[Cite as Stevens v. Stevens, 2018-Ohio-2662.]




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

 CYNTHIA L. STEVENS                                   :
                                                      :
         Plaintiff-Appellee                           :   Appellate Case No. 27761
                                                      :
 v.                                                   :   Trial Court Case No. 08-DR-1094
                                                      :
 CHARLES E. STEVENS, JR.                              :   (Domestic Relations Appeal from
                                                      :    Common Pleas Court)
         Defendant-Appellant                          :
                                                      :

                                                 ...........

                                                OPINION

                               Rendered on the 6th day of July, 2018.

                                                 ...........

MICHAEL B. MILLER, Atty. Reg. No. 0079305, 2233 Miamisburg-Centerville Road,
Dayton, Ohio 45459
      Attorney for Plaintiff-Appellee

ANNE HARVEY, Atty. Reg. No. 0054585, 345 North Main Street, Unit 2, Springboro,
Ohio 45066
      Attorney for Defendant-Appellant

                                                .............
                                                                                         -2-


FROELICH, J.

       {¶ 1} Charles E. Stevens, Jr., appeals from a judgment of the Montgomery County

Court of Common Pleas, Domestic Relations Division, which denied his motion to reduce

or terminate spousal support payable to his former wife, Cynthia L. Stevens, and/or to

terminate his obligation to maintain a life insurance policy payable to her.       For the

following reasons, the judgment of the trial court will be reversed, and the matter will be

remanded for further proceedings.

       {¶ 2} The parties were married for more than 32 years, and they have three

children, all of whom were adults by the time of the divorce. The parties divorced in

March 2010, when they were both in their early fifties. At the time of the divorce, Mr.

Stevens had worked as a civilian at Wright Patterson Air Force Base (WPAFB) for more

than 25 years. The divorce decree divided Mr. Stevens’s pension as well as the parties’

marital assets and liabilities; additionally, Mr. Stevens was ordered to pay spousal support

and to maintain life insurance with Mrs. Stevens as the beneficiary.

       {¶ 3} In 2014, Mr. Stevens retired from WPAFB, and both parties began to receive

pension benefits. In June 2014, he filed a motion to terminate or modify his spousal

support and/or to eliminate the requirement that he maintain life insurance, based on his

retirement.   Shortly thereafter, however, Mr. Stevens accepted new employment in

Florida, and he withdrew his motion.

       {¶ 4} In May 2016, after Mr. Stevens had left his employment in Florida, Mr.

Stevens filed a new motion to reduce or terminate his spousal support obligation and/or

to eliminate the requirement that he maintain life insurance with Mrs. Stevens as the

beneficiary. In support of his motion, he argued that his recent retirement from WPAFB
                                                                                        -3-


and his decision to “permanently retir[e]” from other employment after leaving his job in

Florida constituted a significant change of circumstances, and that his reduced income

justified a modification in spousal support.

       {¶ 5} A magistrate conducted a hearing on October 25, 2016. Following the

hearing, the magistrate denied Mr. Stevens’s motion; Mr. Stevens filed objections. On

October 3, 2017, the trial court filed a Decision and Judgment overruling the objections

and denying Mr. Stevens’s motion on several grounds.          It also clarified the divorce

decree concerning any perceived ambiguity as to the extent to which the court had

retained jurisdiction over spousal support; the court found that it had not retained

jurisdiction over spousal support generally, but only as to increases that might be

warranted by certain circumstances.

       {¶ 6} Mr. Stevens appeals from the trial court’s judgment. His brief sets forth

several arguments and, although they are not styled as assignments of error, we will treat

them as such. Because the issues are related, we will address them together.

       Standard of Review

       {¶ 7} A trial court has the authority to modify the amount of spousal support if the

court determines that “the circumstances of either party have changed,” and the divorce

decree contains a provision authorizing the court to modify the amount or terms of spousal

support. R.C. 3105.18(E). A change of circumstances “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 * * * (a) [t]he

change in circumstances is substantial and makes the existing award no longer

reasonable and appropriate [and] (b) [t]he change in circumstances was not taken into
                                                                                         -4-


account by the parties or the court as a basis for the existing award when it was

established or last modified * * *.” R.C. 3105.18(F)(1). “The burden of showing that a

reduction of spousal support is warranted is on the party who seeks the reduction.”

Bohme v. Bohme, 2d Dist. Montgomery No. 27258, 2017-Ohio-1190, ¶ 9, quoting Reveal

v. Reveal, 154 Ohio App.3d 758, 2003-Ohio-5335, 798 N.E.2d 1132, ¶ 14 (2d Dist.).

       Analysis

       {¶ 8} Mr. Stevens’s arguments challenge, on various bases, the trial court’s finding

that a modification of spousal support was not warranted. Specifically, Mr. Stevens

argues that the trial court erred in concluding that the language of the divorce decree

limited the court’s jurisdiction only to consideration of additional or increased spousal

support, and that the trial court erred in finding that 1) no change of circumstances had

occurred; 2) Mr. Stevens’s retirement was “contemplated” at the time of the divorce; 3) Mr.

Stevens voluntarily retired; and 4) the current spousal support was still appropriate.

       {¶ 9} With respect to spousal support, the final judgment and decree of divorce

provided:

       I. SPOUSAL SUPPORT

        The husband shall pay to the wife, as and for spousal support,

       commencing January 1, 2010, the sum of $3,000.00 per month, until such

       time as either party dies, the wife remarries, or she cohabitates with an

       unrelated member of the opposite sex who provides significant financial

       support. * * *

       ***

       The Court shall retain jurisdiction as to the amount and duration of spousal
                                                                                            -5-


       support. However, in order to authorize further support the Court must find

       that there has been a significant change in one or more of the following:

       A) employment status; B) income levels of the parties; or C) health of the

       parties.

       {¶ 10} The section on spousal support also required Mr. Stevens to maintain a

life insurance policy in the amount of $150,000, payable to Mrs. Stevens, as long as he

had an obligation to pay spousal support, and stated that the issue of spousal support

would be subject to the continuing jurisdiction of the Court if either party obtained relief in

bankruptcy from any obligation that would affect the parties’ property division or any other

obligation owed under the divorce decree.

       {¶ 11} At the time of the divorce, Mr. Stevens had worked as a civilian at WPAFB

for more than 25 years. With respect to Mr. Stevens’s pension from WPAFB, the decree

stated that the parties agreed that Mrs. Stevens was entitled to a marital share of Mr.

Stevens’s Civil Service Retirement System account and that Mrs. Stevens’s marital share

was 50 percent.1

       {¶ 12} In his motion to terminate or modify spousal support, Mr. Stevens asserted

that there had been a significant change of circumstances in that he had retired from

WPAFB, which triggered the payment of pension benefits for both parties and a reduction

of his income.

       {¶ 13} The following evidence was presented at the hearing.

       {¶ 14} The parties divorced in 2010, and Mr. Stevens remarried in 2012. In


1 Because Mr. Stevens worked at WPAFB for several more years after the divorce, Mrs.
Stevens ultimately received less than 50 percent of the total pension payments, although
she received 50 percent of the marital share.
                                                                                        -6-


2014, Mr. Stevens retired from his long career as an engineer at WPAFB; he was fully

vested in his retirement plan at that time. Shortly after his retirement, Mr. Stevens moved

to Florida when his wife was transferred for her job, and he accepted employment with a

large, international company. However, Mr. Stevens found that the work and the hours

and travel of his new position were very demanding, and he testified that he left this

employment in June 2016 because of his “health, age, and stress levels.” Mr. Stevens

had experienced long-term high blood pressure and foot problems. His blood pressure

medication dosage had increased since the time of the divorce. Although there was no

testimony that his medical condition or physical health had changed in any significant way

since the divorce, he stated that his health issues “motivated” him to retire.

       {¶ 15} At the time of the divorce, Mr. Stevens had earned approximately $118,000

per year at WPAFB. After his retirement, he received approximately $47,000 per year

from his pension; because of his participation in the Civil Service Retirement System, he

was not eligible for Social Security. Mr. Stevens earned about $166,000 per year with

the company in Florida; thus, his total income during that period was approximately

$213,000 per year.     He had not obtained any other employment at the time of the

hearing.

       {¶ 16} Mr. Stevens and his wife built a house in Melbourne, Florida, valued at

approximately $675,000; they have a mortgage on the property. He testified that the

monthly expenses for the household are approximately $7,400, of which he pays about

$3,000.

       {¶ 17} Mrs. Stevens earned approximately $47,000 per year from her

employment at the time of the hearing; she had earned approximately $28,000 at the time
                                                                                      -7-


of the divorce. Her income had increased since the divorce due to a promotion and cost-

of-living increases. Additionally, at the time of the hearing, she received $36,000 per

year in spousal support and approximately $29,000 per year from Mr. Stevens’s pension.

Thus, her total annual income was approximately $112,000.

      {¶ 18} Mrs. Stevens had been awarded the marital home in the parties’ property

distribution; she later sold it and purchased a smaller house, on which she had no

mortgage. Her current house was valued at about $165,000, which was roughly the

same value as the marital home. Mrs. Stevens’s testimony suggested that she lives

comfortably, but not extravagantly, and that she saved a significant amount of her income

($500 per week) for retirement. She estimated her monthly expenses to be $5,222.

She had a total of $125,600 in retirement savings at the time of the hearing, and she was

“concerned” about her retirement. She testified that she would not be able to support

herself without the spousal support payments from Mr. Stevens.

      {¶ 19} Mr. Stevens’s primary argument was that there had been a change of

circumstances supporting a modification or termination of spousal support (including the

life insurance provision) in that he had retired since the divorce, his income (from his

pension) was less than it had been when he was working, and Mrs. Stevens’s income

had increased.      He asserted that his retirement, though “contemplated” and

“foreseeable” at the time of the divorce, was “not taken into account,” see R.C.

3105.18(F)(1), because he was still working at that time.

      {¶ 20} The magistrate found that the divorce decree had contemplated Mr.

Stevens’s retirement. “At the time of the divorce, Mr. Stevens was 53 years old and Mrs.

Stevens was 52 years old, ages where people are typically approaching the end of their
                                                                                       -8-


careers rather than the beginning, and yet, the court ordered spousal support for an

indefinite term.” The trial court agreed with this conclusion in finding no basis for a

modification of spousal support.

      {¶ 21} We agree with Mr. Stevens that his retirement, though “contemplated,” was

“not taken into account” at the time of the divorce, as provided by R.C. 3105.18(F)(1).

For example, the spousal support award did not account for the fact that his income would

be significantly reduced at the time of his retirement. The spousal support award was

based -- appropriately – on his employment income at the time of the decree; it could not,

at that time, have been based on the parties’ incomes from the pension, because Mr.

Stevens was not yet retired.       The fact that the retirement was foreseeable and

“contemplated” at the time of the divorce did not mean that the changes to both parties’

incomes brought about by Mr. Stevens’s actual retirement could not constitute a change

of circumstances or warrant a possible modification of spousal support. See Bixler v.

Bixler, 12th Dist. Clermont No. CA2016-12-081, 2017-Ohio-7022, ¶ 23, citing

“[u]ncodified” section 4 of 2011 Am.H.B. No. 461 (“the ‘change in circumstances’ must be

circumstances that were not taken into account by the parties or the court when the award

was set or last modified, whether or not such circumstances were otherwise contemplated

or foreseeable.”); Walpole v. Walpole, 8th Dist. Cuyahoga No. 102409, 2015-Ohio-3238,

¶ 14 (the change in circumstance – husband’s retirement ̶ was “not taken into account”

by the parties or the court as a basis for the existing spousal support award when it was

established, even though husband’s retirement was foreseeable).

      {¶ 22} Mr. Stevens also argues that the trial court erred in concluding that his

retirement and reduction in income was “voluntarily.” Although the magistrate did not
                                                                                           -9-


specifically address the relevance of Mr. Stevens’s alleged health issues, the trial court

found that Mr. Stevens retired “voluntarily,” that he was able to work, and that no evidence

was offered to support the conclusion that Mr. Stevens could not work due to a medical

condition.

       {¶ 23} “[R]etirement, whether voluntary or involuntary, may amount to a

substantial change in circumstances. However, we have previously held that when a

voluntary early retirement is taken, any resulting decrease in income provides a basis for

modification of spousal support only ‘if it was not done in an attempt to avoid a court

ordered obligation to an ex-spouse.’ ” Bishop v. Bishop, 2d Dist. Montgomery No. 26397,

2015-Ohio-2711, ¶ 20, citing Chepp v. Chepp, 2d Dist. Clark No. 2008 CA 98, 2009-Ohio-

6388, ¶ 10. (Other citation omitted.) “In other words, ‘if a party retires with the intent of

defeating the spousal support obligation, the retirement is considered “voluntary

underemployment,” and the party’s pre-retirement income is attributed to that party.’ ”

Id., quoting Chepp and others.

       {¶ 24} In this case, there was no evidence to support, and the trial court did not

find, that Mr. Stevens left his employment at WPAFB to “defeat” his spousal support

obligation.   He had worked for more than 30 years and was two years beyond his

eligibility to retire when he decided to do so. As such, while the trial court correctly found

that Mr. Stevens was voluntarily retired (i.e., he was not forced to retire), it incorrectly

inferred from this fact that his retirement and his resulting change in income could not

form a basis for a change of circumstances and a modification of the spousal support

award. The trial court did not impute income to Mr. Stevens as if he were voluntarily

underemployed, and we express no opinion as to whether such action would be
                                                                                         -10-


appropriate, but voluntary retirement and underemployment are not synonymous, as the

trial court’s judgment seems to suggest.

       {¶ 25} If a substantial change in circumstances has occurred, the trial court must

then examine the existing order in light of the changed circumstances, considering

whether spousal support is still appropriate and reasonable and, if so, in what amount.

Bishop at ¶ 21, citing Norbut v. Norbut, 2d Dist. Greene No. 06-CA-112, 2007-Ohio-2966,

¶ 15. When deciding whether the existing order should be modified, a trial court must

consider all relevant factors, including those listed in R.C. 3105.18(C)(1). Id. These

factors include: the income of the parties from all sources, including, but not limited to,

income derived from a property division; the relative earning abilities of the parties; the

ages and the physical, mental, and emotional conditions of the parties; their retirement

benefits; the duration of the marriage; the standard of living of the parties established

during the marriage; the relative extent of education of the parties; and the relative assets

and liabilities of the parties, including but not limited to any court-ordered payments by

the parties.

       {¶ 26} Mr. Stevens earned approximately $118,000 at the time of the divorce,

when he worked at WPAFB. Although he was briefly employed with a private company

after his retirement from WPAFB, he was not employed at the time of the hearing. Thus,

when his motion for a modification or termination of spousal support was being

considered by the trial court, Mr. Stevens had incurred a reduction of his income of

approximately $71,000 since the time of the divorce and was receiving approximately

$47,000 per year from his pension. He was paying $36,000 per year in spousal support.

       {¶ 27} Mrs. Stevens’s income had increased to approximately $47,000 per year,
                                                                                          -11-


and she received almost an additional $29,000 per year from Mr. Stevens’s pension, plus

spousal support. Thus, her total income was approximately $112,000.

       {¶ 28} The parties did have other investment income, the amount of which was not

established, and this income must be considered; however, the extent of the parties’

assets at the time of the divorce decree was apparent from the decree, and there is no

evidence that any investment income had drastically increased or decreased or that it

would impact the disparity in the parties’ income at the time of the motion. Based on

these factors, the trial court abused its discretion in concluding that there had not been a

change of circumstances.

       {¶ 29} Mr. Stevens also argues that the trial court erred in interpreting the final

judgment and decree of divorce to authorize increases in spousal support, but not

decreases.    This argument relates to the language in the decree that, “in order to

authorize further support” the trial court must find a significant change in employment

status, income levels of the parties, or health of the parties. (Emphasis added.) Mr.

Stevens concludes that “there [was] no purpose of retaining jurisdiction * * * except to

terminate or suspend” spousal support. On the other hand, Mrs. Stevens argues and

the trial court found that “further support” meant additional support, and that the court did

not retain jurisdiction to reduce or eliminate spousal support.

       {¶ 30} The court found that the language in the divorce decree regarding the

circumstances in which the court could “authorize further support” was ambiguous, and it

clarified the provision as follows:

        [T]he Court finds that this language limits the jurisdiction of the Court.

       This limitation on jurisdiction means that in the event of these three
                                                                                          -12-


          circumstances [significant change in employment status, income levels or

          health], the Court is authorized to order additional spousal support.

(Emphasis added.)

          {¶ 31} Whether a divorce decree is ambiguous is a question of law, which an

appellate court reviews de novo; if we agree that there is an ambiguity, the trial court’s

clarification is reviewed for abuse of discretion. Blair v. Blair, 3d Dist. Paulding No. 11-

15-04, 2016-Ohio-256, ¶ 13; see also Kidd v. Alfano, 2016-Ohio-7519, 64 N.E.3d 1052,

¶ 30 (2d Dist.), citing Juhas v. Juhas, 2d Dist. Montgomery No. 26186, 2014-Ohio-5364,

¶ 18. “Ohio law clearly establishes that a judgment may be interpreted if it is ambiguous.

If there is good faith confusion over the interpretation to be given to a particular clause of

a divorce decree, the trial court in enforcing that decree has the power to hear the matter,

clarify the confusion, and resolve the dispute.”       (Citations omitted.)   Quisenberry v.

Quisenberry, 91 Ohio App.3d 341, 348, 632 N.E.2d 916 (2d Dist.1993). Accord Landry v.

Landry, 2017-Ohio-564, 85 N.E.3d 313, ¶ 7 (2d Dist.).

          {¶ 32} As discussed above, the paragraph in question from the divorce decree

states:

          The Court shall retain jurisdiction as to the amount and duration of spousal

          support. However, in order to authorize further support the Court must find

          that there has been a significant change in one or more of the following:

          A) employment status; B) income levels of the parties; or C) health of the

          parties.

          {¶ 33} We do not find this provision to be ambiguous. The first sentence broadly

and clearly retains jurisdiction over spousal support. The second sentence limits the
                                                                                          -13-


situations in which “further” (increased or additional) spousal support will be considered,

but it cannot reasonably be read to detract or limit the broad retention of jurisdiction set

forth in the first sentence. In other words, given the broad retention of jurisdiction in the

first sentence, the statement which restricts the bases for an award of “further” spousal

support cannot reasonably be interpreted to state that only increases in spousal support

would be considered by the court, which is how the court interpreted it. The trial court

erred in interpreting this provision as it did. And in this case, where no “further support”

was sought, the second sentence was inapplicable.

       {¶ 34} In sum, there was no ambiguity in the divorce decree as to the trial court’s

retention of jurisdiction over the issue of spousal support.       Moreover, the evidence

established that the parties’ incomes had substantially changed since the time of the

divorce, to an extent not taken into account at the time of the divorce. Mr. Stevens’s

income exceeded his spousal support obligation by only $11,000 per year, while Mrs.

Stevens had total income of $112,000. Absent a finding that Mr. Stevens retired for the

purpose of defeating his spousal support obligation or other evidence about the income

and expenses of the parties, this result was not equitable or reasonable.

       {¶ 35} Mr. Stevens’s arguments, which we construe as assignments of error, are

sustained.

       Conclusion

       {¶ 36} The judgment of the trial court will be reversed, and the matter will be

remanded for further proceedings.

                                      .............
                                        -14-


WELBAUM, P.J. and TUCKER, J., concur.


Copies mailed to:

Michael B. Miller
Anne Harvey
Hon. Denise L. Cross
