[Cite as Javidan-Nejad v. Navadeh, 2012-Ohio-3950.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 97661


                           SALVIA JAVIDAN-NEJAD
                                                            PLAINTIFF-APPELLEE

                                                      vs.


                                ALIREZA NAVADEH

                                                            DEFENDANT-APPELLANT



                                         JUDGMENT:
                                          AFFIRMED

                                    Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                 Domestic Relations Division
                                     Case No. D-279478

        BEFORE:          Boyle, J., Blackmon, A.J., and Jones, J.

        RELEASED AND JOURNALIZED:                           August 30, 2012
ATTORNEY FOR APPELLANT

Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

James S. Cahn
James L. Lane
John D. Ramsey
Hermann, Cahn & Schneider
The Galleria at Erieview
1301 East Ninth Street, Suite 500
Cleveland, Ohio 44114

Joyce E. Barrett
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

Paul A. Bayer
27600 Chagrin Boulevard
Suite 460
Cleveland, Ohio 44122
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Alireza Navadeh, appeals the trial court’s judgment

denying his motion to modify spousal support. He raises four assignments of error for

our review:

       “[1.] The trial court erred and abused its discretion by denying the appellant[’s]

motion to modify spousal support; and by failing to modify and/or terminate the

appellant[’s] spousal support obligation.

       “[2.] The trial court erred and abused its discretion in failing to comply with Ohio

law in its review and adoption of the magistrate’s decision.

       “[3.] The trial court erred and abused its discretion in determining the parties’

incomes.

       “[4.] The trial court’s decision is against the manifest weight of the evidence.”

       {¶2} Finding no merit to his appeal, we affirm.

                       Procedural History and Factual Background

       {¶3} Navadeh previously appealed the same judgment that he is now appealing.

 See Javidan-Nejad v. Navadeh, 8th Dist. No. 95406, 2011-Ohio-2283. In that appeal,

this court concluded that the trial court erred by not holding a hearing before determining

that Ohio was an inconvenient forum for custody matters and by not following the proper

procedure set forth in R.C. 3127.21 (statute governing inconvenient forum determination

in domestic relations matters). Id. at ¶ 50-55.     Further, we determined that the trial
court’s judgment regarding child support and spousal support issues was not a final

appealable order. Id. at ¶ 63.       In the present appeal, Navadeh challenges only the trial

court’s judgment regarding spousal support.1 We glean the following background facts

and procedural history from the first appeal.

           {¶4} Navadeh and plaintiff-appellee, Salvia Javidan-Nejad (“Nejad”), were

married in Iran on January 5, 1996.       Navadeh, a physician, moved to the United States

in March 1998, to live with Nejad and to begin training for his certification as a doctor in

this country. The couple had a son born on July 12, 2000. Although Nejad had been

pursuing a career in dentistry, she remained at home to care for their child.

           {¶5} On April 12, 2001, the couple entered into a separation agreement.           The

agreement designated Nejad the residential parent of their son, and set Navadeh’s child

support obligation at $356.88 per month, “subject to further order of the Court.”            The

agreement contained no provision regarding spousal support.

           {¶6} On April 30, 2001, the parties signed an addendum to the separation

agreement.       Therein, Navadeh agreed to pay Nejad $35,000 on the date of divorce.

Navadeh further agreed that, beginning on January 1, 2006, he would pay Nejad $5,000

per month for 60 months, for a total of $300,000, with a 10 percent interest rate to accrue

on any untimely payments.            These payments were deemed to be “in complete




        Nejad appealed a separate judgment from the trial court denying her motion to declare Ohio
       1


an inconvenient forum. See Javid-Nejad v. Navadeh, 8th Dist. No. 97956.
satisfaction of any obligation owed pursuant to any prenuptial agreement, and are meant

for spousal support and nondischargeable in bankruptcy.”

       {¶7} On May 19, 2001, the parties signed a second addendum that was “meant

to replace” the first.   Therein, Navadeh agreed to pay Nejad $25,000 on the date of the

divorce.   Navadeh further agreed that, beginning on January 1, 2007, he would pay

Nejad $5,000 per month for 60 months, for a total of $300,000, with an 8 percent interest

rate to accrue on any untimely payments.     The sum was “modifiable if [Navadeh were]

totally and permanently disabled subject to the continuing jurisdiction of the court.”

Once again, the payments were deemed to be “in complete satisfaction of any obligation

owed pursuant to any prenuptial agreement, and are meant for spousal support and

nondischargeable in bankruptcy.”

       {¶8} On May 30, 2001, the trial court entered judgment on the divorce decree

and ordered the separation agreement into execution.       At that time, both Navadeh and

Nejad indicated that each of their annual salaries was $30,600.      Within a year, Nejad

moved out of state with their child. Nothing in the record suggests that Navadeh had

any opposition to Nejad taking their child out of state.

       {¶9} In September 2005, the trial court received an administrative request for

modification of Navadeh’s child support obligation. On December 30, 2005, the trial

court granted the modification due to a change in the parties’ circumstances.     By this

time, Navadeh reported an annual salary of $190,000.             Nejad had relocated to
California, became an endodontist, and earned an annual salary of $134,657.    Thus, the

trial court set Navadeh’s monthly child support obligation at $1,587.12.

       {¶10} In April 2006, Navadeh remarried.      On December 5, 2006, Navadeh filed

a motion “for relief from judgment.”    He averred in an attached affidavit that he would

not be able to afford the spousal support obligation set forth in the divorce decree that

was due to commence the following month.        However, two weeks later, the trial court

noted that the parties had “resolved their differences by agreement.”      On March 30,

2007, the trial court dismissed Navadeh’s motion for relief from judgment.

       {¶11} In June 2007, Navadeh filed motions to modify spousal and child support.

He asserted without further detail that there had been a “change in circumstances” that

warranted an adjustment to his obligations.

       {¶12} Shortly thereafter, Nejad filed a motion seeking an order from the trial

court for Navadeh to show cause why he had not yet paid any spousal support. The trial

court took no action on any motions the parties filed.

       {¶13} In March 2008, Navadeh filed five additional motions in the trial court, in

which he sought to prevent any funds from being removed from his wages. The trial

court responded by issuing an order that prevented deductions from Navadeh’s salary for

either spousal or child support until his motions could be determined. Nejad, too, filed

several post-decree motions.

       {¶14} The magistrate heard matters in January 2009, over a number of days, and

finally concluded on January 22, 2009. On February 19, 2009, the magistrate issued his
decision.   In pertinent part, the magistrate determined the trial court retained

jurisdiction over spousal support modifications, found that no substantial change in

circumstances occurred that had not been contemplated by the parties, and, thus, decided

Navadeh was not entitled to any spousal support modification. The magistrate further

calculated the parties’ annual incomes for child support purposes as gleaned from the

documents they presented into evidence.      From these figures, he set what he deemed

were the “appropriate” monthly child support amounts appellant owed for the years

2007, 2008, and 2009. The magistrate also determined Navadeh’s total child support

arrearage to be $4,695.88.

       {¶15} Both parties filed objections to the magistrate’s report. On June 23, 2010,

the trial court overruled the parties’ objections to the magistrate’s decision. But as this

court determined in the first appeal, the trial court’s judgment was not a final appealable

order because the trial court “simply sustained in part appellant’s objections to the

magistrate’s report[,] [t]here was no independent judgment, no express adoption of any

of the magistrate’s findings, and no clear pronouncement of the judgment as required by

Civ.R. 53(D)(4)(e).” Nejad, 8th Dist. No. 95406, 2011-Ohio-2283, at ¶ 60.

       {¶16} Upon remand, the trial court expressly adopted the magistrate’s decision

and ordered it into law. It is from this judgment that Navadeh appeals. We will

address Navadeh’s assignments of error together as they are related.

                                   Standard of Review
       {¶17} In matters relating to spousal support, the “trial court is provided with

broad discretion in deciding what is equitable upon the facts and circumstances of each

case.” Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). A reviewing

court, therefore, “cannot substitute its judgment for that of the trial court unless,

considering the totality of the circumstances, the trial court abused its discretion.” Id. at

67. Further, this court will not reverse a decision of the domestic relations court if there

is competent, credible evidence in the record supporting the court’s decision.

Abernethy v. Abernethy, 8th Dist. No. 92708, 2010-Ohio-435, ¶ 39, citing C.E. Morris

Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

                   Threshold Requirements to Modify Spousal Support

       {¶18} R.C. 3105.18(E) provides in pertinent part that a court “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.”       “[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.”

R.C. 3105.18(F).

       {¶19} In Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905

N.E.2d 172, the Ohio Supreme Court held that the statutory requirements of R.C.

3105.18(E) did not abrogate the common law requirements necessary to modify an

award of spousal support.    Id. at ¶ 27-31. Thus, before a court can modify a prior award

of support, the court must find “(1) that a substantial change in circumstances has
occurred and (2) that the change was not contemplated at the time of the original

decree.”   Id. at paragraph two of the syllabus.    The movant bears the burden of

proving that the parties did not contemplate the substantial change in circumstances at

the time of the divorce. Burkart v. Burkart, 191 Ohio App.3d 169, 2010-Ohio-5363,

945 N.E.2d 557, ¶ 22 (10th Dist.). Further, “the change in circumstances must not have

been purposely brought about the party seeking modification.   Hines v. Hines, 3d Dist.

No. 9-10-15, 2010-Ohio-4807, ¶ 16, citing Roach v. Roach, 61 Ohio App.3d 315, 319,

572 N.E.2d 772 (8th Dist.1989).

      {¶20} To “contemplate” means more than “think about”; rather, a party had to

“intend” that an event happened for it to preclude a modification of spousal support.

Kaput v. Kaput, 8th Dist. No. 94340, 2011-Ohio-10, ¶ 22. Courts have misconstrued

that standard by applying a test of foreseeability: was the particular circumstance one

reasonably to be anticipated?     The better test is one grounded in the record, and

contemplates a finding that the circumstance is not one that “was thoroughly considered

at the time of the divorce.”      Palmieri v. Palmieri, 10th Dist. No. 04AP-1305,

2005-Ohio-4064, ¶ 19.    On that basis, a court may reasonably find that a change has

occurred in the circumstances existing at the time of the prior order establishing a

spousal support obligation.

                                       Analysis

      {¶21} Navadeh maintains that the trial court erred in denying his motion to

modify or terminate spousal support because “there has been numerous and substantial
changes in circumstances since the trial court’s prior orders; and spousal support to

[Nejad] is not reasonable nor necessary.”   Navadeh sets forth several circumstances that

he   claims   “have   substantially   changed”    for   him   which    would   justify   a

“modification/termination of his spousal support obligation.” These changes include

the fact that he married his new wife on April 12, 2007, his new wife gave birth to their

son on August 12, 2008, he has three separate mortgage payments for three separate

homes that he owns, he is responsible for taking care of his parents who live with him,

and he has incurred substantial credit card debt as a result of trying to meet his monthly

living expenses.   We conclude that these changes were brought about as a result of

Navadeh’s own choices.     He chose to marry his new wife, have a baby with her, and

take care of his parents.       Moreover, he voluntarily incurred three mortgages.

Incredibly, he purchased his third home in October 2008 — over one year after he filed

his motion to modify his spousal support. He asserts that he purchased his third home

because of the birth of his son in August 2008. But Navadeh moved to modify his

spousal support obligation even before his son with his new wife was conceived.

      {¶22} Navadeh further claims that he is entitled to a modification of spousal

support because he had an involuntary decrease in his income.         He contends that an

involuntary decrease exists because as of December 2008, he could no longer obtain

overtime from the Cleveland Clinic.         There are several things wrong with this

argument. First, Navadeh testified that his monthly expenses exceeded $14,000 per

month. His child and spousal support obligations are less than half of that amount.
Navadeh explained that he “had to beg” his employer to allow him to work overtime to

meet these expenses. But again, over half of these expenses, not including his child and

spousal support obligations, were brought on by Navadeh — choices he made. If

Navadeh was forced to work overtime to pay expenses, it was because of expenses that

he voluntarily incurred.    Thus, the fact that overtime was no longer available to

Navadeh does not meet the criteria of “involuntary decrease” in wages for purposes of

modifying spousal support in this case.          He was still fully employed as an

anesthesiologist at the Cleveland Clinic.

       {¶23} Navedeh further argues that the magistrate erred by not considering Nejad’s

substantial increase in wages.    The magistrate found that when signing the second

addendum to their separation agreement, the parties “clearly contemplated future

earnings.”   The magistrate found that this was evidenced by “the fact that both Plaintiff

and Defendant were completing various phases of their pre-career preparation in the

dental and medical professions, respectively at the time the Decree was executed.”    The

magistrate noted that each party had earned $30,600 at the time of the divorce and both

had substantial increases in income since then.        But the magistrate found these

“substantial increases were contemplated at the time of the award.       That is why the

award of spousal support was not to commence until several years after the Decree was

entered.”    We agree.

       {¶24} After reviewing the record, we find that the trial court did not abuse its

discretion in adopting the magistrate’s decision and ordering it into law. We further
conclude that the trial court’s judgment adopting the magistrate’s decision is not against

the manifest weight of the evidence because there exists competent, credible evidence in

the record to support its finding that Navedah did not meet the threshold requirements

necessary to modify his spousal support obligation.

       {¶25} Navadeh’s four assignments of error are overruled.

       {¶26} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR
