[Cite as Jackson v. Jackson, 2017-Ohio-8357.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




LAURA JACKSON,                                   :

        Plaintiff-Appellee,                      :     CASE NO. CA2017-02-028

                                                 :            OPINION
    - vs -                                                    10/30/2017
                                                 :

DALEN JACKSON,                                   :

        Defendant-Appellant.                     :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                         DOMESTIC RELATIONS DIVISION
                             Case No. DR 1401 0075



Kevin D. Hughes, 20 South Main Street, Springboro, Ohio 45066, for plaintiff-appellee

Mark W. Raines, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Dalen Jackson ("Husband"), appeals a decision of the

Butler County Court of Common Pleas, Domestic Relations Division, ordering him to pay

spousal support and arrearages to plaintiff-appellee, Laura Jackson ("Wife").

        {¶ 2} Husband and Wife were married in 1992 and divorced in 2015. At the time of

the divorce, Husband was 62 years old, in good health, and planned on working until he was

70 years old in the same job in which he had been employed for the past 30 years. Wife was
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64 years old, disabled, and unable to work. The trial court's divorce decree ordered Husband

to pay Wife $900 in spousal support per month until 2020. The trial court also ordered

Husband to pay Wife $24,500 upon the sale of the marital home, which represented Wife's

portion of the equity in the home.

      {¶ 3} A year later, and after Husband failed to make some of his spousal support

payments as ordered, Husband moved the court to modify his spousal support arrears and to

terminate or reduce the spousal support order.          Husband asserted a change of

circumstances since the time of the divorce decree, based on his termination from his job.

After his termination, Husband decided to retire and not seek reemployment. As mentioned

above, his original plan was to work until he was 70. Upon applying for social security

retirement benefits, Husband began receiving monthly social security payments. Deducted

from his monthly check was $1,016 to pay his spousal support order and $100 per month

toward his arrearages.

      {¶ 4} A magistrate held a hearing on Husband's request to modify, during which,

Husband represented himself pro se. The magistrate reduced Husband's spousal support

order to $600 per month. The magistrate did not modify or terminate the $100 per month

arrearage order. Husband then filed objections to the magistrate's decision, this time

represented by counsel. The trial court overruled Husband's objections, but modified the

magistrate's decision to include an additional $20 per month toward arrearages, for a total

arrearage amount of $120 per month. Husband now appeals the trial court's decision, raising

the following assignment of error.

      {¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT ONLY REDUCED THE SPOUSAL SUPPORT ORDER FROM

$900.00 PER MONTH TO $600.00 PER MONTH AND $120.00 PER MONTH TOWARDS

ARREARS DESPITE DEFENDANT-APPELLANT'S SIGNIFICANT REDUCTION IN INCOME
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DUE TO RETIREMENT AND HIS LOSS OF EQUITY IN THE MARITAL PROPERTY.

       {¶ 6} Husband argues in his assignment of error that the trial court erred in not

further reducing or terminating his spousal support.

       {¶ 7} A trial court has broad discretion in determining a spousal support award,

including whether or not to modify an existing award. Burns v. Burns, 12th Dist. Warren No.

CA2011-05-050, 2012-Ohio-2850, ¶ 17. Thus, a spousal support award will not be disturbed

on appeal absent an abuse of discretion. Id. An abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. DiPasquale v. DiPasquale, 12th Dist. Warren No. CA2016-04-024, 2016-

Ohio-8457, ¶ 9.

       {¶ 8} "In exercising its discretion to modify a spousal support award, the trial court

must determine: (1) that the divorce decree contained a provision specifically authorizing the

court to modify the spousal support, and (2) that the circumstances of either party have

changed." Bixler v. Bixler, 12th Dist. Clermont No. CA2016-12-081, 2017-Ohio-7022, ¶ 16.

Furthermore, the change in circumstances must be substantial enough to make the existing

award no longer reasonable and appropriate and the change in circumstances must not have

been taken into account by the parties or the court at the time when the existing award was

established or last modified. R.C. 3105.18(F)(1)(a) and (b).

       {¶ 9} According to R.C. 3105.18(F)(1), "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 * *

*."

              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:
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            (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;

            (b) The relative earning abilities of the parties;

            (c) The ages and the physical, mental, and emotional conditions
            of the parties;

            (d) The retirement benefits of the parties;

            (e) The duration of the marriage;

            (f) The extent to which it would be inappropriate for a party,
            because that party will be custodian of a minor child of the
            marriage, to seek employment outside the home;

            (g) The standard of living of the parties established during the
            marriage;

            (h) The relative extent of education of the parties;

            (i) The relative assets and liabilities of the parties, including but
            not limited to any court-ordered payments by the parties;

            (j) The contribution of each party to the education, training, or
            earning ability of the other party, including, but not limited to, any
            party’s contribution to the acquisition of a professional degree of
            the other party;

            (k) The time and expense necessary for the spouse who is
            seeking spousal support to acquire education, training, or job
            experience so that the spouse will be qualified to obtain
            appropriate employment, provided the education, training, or job
            experience, and employment is, in fact, sought;

            (l) The tax consequences, for each party, of an award of
            spousal support;

            (m) The lost income production capacity of either party that
            resulted from that party’s marital responsibilities;

            (n) Any other factor that the court expressly finds to be relevant
            and equitable.

R.C. 3105.18(C)(1).

      {¶ 10} Husband argues that the trial court erred in ordering him to pay spousal


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support because he did not have sufficient earning ability to pay. Husband asserts that he no

longer has an ability to pay Wife given his termination, retirement, and lack of equity from the

marital home.

       {¶ 11} According to the record, Husband was terminated from his employment after

32 years as a security guard at a hospital. His termination was predicated upon his

displaying unprofessional conduct toward a patient, and his explanation for such was that he

had a "bad day, a real bad day." However, Husband did not appeal his termination or seek

reemployment afterwards. Instead, Husband decided to voluntarily retire, thus eliminating his

$47,000 salary.

       {¶ 12} The record indicates that Husband began receiving social security benefit

payments after his retirement. He also had two retirement accounts, which he chose to "roll

over" rather than collect from. Husband also remarried, but would not tell the court his new

wife's income or how she contributes to his expenses. Conversely, Wife remained on

disability since the time of the divorce, and collects $769 monthly.

       {¶ 13} Regarding the equity in the marital home, the record indicates that the trial

court ordered Husband to refinance the home, or to sell it for no less than $75,000. Instead,

Husband failed to do either, and the trial court eventually ordered the home into Wife's name

so that it could be auctioned. The home then sold for $31,000 at auction. The trial court

noted Husband's refusal to obey its order regarding the marital residence, and awarded Wife

her share of the equity in the home regardless of the decline in sale price. In considering

how the lack of equity impacted Husband's ability to pay Wife spousal support, the trial court

concluded that Husband "received only a nominal amount from the auction as a result of his

own actions and refusal to refinance or prepare the residence for sale in good faith."

       {¶ 14} The trial court, which remained very familiar with the facts of this case,

determined that Husband was not in a position to pay Wife $900 per month, but that $600
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was the proper amount based on what Husband's assets were at the time. These assets

included Husband's retirement accounts and social security payments. The trial court's

review included a full balancing of the statutory factors listed above, after consideration of the

testimony and evidence presented at the hearing. As such, the trial court did not abuse its

discretion in ordering Husband to pay Wife $600 per month plus arrearages.

       {¶ 15} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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