[Cite as Ford v. Ford, 2019-Ohio-3920.]




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

 THERESA R. FORD                               :
                                               :
         Plaintiff-Appellee                    :   Appellate Case No. 28358
                                               :
 v.                                            :   Trial Court Case No. 2013-DR-845
                                               :
 STEPHEN A. FORD                               :   (Appeal from Domestic Relations
                                               :   Court)
         Defendant-Appellant                   :
                                               :

                                          ...........

                                          OPINION

                         Rendered on the 27th day of September, 2019.

                                          ...........

MATTHEW C. SORG, Atty. Reg. No. 0062971, 40 North Main Street, Suite 2700, Dayton,
Ohio 45423
      Attorney for Plaintiff-Appellee

DAVID M. MCNAMEE, Atty. Reg. No. 0068582, 2625 Commons Boulevard, Suite A,
Beavercreek, Ohio 45431
     Attorney for Defendant-Appellant

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




TUCKER, J.
                                                                                            -2-


         {¶ 1} Defendant-appellant Stephen Ford appeals from a judgment of the

Montgomery County Court of Common Pleas, Domestic Relations Division, modifying his

spousal support obligation. Stephen contends that the modification must be reversed

because the magistrate failed to consider relevant statutory factors regarding

modification. He further contends that the trial court abused its discretion regarding the

effective date of the modification. For the reasons that follow, we affirm.



                                I.     Facts and Procedural History

         {¶ 2} Stephen and Theresa were married in 1983. 1            They were divorced by

judgment and decree of divorce issued in June 2015. The terms of the decree required

Stephen to pay Theresa the sum of $1,000 per month as spousal support for an indefinite

period.2 The amount and duration of spousal support were subject to the trial court's

continuing jurisdiction.      The decree further provided that spousal support would

terminate upon Theresa’s remarriage or cohabitation, or the death of either party.

         {¶ 3} On January 5, 2018, Stephen filed a motion to reduce spousal support. On

March 1, 2018, Theresa filed a motion seeking to hold Stephen in contempt for failing to

pay spousal support. A hearing was held on both motions in March 2018.

         {¶ 4} Of relevance hereto, evidence was adduced demonstrating that Stephen’s

employment was terminated on October 6, 2017 when he was 66 years old. At that time,

Stephen was eligible for retirement and he opted to begin receiving retirement benefits



1
    For clarity and ease of reference, we will refer to the parties by their first names.

2
  At the time of the divorce, Stephen’s annual income was $65,000 and Theresa’s annual
income was $18,000.
                                                                                         -3-


rather than unemployment benefits. The evidence established that his annual income

was reduced from $65,000 to $42,428.40, and he had monthly expenses of $2,995.34.

The evidence further indicated that Theresa, who was age 67 on the hearing date, was

also retired and received $864 per month from Social Security and $1,000 in spousal

support. Her monthly expenses were $1,633.06.

       {¶ 5} The magistrate issued a decision in May 2018 finding Stephen in contempt

for failing to pay spousal support. Stephen was sentenced to five days in jail, but was

given the opportunity to purge the contempt by paying Theresa the sum of $500 within 60

days. The magistrate also found that Stephen had experienced a substantial change in

circumstances, making it appropriate to reduce his support obligation to $750 per month.

Stephen was ordered to pay an additional $150 per month on the support arrearage.

The reduction in spousal support was made retroactive to January 1, 2018.

       {¶ 6} Stephen filed objections in which he claimed that the magistrate had failed to

consider the relevant statutory factors set forth in R.C. 3105.18(C), and that these factors

supported a termination of his spousal support obligation. He further claimed that the

reduction in spousal support should have been ordered retroactive to the date his

employment was terminated.

       {¶ 7} The trial court affirmed the magistrate’s decision regarding the reduction in

spousal support, but changed the order’s effective date to January 5, 2018, the date

Stephen’s motion was filed. The trial court also affirmed the finding of contempt.

       {¶ 8} Stephen appeals.



                             II.    Spousal Support Modification
                                                                                        -4-


      {¶ 9} Stephen’s first assignment of error provides:

      THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

      SUSTAIN       DEFENDANT-APPELLANT’S            OBJECTION        THAT     THE

      MAGISTRATE FAILED TO ENUMERATE WHAT, IF ANY, STATUTORY

      FACTORS IT RELIED ON WHEN MAKING ITS DECISION TO MODIFY

      SPOUSAL SUPPORT.

      {¶ 10} Stephen contends that the decision ordering him to pay $750 per month in

spousal support must be reversed because the magistrate did not set forth whether, or to

what extent, it considered any of the statutory factors relevant to awards of spousal

support. In support, he cites Norbut v. Norbut, 2d Dist. Greene 2004-CA-87, 2006-Ohio-

2130, as requiring a magistrate to specify the factors upon which he or she relied in

determining the issue of spousal support.

      {¶ 11} Spousal support decisions are reviewed for abuse of discretion. Norbut at

¶ 27. An abuse of discretion occurs when a court's attitude is unreasonable, arbitrary,

or unconscionable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Before a trial court may modify

a spousal support award, the trial court must determine that the divorce decree contained

a provision specifically authorizing such modification and that the circumstances of either

party have changed. Strain v. Strain, 12th Dist. Warren No. CA2005-01-008, 2005-Ohio-

6035, ¶ 11; R.C. 3105.18(E). As noted above, in this case, the trial court retained

jurisdiction over both the amount and duration of spousal support. Further, there is no

question that both parties have had a change in circumstances since the original decree.

      {¶ 12} However, “[a] showing of a change in circumstances does not fully answer
                                                                                           -5-


the question whether that change merits a termination or modification of the existing

support order. In order to make that determination, a trial court must consider all relevant

factors, including those listed in R.C. 3105.18.”       Norbut at ¶ 30, citing Bingham v.

Bingham, 9 Ohio App.3d 191, 459 N.E.2d 231 (10th Dist.1983), paragraph two of the

syllabus. R.C. 3105.18 provides, in pertinent part, as follows:

       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:

       (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
                                                                                            -6-


       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).

       {¶ 13} The trial court stated that it had reviewed the relevant statutory factors and

found that the magistrate’s decision regarding the amount of spousal support was

appropriate. Specifically, the trial court cited to R.C. 3105.18(C)(1)(a), (b), (c), (d) and

(i). The trial court noted the parties’ incomes, observing that even with the income

reduction, Stephen’s annual income was almost four times greater than Theresa’s

(without spousal support). The trial court also noted that both parties were in their late

60s and that both were retired with no future earnings to consider. The court further

noted that, while Stephen was drawing upon his retirement benefits, Theresa could not

draw on her portion thereof until she reached age 70.
                                                                                          -7-


       {¶ 14} Given the evidence adduced during the hearing, we conclude that there was

competent, credible evidence upon which the trial court could have relied in making its

modification decision. Further, we cannot say that the trial court abused its discretion by

ordering Stephen to continue to pay spousal support at this time. The trial court, again,

stated that it will retain jurisdiction over the issue of spousal support, thereby allowing

both parties to seek future modifications.

       {¶ 15} We turn now to Stephen’s claim that Norbut, 2d Dist. Greene No. 2004-CA-

87, 2006-Ohio-2130, requires a reversal of the judgment herein.             His argument is

premised upon the following passage from that opinion:

               In this case, the magistrate and the trial court found that the above-

       cited changes in circumstances were sufficient to require a modification, but

       not a termination, of support.     At first blush, it would appear that this

       determination is sound.        However, there is nothing in either the

       magistrate's decision or the trial court's decision to indicate what factors, if

       any, other than the noted change in circumstances, were considered.

       Indeed, it appears that the decision to modify support was based solely

       upon a finding that there was a showing of changed circumstances, without

       regard to any other factors. Because the record suggests that the trial

       court failed to consider the relevant statutory factors, we conclude that the

       trial court abused its discretion with regard to its resolution of the motion to

       modify or terminate the existing support award. * * *

Id. at ¶ 31.

       {¶ 16} Norbut does not support Stephen’s argument.            Norbut stands for the
                                                                                             -8-


proposition that, when there has been a change in circumstances that could support a

spousal support modification, the court, before ordering such modification, must consider

the R.C. 3105.18(C) factors. The reversal in Norbut occurred because the record failed

to establish such consideration.

       {¶ 17} Here it is difficult to determine whether the magistrate, upon finding a

change in circumstances, then considered the R.C. 3105.18(C) factors. However, the

trial court, as part of its independent review, noted its consideration of the statutory factors

and, as discussed, made specific findings regarding several relevant R.C. 3105.18(C)

factors. As such, Stephen’s first assignment of error is without merit and is overruled.



                              III.    Effective Date of Modification

       {¶ 18} The second assignment of error asserted by Stephen states as follows:

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

       ORDER THE EFFECTIVE DATE OF DEFENDANT-APPELLANT’S

       MODIFICATION OF SPOUSAL SUPPORT AS OF THE DATE HIS

       EMPLOYMENT WAS TERMINATED.

       {¶ 19} Stephen contends the trial court erred regarding the effective date of the

modification of his spousal support obligation.           Specifically, he claims that the

modification should have been retroactive to the date he retired rather than the date he

filed the motion to modify. In support, he argues that his involuntary termination from his

employment constituted a special circumstance mandating such a result. However, he

cites no statutory or case law in support of his argument.

       {¶ 20} This court has previously stated that, with some exceptions not relevant
                                                                                             -9-


hereto, a party “may be entitled to [an] order[ ] modifying support retroactive to the date

[the] motion[ was] filed, but [is] not entitled to retroactive modification to a date before the

request[ ] for modification or termination [was] filed.” Devir v. Devir, 2d Dist. Montgomery

No. 23509, 2010-Ohio-3111, ¶ 74; Raska v. Raska, 2018-Ohio-3921, 120 N.E.3d 469,

¶ 28 (2d Dist.).

       {¶ 21} Simply stated, Stephen could have filed his motion for modification at the

time of the change in his employment. However, he waited three months to file the

request. Given our holdings in Devir and Raska, we conclude the trial court did not

abuse its discretion by making the modification retroactive to the date Stephen filed the

motion.

       {¶ 22} The second assignment of error is overruled.



                                         IV.    Conclusion

       {¶ 23} Both of Stephen’s assignments of error being overruled, the judgment of the

trial court is affirmed.

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



WELBAUM, P.J. and HALL, J., concur.



Copies sent to:

Matthew C. Sorg
David M. McNamee
Hon. Denise L. Cross
