[Cite as Albrecht v. Albrecht, 2017-Ohio-336.]




                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


RUTHANN D. ALBRECHT,                             :        OPINION

                 Plaintiff-Appellee,             :
                                                          CASE NOS. 2015-T-0092
        - vs -                                   :              and 2015-T-0098

STEPHEN L. ALBRECHT,                             :

                 Defendant-Appellant.            :


Appeals from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2012 DR 297.

Judgment: Affirmed in part; reversed in part and remanded.


Deborah L. Smith, Smith Law Firm, 109 North Diamond Street, Mercer, PA 16137 (For
Plaintiff-Appellee).

Michael J. McGee, Harrington, Hoppe & Mitchell, Ltd., 108 Main Avenue, S.W., Suite
500, Warren, OH 44481 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.



        {¶1}     Appellant, Stephen Albrecht, appeals the trial court’s denial of his motion

for modification of spousal support and motion for vocational evaluation of appellee,

Ruthann Harnett, FKA Ruthann Albrecht. For the following reasons, we affirm in part

and reverse in part and remand for further proceedings.
      {¶2}   The parties were married in 1988 and had two emancipated children when

Ruthann filed for divorce in 2012. The parties ultimately entered an agreed judgment

entry as to all issues except spousal support, which was determined by the trial court.

Stephen previously appealed and challenged the amount of the spousal support award

in Ruthann’s favor. Albrecht v. Albrecht, 11th Dist. Trumbull No. 2013-T-0124, 2014-

Ohio-5464.

      {¶3}   On December 30, 2014, Stephen moved the trial court for modification of

spousal support and separately for a vocational expert evaluation of Ruthann to assess

and determine her ability to work to support his modification request.      Following a

hearing, the trial court denied Stephen’s motion for a vocational evaluation. Stephen

appealed.

      {¶4}   Separately, on August 12, 2015, the trial court denied Stephen’s motion

for modification of spousal support holding, “Court determines Defendant’s current

income is not different from the income he earned prior to Divorce. Court will not modify

the present Spousal Support Order.” Stephen appealed again.

      {¶5}   We consolidated Stephen’s appeals, and pursuant to his motion, we

remanded the case to the trial court for the limited purpose of determining if all of his

objections to the underlying magistrate decisions had been addressed. On remand the

trial court sustained Stephen’s objection to the August 12, 2015 magistrate’s decision

and remanded the matter to the magistrate for an evidentiary hearing as to “Defendant’s

furlough status and year to date income with decision to issue with specific findings of

facts.” The magistrate maintained his decision, finding that a modification of spousal

support was not warranted. He additionally found that Stephen missed two weeks of




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work as a result of furlough and that he earned approximately $133,000 in 2015. The

trial court subsequently adopted the magistrate’s decision.

       {¶6}    We then granted Stephen leave to file an amended notice of appeal to

include the trial court’s decision on remand.

       {¶7}    Stephen presents two assigned errors on appeal:

       {¶8}    “The trial court erred in denying defendant’s motion for vocational

evaluation of plaintiff.

       {¶9}    “The trial court erred in denying defendant’s motion for modification of

spousal support and in determining that $2750 continues to be an appropriate monthly

spousal support payment.”

       {¶10} He first argues that the trial court impermissibly employed the doctrine of

offensive collateral estoppel to preclude the assessment of wife’s ability to work and

earn an income based on the Social Security Administration determination that Ruthann

is disabled.   Stephen challenges the trial court’s decision denying his motion for a

vocational evaluation of Ruthann based solely on her disability determination in a wholly

separate and non-controlling forum in which he was not a party and during which his

interest was not protected.

       {¶11} Stephen moved for the vocational evaluation to secure evidence to

support his motion to modify his spousal support obligation. R.C. 3105.18(E) provides

for the modification of existing spousal support awards and allows a trial court to modify

the amount or term of spousal support if the circumstances of either party has changed

and the court’s prior decree reserves jurisdiction for the court to modify spousal support.




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       {¶12} R.C. 3105.18(F) explains when a sufficient change in circumstances exists

warranting a modified spousal support order, stating:

       {¶13} “(1) * * * a change in the circumstances of a party includes, but is not

limited to, any increase or involuntary decrease in the party’s wages, salary, bonuses,

living expenses, or medical expenses, or other changed circumstances so long as both

of the following apply:

       {¶14} “(a) The change in circumstances is substantial and makes the existing

award no longer reasonable and appropriate.

       {¶15} “(b) The change in circumstances was not taken into account by the

parties or the court as a basis for the existing award when it was established or last

modified, whether or not the change in circumstances was forseeable.” (Emphasis

added.)

       {¶16} In the parties’ original appeal, Stephen argued that the trial court abused

its discretion finding Ruthann unable to work. We disagreed, explaining:

       {¶17} “Here, Husband argues that the trial court's determination that Wife has a

disability and therefore is unable to work is against the manifest weight of the evidence

because (1) Wife did not present expert testimony as to her disability and (2) her

disability lacked a specific name, such as Alzheimer's Disease. By way of clarification,

although Husband argues that the trial court found Wife ‘unable to work,’ that [is] not

wholly accurate. The trial court found that Wife's short term memory and motor skill

problems make it more difficult for her to work ‘at times.’ However it is clear that the trial

court found Wife unable to earn a significant income in light of her limitations.




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       {¶18} “Ohio courts have held that a medical diagnosis is unnecessary to support

a finding that a spouse is unable to work. Milam v. Milam, 2d Dist. Greene No. 94-CA-

23, 1994 Ohio App. LEXIS 4712, *6 (Oct. 19, 1994). Unlike personal injury cases,

where medical testimony is required to prove a causal relationship between a physical

injury and the act that gave rise to such injury, in divorce cases, the medical cause of a

spouse's disability ‘is not an essential fact requiring proof[.]’ Id. Rather, the crucial

focus is whether the party asserting a disability presents evidence explaining how her

disability limits his or herself. See Gullia v. Gullia, 93 Ohio App.3d 653, 662, 639 N.E.2d

822 (8th Dist.1994). * * *

       {¶19} “[T]he decision awarding Wife social security disability benefits found that

Wife suffered a traumatic brain stem injury in the car accident. Although the trial court

does not specifically reference the social security decision, it does find that Wife suffers

from brain damage. The trial court's conclusion the Wife is unable to earn a significant

income is supported by the evidence.” Albrecht at ¶21-24.

       {¶20} Stephen now argues that Ruthann’s condition has improved and her

capacity to work has increased since the original divorce proceedings, and as such, he

requests a vocational evaluation to establish her capacity to work and income potential.

       {¶21} The magistrate’s hearing, held July 1, 2015, began with the magistrate

directing the following questions to Ruthann:

       {¶22} “THE COURT: * * * Ma’am, do you still receive social security disability

benefits?

       {¶23} “MS. HARNETT: Yes.

       {¶24} “* * *




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       {¶25} “THE COURT: And you are now determined to be disabled?

       {¶26} “MS. HARNETT: Yes

       {¶27} “THE COURT: And the government says you are unable to do any kind of

work? Would that be correct?

       {¶28} “MS. HARNETT: Yes.”

       {¶29} Stephen’s counsel then reiterated that he needed the vocational

evaluation to establish the change in circumstances, and the court responded: “You

understand that right now she’s being paid because she is unable to perform any kind of

job?” Stephen’s counsel argued that the social security’s determination is subject to

change. The court replied, stating:

       {¶30} “THE COURT: * * * She is presently being paid for being able to do no

full-time work.

       {¶31} “ATTORNEY MCGEE: It’s our hope that a vocational evaluation will make

a final determination as to whether or not she’s able to work and in what capacity.

       {¶32} “THE COURT:         You’re not going to get one of those [vocational

evaluations] unless you can convince me today that she can physically work 40 hours a

week at a job.

       {¶33} “ATTORNEY MCGEE: We’re here to present evidence on that issue.

       {¶34} “THE COURT: Well I understand. But just so everybody understands the

parameters. Right now she’s locked in to being unable to work, w-o-r-k. Not to sit at a

phone, not to do any kind of job whatsoever. That’s why Social Security pays you.”

       {¶35} Thereafter, Ruthann confirmed that her last social security disability

hearing occurred two or three years before this July 2015 hearing.




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      {¶36} Following the hearing, the magistrate denied Stephen’s motion for a

vocational evaluation.    The trial court rejected his objections and adopted the

magistrate’s decision, concluding:     “Since plaintiff has been determined by SS to

receive disability benefits and cannot work. [sic] Therefore, Court hereby dismisses

Defendant’s motion for a Vocational Evaluation. Until her situation with SS disability is

changed she is not able to work for the public.”

      {¶37} As Stephen argues, the trial court concluded that Ruthann’s existing

Social Security Administration’s award of disability benefits precludes Stephen’s motion

to secure a vocational expert.

      {¶38} Civ.R. 35 provides the proper standard for courts considering a motion for

a mental or physical examination of a party, including a vocational evaluation. Graybow

v. Graybow, Minn.Ct.App. No. A12-0249, 2012 Minn. App. LEXIS 1154, *9; Millius v.

Tillman, Sup.Ct. Del. No. 05C-09-107MJB, 2006 Del. Super. LEXIS 237, *9. Civ.R.

35(A) states:

      {¶39} “Order for examination. When the mental or physical condition * * * of a

party * * * is in controversy, the court in which the action is pending may order the party

to submit himself to a physical or mental examination or to produce for such

examination the person in the party's custody or legal control. The order may be made

only on motion for good cause shown and upon notice to the person to be examined

and to all parties and shall specify the time, place, manner, conditions, and scope of the

examination and the person or persons by whom it is to be made.”

      {¶40} Three requirements must be met before a court can order a physical or

mental evaluation pursuant to Civ.R. 35(A). First, the condition of a party must be in




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controversy. Brossia v. Brossia, 65 Ohio App.3d 211, 215, 583 N.E.2d 978, (6th Dist.).

Second, the movant must request the examination via motion. Id. Third, the movant

must establish good cause for the examination, which requires “evidence in the record

to establish good cause for [the] particular examination beyond the allegations and

arguments contained in the pleadings.” Id.

      {¶41} The good cause requirement is “‘not met by mere conclusory allegations

of the pleadings—nor by mere relevance to the case—but require[s] an affirmative

showing by the movant that [the] condition as to which the examination is sought is

really and genuinely in controversy and that good cause exists for each particular

examination.’” Knecht v. Knecht, 12th Dist. Clinton No. CA2011-06-010, 2012-Ohio-

3316, ¶12, quoting Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234 (1964).

      {¶42} “‘Rule 35, therefore, requires discriminating application by the trial judge,

who must decide, as an initial matter in every case, whether the party requesting the * *

* examinations has adequately demonstrated the existence of the Rule’s requirements *

* *.” Id. at 118. Once these three requirements are met, the trial court has discretion to

order the requested examination. Brossia, at 215, citing In re Guardianship of Johnson,

35 Ohio App.3d 41, 519 N.E.2d 655 (1987).

      {¶43} Here, the first two prongs are satisfied, i.e., Ruthann’s disability is in issue

and Stephen moved the court for a vocational evaluation via motion. Thus, the trial

court should have determined at the July 1, 2015 hearing whether Stephen presented

evidence establishing “good cause” that a vocational evaluation of Ruthann was

warranted.




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       {¶44} In an effort to establish “good cause,” Stephen needed to attempt to show

that a substantial change in circumstances occurred to satisfy R.C. 3105.18(F).

Specifically, he was required to come forward with some evidence tending to show that

Ruthann’s limitations resulting from her disability had lessened or that her physical

condition had improved since the parties’ divorce hearing permitting her to work.

Instead of wholly relying on the social security disability decision in Ruthann’s favor, the

trial court should have considered whether Stephen presented any evidence that her

abilities have improved in deciding whether to grant the motion for a vocational

evaluation. Thus, the trial court erred in overruling the request for vocational evaluation

based solely on appellees’ social security disability determination. As no other reason

was given for the denial, remand is required for the trial court to review and exercise its

discretion.

       {¶45} However, Ruthann’s social security disability determination was before the

trial court when it rendered its original spousal support award, and thus, Stephen could

have challenged the decision and secured evidence disputing the same prior to the

parties’ divorce.     Thus, Stephen’s collateral estoppel argument lacks merit.

Notwithstanding, Stephen’s assignment of error has merit to the extent that the trial

court applied the wrong standard. Accordingly, the trial court’s decision is reversed in

part and remanded for it to determine whether good cause was shown, and if so, for it to

exercise its discretion as to Stephen’s Civ.R. 35 request.

       {¶46} As for his second assignment, Stephen asserts the trial court abused its

discretion in failing to find a substantial and material change in his circumstances

warranting a reduction in his spousal support obligation. R.C. 3105.18(E) provides that




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a court lacks jurisdiction to modify the amount or terms of a spousal support unless “the

circumstances of either party have changed” and in a divorce, the final decree reserves

jurisdiction to modify the amount or terms of spousal support. There is no dispute that

the trial court has retained jurisdiction to modify the spousal support award. It provides

in part: “This order shall be reviewed if there is a change in [wife’s social security]

benefits and shall be reviewed upon a change of financial circumstances of either party

* * *.”

          {¶47} R.C. 3105.18(F) details when a change in circumstances is sufficient to

warrant a modification of spousal support:

          {¶48} “[A] change in the circumstances of a party includes, but is not limited to,

any increase or involuntary decrease in the party’s wages, salary, bonuses, living

expenses, or medical expenses, or other changed circumstances so long as both of the

following apply:

          {¶49} “(a) The change in circumstances is substantial and makes the existing

award no longer reasonable and appropriate.

          {¶50} “(b) The change in circumstances was not taken into account by the

parties or the court as a basis for the existing award when it was established or last

modified, whether or not the change in circumstances was forseeable.”

          {¶51} The burden of proof is on the party seeking the reduction in support.

Pepin-McCaffrey v. McCaffrey, 7th Dist. Mahoning No. 12 MA 4, 2013-Ohio-2952, ¶30.

          {¶52} The trial court has broad discretion in deciding what is equitable upon

examining the facts and circumstances in each case. Kunkle v. Kunkle, 51 Ohio St.3d

64, 67, 554 N.E.2d 83 (1990). An appellate court is precluded from substituting its




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judgment for the trial court’s ruling unless, upon considering the totality of the

circumstances, the trial court abused its discretion. Holcomb. v. Holcomb, 44 Ohio

St.3d 128, 131, 541 N.E.2d 597 (1989).

       {¶53} “‘[T]he term “abuse of discretion” is one of art, connoting judgment

exercised by a court, which does not comport with reason or the record.’ * * * [A]n

abuse of discretion is the trial court's ‘failure to exercise sound, reasonable, and legal

decision-making.’ * * * [However, w]hen an appellate court is reviewing a pure issue of

law, ‘the mere fact that the reviewing court would decide the issue differently is enough

to find error (of course, not all errors are reversible. Some are harmless; others are not

preserved for appellate review). By contrast, where the issue on review has been

confined to the discretion of the trial court, the mere fact that the reviewing court would

have reached a different result is not enough, without more, to find error.’” (Citations

omitted.) Ivancic v. Enos, 2012-Ohio-3639, 978 N.E.2d 927, ¶70 (11th Dist.).

       {¶54} Stephen argues in part that the trial court failed to make detailed findings

of fact setting forth the basis for its decision that there was no material and substantial

change in circumstances warranting a modified spousal support order, and as such, the

bases for its decision is unclear. Although he moved for findings of fact and conclusions

of law from the magistrate’s decision, the trial court denied his request as untimely.

Pursuant to Civ.R. 53(D)(3)(a)(ii), a “request for findings of fact and conclusions of law

shall be made before the entry of a magistrate's decision or within seven days after the

filing of a magistrate's decision.” Stephen does not dispute the untimeliness of his

request, and the record confirms that his request was untimely. Thus, this argument

lacks merit.




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       {¶55} Notwithstanding the lack of detailed findings of fact, Stephen argues the

trial court should have reduced his spousal support obligation because he established

his income had decreased and his living expenses increased.         He claims that his

income was $35,000 less than at the time of divorce. We disagree. Stephen’s income

at the time of divorce was $115,000 in 2012 and $125,000 in 2011. In 2014, however,

he earned more than $140,000. Furthermore, the magistrate found in its judgment entry

on remand that Stephen earned “approximately $133,000 in 2015.”          The trial court

subsequently adopted and approved the magistrate’s decision on remand, including this

finding.   Ruthann asserts that testimony at the hearing on remand established that

Stephen was on track to earn $133,000 for 2015.

       {¶56} Because the transcript for this January 19, 2016 remand hearing is not

before us, we cannot review the trial court’s decision on this basis, and Stephen has

waived any argument to the contrary. Selby v. Selby, 7th Dist. Belmont No. 06 BE 55,

2007-Ohio-6700, ¶12 (finding that appellant's failure to secure the requisite transcript

constitutes a waiver of any factual issue determined by the magistrate); White v. Davia,

7th Dist. Harrison No. 11-HA-4, 2012-Ohio-2820, ¶13.

       {¶57} Additionally, Stephen’s testimony at the hearing regarding a decrease in

his income was prospective. He explained that his company’s future is bleak since the

oil and gas industry is not performing as expected. However, he still earned a $12,000

bonus in 2015 based on his company’s 2014 performance, and Stephen still worked 66

hours of overtime at a rate of $62.38 per hour during the first half of 2015. While

Stephen’s concerns regarding the future of his employment and income may be

legitimate, his income has not yet been affected by his company’s forecasted decline.




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Thus, this does not constitute a change in circumstances warranting modification of his

support obligation.

       {¶58} Stephen next argues that three student loans that he cosigned for the

parties’ adult children have recently become due, with monthly payments of $125, $358,

and $468. Stephen testified that his adult children cannot make the payments, and

thus, he “has to” pay the loans. There was no explanation or testimony as to why the

parties’ children cannot pay their own loans, and Ruthann argues that Stephen has

voluntarily chosen to pay the loans. The trial court apparently agreed with Ruthann, and

absent findings of fact, we find no abuse of discretion on this issue.

       {¶59} We agree that Stephen established that some of his living expenses,

including rent and utilities, have increased since the trial court’s initial spousal support

award. His rent and utilities have increased because his prior home was sold by his

landlord necessitating a move. His rent increased from $550 per month to $870 per

month. His testimony as to his increased living expenses is undisputed.

       {¶60} However, Stephen’s decision to purchase a new truck at $605 per month

was a voluntary one, and as such, cannot constitute a substantial change in

circumstances under R.C. 3105.18(F).

       {¶61} Although Stephen has incurred some increased living expenses, his

income has also increased in 2014 and 2015. Thus, we cannot find that the trial court

abused its broad discretion in not finding a substantial change in circumstance

warranting a reduction of his spousal support obligation. His second assignment of

error lacks merit.




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      {¶62} Based on the foregoing, the judgment of the trial court is affirmed in part

and reversed in part and remanded for further proceedings.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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