11} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ORDERING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WHEN THERE
WAS NO SUBSTANTIAL CHANGE IN CIRCUMSTANCES, WHICH MADE THE PRIOR
SPOUSAL SUPPORT ORDER NO LONGER REASONABLE UNDER R.C. 310518(F).
Coshocton County, Case No. 2015CA0002 6
{¶12} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ORDERING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WHEN
APPELLANT HAD NO INCOME BY WHICH THE TRIAL COURT COULD LAWFULLY
TAX SPOUSAL SUPPORT. THE TRIAL COURT’S JANUARY 15, 2015 JUDGMENT
ENTRY AWARDING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WAS
ACCORDINGLY AGAINST BOTH THE WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
I
{¶13} Appellant, in his first assignment of error, argues that the trial court erred
in modifying spousal support when there was no substantial change in circumstances.
{¶14} Modifications of spousal support are reviewable under an abuse of
discretion standard. Kunkle v. Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83 (1990). In order
to find an abuse of discretion, we must determine that the trial court's decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶15} R.C. 3105.18 provides guidelines for the modification of spousal support
as follows:
(E) If a continuing order for periodic payments of
money as alimony is entered in a divorce or dissolution of
marriage action that is determined on or after May 2, 1986,
and before January 1, 1991, or if a continuing order for
periodic payments of money as spousal support is entered in
a divorce or dissolution of marriage action that is determined
Coshocton County, Case No. 2015CA0002 7
on or after January 1, 1991, the court that enters the decree
of divorce or dissolution of marriage does not have
jurisdiction to modify the amount or terms of the alimony or
spousal support unless the court determines that the
circumstances of either party have changed and unless one
of the following applies:
(1) In the case of a divorce, the decree or a
separation agreement of the parties to the divorce that is
incorporated into the decree contains a provision specifically
authorizing the court to modify the amount or terms of
alimony or spousal support ...
(F)(1) For purposes of divisions (D) and (E) of this
section and subject to division (F)(2) of this section, a
change in the circumstances of a party includes, but is not
limited to, any increase or involuntary decrease in the party's
wages, salary, bonuses, living expenses, or medical
expenses, or other changed circumstances so long as both
of the following apply:
(a) The change in circumstances is substantial and
makes the existing award no longer reasonable and
appropriate.
(b) The change in circumstances was not taken into
account by the parties or the court as a basis for the existing
Coshocton County, Case No. 2015CA0002 8
award when it was established or last modified, whether or
not the change in circumstances was forseeable.
(1) In determining whether to modify an existing order
for spousal support, the court shall consider any purpose
expressed in the initial order or award and enforce any
voluntary agreement of the parties. Absent an agreement of
the parties, the court shall not modify the continuing
jurisdiction of the court as contained in the original decree.
{¶16} There is no express requirement that the domestic relations court's order
granting or denying a motion to modify spousal support reexamine in toto the factors
listed in R.C. 3105.18(C)(1) that apply to an initial determination of spousal support.
Kucmanic v. Kucmanic, 119 Ohio App.3d 609, 613, 695 N .E.2d 1205, 1208 (8th Dist.
1997). The domestic relations court should set forth the basis for its decision with
enough detail to permit proper appellate review. Id., citing Graham v. Graham, 98 Ohio
App.3d 396, 399–400, 648 N.E.2d 850, 851–853 (1994).
{¶17} In the case sub judice, the trial court, as stated in the Separation
Agreement, retained jurisdiction over the amount of spousal support. The trial court, in
its January 15, 2015 Decision and Order modifying spousal support, noted that
appellant, who was incarcerated at the time of the parties’ Separation Agreement, had
been released from prison, had failed to seek employment and was currently receiving
$5,000.00 a month from various sources of income. Appellant testified that during his
incarceration, he did not receive his VA benefits, which would have been his only
Coshocton County, Case No. 2015CA0002 9
source of income at the time. At the hearing, appellee testified that during the four years
that appellant was incarcerated, she was not receiving spousal support.
{¶18} We find, based on the foregoing, that the trial court did not err in finding
that there was a substantial change in circumstances justifying an upward modification
of spousal support.
{¶19} Moreover, a modification of spousal support upon appellant’s release from
prison was clearly contemplated by the Separation Agreement. The Separation
Agreement stated that appellant would be receiving a reduced amount of VA benefits
while in prison and that the benefits were his only source of income. The Separation
Agreement further stated that appellant’s VA benefits “may be restored to a greater
amount upon [appellant’s] release” and that “said benefits may be considered as
income for purposes of computing [appellant’s] gross income as a factor in determining
a modification of spousal support.”
{¶20} Appellant’s first assignment of error is, therefore, overruled.
II
{¶21} Appellant, in his second assignment of error, argues that the trial court
erred in finding that appellant had $5,000.00 in income “when all three potential sources
of income were barred from consideration as a matter of law.”
{¶22} Appellant specifically argues that, under law, appellee could not be
awarded any amount of his VA pension or his social security benefits.
{¶23} R.C. 3105.18(B) allows trial courts, upon a party's request and after
property distribution, to award reasonable spousal support. R.C. 3105.18(C) states, in
relevant part, as follows :
Coshocton County, Case No. 2015CA0002 10
{¶24} In determining whether spousal support is appropriate and reasonable,
and in determining the nature, amount, and terms of payment, and duration of spousal
support, which is payable either in gross or in installments, the court shall consider all of
the following factors:
{¶25} (a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed under section
3105.171 of the Revised Code;…
{¶26} As noted by the court in Graves v. Graves, 4th Dist. Vinton No. 14CA694,
2014-Ohio-5812 at paragraph 42:
R.C. 3105.18(C)(1)(a) clearly and unambiguously
states that a trial court must consider “the income of the
parties, from all sources,” when determining whether spousal
support is appropriate and reasonable. Thus, when trial
courts determine whether to award spousal support, courts
may consider a spouse's veteran's administration disability
benefits, Social Security disability benefits, and Social
Security retirement benefits, even if that income is a
spouse's only source of income. Dilley v. Dilley, 11th Dist.
Geauga No.2010–G–2957, 2011–Ohio–2093, ¶ 62 (disability
benefits); Simpson v. Simpson, 12th Dist. Clermont No.
CA2006–04–028, 2007–Ohio–224, ¶ 24 (Social Security
retirement benefits); DiNunzio v. DiNunzio, 11th Dist. Lake
No.2005–L–124, 2006–Ohio–3888, ¶ 59 (Social Security
Coshocton County, Case No. 2015CA0002 11
disability benefits); Crites v. Crites, 6th Dist. Wood No. WD–
04–034, 2004–Ohio–6162, ¶ 22 (veteran's disability
benefits); Cardone v. Cardone, 9th Dist. Summit No. 18349,
1998 WL 224934 (May 6, 1998) (veteran's disability
benefits).
{¶27} We note that appellant cites to the United States Supreme Court
decision in Mansell v. Mansell, 490 U.S. 581, 594–595, 109 S.Ct. 2023, 104 L.Ed.2d
675 (1989), in which the court held that state courts may not “treat as property divisible
upon divorce military retirement pay that has been waived to receive veterans' disability
benefits.” However, at issue in this case is whether or not such benefits can be
considered when calculating spousal support- not whether they are divisible as
property. Appellant also cites to Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624,
791 N.E.2d 434, in arguing that the trial court could not divide or tax his social security
benefits. However, “[a] court should consider social security benefits when determining
whether spousal support is correct.” Minear v. Palkovic, 7th Dist. Mahoning No. 09–MA–61,
2009–Ohio–6752, ¶ 17, citing Beyer v. Beyer, 64 Ohio App.2d 280, 284, 413 N.E.2d 844 (8th
Dist.1979). Thus, the trial court did not err in considering appellant’s social security
benefits.
{¶28} Appellant finally argues that the trial court erred in taking account his
pension from Stone Container in determining spousal support. Appellant notes that the
Separation Agreement states, in relevant part, as follows under “C. Intangible Personal
Property”:
2. Wife shall retain free and clear of any claim of
Husband the sum of $60,870.00 of Husband’s Central
Coshocton County, Case No. 2015CA0002 12
Pension Fund of the International Union of Operating
Engineers and Participating Employers. Each party
represents and warrants that he or she has not made any
withdrawal, transfer, or taken other action to reduce the
balance of said account since the filing of the complaint for
divorce. Wife shall pay all taxes, penalties and interest
assessed as a result of receiving said pension. It is the
understanding of the parties that an order to allocate these
benefits may not be honored unless it is a Qualified
Domestic Relations Order (QDRO) as defined under Section
414 (p) of the “Internal Revenue Code of 1986”, 100 Stat.
2085, 26 USC1, as amended. Wife or her attorney shall be
responsible for drafting and filing of an appropriate QDRO or
other instrument. Both parties will fully cooperate in the
drafting and signing of an appropriate QDRO or other
instrument compatible with the division of said account as
set forth herein. Husband shall retain the remainder of said
account free and clear of any claim of Wife.
{¶29} However, C above concerns the division of personal property-not the
consideration of the same in determining spousal support. Because appellant’s pension
is “income”, we find that the trial court did not err in considering the same in its spousal
support determination.
{¶30} Appellant’s second assignment of error is, therefore, overruled.
Coshocton County, Case No. 2015CA0002 13
{¶31} Accordingly, the judgment of the Coshocton County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.