[Cite as Seitz v. Seitz, 2012-Ohio-843.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

SUSAN M. SEITZ                                    :
                                                  :     Appellate Case No. 24703
         Plaintiff-Appellee                       :
                                                  :     Trial Court Case No. 2005-LS-02
v.                                                :
                                                  :
DAVID R. SEITZ                                    :     (Civil Appeal from Common Pleas
                                                  :     (Court, Domestic Relations)
         Defendant-Appellant               :
                                                  :
                                               ...........

                                               OPINION

                               Rendered on the 2nd day of March, 2012.

                                               ...........

DAVID P. MESAROS, Atty. Reg. #0012725, 7051 Clyo Road, Centerville, Ohio 45459
     Attorney for Plaintiff-Appellee

DOUGLAS B. GREGG, Atty. Reg. #0014660, 7929 Washington Woods Drive, Centerville,
Ohio 45459
       Attorney for Defendant-Appellant

                                                       .............

FAIN, J.

                 {¶ 1} Defendant-appellant David Seitz appeals from an order of the

Montgomery County Court of Common Pleas, Domestic Division, requiring him to pay

spousal support. Mr. Seitz contends that the trial court erred in awarding spousal support to
                                                                                             2


Ms. Seitz, because there were no changed circumstances meriting a modification of the

previous order denying support. He further contends that the evidence does not support the

order.

                 {¶ 2} We conclude that there is evidence in the record upon which the trial

court could find a change in the circumstances of the parties sufficient to permit a modification

of the prior spousal support order, and that the trial court did not abuse its discretion by

awarding spousal support to Ms. Seitz.       Accordingly, the judgment of the trial court is

Affirmed.



                                                I

         {¶ 3}      Susan and David Seitz were divorced on August 31, 2007. In the decree,

the trial court did not order either party to pay spousal support. But the court did retain

jurisdiction over the issue of spousal support. In a prior appeal, this court affirmed the trial

court’s determination that no spousal support would be ordered at the time of the final decree.

Seitz v. Seitz, 2d Dist. Montgomery Nos. 22426 and 23698, 2010-Ohio-3655.

         {¶ 4}     Ms. Seitz filed a motion to modify spousal support in early 2009, upon the

claim that she had suffered a “serious loss in her investment accounts.” After a hearing, a

magistrate awarded Ms. Seitz $1,000 per month as spousal support, retroactive only to the

date of the hearing. Both parties objected to the magistrate’s decision. The trial court

rendered a decision and order awarding Ms. Seitz the sum of $1,000 per month as spousal

support. But the trial court amended the magistrate’s decision to make the award retroactive

to the date that Ms. Seitz filed her motion for a modification – February 26, 2009.    From this
                                                                                         3


order, Mr. Seitz appeals.



                                               II

       {¶ 5}      Mr. Seitz sets forth the following assignments of error:

               THE TRIAL COURT ERRED BY MODIFYING SPOUSAL

       SUPPORT IN FAVOR OF APPELLEE.

               THE TRIAL COURT ERRED BY UNREASONABLY AND

       ARBITRARILY MAKING SOME OF ITS FACTUAL FINDINGS.

               {¶ 6} In passing, we note that there is a split in authority among Ohio’s

appellate courts on the issue of whether a trial court may retain jurisdiction to modify an

award of spousal support when no spousal support has, in fact, been ordered. We have found

that a trial court may do so. Aylstock v. Bregenzer, 2d Dist. Montgomery No. 14325, 1994

WL 371330, *2 (July 29, 1994). Accord Murphy v. Murphy, 2d Dist. Montgomery No.

15693, 1996 WL 629522 (Nov. 1, 1996). This issue, and the split in authority among Ohio’s

appellate courts that existed at that time, is discussed at length in Okos v. Okos, 137 Ohio

App.3d 563, 571-582, 739 N.E.2d 368 (6th Dist. 2000). As noted in Okos, a conflict on this

issue was certified for review by the Supreme Court of Ohio in Harbert v. Harbert, 75 Ohio

St.3d 1409, 661 N.E.2d 758 (1996), but was ultimately dismissed on the application of the

appellant. Harbert v. Harbert, 75 Ohio St.3d 1470, 663 N.E.2d 1298 (1996). As far as we

can determine, this conflict in authority remains unresolved.

               {¶ 7} When originally setting spousal support, a trial court must consider all

of the factors set forth in R.C. 3105.18(C). However, when considering a motion to modify a
                                                                                           4


prior spousal support order, the trial court need only consider the factors that have changed

since the date of the prior order.        Dean v. Dean, 8th Dist. Cuyahoga No. 95615,

2011–Ohio–2401, ¶ 14. A trial court may not modify a prior order concerning spousal

support unless the decree of the court expressly reserved jurisdiction to make the modification

and unless the court finds: “(1) that a substantial change in circumstances has occurred and

(2) that the change was not contemplated at the time of the original decree.” Mandelbaum v.

Mandelbaum, 121 Ohio St.3d 433, 2009–Ohio–1222, 905 N.E.2d 172, ¶ 33.

                {¶ 8} In general, a trial court's determination in domestic relations cases is

reviewed under an abuse of discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 144, 541

N.E.2d 1028 (1989). The term “abuse of discretion” implies that the court's attitude was

“unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St .3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 9}      Mr. Seitz argues that the trial court “failed to identify the change of

circumstance that was NOT contemplated at the issuance of the decree[,]” gave “only a

cursory reference to the legal standards it is required to consider[, and] * * * completely

ignored the overriding purpose of spousal support (i.e. self-sufficiency).”

       {¶ 10}      Mr. Seitz also argues that Ms. Seitz had over $1,000,000 in assets that were

capable of earning over $70,000 per year in interest income. He further contends that she is

“employed and receives generous health insurance benefits,” and that her monthly living

expenses have been significantly reduced.

       {¶ 11}      From our review of the record, there is evidence that Ms. Seitz had not

been employed outside the home during the majority of the parties’ 40-year marriage, and that
                                                                                                                                      5


she “has no formal education beyond high school.” At the end of the marriage, she did obtain

employment with Community Golf Course, earning approximately $17,000 per year with no

health insurance benefits. However, she was diagnosed with breast cancer and found it

necessary to obtain employment that provided her with health insurance. Thus, Ms. Seitz

obtained a different job, which only paid her an annual salary of $13,000, but which does

provide her affordable health insurance coverage. Ms. Seitz receives $191 per month as a

pension. She also receives approximately $1,000 per year from her investment assets, which

were valued at approximately $1,000,000 at the time of the divorce.1 Her tax return for 2008

showed that she had a total income from wages, pension and interest income of $15,122. At

the time of the hearing, there was evidence that her annual income was $17,000. It was

projected that she would begin receiving social security benefits of $369 per month at age 62,

or $584 per month at age 66.

         {¶ 12}           Ms. Seitz sold her home in order to purchase a less expensive home and

thereby reduce her mortgage indebtedness. The move reduced her monthly expenses by $400

per month. However, Ms. Seitz’s monthly expenses still exceed her monthly income by

almost $3,000 per month. Ms. Seitz was required to reduce the principal of her investments

in order to meet her monthly expenses.

         {¶ 13}           Conversely, at the time of the divorce, Mr. Seitz owned about 75% of a

check cashing business. At that time, he testified that his projected 2008 income would be

approximately $28,000. However, at the hearing it was determined Mr. Seitz’s actual income


            1
                The evidence at the original divorce hearing, in 2007, before the substantial decline in the stock market dating from late 2008,
 indicated that the investment assets would earn income of $50,000 to $70,000 per year.
                                                                                                                                       6


was $123,392, according to his 2008 tax return. Furthermore, he had since acquired shares of

the business from a partner, as a result of which he owned 91.5% of the business. Mr. Seitz

also received a $75,000 loan from the business, which he testified he is free to use as he

wishes.         And the business has gross revenues in excess of $400,000.                                         Finally, there is

evidence upon which to support the trial court’s finding that Mr. Seitz’s income exceeds

$100,000, and that he has approximately $700,000 in investment accounts and a capital

account in the business of $300,000 to $400,000. 2 Mr. Seitz’s projected social security

benefits were estimated at $1,834 per month at age 62, or $2,336 per month at age 66.

          {¶ 14}            The trial court stated:

                    The court finds a substantial change in circumstances has occurred since the

          spousal support order in this matter.                            The income of the defendant has been

          considerably higher than he testified to on several occasions. Additionally even with

          interest income added to the plaintiff’s employment income there remains a significant

          disparity in income between the parties. The plaintiff’s lifestyle has been directly

          affected by said disparity. The Court further finds the reservation of jurisdiction over

          the issue of spousal support was ordered to enable this Court to rectify inequities such

          as these, particularly where, as here, there was a marriage that exceeded 40 years.

          {¶ 15}          From our review of the record, we conclude that the trial court’s findings of

fact are supported by the evidence. Ms. Seitz’s income following the divorce was much less

than had been anticipated, and Mr. Seitz’s income, as shown on his tax returns, was much

            2
                 Mr. Seitz argues that his 2010 tax return shows “an adjusted gross income of $66,251, which is still significantly lower than his
 income at the issuance of the decree [when it was determined that he was not obligated to pay spousal support].” However, the 2010 tax
 return is not a part of this record. For that matter, the 2009 tax return was not made available to the trial court.
                                                                                             7


higher than he had testified it to have been at the original divorce hearing. The evidence also

shows that Ms. Seitz’s monthly expenses substantially exceed her monthly income. Therefore,

we conclude that the trial court did not abuse its discretion by awarding Ms. Seitz monthly

spousal support of $1,000. We note that the trial court again retained jurisdiction over the

issue of spousal support, so that Mr. Seitz is capable of seeking a modification if, in fact, his

current financial information shows a significant decrease in his income.

       {¶ 16}       Mr. Seitz’s First and Second assignments of error are overruled.



                                               III

       {¶ 17}       Both of Mr. Seitz’s assignments of error having been overruled, the

judgment of the trial court is Affirmed.

                                                .............

GRADY, P.J., and FROELICH, J., concur.



Copies mailed to:

David P. Mesaros
Douglas B. Gregg
Hon. Timothy D. Wood

Case Name:      Susan M. Seitz v. David R. Seitz
Case No:              Montgomery App. No. 24703
Panel:                Grady, Fain, Froelich
Author:               Mike Fain
