[Cite as Haas v. Haas, 2012-Ohio-5649.]


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

CAROLYN M. HAAS                                      C.A. No.       26305

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DAVID G. HAAS, D.D.S.                                COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   1989-08-1917

                                DECISION AND JOURNAL ENTRY

Dated: December 5, 2012



        BELFANCE, Judge.

        {¶1}    Appellant David Haas, D.D.S., appeals from the judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, which overruled his objections to the

magistrate’s decision and entered judgment accordingly. For the reasons set forth below, we

reverse.

                                                I.

        {¶2}    This Court previously summarized portions of the history of this matter in Haas v.

Haas, 9th Dist. No. 15239, 1992 WL 103738, *1 (May 13, 1992):

        Dr. Haas * * * and Carolyn Haas * * * were married on June 2, 1962, while [Dr.
        Haas] was working on his dentistry degree. During part of his schooling, [Ms.
        Haas] worked as a nurse. [Dr. Haas] received his degree in dentistry in 1964 and
        his certification in orthodontia in 1968. They then moved to Akron, where [Dr.
        Haas] established a professional corporation known as David G. Haas, D.D.S.,
        Inc. [Ms. Haas] was responsible for caring for their three children. All three
        children are now emancipated * * * .

        [Ms. Haas] began working for the orthodontic practice in 1976 as a receptionist
        and communications consultant. She also attended seminars and conferences with
                                                 2


       [Dr. Haas] to learn how to improve the business. She worked for the practice for
       twelve years.

       In May 1989, [Dr. Haas] told [Ms. Haas] that he no longer wanted to be married
       to her. After [Dr. Haas] and [Ms. Haas] attempted marital counseling for almost
       three months, [Ms. Haas] filed for a legal separation on August 18, 1989. [Dr.
       Haas] filed an answer and counterclaim, requesting that the court grant a divorce.
       After a trial, the court granted the parties a divorce and equally divided the value
       of all marital property, which included the orthodontic practice. The court also
       awarded [Ms. Haas] $2500 per month in spousal support.

       {¶3}    This Court affirmed the trial court’s judgment with respect to the divorce decree.

Id. at *3. Subsequently, Dr. Haas filed a motion to modify spousal support, which was granted,

and spousal support was reduced to $1700 per month.

       {¶4}    On September 30, 2010, Ms. Haas filed a motion to modify spousal support,

seeking an increase in the award. On January 14, 2011, Dr. Haas filed a motion to terminate

spousal support. The matter was heard by a magistrate who filed a decision increasing the award

of spousal support to $2500. Dr. Haas filed objections. The trial court overruled Dr. Haas’

objections and awarded Ms. Haas $2500 per month in spousal support. Dr. Haas has appealed,

raising a single assignment of error for our review.

                                                II.

       RAISING THE APPELLANT’S MONTHLY SPOUSAL SUPPORT
       OBLIGATION TO THE APPELLEE IS AN ABUSE OF DISCRETION AND
       CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶5}    Dr. Haas asserts that the trial court abused its discretion in increasing Ms. Haas’

award of spousal support to $2500 and that its judgment is against the manifest weight of the

evidence. We agree, although for reasons other than those articulated by Dr. Haas.

       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 substantial change in circumstances has
       occurred and (2) that the change was not contemplated at the time of the original
       decree.
                                                 3


Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, paragraph two of the

syllabus.

       {¶6}    In the instant matter, while the divorce decree did expressly reserve jurisdiction to

modify spousal support and the trial court found that a substantial change of circumstances had

occurred, the trial court failed to conclude that the change was not contemplated at the time of

the prior order. Instead, the trial court concluded that “[t]he issue of whether the changes were

contemplated by the parties is not relevant where the parties[] did not enter into a separation

agreement.” We see no indication in Mandelbaum that the Supreme Court intended that its

holding would apply only to situations involving settlement agreements.            See id. at ¶ 32

(“Moreover, the change in circumstances must be one that had not been contemplated and taken

into account by the parties or the court at the time of the prior order.”) (Emphasis added.).

       {¶7}    Accordingly, because the trial court failed to make the requisite findings

necessary to establish its jurisdiction over the matter as contemplated by Mandelbaum, the trial

court erred in proceeding to determine that the existing support order should be modified. See

Mandelbaum at paragraph two of the syllabus; Tufts v. Tufts, 9th Dist. No. 24871, 2010-Ohio-

641, ¶ 11; Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, ¶ 9-10. We take no position on

the propriety of the amount of the spousal support award. Dr. Haas’ assignment of error is

sustained, and the matter is remanded for proceedings consistent with this opinion.

                                                III.

       {¶8}    In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division, and remand the matter for proceedings consistent

with this opinion.

                                                                               Judgment reversed,
                                                                              and cause remanded.
                                                 4




       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.

       Costs taxed to Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, P.J.
DICKINSON, J.
CONCUR.


APPEARANCES:

HANK F. MEYER, Attorney at Law, for Appellant.

STEVEN B. BERANEK, Attorney at Law, for Appellee.
