[Cite as Brendamour v. Brendamour, 2012-Ohio-1825.]


               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO



DAVID ANDREW BRENDAMOUR,                      :       APPEAL NO. C-110391
                                                      TRIAL NO. DR-0800460
         Plaintiff-Appellee,                  :
                                                      O P I N I O N.
   vs.                                        :

SANDRA ANN BRENDAMOUR,                        :

         Defendant-Appellant.                 :




Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
                   Division

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: April 27, 2012



Cohen, Todd, Kite, & Stanford, LLC, Jeffrey M. Rollman, for Plaintiff-Appellee,

Louis A. D’Amico, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
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D INKELACKER , Judge.

       {¶1}    Defendant-appellant Sandra Ann Brendamour (“Sandra”) claims that

the trial court erred when it reduced the amount of the spousal support order issued

within the parties’ divorce decree. We agree.

                       Failure to Show Unanticipated Change
                                  in Circumstances

       {¶2}    In her first assignment of error, Sandra claims that the trial court

erred because plaintiff-appellee David Andrew Brendamour (“David”) failed to show

that there had been a change in circumstances sufficient to warrant modification of

the support order.

       {¶3}    In order to modify a spousal support order, the trial court must find

(1) that a substantial change in circumstances has occurred and (2) that the change

was not contemplated at the time of the original decree.           Mandelbaum v.

Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, ¶ 33. The

requirement that the moving party demonstrate an unanticipated change of

circumstances is a jurisdictional threshold that must be established before the trial

court can entertain the merits of the motion. Id. The moving party has the burden to

establish that this jurisdictional requirement has been met. Burkart v. Burkart, 191

Ohio App.3d 169, 2010-Ohio-5363, 945 N.E.2d 557, ¶ 14.

       {¶4}    In its findings of fact, the trial court reached the conclusion that

plaintiff-appellee David had

       demonstrated a substantial change of circumstances that could not

       have been contemplated and taken into account by the parties at the

       time of the prior order. Plaintiff/Husband had been kept unaware of


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       his actual income as a result of Defendant/Wife’s failure to release his

       business and accounting records.

       {¶5}    The divorce decree in this case was entered on November 19, 2009.

David filed his motion to modify spousal support only 63 days later, on January 21,

2010. The hearing before the magistrate was conducted over several days. During

the hearing, David’s accountant testified that the gross income of David’s business

during 2006, 2007, and 2008 was down about 46 percent, which he characterized as

trending “downward pretty substantially.” The accountant also testified that the net

income for the business was down 68 percent. He also testified that, when he

received David’s income information for 2009, the information was “generally

consistent” with the information contained in the 2006, 2007, and 2008 income tax

returns.

       {¶6}    When David testified, he agreed with the accountant’s testimony

regarding his income during the 2006 to 2009 period. During the 2008 to 2009

period, he testified that his expenses went up only slightly.       While his income

declined during the 2006 to 2009 period, his number of billable hours remained

consistent. He additionally testified that his company was suffering from increased

competition from firms in India, which were not a factor in 2006.

       {¶7}    A review of the documents presented during the hearing paints a

similar picture of a steady decline in David’s business income. The net income for

David’s business was $320,920 in 2006, $256,867 in 2007, $162,411 in 2008, and

$113,440 in 2009. David’s adjusted gross income, as reported on his tax returns was

$326,847 in 2006, $314,143 in 2007, $194,201 in 2008, and $75,724 in 2009.




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       {¶8}    David presented significant evidence that his income had been

steadily declining from 2006 until the end of 2009. But he presented no evidence

that there was an uncontemplated change in circumstances during the 63 day period

between when the decree was entered and when he filed his motion to modify the

support order. While there was some testimony that Sandra had retained some

business records that prevented him from knowing his complete financial picture,

David was never very clear as to how this specifically affected his ability to project his

income for 2009. Further, David seemed to indicate during the hearing that the

documents had never been delivered to him. But he was able to file his 2008 income

tax return on October 15, 2009—a month before the decree was entered, and his

2009 return on March 27, 2010.

       {¶9}    Most significantly, David presented no evidence regarding what the

parties had considered when they entered into the agreement that resulted in the

divorce decree in this case. While we may have been able to infer what that might

have been from the record, the record demonstrates only a consistent decline over

the last few years before the parties’ divorce. Even the testimony about competition

from Indian firms only related to what had changed since 2006, not since the time of

the decree.

       {¶10}   Since the touchstone of the trial court’s jurisdictional analysis is what

the parties had contemplated at the time of the original decree, David failed to meet

his burden to show that there had been a change in circumstances that the parties

had not contemplated at that time.

       {¶11}   We will only reverse a decision to modify a spousal support order if

we find that the trial court abused its discretion in doing so. Booth v. Booth, 44 Ohio



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St.3d 142, 144, 541 N.E.2d 1028 (1989). But in this case, the record is devoid of any

indication that David’s knowledge of his declining income had so drastically changed

in the two months between the filing of the decree and motion that it demonstrates

that the parties had not contemplated it at the time of their divorce. See Burkart,

supra (trial court improperly finds an uncontemplated change in circumstances

when husband fails to show that that he was unaware that his income would

substantially decrease and the record demonstrates that he anticipated earning less).

We sustain Sandra’s first assignment of error.

                      Remaining Assignments of Error Moot

       {¶12}   In her second assignment of error, Sandra claims that the trial court

erred when it determined that she had withheld financial records from David. In her

third assignment of error, Sandra argues that the trial court erred when it failed to

make an independent review of the record before ruling on the objections to the

magistrate’s decision. In light of our resolution of the first assignment of error,

Sandra’s remaining arguments are moot. We therefore overrule her second and

third assignments of error.




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                                      Conclusion

       {¶13}    Since David failed to establish that he had experienced a change in

circumstances not contemplated at the time of the original decree, the trial court

lacked jurisdiction to modify the spousal support order. As such, it was error to do

so. The decision of the trial court is reversed, and this case is remanded with

instructions to dismiss David’s motion to modify spousal support for lack of

jurisdiction.

                                               Judgment reversed and cause remanded.

CUNNINGHAM, P.J., and FISCHER, J., concur.


Please Note:
       The court has recorded its own entry this date.




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