[Cite as Cottle v. Pourzanjani, 2018-Ohio-461.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

JAMES H. COTTLE                                      JUDGES:
                                                     Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                          Hon. William B. Hoffman, J.
                                                     Hon. Earle E. Wise, Jr., J.
-vs-
                                                     Case No. 17CAF050030
LYDIA POURZANJANI

        Defendant-Appellee                           OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Delaware County Court of
                                                  Common Pleas, Domestic Relations
                                                  Division, Case 14 DR B 04 175


JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           February 2, 2018


APPEARANCES:


For Defendant-Appellee                            For Plaintiff-Appellant


CRAIG P. TRENEFF                                  DOUGLAS B. DOUGHERTY
155 Commerce Park Dr. Suite 5                     3010 Hayden Road
Westerville, Ohio 43081                           Columbus, Ohio 43235
Delaware County, Case No. 17CAF050030                                                    2

Hoffman, J.


      {¶1}     Plaintiff-appellant James H. Cottle appeals the April 4, 2017 Judgment Entry

entered by the Delaware County Court of Common Pleas, Domestic Relations Division,

which overruled his objections to the magistrate’s February 11, 2016 decision, and

approved and adopted said decision as order of the court. Defendant-appellee is Lydia

Pourzanjani.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}     The parties were divorced via Agreed Judgment Entry-Decree of Divorce

filed May 30, 2014. The Decree incorporated the parties’ April 10, 2014 Separation

Agreement, and April 11, 2014 Addendum. Pursuant to the Separation Agreement,

Appellant was awarded his dental practice free and clear of any claims by Appellee. In

addition, Appellant was ordered to pay spousal support to Appellee in the amount of

$3,108.03/month for a period of 60 months. The trial court retained jurisdiction to modify

the amount of the award, but not the duration.

      {¶3}     On August 31, 2015, following the sale of his dental practice and

subsequent acceptance of full-time employment at The Ohio State University College of

Dentistry (“Ohio State”), Appellant filed a motion to terminate or modify spousal

support. Appellant’s job change resulted in a 46.8% decrease in his salary. The net

proceeds of the sale of Appellant’s dental practice were approximately $315,000.

      {¶4}     The magistrate conducted a hearing on Appellant’s motion. The following

evidence was adduced at the hearing.

      {¶5}     When the parties married in 1997, Appellant was a dentist with an

established private dental practice. Appellee did not contribute to Appellant’s education
Delaware County, Case No. 17CAF050030                                                      3


or his professional career. In addition to his private dental practice, Appellant also taught

part-time at Ohio State. Appellee was a dietician and worked full-time during the entire

marriage.

       {¶6}   In 2008, Appellant began experiencing significant pain in his right hip, which

ultimately led to a hip replacement in 2010. Several times a year during the course of the

marriage, the parties discussed Appellant’s selling his dental practice and teaching full-

time. Appellee was supportive of the idea and encouraged Appellant to pursue a full-time

teaching position.

       {¶7}   While the parties were negotiating their divorce, Appellant did not have any

plans or intentions of retiring, selling his dental practice, or taking a position at Ohio

State. Appellant was unaware of any full-time openings at Ohio State. At the time of the

divorce, Appellant’s income from his dental practice averaged $169,156.00/year over a

period of three years. Appellant earned $8,603.00/year from his part-time teaching

position at Ohio State. Appellee’s income was $57,756.00/year. In calculating the

spousal support award, the parties agreed Appellee would receive 43.8% of the total

after-tax income. The spousal support award was calculated at $3,108.33/month.

       {¶8}   In the spring of 2014, following the parties’ divorce, Appellant again began

experiencing pain in his right hip. Appellant saw his surgeon, who informed Appellant the

pain he was experiencing was due to the tissue around his hip implant, not the implant

itself. Appellant explained dentists suffer a number of medical issues involving their

necks, backs, arms, hand, and hips as a result of the manner in which they move their

bodies while working on patients. Appellee acknowledged Appellant complained about

pain in his hip following his surgery and prior to the commencement of the divorce
Delaware County, Case No. 17CAF050030                                                    4


negotiations. After the negotiations began, Appellant told Appellee he continued to

experience the pain in his hip.

       {¶9}   In October, 2014, Appellant learned about a full-time teaching position at

Ohio State.     Appellant applied for the position in November, or December,

2014. Appellant could not maintain his dental practice and work full-time at Ohio

State. On December 9, 2014, Appellant entered into a contract with Paragon, Inc. to sell

his dental practice. Paragon provided Appellant with a Fair Market Value & Financial

Analysis Report Summary, which was based upon the market value of the income stream

and client base of the dental practice on December 19, 2014. Appellant signed an

agreement to sell his practice on December 31, 2014. On February 17, 2015, Appellant

received, and subsequently accepted, a written offer from to join the faculty at Ohio State

on a full-time basis. The sale of Appellant’s dental practice was finalized on April 17,

2015. Appellant began his employment with Ohio State on May 4, 2015.

       {¶10} At the time of the magistrate’s hearing, Appellant’s salary was

$94,395.00/year, a 46.8% decrease in income.              Appellee’s income increased

approximately 3%, to $60,000/year.

       {¶11} Via Decision filed February 11, 2016, the magistrate denied Appellant’s

motion to terminate or modify spousal support.         Appellant filed objections to the

magistrate’s decision. Via Judgment Entry Sustaining Plaintiff’s 4/15/16 Final Objections

to the Magistrate’s 2/11/16 Decision filed May 25, 2016, Judge Gormley found Appellant

“ha[d] shown a sufficient change in circumstances to warrant a modification of the

spousal-support award.” May 25, 2016 Judgment Entry at 5. Judge Gormley ordered the

case be returned to the magistrate for further proceedings. Id. Subsequent to Judge
Delaware County, Case No. 17CAF050030                                                     5


Gormley issuing his decision, the Delaware County Court of Common Pleas established

a new Domestic Relations Division. Judge Randall D. Fuller became the judge for the

new division.

       {¶12} On his own initiative, Judge Fuller decided to review Judge Gormley’s May

25, 2016 Judgment Entry.        Via Judgment Entry filed April 4, 2017, Judge Fuller

reconsidered Judge Gormley’s ruling on Appellant’s objections, as such was an

interlocutory order, and denied Appellant’s motion to terminate or modify spousal support.

       {¶13} It is from this judgment entry Appellant appeals, raising the following

assignments of error:



                1. THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT, TO

       ESTABLISH AN APPROPRIATE CHANGE IN CIRCUMSTANCES, A

       MOVANT          MUST   PROVE      THAT       THE   CHANGE       WAS     NOT

       CONTEMPLATED, AND VOLUNTARY, AND NOT PURPOSEFUL.

                2. THE TRIAL COURT ERRED WHEN IT FAILED TO CONCLUDE

       THAT      JIM    ESTABLISHED       AN      APPROPRIATE        CHANGE       IN

       CIRCUMSTANCES.



                                                I, II

       {¶14} Because Appellant’s assignments of error are interrelated, we shall address

them together. In his first assignment of error, Appellant contends the trial court erred in

concluding he was required to prove his change in circumstances “was not contemplated,

and voluntary, and not purposeful.”      In his second assignment of error, Appellant
Delaware County, Case No. 17CAF050030                                                    6


maintains the trial court erred in failing to find he had established an appropriate change

in circumstances.

        {¶15} An appellate court reviews the modification of spousal support under an

abuse-of-discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d

1028. An abuse of discretion implies the trial court's attitude was unreasonable, arbitrary

or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140.

        {¶16} “Modification of a spousal support award is appropriate only when there has

been a substantial change in the circumstances of either party that was not contemplated

at the time the existing award was made.” Moore v. Moore (1997), 120 Ohio App.3d 488,

491, 698 N.E.2d 459, citing Leighner v. Leighner (1986), 33 Ohio App.3d 214, 215, 515

N.E.2d 625. See R.C. 3105.18(E).

        {¶17} R.C. 3105.18 provides guidelines for the modification of spousal support as

follows:



              (E) If a continuing order for periodic payments of money as alimony

        is entered in a divorce or dissolution of marriage action that is determined

        on or after May 2, 1986, and before January 1, 1991, or if a continuing order

        for periodic payments of money as spousal support is entered in a divorce

        or dissolution of marriage action that is determined on or after January 1,

        1991, the court that enters the decree of divorce or dissolution of marriage

        does not have jurisdiction to modify the amount or terms of the alimony or
Delaware County, Case No. 17CAF050030                                                 7


     spousal support unless the court determines that the circumstances of

     either party have changed and unless one of the following applies:

              (1) In the case of a divorce, the decree or a separation agreement of

     the parties to the divorce that is incorporated into the decree contains a

     provision specifically authorizing the court to modify the amount or terms of

     alimony or spousal support * * *

              (F)(1) For purposes of divisions (D) and (E) of this section and

     subject to division (F)(2) of this section, 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

     forseeable.

              (2) In determining whether to modify an existing order for spousal

     support, the court shall consider any purpose expressed in the initial order

     or award and enforce any voluntary agreement of the parties. Absent an

     agreement of the parties, the court shall not modify the continuing
Delaware County, Case No. 17CAF050030                                                    8


       jurisdiction of the court as contained in the original decree. (Emphasis

       added.)



       {¶18} The burden of establishing the need for modification of spousal support

rests with the party seeking modification. Cattaneo v. Needham, 5th Dist. Licking No.2009

CA00142, 2010–Ohio–4841, citing Tremaine v. Tremaine (1996), 111 Ohio App.3d 703,

676 N.E.2d 1249.

       {¶19} Appellant predicates his assignments of error on a reading of the April 4,

2017 Judgment Entry, which we find to be inaccurate. Appellant states the trial court

concluded, in order to establish an appropriate change in circumstances, he, as the

movant, was required to “prove the existence of a change that was not contemplated, not

voluntary, and not purposeful.” Brief of Appellant at 17. Appellant submits the trial court

incorrectly analyzed the law, and erroneously found he had not established an

appropriate change in circumstances.

       {¶20} Appellant focuses on the following portion of the April 4, 2017 Judgment

Entry, in which the trial court sets forth the law relative to the modification of spousal

support:



              A trial court lacks jurisdiction to modify a prior order of spousal

       support unless the decree expressly reserved jurisdiction to modify the

       award and the court finds that a substantial change in circumstances has

       occurred. See Ressler v. Ressler, 17 Ohio St.3d 17 (1985) and Kumper v.

       Kumper, 2010-Ohio-3960 (5th Dist.). Furthermore, “to constitute a basis for
Delaware County, Case No. 17CAF050030                                                       9


        modifying spousal support, the change of circumstances must be material,

        not purposely brought about by the moving party, and not contemplated at

        the time the parties entered into the prior agreement or order.” Gemell [sic]

        v. Gemmell, 2007-Ohio-5546 (5th Dist.). See also Walters v. Boney, 2009-

        Ohio-574 (5th Dist.). Id. at 2.



        {¶21} The trial court proceeded to analyze the facts relative to the motion before

it, and found Appellant’s “change in circumstances was not only voluntary and purposely

brought about by [Appellant], but the change was also contemplated by the parties.” Id.

at 3.

        {¶22} Appellant argues the trial court incorrectly concluded he did not establish

an appropriate change in circumstances because it found he did not prove the change

was not contemplated, not voluntary, and not purposeful. Appellant explains the

foreseeability analysis for determining whether a change constitutes an appropriate

change in circumstances was abrogated by the 2012 amendments to R.C. 3105.18(F),

and the trial court erred in undertaking such an analysis.

        {¶23} We find the trial court was correct in finding Appellant’s change in

employment was not “involuntary” as Appellant intentionally reduced his annual income

in order to pursue his “dream job”. The trial court also correctly found the parties had

contemplated the career change for Appellant during the course of the marriage. We

further find, contrary to Appellant’s position, the trial court did, in fact, find a change in

circumstances. However, the trial court determined, after “considering the statutory

factors of R.C. 3105.18(C) * * * that, despite [Appellant’s] change in circumstances, the
Delaware County, Case No. 17CAF050030                                                    10


amount of $3,108.03 per month remains an appropriate a [sic] reasonable amount of

spousal support.” Id. at 4 (Emphasis added.)

      {¶24} Upon consideration of the factors set forth in R.C. 3105.18(C), the trial court

found Appellant’s individual net worth had increased by 35% since the time of the divorce

while Appellee’s individual net worth had only increased by 1%. The trial court also found

Appellant continued to maintain the standard of living established by the parties during

their marriage, Appellee had not. Appellee withdrew $22,000.00, from her IRA in order

to put a down payment on her home. The result was a decrease in her overall retirement

assets. Appellant, on the other hand, increased his retirement assets by becoming a

member of the State Teachers Retirement System through his employment with the

dental school. Appellee’s monthly living expenses exceeded Appellant’s monthly living

expenses due, in part, to her having to take out a mortgage on her new home. Appellant’s

2014 tax returns reflect an adjusted income of $147,941, from his dental practice.

Appellee’s adjusted income for 2014, was $54,034. The trial court concluded because

Appellant’s change in circumstances was voluntary, “his prior income as a dentist in the

amount of $147,941 per year should be imputed to him when determining a current

appropriate and reasonable amount of spousal support.” Id. at 5.

      {¶25} The trial court also found the timing of the sale of Appellant’s dental practice

“very suspect” as he entered into an agreement to sell the practice on December 9, 2014,

only seven months after the original divorce decree, but did not secure his position with

Ohio State until February, 2015, and did not formally close on the sale of the dental

practice until April 6, 2015. Appellant received net proceeds from the sale of his dental

practice in the amount of $306,220.77. The trial court concluded Appellant had sufficient
Delaware County, Case No. 17CAF050030                                                    11


assets not only to support himself for the duration of the 60 month spousal support award,

but also to pay the spousal support award previously agreed to by Appellant and ordered

by the court.

       {¶26} During the course of the divorce proceedings, the parties agreed Appellant’s

dental practice was his separate property. The trial court considered that asset when it

ordered the original spousal support award. The fact Appellant subsequently liquidated

the asset should not impact the trial court’s decision to modify the award, and the trial

court should not have considered the liquidation of the asset as a reason to, or not to,

modify the award.    We find the trial court improperly considered Appellant’s separate

property already valued and contemplated in determining the original award in its decision

not to terminate or modify spousal support. However, because Appellant personally chose

to liquidate an income generating asset, we find it was proper for the trial court to impute

the income Appellant would have earned from the asset when determining whether to

modify the amount of the award.

       {¶27} Based upon the foregoing, we find the trial court did not abuse its discretion

in not modifying Appellant’s spousal support obligation.

       {¶28} Appellant’s first and second assignments are overruled.
Delaware County, Case No. 17CAF050030                                        12


       {¶29} The judgment of the Delaware County Court of Common Pleas, Domestic

Relations Division, is affirmed.



By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
