[Cite as Bowman v. Bowman, 2017-Ohio-4142.]

                           IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

Deborah H. Bowman [nka Hayden],               :

                Plaintiff-Appellee,           :
                                                                 No. 17AP-60
v.                                            :               (C.P.C. No. 04DR-1009)

Louis L. Bowman,                              :           (REGULAR CALENDAR)

                Defendant-Appellant.          :


                                        D E C I S I O N

                                   Rendered on June 6, 2017


                On brief: Reash Law Offices, LLC, and Maryellen Corna
                Reash, for appellee.

                On brief: Robert C. Hetterscheidt, for appellant.

                 APPEAL from the Franklin County Court of Common Pleas,
                             Division of Domestic Relations

HORTON, J.
          {¶ 1} Defendant-appellant, Louis L. Bowman, appeals from the January 19, 2017
judgment entry of the Franklin County Court of Common Pleas, Division of Domestic
Relations, denying his motion to terminate or modify spousal support to plaintiff-
appellee, Deborah Hayden, aka Deborah H. Bowman. For the following reasons, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
          {¶ 2} The parties were married on September 30, 1977, and there were five
children born as issue of the marriage. On March 15, 2004, appellee filed for divorce. The
parties were divorced on March 15, 2007, through an agreed judgment entry and decree
of divorce ("Agreed Divorce Decree"). In the Agreed Divorce Decree, it was stipulated
No. 17AP-60                                                                               2

that, in 2006 (the year prior to the divorce), appellant earned $254,441, and appellee
earned $49,505.
       {¶ 3} Pursuant to the agreement of the parties, appellant was to pay the sum of
$6,000 per month to appellee as spousal support. The Agreed Divorce Decree states that
"such support shall be indefinite and subject to the continuing jurisdiction of the Court to
modify the amount and the term of such support upon motion of either plaintiff or
defendant and a showing of changed circumstances, pursuant to R.C. 3105.18(E)." (Mar.
15, 2007 Agreed Divorce Decree at 6.) On April 13, 2007, appellant remarried, and his
new wife had two daughters who were minors at that time.
       {¶ 4} On March 31, 2014, appellant filed a supplemental motion to terminate or
modify spousal support. On October 20, 2014, appellee filed a cross-motion to modify
spousal support. The matter proceeded to an evidentiary hearing before a magistrate on
September 15, 2015. The magistrate issued a decision on September 27, 2016, denying
both motions. In regards to appellant's motion, the magistrate found a substantial change
of circumstances based on: (1) appellant's decrease in hourly wage rate; (2) appellant's
increase in work hours; (3) appellant's increase in income; and (4) appellee's decrease in
income. However, even with this finding, the magistrate concluded that the "spousal
support continues to be appropriate, reasonable and equitable at the rate of $6,000.00
per month." (Sept. 27, 2016 Mag. Decision at 24.)
       {¶ 5} Appellant filed objections to the magistrate's decision on October 5, 2016,
and supplemental objections on January 3, 2017. Appellee filed objections on October 17,
2016. In addition, oral arguments were held on January 10, 2017 before the trial judge.
On January 19, 2017, the trial court issued its decision and judgment entry finding that no
substantial change in circumstances had occurred and, as relevant to this appeal,
concluded:
              The Court acknowledges that the Magistrate found a
              "substantial" change of circumstances and as such, made
              further findings as to an appropriate amount. This Court
              having found no substantial change does not need to review
              the factors set forth in R.C. 3105.18(F). However, the Court
              having previously reviewed the transcript and exhibits would
              find no basis upon which to reach a different conclusion from
              the Magistrate when applying R.C. 3105.18 as to an
              appropriate ongoing Order.
No. 17AP-60                                                                             3


              ***

              The Court hereby OVERRULES the Plaintiff's and
              Defendant's Objections. Rather than repeat the Findings of
              the Magistrate, the Court approves and adopts the
              Magistrate's Findings and Decision, except as modified
              herein.

              Therefore, the Magistrate's Decision issued on September 27,
              2016 is hereby affirmed.

(Emphasis sic.) (Jan. 19, 2017 Decision and Jgmt. Entry at 6-7.)
II. ASSIGNMENT OF ERROR
      {¶ 6} Appellant appeals and brings the following assignment of error:
              THE TRIAL COURT ABUSED ITS DISCRETION AND
              FAILED TO FOLLOW THE STATUTE IN ITS
              DETERMINATION THAT NO "SUBSTANTIAL CHANGE OF
              CIRCUMSTANCES" HAD OCCURRED SINCE THE TIME OF
              THE DIVORCE OR THE PREVIOUS COURT ORDER AS IT
              APPLIES TO SPOUSAL SUPPORT.

III. DISCUSSION
      {¶ 7} Appellant alleges in his sole assignment of error that the trial court abused
its discretion and failed to follow R.C. 3105.18 in its determination that no "substantial
change of circumstances" had occurred as it applies to spousal support.
      {¶ 8} An appellate court will not reverse a trial court's determination in setting
spousal support unless the award results from an abuse of discretion. Kaechele v.
Kaechele, 35 Ohio St.3d 93, 94 (1988). An abuse of discretion connotes more than a mere
error in law or judgment; it implies that the trial court's attitude was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
      {¶ 9} We recently stated the law regarding modification of spousal support in
Talley v. Talley, 10th Dist. No. 15AP-812, 2016-Ohio-3533, ¶ 17-18:
              "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 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-
No. 17AP-60                                                                       4

              Ohio-1222, paragraph two of the syllabus. See also Friesen v.
              Friesen, 10th Dist. No. 07AP-110, 2008-Ohio-952, ¶ 39 ("A
              change in circumstances justifying a modification of spousal
              support must be material, not brought about purposely by the
              moving party, and not contemplated at the time of the prior
              order."). R.C. 3105.18(F)(1) provides:

              [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 so long as both of the
              following apply:

              (a) The change in circumstances is substantial and makes the
              existing award no longer reasonable and appropriate.

              (b) The change in circumstances was not taken into account
              by the parties or the court as a basis for the existing
              award when it was established or last modified, whether or
              not the change in circumstances was for[e]seeable.

              * * * Thus, "[a]lthough R.C. 3105.18(F) sets forth a partial
              listing of what can be considered as a change of
              circumstances * * * for purposes of establishing trial court
              jurisdiction, it does not alter the requirement that a trial
              court must find a substantial change in circumstances
              before modifying a prior order for spousal support."
              Mandelbaum at paragraph one of the syllabus.

              "The party who seeks a modification of spousal support bears
              the burden of showing that a modification is warranted."
              Burkart v. Burkart, 191 Ohio App.3d 169, 2010-Ohio-5363,
              ¶ 14 (10th Dist.). The burden of proof has two parts. Id., citing
              Joseph v. Joseph, 122 Ohio App.3d 734, 736-37 (2d
              Dist.1997).      "First, the moving party must present
              evidence proving the jurisdictional prerequisites—the
              reservation of continuing jurisdiction in the decree and the
              existence of a substantial change in circumstances not
              anticipated at the time of the divorce." Id., citing Peters v.
              Peters, 12th Dist. No. CA2009-04-037, 2009-Ohio-5929, ¶ 15.
              "Second, the moving party must adduce evidence
              demonstrating that the existing award of spousal support is
              no longer appropriate and reasonable." Id., citing Churchia v.
              Churchia, 11th Dist. No. 2008-G-2846, 2009-Ohio-1486, ¶ 13.
              See also Joseph at 736 ("Even after the movant demonstrates
              a substantial change of circumstances, the burden does not
              shift to the obligee to demonstrate a continuing need for
No. 17AP-60                                                                              5

              support, or that the existing award is unnecessary or
              unreasonable.").

In addition, the change in circumstances must be substantial, meaning that it is drastic,
material, and significant. Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 440, 2009-
Ohio-1222.
      {¶ 10} Here, the Agreed Divorce Decree expressly reserved the trial court's
jurisdiction to make modifications in spousal support. Therefore, the trial court was
required to consider whether (1) a substantial change in circumstances had occurred, and
(2) such change was not contemplated at the time of the original decree. Mandelbaum at
paragraph two of the syllabus.
      {¶ 11} Appellant argues that the entire issue before the court was whether or not
he should be forced to work in excess of 60 hours per week in order to maintain his
current spousal support obligation. Appellant admits that his income has increased since
2007—from approximately $250,000 to over $300,000.              However, he claims that
because his hourly wage has decreased from $100 per hour in 2007, to $81 per hour
presently, that he was forced to work increasingly more hours and multiple jobs in order
to maintain payment of the spousal support. In addition, appellant claims that his
monthly expenses have risen from less than $10,000 in 2007, to over $14,000 presently.
      {¶ 12} Appellant also points out that appellee's income has decreased from the
2007 earnings of approximately $49,500, to $36,000 in 2014, despite her having earned
a Master's degree in nursing subsequent to the divorce. Appellant argues that despite the
parties' actual earnings, his income should be based upon his hourly rate of $81 per hour
for a 40 hour week, i.e., $168,480, and appellee's income should be established at
$49,505 per year, the amount she was earning in 2007.
      {¶ 13} Appellee argues that appellant works additional hours voluntarily, and that
any duress that he suffers financially is of his own doing, in that he voluntarily incurred
many thousands of dollars of monthly expenses after his divorce. As evidence, appellee
notes that appellant purchased a new 3,600 square foot house tripling his housing
expense. (Tr. at 61-63.) He purchased two time-share properties—one in Cancun and one
in the Bahamas. (Tr. at 58-59.) He took on expenses for his new wife's now adult
daughters—$1,100 per month for tuition, $840 per month for college housing, $267 for
No. 17AP-60                                                                                 6

car payments, plus car insurance and cell phones. (Tr. at 54-56.) Appellant admitted, at
the hearing, that he entered into each of these new expenses with the knowledge that he
would still have to pay the court-ordered spousal support. (Tr. at 63.)
       {¶ 14} In addition, appellant has the option to work, as he has in the past, for a
single employer as an ER doctor, for fewer hours at a much higher rate of pay, i.e., $125 to
$150 per hour, but chooses not to do so. (Tr. at 52.) Finally, appellee alleges that appellant
seeks to avoid the commitment he entered into with appellee, so that he can live an even
more extravagant lifestyle with his new wife and her children.
       {¶ 15} In the court's decision filed on January 19, 2017, the court determined that
there was no "substantial change of circumstances" sufficient to allow the court to review
the previous spousal support ordered by this court.
       {¶ 16} The trial court found that, generally, appellant's hourly wage rate has
decreased over the eight-year period of time since the divorce. However, his income has
increased from $254,000 to over $300,000. Appellant's monthly expenses increased
from roughly $10,000 to $14,000. Appellee's income has decreased from $49,000 to
$36,000 during the same time period, while her monthly expenses rose from $7,500 to
$9,000.
       {¶ 17} The trial court also found that, in 2007, appellee's income was $49,505 and
$36,795 in 2014. The court noted that since 2007, the appellee has been able to obtain her
Master's degree in nursing. However, her employment history has been inconsistent,
showing numerous jobs over the span of time. The court stated that "with no evidence
reflecting a physical or psychological disability that may prevent full-time employment,
the Court finds there to be no basis to suggest that Plaintiff could not or should not be
earning income comparable to the income that she earned at the time of the divorce,
specifically $49,505.00." (Decision and Jgmt. Entry at 5.)
       {¶ 18} The trial court noted that, on its face, appellant's monthly expense increase
of roughly 42 percent could be characterized as "substantial." (Decision and Jgmt. Entry
at 6.) However, the court found the increase not to be of the nature contemplated by the
statute because "[t]he increases incurred by the Defendant are expenses that he
voluntarily incurred post-divorce. None of the new and/or additional expenses incurred
by the Defendant could be characterized as [involuntary] in nature." Id.
No. 17AP-60                                                                               7

       {¶ 19} As such, the trial court did not find that a substantial change had occurred
under the statute. The trial court stated that "the Court is fully cognizant of the strain
upon the Defendant to maintain his present income. The Court cannot, however, reduce
Defendant's obligation until such time as an "actual" change in circumstances occurs. The
Court cannot expect the Plaintiff to accept less spousal support until such time as
Defendant has reduced his income as well." Id.
       {¶ 20} The trial court approved and adopted the magistrates findings and decision,
except as modified, i.e., the magistrate had found a substantial change while the trial
court did not, however, in either case the amount of spousal support remained
unchanged, i.e., $6,000 per month. The court stated that, in light of its finding that there
was no substantial change in circumstances, there was no "need to review the factors set
forth in R.C. 3105.18(F)." Id. However, the court did note that "having previously
reviewed the transcript and exhibits would find no basis upon which to reach a different
conclusion from the Magistrate when applying R.C. 3105.18 as to an appropriate ongoing
Order." Id.
       {¶ 21} Prior to ruling, the trial court reviewed the record, including the trial
transcript, and held oral argument on the parties' objections. After a thorough review of
the record, we conclude that competent, credible evidence supported the trial court's
decision to adopt, as modified, the magistrate's decision and deny appellant's motion to
modify or terminate spousal support, and the trial court did not abuse its discretion in
finding that no actual change in circumstance had occurred. Appellant's assignment of
error is overruled.
IV. DISPOSITION
       {¶ 22} Having overruled appellant's assignment of error, the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed.
                                                                       Judgment affirmed.
                      DORRIAN and LUPER SCHUSTER, JJ., concur.
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