[Cite as Cummings v. Cummings, 2015-Ohio-3686.]




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

JOSEPHINE T. CUMMINGS                             :
                                                  :
       Plaintiff-Appellee/                        :   C.A. CASE NO. 26594
       Cross-Appellant                            :
                                                  :   T.C. NO. 05DR696
v.                                                :
                                                  :   (Civil appeal from Common
RANDALL M. CUMMINGS                               :    Pleas Court, Domestic Relations)
                                                  :
       Defendant-Appellant/                       :
       Cross-Appellee                             :
                                                  :

                                           ...........

                                           OPINION

            Rendered on the ___11th___ day of ____September_____, 2015.

                                           ...........

CHARLES D. LOWE, Atty, Reg. No. 0033209, 8087 Washington Village Drive, Suite 102,
Dayton, Ohio 45458
      Attorney for Plaintiff-Appellee/Cross-Appellant

CRAIG M. SAMS, Atty. Reg. No. 0089716, 130 W. Second Street, Suite 840, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant/Cross-Appellee

                                         .............

DONOVAN, J.

       {¶ 1} Defendant-appellant/cross-appellee Randall M. Cummings appeals the

judgment of the Montgomery County Court of Common Pleas, Domestic Relations

Division, adopting in part and modifying in part the magistrate’s decision awarding
                                                                                      -2-
plaintiff-appellee/cross-appellant Josephine T. Cummings spousal support in the amount

of $2,200.00 per month, retroactive to February 6, 2014, the date on which Josephine

filed her motion for an award of spousal support. The trial court ordered Randall to pay

an additional $300.00 per month for the spousal support arrearage dating back to

February 6, 2014. Further, the trial court ordered Randall to pay $850.00 in spousal

support for the month of January of 2014. Finally, the trial court ordered Randall to pay

$350.00 of Josephine’s attorney fees. Randall filed a timely notice of appeal with this

Court on February 23, 2015. Josephine filed a timely notice of cross-appeal with this

Court on March 3, 2015.

      {¶ 2} Randall and Josephine were married on July 1, 1977, in Olongapo,

Philippines. The parties had three children as a result of the marriage. The parties

separated in late April of 2005. On May 25, 2005, Josephine filed a complaint for

divorce.   At the time that the complaint was filed, Randall was unemployed.         On

November 25, 2005, the parties agreed that Randall would pay a temporary spousal

award of approximately $850.00 per month until he was able to find employment.

Thereafter, the award could be modified. The record established that Randall made the

temporary spousal support payments directly to Josephine from January of 2006 through

December of 2013 which totaled approximately $72,000.00.

      {¶ 3} On January 26, 2007, a Final Judgment and Decree of Divorce was filed,

thereby terminating the marriage. At the time that the parties divorced, all the children

were emancipated. The divorce decree contained an equitable distribution of marital

assets whereby Josephine received approximately $30,000.00 from the sale of the

marital residence, as well as retirement accounts totaling approximately $117,000.00.
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Significantly, the divorce decree did not contain a spousal support award because

Randall was unemployed when the parties divorced. Neither party appealed the terms

of the divorce decree.

       {¶ 4} With respect to spousal support, the divorce decree stated the following:

              Spousal Support. The Court shall retain jurisdiction over the issue

       of the amount of spousal support, but not the term, until earlier of (1) death

       of either party; (2) the remarriage of the Wife or (3) the Wife attaining the

       age of sixty-five.

              Wife has been advised that Husband has no life insurance.

              There is no current order of spousal support, solely as a result of

       Husband’s current temporary unemployment.

              A Seek Work Order shall issue. Counsel for each party shall initiate

       status checks on Husband’s employment status every three months.

       {¶ 5} On February 6, 2014, Josephine filed a motion for an award of spousal

support, a motion to add Wright-Patt Credit Union (WPCU) as a third party, and a motion

for temporary restraining orders regarding Randall’s ability to withdraw funds from his

financial accounts at WPCU. WPCU was subsequently added as a third party, and the

trial court granted the temporary restraining orders.

       {¶ 6} In her motion, Josephine argued that Randall had moved to Minnesota

before the divorce was finalized and was able to secure full-time employment shortly

thereafter which he failed to disclose to the trial court. In fact, employment records

submitted by Randall establish that he earned $50,585.33 in 2007; $74,040.21 in 2008;

$74,169.00 in 2009; $74,837.18 in 2010; $73,789.89 in 2011; $83,769.22 in 2012; and
                                                                                        -4-
$90,337.82 in 2013. Randall never informed the trial court that he secured employment

for purposes of a permanent spousal support award. However, Josephine did not avail

herself of her right to monitor or investigate Randall’s employment status pursuant to the

express language in the final divorce decree. Nevertheless, Randall continued to pay

Josephine $850.00 per month without a court order to do so and Josephine continued to

accept the monthly payment.

      {¶ 7} A hearing on Josephine’s motion for spousal support was scheduled to be

held before the magistrate on May 14, 2014. The magistrate heard testimony from

Randall, Josephine, and one of the parties’ adult daughters, J.C. Following the hearing,

Josephine filed a post-hearing memorandum in which she requested spousal support in

the amount of $1,422.00 per month. On June 13, 2014, the magistrate issued a decision

awarding Josephine $2,200.00 per month in spousal support until she reached the age of

sixty-five. The spousal support award was made retroactive to February 1, 2014. The

magistrate also ordered Randall to pay $500.00 towards any arrearage created by the

spousal support award as well as $350.00 of Josephine’s attorney fees. Both parties

filed objections and supplemental objections to the magistrate’s decision.

      {¶ 8} As previously noted, the trial court sustained in part and modified in part the

decision of the magistrate. In its decision filed on January 27, 2015, the trial court

adopted the magistrate’s award of spousal support to Josephine in the amount of

$2,200.00 per month until she reached the age of sixty-five, retroactive to February 6,

2014. The trial court based the amount of spousal support on Randall’s income in 2013

which totaled $90,337.82. Based on her sporadic employment history, the trial court

imputed income to Josephine in the amount of $16,640.00. The trial court modified the
                                                                                      -5-
monthly payment on the arrearage from $500.00 to $300.00 per month. The trial court

also adopted the magistrate’s order which required Randall to pay $350.00 of

Josephine’s attorney fees.    The trial court also ordered Randall to pay Josephine

spousal support in the amount of $850.00 for the month of January 2014.

      {¶ 9} It is from this judgment that Randal now appeals and Josephine

cross-appeals.

      {¶ 10} Randall’s first assignment of error is as follows:

      {¶ 11} “THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER

APPELLEE’S NEED FOR SPOUSAL SUPPORT.”

      {¶ 12} In his first assignment, Randall contends that the trial court erred when it

failed to consider Josephine’s actual need when it ordered him to pay $2,200.00 per

month in spousal support until she reached the age of sixty-five.

      {¶ 13} Regarding spousal support, we note that “[d]omestic relations courts are

granted broad discretion concerning awards of spousal support, and their orders will not

be disturbed on appeal absent an abuse of discretion.” Perry v. Perry, 2d Dist. Clark No.

07-CA-11, 2008-Ohio-1315, ¶ 5. As the Supreme Court of Ohio determined:

             “Abuse of discretion” has been defined as an attitude that is

      unreasonable, arbitrary or unconscionable. (Internal citation omitted). It

      is to be expected that most instances of abuse of discretion will result in

      decisions that are simply unreasonable, rather than decisions that are

      unconscionable or arbitrary.

             A decision is unreasonable if there is no sound reasoning process

      that would support that decision. It is not enough that the reviewing court,
                                                                                          -6-
       were it deciding the issue de novo, would not have found that reasoning

       process to be persuasive, perhaps in view of countervailing reasoning

       processes that would support a contrary result.

AAAA Enterprises, Inc. v. River Place Community Redevelopment, 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990).

       {¶ 14} In determining whether spousal support is appropriate and reasonable, and

in determining the nature, amount, and terms of payment, and duration of spousal

support, which is payable either in gross or in installments, the court shall consider

fourteen factors expressed in R.C. 3105.18(C)(1)(a)-(n), which governs awards of

spousal support. “In allocating property between the parties to a divorce and in making

an award of sustenance alimony, the trial court must indicate the basis for its award in

sufficient detail to enable a reviewing court to determine that the award is fair, equitable,

and in accordance with the law.” Rief v. Rief, 2d Dist. Miami No. 06-CA-47,

2008-Ohio-266, ¶ 6, citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 97, 518 N.E.2d 1197

(1988).

       {¶ 15} R.C. 3105.18(C)(1) sets forth the following factors for the trial court to

consider:

       (a) The income of the parties, from all sources, including, but not limited to,

       income derived from property divided, disbursed, or distributed under

       section 3105.171 of the Revised Code;

       (b) The relative earning abilities of the parties;

       (c) The ages and the physical, mental, and emotional conditions of the

       parties;
                                                                                             -7-
      (d) The retirement benefits of the parties;

      (e) The duration of the marriage;

      (f) The extent to which it would be inappropriate for a party, because that

      party will be custodian of a minor child of the marriage, to seek employment

      outside the home;

      (g) The standard of living of the parties established during the marriage;

      (h) The relative extent of education of the parties;

      (i) The relative assets and liabilities of the parties, including but not limited to

      any court-ordered payments by the parties;

      (j) The contribution of each party to the education, training, or earning ability

      of the other party, including, but not limited to, any party's contribution to the

      acquisition of a professional degree of the other party;

      (k) The time and expense necessary for the spouse who is seeking spousal

      support to acquire education, training, or job experience so that the spouse

      will be qualified to obtain appropriate employment, provided the education,

      training, or job experience, and employment is, in fact, sought;

      (l) The tax consequences, for each party, of an award of spousal support;

      (m) The lost income production capacity of either party that resulted from

      that party's marital responsibilities;

      (n) Any other factor that the court expressly finds to be relevant and

      equitable.

      {¶ 16} Initially, we note that when the parties divorced, there was no permanent

spousal support order in place because Randall was unemployed. Randall, however,
                                                                                       -8-
continued to pay Josephine $850.00 per month, the amount of the initial temporary

support order, until December of 2013.       In his appellate brief, Randall argues that

Josephine’s motion constituted a request for a modification of an existing spousal support

award.     Randall’s portrayal of Josephine’s motion is incorrect since there was no

permanent spousal support order in place. Josephine’s motion filed on February 6,

2014, sought to create a spousal support order as the final decree did not.

         {¶ 17} Upon review, we conclude that the trial court’s spousal support award of

$2,200.00 per month to Josephine was both reasonable and adequate pursuant to the

factors set forth in R.C. 3105.18(C)(1). The parties were married for approximately thirty

years. At the time Josephine filed the motion for an award of spousal support, she was

sixty-one years old. Josephine testified that she had applied for full-time employment

but was rejected several times. At the time that she filed her motion for spousal support

in 2014, Josephine was earning approximately $11,000 per year working part-time at

Lexis-Nexis.    Because Josephine established no evidence regarding why she was

unable to work full time, the trial court imputed annual income to Josephine in the amount

of $16,640.00 “based upon full-time employment versus part-time employment.”

Conversely, Randall was found to have earned just over $90,000.00 in 2013 alone.

Moreover, Randall’s spousal support obligation will terminate in approximately three-four

years when Josephine turns sixty-five years of age. Thus, the duration of the term of

spousal support is not burdensome.

         {¶ 18} The trial court enjoys broad discretion when considering whether to award

spousal support. The crucial issue is to set a support award that is reasonable and

appropriate. McHenry v. McHenry, 2d Dist. Montgomery No. 20345, 2004-Ohio-4047, ¶
                                                                                            -9-
21. “[W]hile need and ability to pay remain important considerations for determining

what amount of spousal support is reasonable and appropriate, the term ‘need’ is an

elastic concept that differs from case to case, and that encompasses more than just

ensuring that the obligee spouse has the basic necessities of food, clothing, and shelter.”

Billingham v. Billingham, 2d Dist. Montgomery No. 18403, 2001 WL 127764,*4 (February

16, 2001). In light of the duration of the parties’ marriage, the disparity in their respective

incomes, and the short term (approximately three years) of support, we cannot say that

the trial court abused its discretion in finding the amount of Josephine’s spousal support

award to be reasonable and appropriate.

       {¶ 19} Randall’s first assignment of error is overruled.

       {¶ 20} Randall’s second assignment of error is as follows:

       {¶ 21} “THE TRIAL COURT ERRED WHEN IT FAILED TO WEIGH APPELLEE’S

NEED FOR SPOUSAL SUPPORT AGAINST APPELLANT’S ABILITY TO PAY IN

AWARDING SPOUSAL SUPPORT.”

       {¶ 22} In his second assignment, Randall argues that the trial court erred when it

failed to balance Josephine’s need for spousal support with his ability to pay when it

imposed the amount of $2,200.00 per month. Specifically, Randall asserts that the trial

court incorrectly utilized his gross income instead of his net income to determine the

amount of the award of spousal support.

       {¶ 23} Randall asserts that his net monthly income is $3,399.78. Randall also

points out that he puts $900.00 per month into his retirement fund. According to Randall,

his monthly expenses total $2,300.00. Based on these calculations, Randall argues that

the spousal support award of $2,200.00 per month in addition to $300.00 arrearage
                                                                                          -10-
payment exceeds his monthly income by approximately $1,400.00.                Thus Randall

complains that he is burdened with total monthly expenses of $4,800.00 with a net

income of less than $3,400.00.

       {¶ 24} With an annual salary of $90,337.82, Randall’s gross monthly salary is

approximately $7,528.00. In calculating his net income, Randall subtracts the $900.00

he puts into his 401(K) retirement account each pay period. Randall also has twenty-six

pay periods each year, for a total of $23,400.00 he saves for retirement each year. Thus,

Randall could lower his retirement contribution each pay period in order to add additional

income. Moreover, Randall fails to account for the substantial tax break he will receive

by deducting the spousal support he is required to pay. We also note that other than

providing his W-2 tax forms, Randall has failed to attach any documentation which breaks

down his monthly expenses or purports to establish what his monthly expenses total.

Moreover, no evidence, testimonial or otherwise, was adduced at the hearing before the

magistrate which established the amount of Randall’s monthly expenses. As previously

noted, Josephine’s spousal support award will also terminate when she turns sixty-five

years of age, which is in three-four years.

       {¶ 25} As discussed in the first assignment, the trial court considered the factors in

R.C. 3105.18(C)(1) before it found that a spousal support award of $2,200.00 per month

plus $300.00 in arrearage payments, was reasonable and appropriate. Accordingly, we

find that the trial court properly considered Randall’s ability to pay and therefore, did not

abuse its discretion when it formulated his spousal support obligation.

       {¶ 26} Randall’s second assignment of error is overruled.

       {¶ 27} Randall’s third and final assignment of error is as follows:
                                                                                        -11-
      {¶ 28} “THE TRIAL COURT ERRED WHEN IT ORDERED APPELLANT TO PAY

$850.00 AS AND FOR SPOUSAL SUPPORT FOR JANUARY 2014.

      {¶ 29} In his final assignment of error, Randall argues that the trial court erred by

requiring him to pay Josephine the sum of $850.00 for the month of January 2014.

      {¶ 30} Josephine filed her motion for spousal support on February 6, 2014. When

it ordered spousal support to Josephine, the trial court made the payments retroactive to

February 6, 2014. The trial court noted in its decision awarding Josephine spousal

support that Randall had paid her $850.00 per month from January of 2006 through

December of 2013, totaling approximately $72,000.00. Accordingly, the trial court found

it equitable to require Randall to pay $850.00 for January of 2014, the month he failed to

submit a temporary spousal support payment to Josephine.

      {¶ 31} Randall argues that his continued payment of the $850.00 temporary

spousal support through December of 2013 was done in “good faith,” and he asserts that

he is being penalized for his “admirable voluntary payments.” Simply put, in fashioning a

spousal support award for Josephine, the trial court acted within its discretion when it

ordered Randall to submit an additional $850.00 payment for the month of January 2014.

Randall had paid Josephine the original amount of the temporary spousal support order

since January of 2006. In fact, Randall testified that he believed continued payment of

the temporary order satisfied any obligation he had to Josephine with respect to spousal

support. Accordingly, Randall’s argument that he should not have to pay Josephine the

sum of $850.00 for the month of January 2014, is contradicted by his own testimony

because up to that point, Josephine had not filed her motion for an award of spousal

support and Randall had failed to disclose his employment.
                                                                                        -12-
       {¶ 32} Randall’s third assignment of error is overruled.

       Josephine’s Cross-Appeal

       {¶ 33} Josephine’s first cross-assignment of error is as follows:

       {¶ 34} “THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ORDERING

SPOUSAL SUPPORT RETORACTIVE TO WHEN HUSBAND BECAME EMPLOYED.”

       {¶ 35} In her first cross-assignment, Josephine contends that the trial court

abused its discretion when it failed to award her spousal support retroactive to 2007 when

Randall became employed in Minnesota. Specifically, Josephine argues that by failing

to inform the trial court when he secured full-time employment in 2007 as required by the

divorce decree, he perpetrated a fraud upon the court.            Therefore, as Josephine

suggests, the trial court should have made the spousal support award retroactive to the

date in 2007 when he became employed.

       {¶ 36} If a court determines that a support order should be modified, it may make

the modification order effective from the date the motion for modification was filed. See

Goddard-Ebersole v. Ebersole, 2d Dist. Montgomery No. 23493, 2009-Ohio-6581, ¶ 8.

Indeed, “[a]bsent some special circumstance,” an order of a trial court modifying support

should be retroactive to the date such modification was first requested. Id. Any other

holding might produce an inequitable result in view of the substantial time it frequently

takes the trial court to dispose of motions to modify support obligations. Id.

       {¶ 37} Given the substantial amount of time that it frequently takes to dispose of

motions to modify spousal support obligations, any rule that would preclude retroactive

modification would risk producing an inequitable result. Id. “However, the ability to order

retroactive modification and a mandate to make such an order are not the same thing.”
                                                                                       -13-
Goddard-Ebersole, at ¶ 9, citing Bowen v. Bowen, 132 Ohio App.3d 616, 640, 725 N.E.2d

1165 (9th Dist.1999).

       {¶ 38} As previously discussed, the instant case does not involve the modification

of a pre-existing spousal support award, but rather the creation of such an award. Given

the unique circumstances of this case, however, we find that the trial court did not abuse

its discretion by ordering that the spousal support award be made retroactive to February

6, 2014, the date Josephine filed her motion, rather than the date in 2007 when Randall

became employed.

       {¶ 39} From January of 2006 through December of 2013, Randall made voluntary

payments to Josephine in the amount of $850.00 per month. Randall suggests that he

kept making the payments because he apparently misunderstood the terms of the divorce

decree. Whether Randall actually misunderstood the divorce decree or he intentionally

sought to circumvent the requirement that he inform the trial court of his employment is

not dispositive of the issue. We note that Josephine accepted the payments (although

not court ordered) until they stopped in December of 2013. Moreover, until February 6,

2014, Josephine made no attempt to obtain a spousal support order nor does it appear

from the record that she made any effort to monitor or investigate Randall’s employment

status. Rather, Josephine continued to collect the $850.00 per month that Randall

continued to pay her pursuant to the defunct temporary spousal support issued prior to

the parties’ divorce.

       {¶ 40} Accordingly, the trial court did not abuse its discretion when it refused to

order that the spousal support award be made retroactive to 2007 when Randall became

employed after moving to Minnesota. In making the spousal support award retroactive
                                                                                          -14-
to February 6, 2014, the trial court acted in a manner equitable to both parties.

       {¶ 41} Josephine’s first cross-assignment of error is overruled.

       {¶ 42} Josephine’s second and final cross-assignment of error is as follows:

       {¶ 43} “THE TRIAL COURT ABUSED ITS DISCRETION BY NOT EXTENDING

THE TERM OF SPOUSAL SUPPORT.”

       {¶ 44} In her final cross-assignment, Josephine argues that “since the trial court

did not order [Randall] to pay spousal support retroactive to when he obtained

employment, it, at least, should have ordered that the term of spousal support be

extended an additional seven years, the period that [Randall] hid his employment and

paid [Josephine] nothing.”

       {¶ 45} Upon review, resolution of Josephine’s second cross-assignment of error

turns on the language of the divorce decree itself. Under R.C. 3105.18(E)(1), a trial court

retains jurisdiction to modify a spousal support award if the decree “contains a provision

specifically authorizing the court to modify the amount or terms of alimony or spousal

support.” In the instant case, the divorce decree specifically states that “[t]he Court shall

retain jurisdiction over the issue of the amount of spousal support, but not the term, until

earlier of (1) death of either party; (2) the remarriage of the Wife or (3) the Wife attaining

the age of sixty-five.”

       {¶ 46} The Ohio Supreme Court has stated that a trial court lacks jurisdiction to

modify sustenance alimony awarded for a fixed period of years, even though the decree

is subject to termination in the event of remarriage, death, or cohabitation. Ressler v.

Ressler, 17 Ohio St.3d 17, 476 N.E.2d 1032 (1985), syllabus. The Ohio Supreme Court

observed that it was “promoting the concept that alimony decrees should possess a
                                                                                          -15-
degree of finality and certainty,” and that divorce decrees “determined by court order

deserve the same finality as those ordered pursuant to an agreement.” Id. at 18-19, 476

N.E.2d 1032.

       {¶ 47} The language of the divorce decree explicitly stated that the trial court did

not retain jurisdiction over the term of the spousal support award. Instead, the divorce

decree only provided the trial court with continuing jurisdiction to modify the amount of the

spousal support award. Therefore, the trial court was without jurisdiction to modify the

duration of the spousal support award. See Vengrow v. Vengrow, 9th Dist. Summit No.

24907, 2010–Ohio–2568, ¶ 24 (concluding that because “[t]he trial court had not reserved

jurisdiction to modify the spousal support payments in regard to duration in its February

25, 2003 judgment entry * * * the trial court was without authority to extend the duration of

support payments in its July 10, 2009 order[.]”).

       {¶ 48} Accordingly, the trial court did not err when it declined to extend the term of

Randall’s spousal support an additional seven years because it did not retain jurisdiction

to modify the duration of the award pursuant to the explicit language in the divorce

decree.

       {¶ 49} Josephine’s final cross-assignment of error is overruled.

       {¶ 50} All of the parties’ assignments and cross-assignments of error having been

overruled, the judgment of the trial court is affirmed.

                                        ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Charles D. Lowe
Craig M. Sams
                       -16-
Hon. Denise L. Cross
