[Cite as Ritzinger v. Ritzinger, 2012-Ohio-5052.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

DEBORAH RITZINGER                                    C.A. No.       26328

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
GREGORY RITZINGER                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2005-08-2904

                                  DECISION AND JOURNAL ENTRY

Dated: October 31, 2012



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}     When Gregory and Deborah Ritzinger divorced, the court ordered Mr. Ritzinger

to pay child and spousal support. After Ms. Ritzinger began living with another man, Mr.

Ritzinger moved the trial court to decrease or terminate his spousal support obligation. Ms.

Ritzinger then moved for an increase in spousal and child support. Following an evidentiary

hearing, a magistrate ordered the spousal support obligation to remain the same, but increased

child support. In ruling on Mr. Ritzinger’s objections, the trial court denied the requested

changes in spousal support and denied the requested increase in the amount of child support. Mr.

Ritzinger appealed. This Court affirms because the trial court properly exercised discretion in

weighing the parties’ increased income disparity more heavily than the contribution to living

expenses that Ms. Ritzinger receives from her boyfriend, by considering the parties’ income at

the time of the hearing as opposed to the date of the initial motion to modify spousal support, and
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by modifying the parties’ obligations regarding uninsured medical expenses for the minor child

without increasing the monthly child support obligation. Further, the trial court undertook an

independent review of the matters to which Mr. Ritzinger had objected and, assuming without

deciding that the trial court’s determination regarding a substantial change in circumstances was

wrong, it was harmless error.

                                        BACKGROUND

       {¶2}    After nearly 25 years of marriage and three children together, the Ritzingers

divorced in June 2007. At that time, the trial court adopted a proposed shared parenting plan

designating Ms. Ritzinger’s residence as the primary residence of the two minor children for

school purposes. It also projected Ms. Ritzinger’s income to be just over $36,500 per year while

it projected Mr. Ritzinger’s income to be $108,000. Mr. Ritzinger was ordered to pay child

support and spousal support. The trial court provided that spousal support would terminate if

Ms. Ritzinger remarried or if either party died. The order did not include a provision that

spousal support would terminate if Ms. Ritzinger cohabitated with another person. The court

reserved jurisdiction to modify spousal support.

       {¶3}    In August 2009, Mr. Ritzinger moved the trial court to terminate or modify

spousal support based on a change in circumstances. Mr. Ritzinger argued that, because Ms.

Ritzinger had begun to share household expenses with a live-in boyfriend, the spousal support

order should be decreased or terminated. Ms. Ritzinger opposed the motion and moved for an

increase in both child and spousal support. A magistrate held evidentiary hearings in March,

May, and June 2010 before filing a decision on July 1, 2010. The magistrate denied the motions

to modify spousal support, but recommended an increase in child support. Mr. Ritzinger filed

objections to the magistrate’s decision. The trial court entered judgment on those objections on
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February 14, 2012. It determined that a substantial increase in Mr. Ritzinger’s income created a

substantial change in circumstances, but further determined that, because Ms. Ritzinger and

Brian Yelling had already formed a domestic partnership at the time the divorce was granted, her

cohabitation with him was not a substantial change in circumstances. The trial court ordered no

change in spousal support or the monthly obligation for child support, but awarded Mr. Ritzinger

the tax exemption for the only remaining minor child and ordered him to pay 70% of the child’s

uninsured medical expenses.

                               CHANGE IN CIRCUMSTANCES

       {¶4}    Mr. Ritzinger’s second and third assignments of error are that the trial court

incorrectly determined that there was no change in circumstances because Ms. Ritzinger had

established a domestic partnership with Mr. Yelling by the time the divorce decree was issued.

Although the trial court found a significant change in circumstances based on other evidence,

Mr. Ritzinger has argued that the trial court incorrectly determined that Ms. Ritzinger’s

cohabitation with Mr. Yelling was not a substantial change in circumstances not contemplated at

the time of the divorce.

       {¶5}    Modification of spousal support “requires a two-step analysis[.]” Tufts v. Tufts,

9th Dist. No. 24871, 2010-Ohio-641, ¶ 8 (citing Malizia v. Malizia, 9th Dist. No. 22565, 2005-

Ohio-5186, ¶ 8). “The first step is jurisdictional and requires the trial court to determine whether

the original divorce decree provided continuing jurisdiction to modify the spousal support award,

and if so, whether the circumstances of either party have changed.” Id. (citing Malizia, 2005-

Ohio-5186, at ¶ 8; R.C. 3105.18(E)). “[T]he Ohio Supreme Court has clarified that ‘[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
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substantial change in circumstances has occurred and (2) that the change was not contemplated

at the time of the original decree.’” Id. (quoting Mandelbaum v. Mandelbaum, 121 Ohio St. 3d

433, 2009-Ohio-1222, paragraph two of the syllabus). Once jurisdiction is established, the

second step of the analysis requires the trial court to consider the factors set forth in Section

3105.18(C)(1) of the Ohio Revised Code to determine whether the existing support order should

be modified in light of the change in circumstances. Id.

       {¶6}    In this case, the trial court determined that it had jurisdiction to consider a

modification of the spousal support order because there was “at least one substantial change of

circumstance not contemplated at the time of the divorce[.]” That is, the trial court determined

that Mr. Ritzinger’s annual income had increased by almost $20,000. The court also determined

that Ms. Ritzinger’s income had decreased by the same amount “[o]ver the pendency of the

motions to modify[.]” The court determined that Ms. Ritzinger’s cohabitation with Mr. Yelling

did not constitute a substantial change in circumstances not contemplated at the time of the

divorce because Ms. Ritzinger had already established a “domestic partnership” with Mr. Yelling

by the time the trial court issued the divorce decree.

       {¶7}    Mr. Ritzinger has not argued that the trial court incorrectly determined that it had

jurisdiction to modify spousal support. Nor has he argued that the trial court incorrectly found

an increase of $40,000 in the income disparity between the parties or that the trial court

incorrectly found that the increased disparity was a substantial change not contemplated at the

time of the divorce. His argument is that the trial court should have determined that Ms.

Ritzinger’s cohabitation with Mr. Yelling was a change in circumstances. Assuming that the

trial court incorrectly determined that Ms. Ritzinger’s cohabitation was not a substantial change

in circumstances not contemplated at the time of the divorce, Mr. Ritzinger has not explained
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how the error affected his substantial rights. The trial court determined that it had jurisdiction to

consider the parties’ competing motions to modify the spousal support order and, in analyzing

whether to modify the obligation, took into consideration the financial benefits Ms. Ritzinger

receives by sharing household expenses with Mr. Yelling. This Court must “disregard any error

or defect in the proceeding which does not affect the substantial rights of the parties.” Civ. R.

61. Mr. Ritzinger’s second and third assignments of error are overruled.

                                      INCOME EVIDENCE

       {¶8}    Mr. Ritzinger’s fourth assignment of error is that the trial court incorrectly

considered the parties’ income at the time of the hearing as opposed to the date he moved the

trial court to modify spousal support. His argument is focused on excluding from the court’s

consideration events that affected Ms. Ritzinger’s income that occurred while his motion to

reduce or terminate spousal support was pending.

       {¶9}    On August 4, 2009, Mr. Ritzinger moved the trial court to terminate or modify

spousal support, arguing that Ms. Ritzinger was cohabitating with a man to whom she may be

married and her income had increased since the divorce decree was issued. On September 16,

2009, Ms. Ritzinger moved the trial court to increase the amount of both spousal and child

support and to find Mr. Ritzinger in contempt for failure to pay uninsured medical expenses. On

November 25, 2009, Ms. Ritzinger filed a supplemental motion to increase spousal support

because she had lost two part-time jobs: one via lay off and the other by losing an election. On

December 1, 2009, and May 13, 2010, Ms. Ritzinger again moved to modify spousal support.

       {¶10} Mr. Ritzinger has argued that the trial court should have considered the evidence

relevant to the statutory factors for modification of spousal support as of August 2009, when he

moved to modify spousal support, as opposed to the conditions that prevailed after Ms. Ritzinger
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lost the election in November 2009 and was laid off from various part-time jobs in late 2009 and

early 2010. He has cited Berthelot v. Berthelot, 154 Ohio App. 3d 101, 2003-Ohio-4519, ¶ 10

(9th Dist.), for the proposition that a trial court is limited to determining child support based on

the circumstances existing at the time motions to modify are filed. This Court’s statement to that

effect in Berthelot was based on an interpretation of a statute that applied to calculation of child

support not spousal support. See R.C. 3113.21.5, repealed. Further, Berthelot does not stand for

the proposition that the evidence should be analyzed in terms of the first motion to modify as

opposed to the circumstances prevailing at the time that subsequent motions to modify are filed.

Mr. Ritzinger moved to modify spousal support in August 2009, but Ms. Ritzinger moved to

modify it as late as May 2010, after she had lost each of the part-time jobs she had held when

Mr. Ritzinger moved to modify and another job she had held after that time.

       {¶11} Mr. Ritzinger cited Mustard v. Mustard, 12th Dist. Nos. CA2009-06-078,

CA2009-09-118, 2010-Ohio-2175, ¶ 3, for the proposition that a trial court normally makes a

spousal support modification retroactive to the date of the motion, implying that, for that reason,

the court should not consider any circumstances occurring after the motion is filed. Although

retroactive modification of spousal support “is the better practice in most cases[,]” it is not a

requirement. Davis v. Davis, 9th Dist. No. 10CA0018, 2011-Ohio-2322, ¶ 24 (quoting Bowen v.

Bowen, 132 Ohio App. 3d 616, 640 (9th Dist. 1999)). In this case, the trial court denied both

parties’ motions for modification of spousal support after analyzing the statutory factors in light

of the fact that Mr. Ritzinger’s income had substantially increased and Ms. Ritzinger’s income

had substantially decreased since the divorce decree was issued. Ms. Ritzinger filed motions to

modify spousal support after losing each of the two part-time jobs she had in August 2009 when

Mr. Ritzinger filed his motion to modify, and again after she lost another part-time job that she
                                                 7


had not started until January 2010. By the time of the final day of hearing on the motions, Ms.

Ritzinger had obtained a new part-time job, and the trial court considered her income from that

new position and her ability to generate income when analyzing the statutory factors for

modification of spousal support. The trial court properly exercised discretion in this matter by

considering the evidence of circumstances that developed after Mr. Ritzinger moved for

modification of spousal support. Mr. Ritzinger’s fourth assignment of error is overruled.

                          MODIFICATION OF SPOUSAL SUPPORT

       {¶12} Mr. Ritzinger’s first assignment of error is that the trial court incorrectly failed to

reduce his spousal support obligation in light of evidence that Ms. Ritzinger’s financial condition

had changed significantly since she began living with her boyfriend. Mr. Ritzinger has argued

that it is inequitable for spousal support purposes to value Mr. Yelling’s financial contribution to

Ms. Ritzinger’s household at $1880 per year.

       {¶13} Under Section 3105.18(C)(1), “[i]n determining whether spousal support is

appropriate and reasonable, and in determining the nature, amount, and terms of payment, and

duration of spousal support, . . . the court shall consider all of the [14] factors [listed in the

statute].” The list of factors includes each party’s income from all sources, relative earning

abilities, relative extent of education, and “[a]ny other factor that the court expressly finds to be

relevant and equitable.” R.C. 3105.18(C)(1)(a), (b), (h), (n).

       {¶14} According to the divorce decree, if Ms. Ritzinger legally marries someone else,

Mr. Ritzinger’s spousal support order will terminate. Ms. Ritzinger testified that, although she

had not married Mr. Yelling, they live together and share household expenses. Although Mr.

Ritzinger attempted to prove that Ms. Ritzinger had married Mr. Yelling, the trial court

determined that without evidence of a marriage license and legal ceremony, he failed to do so.
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Unlike with the child support statute, a trial court considering a modification of spousal support

is not directed to consider “[b]enefits that either [party] receives from . . . sharing living expenses

with another person.”      R.C. 3119.23(H); compare R.C. 3105.18(C).            For spousal support

purposes, a court is directed to consider “[a]ny other factor” that it “expressly finds to be relevant

and equitable.” R.C. 3105.18(C)(1)(n).

       {¶15} In contemplating the parties’ motions to modify the spousal support order, the

trial court considered the benefit Ms. Ritzinger receives from sharing household expenses with

Mr. Yelling. It addressed each of the 14 statutory factors for modification of spousal support in

its entry. In regard to Section 3105.18(C)(1)(n), directing the court to consider “[a]ny other

factor,” the court wrote that “[Ms. Ritzinger] has contribution for her living expenses from Brian

Yelling.” In regard to the spousal support issue, the trial court did not assign a number to Mr.

Yelling’s contribution, but did note that Ms. Ritzinger testified that she pays two-thirds of the

household expenses because they live with her two sons. The court also noted that Mr. Ritzinger

earns $127,000 annually while Ms. Ritzinger earns $10,400, but is “capable of earning at least

$15,184.00 per year.” In comparison, at the time of the divorce decree, Mr. Ritzinger made

$108,000 annually and Ms. Ritzinger made over $36,500. The trial court determined that the

magistrate’s decision to deny both the requested increase and decrease in spousal support was

appropriate “[g]iven the increase in [Mr. Ritzinger’s] income, the decrease in [Ms. Ritzinger’s]

income, and the contribution that [Ms. Ritzinger] receives toward living expenses from her

paramour[.]”     The trial court considered each of the 14 factors identified in Section

3105.18(C)(1) of the Ohio Revised Code. It properly exercised discretion in weighing the

parties’ widening income disparity more heavily than the contribution to living expenses that Ms.
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Ritzinger receives from her boyfriend. See Tufts v. Tufts, 9th Dist. No. 26133, 2012-Ohio-3445,

¶ 7. Mr. Ritzinger’s first assignment of error is overruled.

                            MODIFICATION OF CHILD SUPPORT

       {¶16} Mr. Ritzinger’s sixth assignment of error is that the trial court incorrectly

modified the parties’ responsibilities for uninsured healthcare expenses for their minor child

without modifying child support. Although the trial court did not increase Mr. Ritzinger’s

monthly child support obligation as Ms. Ritzinger had requested, it reallocated the uninsured

healthcare expenses for their minor child from 50% to each party to 70% to Mr. Ritzinger and

30% to Ms. Ritzinger. The court also ordered that Mr. Ritzinger would be permitted to claim the

tax dependency exemption for the sole remaining minor child as opposed to alternating years

with Ms. Ritzinger as the original decree had provided.

       {¶17} Mr. Ritzinger bears the burden on appeal of developing his arguments and citing

appropriate authority for his propositions of law. App. R. 16(A)(7). He has not developed any

argument in support of this assignment of error nor has he cited any authority for the proposition

that the trial court erred. He has not offered any argument to support the proposition that a trial

court cannot correctly modify the parties’ responsibilities for a minor child’s uninsured

healthcare expenses without modifying the amount of the child support obligation. He has made

several unsupported statements about the process the trial court used to reach its decision, but

none of them, even if proven, support the proposition stated in his assignment of error.

       {¶18} The trial court’s analysis revealed that the child support worksheet dictated an

increase in the child support obligation, but the trial court analyzed the statutory factors and

granted a downward deviation based on the benefits Ms. Ritzinger receives by sharing living

expenses with her boyfriend. On that basis, the trial court denied Ms. Ritzinger’s request for an
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increase in the monthly child support obligation, but the court did reallocate the uninsured

medical expenses and the tax benefit for the minor child. The trial court properly exercised

discretion by modifying the obligations for uninsured medical expenses for the minor child

without increasing the monthly child support obligation. Mr. Ritzinger’s sixth assignment of

error is overruled.

                           TRIAL COURT’S STANDARD OF REVIEW

         {¶19} Mr. Ritzinger’s fifth assignment of error is that the trial court incorrectly deferred

to the magistrate’s findings of fact and conclusions of law. Under Rule 53(D)(4)(d) of the Ohio

Rules of Civil Procedure, “[i]f one or more objections to a magistrate’s decision are timely filed,

the court shall rule on those objections. In ruling on objections, the court shall undertake an

independent review as to the objected matters to ascertain that the magistrate has properly

determined the factual issues and appropriately applied the law.” “In the course of this review, a

trial court should not adopt the magistrate’s report as a matter of course, but should ‘carefully

examine’ the report and the evidence before the magistrate.” Smith v. McLaughlin, 9th Dist. No.

24890, 2010-Ohio-2739, ¶ 63 (quoting Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M,

2009-Ohio-3139, at ¶ 14).

         {¶20} Mr. Ritzinger has argued that the trial court failed to undertake its own

independent review of the matters to which he had objected because the trial court wrote that it

had determined that “findings of fact one through nine . . . are all supported by the totality of the

record, and constitute neither an error of law nor an abuse of discretion.” The trial court’s

incorrect use of the term “abuse of discretion” does not determine whether it incorrectly deferred

to the magistrate as opposed to conducting its own independent review as required by the civil

rules.
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       {¶21} In this case, the trial court quoted 12 findings from the magistrate’s decision

before discussing them. The court determined that, based on the record, most of the findings of

fact were correct, but determined that the magistrate had incorrectly stated Mr. Ritzinger’s cost

for providing health care for the minor child. It then reviewed the basis for Mr. Ritzinger’s

original motion to modify spousal support and the evidence regarding whether Ms. Ritzinger is

married or cohabitating with Mr. Yelling. The court then explained its basis for determining that

it had jurisdiction to consider the pending motions to modify spousal and child support.

       {¶22} After a thorough review of the evidence relevant to the factors found in Section

3105.18(C)(1) of the Ohio Revised Code, the trial court determined that it agreed with the

magistrate’s decision to deny both the requested increase and decrease in spousal support. The

court went on to explain why the magistrate’s decision to increase child support was incorrect.

In addition to the error the court found with respect to the cost of providing health insurance, the

court also determined that Ms. Ritzinger was voluntarily under-employed and imputed to her the

income of a full-time minimum wage position. Thus, despite the trial court’s incorrect reference

to an “abuse of discretion,” the trial court’s entry demonstrates that the court undertook an

independent review of the matters to which Mr. Ritzinger had objected. His fifth assignment of

error is overruled.

                                         CONCLUSION

       {¶23} Mr. Ritzinger’s first assignment of error is overruled because the trial court

properly exercised discretion in weighing the parties’ income disparity more heavily than the

contribution to living expenses that Ms. Ritzinger receives from her boyfriend. Mr. Ritzinger’s

second and third assignments of error are overruled because, assuming that the trial court

incorrectly determined that Ms. Ritzinger’s cohabitation with Mr. Yelling is not a substantial
                                                12


change in circumstances, the error was harmless. His fourth assignment of error is overruled

because the trial court properly exercised discretion by considering the parties’ income at the

time of the hearing as opposed to on the date Mr. Ritzinger moved to modify spousal support.

His fifth assignment of error is overruled because, despite the trial court’s incorrect reference to

an “abuse of discretion,” the trial court’s entry demonstrates that it undertook an independent

review of the matters to which Mr. Ritzinger objected. His sixth assignment of error is overruled

because the trial court properly exercised discretion by modifying the obligations and benefits

regarding uninsured medical expenses for the minor child without increasing the monthly child

support obligation. The judgment of the Domestic Relations Division of the Summit County

Common Pleas Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                             CLAIR E. DICKINSON
                                             FOR THE COURT


WHITMORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MELISSA GRAHAM-HURD, Attorney at Law, for Appellant.

RANDAL A. LOWRY, Attorney at Law, for Appellee.
