[Cite as Cook v. Cook, 2020-Ohio-225.]


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

THERESA JO COOK                                       C.A. No.      18CA0042-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID ERIC COOK                                       COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   12DR0629

                                DECISION AND JOURNAL ENTRY

Dated: January 27, 2020



        CARR, Judge.

        {¶1}    Appellant David Eric Cook appeals from the judgment of the Medina County

Court of Common Pleas, Domestic Relations Division. This Court affirms in part, reverses in

part, and remands this matter for further proceedings consistent with this opinion.

                                                 I.

        {¶2}    Mr. Cook and Appellee Theresa Jo Cook married in November 1994 and two

children were born of the marriage. In December 2012, Ms. Cook filed a complaint for divorce

and Mr. Cook filed a counterclaim for divorce. On February 26, 2014, the parties were granted

an uncontested divorce by an agreed judgment entry, which incorporated a shared parenting plan.

        {¶3}    With respect to spousal support, the decree provided as follows:

        IT IS FURTHER ORDERED, ADJUDGED AND DECREED that commencing
        January 1, 2014, [Mr. Cook] shall pay to [Ms. Cook] the sum of $800.00 per
        month plus 2% processing fee, as and for spousal support for a period of 72
        consecutive months, or until the death of either party, [Ms. Cook’s] remarriage, or
        [Ms. Cook’s] cohabitation with an unrelated person t[a]ntamount to marriage,
        whichever occurs first. The Court shall retain jurisdiction to modify spousal
                                                  2


       support as to amount only upon a showing of a substantial change in financial
       circumstances.

       Furthermore, the parties stipulated and agreed that any modification of child
       support as set forth herein during the period of time that spousal support is due
       and owing as outlined above, shall necessitate a modification of spousal support
       to result in the same, net after-tax effect as the combined child and spousal
       support orders as specified herein.

(Emphasis sic.)

       {¶4}    The judgment entry stated that, with respect to child support, Mr. Cook was

designated as the obligor and Ms. Cook was designated as the obligee. The entry provided that

Mr. Cook would pay $9,600.00 a year or $800.00 per month in child support plus a 2%

processing charge. The child support worksheet listed Mr. Cook’s income as $120,000.00 and

Ms. Cook’s income as $60,000.00. According to the judgment entry, the child support amount

“represents a deviation downward in order to accommodate the payment of spousal support and

the allocation of parenting time.”

       {¶5}    In August 2016, the parties’ eldest child emancipated and a hearing was

scheduled to address the termination of child support with respect to the eldest child and to

recalculate child support as to the remaining minor child. In September 2016, Ms. Cook filed a

motion to modify spousal support based upon the modification of child support.

       {¶6}    The parties agreed to submit written stipulations and briefs in lieu of a hearing.

The parties stipulated that the child support guidelines “attached to the Decree of Divorce

contain a 14.3% deviation downward in the child support amount and the Guidelines are capped

at $150,000 combined income.” In addition, the parties stipulated that Mr. Cook’s income was

$145,717.00 and Ms. Cook’s income was $62,312.00. The marginal cost of health insurance for

the minor child was stipulated to be $2,616.12.
                                                3


       {¶7}    In their briefing to the trial court, the parties disagreed over what the following

language in the decree meant:       “Furthermore, the parties stipulated and agreed that any

modification of child support as set forth herein during the period of time that spousal support is

due and owing as outlined above, shall necessitate a modification of spousal support to result in

the same, net after-tax effect as the combined child and spousal support orders as specified

herein.” Both maintained that the language was unambiguous, but nonetheless disagreed over its

meaning.

       {¶8}    Ms. Cook maintained that the “same, net after-tax effect as the combined child

and spousal support orders as specified herein” should result in “each of the parties having the

same percentage of after tax funds as in the original Divorce Decree.” Based upon “FinPlan

Split Screen Summary Analysis Sheets[,]” which were attached to Ms. Cook’s briefing, she

asserted that child support should be $658.66 per month and spousal support should be $1,879.16

per month.

       {¶9}    Mr. Cook disagreed that a modification of either child support or spousal support

was warranted. With respect to spousal support, he maintained that there had not been a

substantial change of circumstances. Assuming a substantial change was demonstrated, Mr.

Cook argued that the language in the decree meant that, because of the different tax

consequences of child support as compared to spousal support, if one of the two was increased or

decreased, the other must also increase or decrease to result in “the same ‘net effect’ of

$1,600.00.” To illustrate Mr. Cook’s position, he attached two documents from the “FinPlan”

program. The first used child and spousal support figures of $9,600.00 per year but did not use

the original income figures; instead it used the new stipulated figures. Using those figures, the

document indicated that Mr. Cook had $82,597.00 in after tax cash for living expenses and Ms.
                                                4


Cook had $66,695.00 in after tax cash for living expenses. The second document utilized the

same income figures but reflected the lowered child support requested by Ms. Cook and a

spousal support figure of $12,100.00. Using those numbers, the documents reflected that Ms.

Cook and Mr. Cook would have nearly the same amount of after tax cash for living expenses as

the first document. Thus, Mr. Cook maintained that the much higher figure of spousal support

requested by Ms. Cook was not warranted.

       {¶10} The magistrate issued a decision concluding that Ms. Cook’s interpretation of the

decree was the only reasonable interpretation and the language was not ambiguous.             The

magistrate found that there was a change in circumstances warranting the modification of child

support and that that modification required that spousal support also be modified.            The

magistrate ordered Mr. Cook to pay $665.50 per month in child support and $1,800.00 per month

in spousal support.

       {¶11} Mr. Cook filed objections to the magistrate’s decision arguing that the magistrate

erred in modifying both child and spousal support. With respect to spousal support, Mr. Cook

asserted that the magistrate erred in modifying spousal support without finding a substantial

change in circumstances had occurred and also challenged the magistrate’s interpretation of the

language in the decree.

       {¶12} The trial court held a hearing on the objections and thereafter sustained in part and

overruled in part Mr. Cook’s objections. The trial court adopted Ms. Cook’s interpretation of the

decree but concluded that the magistrate’s calculations were slightly off, resulting in a child

support award of $668.67 per month and a spousal support award of $1,966.67 per month. The

trial court also found that there had been a substantial change in circumstances justifying a

modification of spousal support.
                                                 5


       {¶13} Mr. Cook has appealed, raising two assignments of error, which will be addressed

out of sequence to facilitate our discussion.

                                                II.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       MODIFYING THE SPOUSAL SUPPORT ORDER[.]

       {¶14} Mr. Cook, in his second assignment of error, challenges the trial court’s

jurisdiction to modify spousal support. First, he argues that the trial court erred in basing its

modification of spousal support on an unauthorized modification of child support. Second, he

asserts that the trial court erred in concluding there was a substantial change of circumstances

and asserts that Ms. Cook failed to demonstrate that that change made the existing award no

longer reasonable and appropriate.

       {¶15} In addition, Mr. Cook asserts that, even assuming there was jurisdiction to modify

spousal support, the trial court failed to consider the factors in R.C. 3105.18(C).

       {¶16} “Generally, this Court reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion.” (Internal quotations and citations omitted.) Condon v.

Rockich, 9th Dist. Summit No. 28479, 2018-Ohio-71, ¶ 10. An abuse of discretion implies that

the trial court’s attitude was unreasonable, arbitrary, or unconscionable.            Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). “In so doing, we consider the trial court’s action with

reference to the nature of the underlying matter.” (Internal quotations and citations omitted.)

Condon at ¶ 10. “This Court reviews the domestic relations court’s decision regarding the

modification of spousal support for an abuse of discretion.” Wuscher v. Wuscher, 9th Dist.

Summit No. 26924, 2014-Ohio-377, ¶ 9. In order for a trial court to have jurisdiction to modify

an award of spousal support following a divorce, “there must be a reservation of jurisdiction to
                                                  6


modify the award in the divorce decree.” Daubenmire v. Daubenmire, 9th Dist. Medina No.

18CA0045-M, 2019-Ohio-2372, ¶ 9. The moving party must also demonstrate (1) a substantial

change in circumstances that renders the award no longer reasonable and appropriate; and (2)

that neither the trial court nor the parties took into account the change “as a basis for the existing

award when it was established or last modified, whether or not the change in circumstances was

foreseeable.” R.C. 3105.18(F)(1).1        In addition, R.C. 3105.18(F)(1) is subject to R.C.

3105.18(F)(2), which states that “[i]n 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 jurisdiction of the court as contained in the original decree.”

       {¶17} There is no dispute that the decree contains a reservation of jurisdiction;

specifically, the decree states that “[t]he Court shall retain jurisdiction to modify spousal support

as to amount only upon a showing of a substantial change in financial circumstances.” In

addition, the trial court found that a substantial change in circumstances occurred. While the

trial court’s word choice in articulating its rationale for doing so was less than ideal, it appears

that the trial court did so based upon the eldest child emancipation and the change in the parties’

incomes. We conclude that the trial court did not abuse its discretion in concluding that the

parties’ change in income constituted a substantial change of circumstances. It does not appear

that Mr. Cook argues that R.C. 3105.18(F)(1)(b) was not satisfied with respect to the change in

income; thus, that issue will not be addressed in this appeal. See App.R. 16(A)(7).


       1
         Language in the uncodified portion of 2011 Am.H.B. No. 461, Section 4 indicates an
intent by the General Assembly to abrogate Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433,
2009-Ohio-1222. See Bixler v. Bixler, 12th Dist. Clermont No. CA2016-12-081, 2017-Ohio-
7022, ¶ 23. Accordingly, this Court will rely on the language in the statute in analyzing whether
modification of the spousal support award was authorized.
                                                 7


       {¶18} Here Ms. Cook’s income went from $60,000.00 in 2014 to $62,312.00 at the time

the matter was decided.       Whereas Mr. Cook’s income increased from $120,000.00 to

$145,717.00 in the same period. Though Ms. Cook’s increase in income was slight, Mr. Cook’s

income increased over 20% and the gap between Ms. Cook’s income and Mr. Cook’s income

increased from $60,000.00 to $83,405.00. We cannot say that the trial court abused its discretion

in concluding that Mr. Cook’s change in income amounted to a substantial, i.e. significant,

change of circumstances, particularly in light of the short amount of time that passed between the

decree and the modification. See Wuscher, 2015-Ohio-5377, ¶ 16 (“‘Substantial’ in the context

of a spousal support modification proceeding means drastic, material, or significant[.]”) (Internal

quotations and citations omitted.).

       {¶19} To the extent Mr. Cook argues that Ms. Cook failed to demonstrate that the

original award was no longer appropriate and reasonable, Mr. Cook did not object to the

magistrate’s decision on that basis and thus has forfeited all but plain error. See Daubenmire,

2019-Ohio-2372, at ¶ 16. As Mr. Cook has not developed a plain error argument, this Court is

not inclined to create one for him. See id.

       {¶20} As to Mr. Cook’s argument that the trial court erred in basing its modification of

spousal support on a modification of child support when the modification of child support was

not permitted, we note that we have concluded that the trial court had jurisdiction to modify

spousal support based upon a substantial change in financial circumstances as stated in the

foregoing discussion. Thus, any error in the trial court’s statements which Mr. Cook now

challenges would be harmless. See Civ.R. 61. Further, Mr. Cook has not separately challenged

the propriety of the award of child support and we cannot conclude that this method is an

appropriate way to do so. See App.R. 16(A)(7).
                                                  8


       {¶21} With respect to Mr. Cook’s argument that the trial court failed to consider the

factors in R.C. 3105.18(C) in modifying the spousal support award, given our resolution of Mr.

Cook’s first assignment of error, addressed below, we conclude that this argument is not properly

before us at this time, and we decline to address it.

       {¶22} Mr. Cook’s second assignment of error is overruled in part and the remaining

portion is not properly before us at this time.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       MODIFYING THE SUPPORT AWARD TO EXCEED THE NET AFTER-TAX
       EFFECT OF $1,600.00 PER MONTH.

       {¶23} Mr. Cook argues in his first assignment of error that the trial court erred in its

interpretation of the decree. Because we conclude that the language is ambiguous, we sustain

Mr. Cook’s assignment of error and remand the matter for the trial court to hear the matter and

interpret the ambiguity.

       {¶24} As noted above, while both parties maintain the language is unambiguous, they

disagree as to the meaning of the following language: “Furthermore, the parties stipulated and

agreed that any modification of child support as set forth herein during the period of time that

spousal support is due and owing as outlined above, shall necessitate a modification of spousal

support to result in the same, net after-tax effect as the combined child and spousal support

orders as specified herein.”

       {¶25} “The initial determination of whether a decree is ambiguous on its face is a

question of law that must be reviewed de novo.” Galvin v. Adkins, 9th Dist. Lorain No.

08CA009322, 2008-Ohio-3202, ¶ 7. “Under Ohio law a judgment, including a divorce decree,

may be interpreted if it is ambiguous.” (Internal quotations and citations omitted.) Id. “If there
                                                 9


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.” (Internal quotations and citations omitted.)         Id.   This

includes the ability of the trial court to take testimony concerning the intent of the parties and to

consider parol evidence and the equities. See Oberst v. Oberst, 5th Dist. Fairfield No. 08-CA-34,

2009-Ohio-13, ¶ 21-22. “[A]mbiguity [i]s the condition of admitting of two or more meanings,

of being understood in more than one way, or of referring to two or more things at the same

time[.]” (Internal quotations and citations omitted.) Galvin at ¶ 7.

       {¶26} We note that, despite the fact that both parties relied upon “FinPlan” documents in

support of their relative positions, no “FinPlan” analysis was attached to the decree or made part

of the record at the time the original decree was filed. Moreover, the language in the decree

itself does not refer to using or relying upon “FinPlan” analysis.

       {¶27} Because we determine there is at least more than one reasonable interpretation of

the language at issue, we conclude it is ambiguous. See id. The sentence at issue states:

“Furthermore, the parties stipulated and agreed that any modification of child support as set forth

herein during the period of time that spousal support is due and owing as outlined above, shall

necessitate a modification of spousal support to result in the same, net after-tax effect as the

combined child and spousal support orders as specified herein.” It is not clear what is meant by

the phrase “same, net after-tax effect as the combined child and spousal support orders as

specified herein[.]” The “same, net after-tax effect” could mean that, post-modification, the

parties should have the same percentages of after-tax cash available to them as were present

under the circumstances of the original award. The “effect” would thus be the percentage of the

incomes. This is essentially Ms. Cook’s position and the approach taken by the trial court.
                                                10


       {¶28} However, the phrase “same, net after-tax effect as the combined child and spousal

support orders as specified herein” could also have a more narrow meaning focused on how the

tax consequences of the original award of spousal and child support altered the amount of after-

tax cash available to each party. Any modification would therefore seek to ensure that that effect

is maintained in the new award. It is well settled that child and spousal support have different

tax consequences. See Bryant v. Bryant, 5th Dist. Coshocton Nos. 97CA8, 98CA1, 1999 WL

98110, *8 (Jan. 28, 1999). (“If the award is characterized as child support, the custodial parent

receives the income free of any tax liability, while alimony or spousal support is taxed as income

to the recipient.”). Here, the focus would not be on maintaining the same percentages of after tax

cash for living expenses as in the original decree, but on ensuring that any change in the child

support award would result in an appropriate offset in the spousal support award in order to

maintain the same after-tax effect that the $9,600.00 per year child support award and

$9,6000.00 per year spousal support award had on each of the parties’ cash available after taxes.

       {¶29} Because we conclude that the language at issue is ambiguous and the trial court

found otherwise, we must reverse and remand this matter for the trial court to hear additional

evidence and resolve the ambiguity. As the amount of child support has not been challenged on

appeal, that amount is not subject to revision. Mr. Cook’s first assignment of error is sustained

to the extent discussed above.

                                                III.

       {¶30} Mr. Cook’s second assignment of error is overruled in part and the remaining

portion is not properly before us at this time. Mr. Cook’s first assignment of error is sustained to

the extent discussed above. The judgment of the Medina County Court of Common Pleas,
                                                11


Domestic Relations Division, is affirmed in part, reversed in part, and the matter is remanded for

further proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       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 Medina, 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.

       Costs taxed equally to both parties.



                                                     DONNA J. CARR
                                                     FOR THE COURT


TEODOSIO, P. J.
HENSAL, J.
CONCUR.

APPEARANCES:

ADAM J. THURMAN, Attorney at Law, for Appellant.

STEVE C. BAILEY, Attorney at Law, for Appellee.
