Ritzinger v. Ritzinger

[Cite as Ritzinger v. Ritzinger, 2012-Ohio-5052.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
DEBORAH RITZINGER C.A. No. 26328
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GREGORY RITZINGER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2005-08-2904
DECISION AND JOURNAL ENTRY
Dated: October 31, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} When Gregory and Deborah Ritzinger divorced, the court ordered Mr. Ritzinger
to pay child and spousal support. After Ms. Ritzinger began living with another man, Mr.
Ritzinger moved the trial court to decrease or terminate his spousal support obligation. Ms.
Ritzinger then moved for an increase in spousal and child support. Following an evidentiary
hearing, a magistrate ordered the spousal support obligation to remain the same, but increased
child support. In ruling on Mr. Ritzinger’s objections, the trial court denied the requested
changes in spousal support and denied the requested increase in the amount of child support. Mr.
Ritzinger appealed. This Court affirms because the trial court properly exercised discretion in
weighing the parties’ increased income disparity more heavily than the contribution to living
expenses that Ms. Ritzinger receives from her boyfriend, by considering the parties’ income at
the time of the hearing as opposed to the date of the initial motion to modify spousal support, and
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by modifying the parties’ obligations regarding uninsured medical expenses for the minor child
without increasing the monthly child support obligation. Further, the trial court undertook an
independent review of the matters to which Mr. Ritzinger had objected and, assuming without
deciding that the trial court’s determination regarding a substantial change in circumstances was
wrong, it was harmless error.
BACKGROUND
{¶2} After nearly 25 years of marriage and three children together, the Ritzingers
divorced in June 2007. At that time, the trial court adopted a proposed shared parenting plan
designating Ms. Ritzinger’s residence as the primary residence of the two minor children for
school purposes. It also projected Ms. Ritzinger’s income to be just over $36,500 per year while
it projected Mr. Ritzinger’s income to be $108,000. Mr. Ritzinger was ordered to pay child
support and spousal support. The trial court provided that spousal support would terminate if
Ms. Ritzinger remarried or if either party died. The order did not include a provision that
spousal support would terminate if Ms. Ritzinger cohabitated with another person. The court
reserved jurisdiction to modify spousal support.
{¶3} In August 2009, Mr. Ritzinger moved the trial court to terminate or modify
spousal support based on a change in circumstances. Mr. Ritzinger argued that, because Ms.
Ritzinger had begun to share household expenses with a live-in boyfriend, the spousal support
order should be decreased or terminated. Ms. Ritzinger opposed the motion and moved for an
increase in both child and spousal support. A magistrate held evidentiary hearings in March,
May, and June 2010 before filing a decision on July 1, 2010. The magistrate denied the motions
to modify spousal support, but recommended an increase in child support. Mr. Ritzinger filed
objections to the magistrate’s decision. The trial court entered judgment on those objections on
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February 14, 2012. It determined that a substantial increase in Mr. Ritzinger’s income created a
substantial change in circumstances, but further determined that, because Ms. Ritzinger and
Brian Yelling had already formed a domestic partnership at the time the divorce was granted, her
cohabitation with him was not a substantial change in circumstances. The trial court ordered no
change in spousal support or the monthly obligation for child support, but awarded Mr. Ritzinger
the tax exemption for the only remaining minor child and ordered him to pay 70% of the child’s
uninsured medical expenses.
CHANGE IN CIRCUMSTANCES
{¶4} Mr. Ritzinger’s second and third assignments of error are that the trial court
incorrectly determined that there was no change in circumstances because Ms. Ritzinger had
established a domestic partnership with Mr. Yelling by the time the divorce decree was issued.
Although the trial court found a significant change in circumstances based on other evidence,
Mr. Ritzinger has argued that the trial court incorrectly determined that Ms. Ritzinger’s
cohabitation with Mr. Yelling was not a substantial change in circumstances not contemplated at
the time of the divorce.
{¶5} Modification of spousal support “requires a two-step analysis[.]” Tufts v. Tufts,
9th Dist. No. 24871, 2010-Ohio-641, ¶ 8 (citing Malizia v. Malizia, 9th Dist. No. 22565, 2005-
Ohio-5186, ¶ 8). “The first step is jurisdictional and requires the trial court to determine whether
the original divorce decree provided continuing jurisdiction to modify the spousal support award,
and if so, whether the circumstances of either party have changed.” Id. (citing Malizia, 2005-
Ohio-5186, at ¶ 8; R.C. 3105.18(E)). “[T]he Ohio Supreme Court has clarified that ‘[a] trial
court lacks jurisdiction to modify a prior order of spousal support unless the decree of the court
expressly reserved jurisdiction to make the modification and unless the court finds (1) that a
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substantial change in circumstances has occurred and (2) that the change was not contemplated
at the time of the original decree.’” Id. (quoting Mandelbaum v. Mandelbaum, 121 Ohio St. 3d
433, 2009-Ohio-1222, paragraph two of the syllabus). Once jurisdiction is established, the
second step of the analysis requires the trial court to consider the factors set forth in Section
3105.18(C)(1) of the Ohio Revised Code to determine whether the existing support order should
be modified in light of the change in circumstances. Id.{¶6} In this case, the trial court determined that it had jurisdiction to consider a
modification of the spousal support order because there was “at least one substantial change of
circumstance not contemplated at the time of the divorce[.]” That is, the trial court determined
that Mr. Ritzinger’s annual income had increased by almost $20,000. The court also determined
that Ms. Ritzinger’s income had decreased by the same amount “[o]ver the pendency of the
motions to modify[.]” The court determined that Ms. Ritzinger’s cohabitation with Mr. Yelling
did not constitute a substantial change in circumstances not contemplated at the time of the
divorce because Ms. Ritzinger had already established a “domestic partnership” with Mr. Yelling
by the time the trial court issued the divorce decree.
{¶7} Mr. Ritzinger has not argued that the trial court incorrectly determined that it had
jurisdiction to modify spousal support. Nor has he argued that the trial court incorrectly found
an increase of $40,000 in the income disparity between the parties or that the trial court
incorrectly found that the increased disparity was a substantial change not contemplated at the
time of the divorce. His argument is that the trial court should have determined that Ms.
Ritzinger’s cohabitation with Mr. Yelling was a change in circumstances. Assuming that the
trial court incorrectly determined that Ms. Ritzinger’s cohabitation was not a substantial change
in circumstances not contemplated at the time of the divorce, Mr. Ritzinger has not explained
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how the error affected his substantial rights. The trial court determined that it had jurisdiction to
consider the parties’ competing motions to modify the spousal support order and, in analyzing
whether to modify the obligation, took into consideration the financial benefits Ms. Ritzinger
receives by sharing household expenses with Mr. Yelling. This Court must “disregard any error
or defect in the proceeding which does not affect the substantial rights of the parties.” Civ. R.
61. Mr. Ritzinger’s second and third assignments of error are overruled.
INCOME EVIDENCE
{¶8} Mr. Ritzinger’s fourth assignment of error is that the trial court incorrectly
considered the parties’ income at the time of the hearing as opposed to the date he moved the
trial court to modify spousal support. His argument is focused on excluding from the court’s
consideration events that affected Ms. Ritzinger’s income that occurred while his motion to
reduce or terminate spousal support was pending.
{¶9} On August 4, 2009, Mr. Ritzinger moved the trial court to terminate or modify
spousal support, arguing that Ms. Ritzinger was cohabitating with a man to whom she may be
married and her income had increased since the divorce decree was issued. On September 16,
2009, Ms. Ritzinger moved the trial court to increase the amount of both spousal and child
support and to find Mr. Ritzinger in contempt for failure to pay uninsured medical expenses. On
November 25, 2009, Ms. Ritzinger filed a supplemental motion to increase spousal support
because she had lost two part-time jobs: one via lay off and the other by losing an election. On
December 1, 2009, and May 13, 2010, Ms. Ritzinger again moved to modify spousal support.
{¶10} Mr. Ritzinger has argued that the trial court should have considered the evidence
relevant to the statutory factors for modification of spousal support as of August 2009, when he
moved to modify spousal support, as opposed to the conditions that prevailed after Ms. Ritzinger
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lost the election in November 2009 and was laid off from various part-time jobs in late 2009 and
early 2010. He has cited Berthelot v. Berthelot, 154 Ohio App. 3d 101, 2003-Ohio-4519, ¶ 10
(9th Dist.), for the proposition that a trial court is limited to determining child support based on
the circumstances existing at the time motions to modify are filed. This Court’s statement to that
effect in Berthelot was based on an interpretation of a statute that applied to calculation of child
support not spousal support. See R.C. 3113.21.5, repealed. Further, Berthelot does not stand for
the proposition that the evidence should be analyzed in terms of the first motion to modify as
opposed to the circumstances prevailing at the time that subsequent motions to modify are filed.
Mr. Ritzinger moved to modify spousal support in August 2009, but Ms. Ritzinger moved to
modify it as late as May 2010, after she had lost each of the part-time jobs she had held when
Mr. Ritzinger moved to modify and another job she had held after that time.
{¶11} Mr. Ritzinger cited Mustard v. Mustard, 12th Dist. Nos. CA2009-06-078,
CA2009-09-118, 2010-Ohio-2175, ¶ 3, for the proposition that a trial court normally makes a
spousal support modification retroactive to the date of the motion, implying that, for that reason,
the court should not consider any circumstances occurring after the motion is filed. Although
retroactive modification of spousal support “is the better practice in most cases[,]” it is not a
requirement. Davis v. Davis, 9th Dist. No. 10CA0018, 2011-Ohio-2322, ¶ 24 (quoting Bowen v.
Bowen, 132 Ohio App. 3d 616, 640 (9th Dist. 1999)). In this case, the trial court denied both
parties’ motions for modification of spousal support after analyzing the statutory factors in light
of the fact that Mr. Ritzinger’s income had substantially increased and Ms. Ritzinger’s income
had substantially decreased since the divorce decree was issued. Ms. Ritzinger filed motions to
modify spousal support after losing each of the two part-time jobs she had in August 2009 when
Mr. Ritzinger filed his motion to modify, and again after she lost another part-time job that she
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had not started until January 2010. By the time of the final day of hearing on the motions, Ms.
Ritzinger had obtained a new part-time job, and the trial court considered her income from that
new position and her ability to generate income when analyzing the statutory factors for
modification of spousal support. The trial court properly exercised discretion in this matter by
considering the evidence of circumstances that developed after Mr. Ritzinger moved for
modification of spousal support. Mr. Ritzinger’s fourth assignment of error is overruled.
MODIFICATION OF SPOUSAL SUPPORT
{¶12} Mr. Ritzinger’s first assignment of error is that the trial court incorrectly failed to
reduce his spousal support obligation in light of evidence that Ms. Ritzinger’s financial condition
had changed significantly since she began living with her boyfriend. Mr. Ritzinger has argued
that it is inequitable for spousal support purposes to value Mr. Yelling’s financial contribution to
Ms. Ritzinger’s household at $1880 per year.
{¶13} Under Section 3105.18(C)(1), “[i]n determining whether spousal support is
appropriate and reasonable, and in determining the nature, amount, and terms of payment, and
duration of spousal support, . . . the court shall consider all of the [14] factors [listed in the
statute].” The list of factors includes each party’s income from all sources, relative earning
abilities, relative extent of education, and “[a]ny other factor that the court expressly finds to be
relevant and equitable.” R.C. 3105.18(C)(1)(a), (b), (h), (n).
{¶14} According to the divorce decree, if Ms. Ritzinger legally marries someone else,
Mr. Ritzinger’s spousal support order will terminate. Ms. Ritzinger testified that, although she
had not married Mr. Yelling, they live together and share household expenses. Although Mr.
Ritzinger attempted to prove that Ms. Ritzinger had married Mr. Yelling, the trial court
determined that without evidence of a marriage license and legal ceremony, he failed to do so.
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Unlike with the child support statute, a trial court considering a modification of spousal support
is not directed to consider “[b]enefits that either [party] receives from . . . sharing living expenses
with another person.” R.C. 3119.23(H); compare R.C. 3105.18(C). For spousal support
purposes, a court is directed to consider “[a]ny other factor” that it “expressly finds to be relevant
and equitable.” R.C. 3105.18(C)(1)(n).
{¶15} In contemplating the parties’ motions to modify the spousal support order, the
trial court considered the benefit Ms. Ritzinger receives from sharing household expenses with
Mr. Yelling. It addressed each of the 14 statutory factors for modification of spousal support in
its entry. In regard to Section 3105.18(C)(1)(n), directing the court to consider “[a]ny other
factor,” the court wrote that “[Ms. Ritzinger] has contribution for her living expenses from Brian
Yelling.” In regard to the spousal support issue, the trial court did not assign a number to Mr.
Yelling’s contribution, but did note that Ms. Ritzinger testified that she pays two-thirds of the
household expenses because they live with her two sons. The court also noted that Mr. Ritzinger
earns $127,000 annually while Ms. Ritzinger earns $10,400, but is “capable of earning at least
$15,184.00 per year.” In comparison, at the time of the divorce decree, Mr. Ritzinger made
$108,000 annually and Ms. Ritzinger made over $36,500. The trial court determined that the
magistrate’s decision to deny both the requested increase and decrease in spousal support was
appropriate “[g]iven the increase in [Mr. Ritzinger’s] income, the decrease in [Ms. Ritzinger’s]
income, and the contribution that [Ms. Ritzinger] receives toward living expenses from her
paramour[.]” The trial court considered each of the 14 factors identified in Section
3105.18(C)(1) of the Ohio Revised Code. It properly exercised discretion in weighing the
parties’ widening income disparity more heavily than the contribution to living expenses that Ms.
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Ritzinger receives from her boyfriend. See Tufts v. Tufts, 9th Dist. No. 26133, 2012-Ohio-3445,
¶ 7. Mr. Ritzinger’s first assignment of error is overruled.
MODIFICATION OF CHILD SUPPORT
{¶16} Mr. Ritzinger’s sixth assignment of error is that the trial court incorrectly
modified the parties’ responsibilities for uninsured healthcare expenses for their minor child
without modifying child support. Although the trial court did not increase Mr. Ritzinger’s
monthly child support obligation as Ms. Ritzinger had requested, it reallocated the uninsured
healthcare expenses for their minor child from 50% to each party to 70% to Mr. Ritzinger and
30% to Ms. Ritzinger. The court also ordered that Mr. Ritzinger would be permitted to claim the
tax dependency exemption for the sole remaining minor child as opposed to alternating years
with Ms. Ritzinger as the original decree had provided.
{¶17} Mr. Ritzinger bears the burden on appeal of developing his arguments and citing
appropriate authority for his propositions of law. App. R. 16(A)(7). He has not developed any
argument in support of this assignment of error nor has he cited any authority for the proposition
that the trial court erred. He has not offered any argument to support the proposition that a trial
court cannot correctly modify the parties’ responsibilities for a minor child’s uninsured
healthcare expenses without modifying the amount of the child support obligation. He has made
several unsupported statements about the process the trial court used to reach its decision, but
none of them, even if proven, support the proposition stated in his assignment of error.
{¶18} The trial court’s analysis revealed that the child support worksheet dictated an
increase in the child support obligation, but the trial court analyzed the statutory factors and
granted a downward deviation based on the benefits Ms. Ritzinger receives by sharing living
expenses with her boyfriend. On that basis, the trial court denied Ms. Ritzinger’s request for an
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increase in the monthly child support obligation, but the court did reallocate the uninsured
medical expenses and the tax benefit for the minor child. The trial court properly exercised
discretion by modifying the obligations for uninsured medical expenses for the minor child
without increasing the monthly child support obligation. Mr. Ritzinger’s sixth assignment of
error is overruled.
TRIAL COURT’S STANDARD OF REVIEW
{¶19} Mr. Ritzinger’s fifth assignment of error is that the trial court incorrectly deferred
to the magistrate’s findings of fact and conclusions of law. Under Rule 53(D)(4)(d) of the Ohio
Rules of Civil Procedure, “[i]f one or more objections to a magistrate’s decision are timely filed,
the court shall rule on those objections. In ruling on objections, the court shall undertake an
independent review as to the objected matters to ascertain that the magistrate has properly
determined the factual issues and appropriately applied the law.” “In the course of this review, a
trial court should not adopt the magistrate’s report as a matter of course, but should ‘carefully
examine’ the report and the evidence before the magistrate.” Smith v. McLaughlin, 9th Dist. No.
24890, 2010-Ohio-2739, ¶ 63 (quoting Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M,
2009-Ohio-3139, at ¶ 14).
{¶20} Mr. Ritzinger has argued that the trial court failed to undertake its own
independent review of the matters to which he had objected because the trial court wrote that it
had determined that “findings of fact one through nine . . . are all supported by the totality of the
record, and constitute neither an error of law nor an abuse of discretion.” The trial court’s
incorrect use of the term “abuse of discretion” does not determine whether it incorrectly deferred
to the magistrate as opposed to conducting its own independent review as required by the civil
rules.
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{¶21} In this case, the trial court quoted 12 findings from the magistrate’s decision
before discussing them. The court determined that, based on the record, most of the findings of
fact were correct, but determined that the magistrate had incorrectly stated Mr. Ritzinger’s cost
for providing health care for the minor child. It then reviewed the basis for Mr. Ritzinger’s
original motion to modify spousal support and the evidence regarding whether Ms. Ritzinger is
married or cohabitating with Mr. Yelling. The court then explained its basis for determining that
it had jurisdiction to consider the pending motions to modify spousal and child support.
{¶22} After a thorough review of the evidence relevant to the factors found in Section
3105.18(C)(1) of the Ohio Revised Code, the trial court determined that it agreed with the
magistrate’s decision to deny both the requested increase and decrease in spousal support. The
court went on to explain why the magistrate’s decision to increase child support was incorrect.
In addition to the error the court found with respect to the cost of providing health insurance, the
court also determined that Ms. Ritzinger was voluntarily under-employed and imputed to her the
income of a full-time minimum wage position. Thus, despite the trial court’s incorrect reference
to an “abuse of discretion,” the trial court’s entry demonstrates that the court undertook an
independent review of the matters to which Mr. Ritzinger had objected. His fifth assignment of
error is overruled.
CONCLUSION
{¶23} Mr. Ritzinger’s first assignment of error is overruled because the trial court
properly exercised discretion in weighing the parties’ income disparity more heavily than the
contribution to living expenses that Ms. Ritzinger receives from her boyfriend. Mr. Ritzinger’s
second and third assignments of error are overruled because, assuming that the trial court
incorrectly determined that Ms. Ritzinger’s cohabitation with Mr. Yelling is not a substantial
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change in circumstances, the error was harmless. His fourth assignment of error is overruled
because the trial court properly exercised discretion by considering the parties’ income at the
time of the hearing as opposed to on the date Mr. Ritzinger moved to modify spousal support.
His fifth assignment of error is overruled because, despite the trial court’s incorrect reference to
an “abuse of discretion,” the trial court’s entry demonstrates that it undertook an independent
review of the matters to which Mr. Ritzinger objected. His sixth assignment of error is overruled
because the trial court properly exercised discretion by modifying the obligations and benefits
regarding uninsured medical expenses for the minor child without increasing the monthly child
support obligation. The judgment of the Domestic Relations Division of the Summit County
Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
MELISSA GRAHAM-HURD, Attorney at Law, for Appellant.
RANDAL A. LOWRY, Attorney at Law, for Appellee.