[Cite as Fuller v. Fuller, 2018-Ohio-5313.]


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

CYNTHIA FULLER                                       C.A. No.     28891

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DANIEL FULLER                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   DR-2001-01-00332

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2018



        SCHAFER, Presiding Judge.

        {¶1}     Appellant, Cynthia Fuller (“Wife”), appeals the judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, that granted appellee’s, Daniel Fuller

(“Husband”), motion to terminate spousal support. For the reasons that follow, this Court

reverses and remands.

                                                I.

        {¶2}     Husband and Wife divorced in 2002, after a 28-year marriage, when Husband was

54 years old and Wife was 52 years old. During the marriage, Husband had a lucrative career as

a stockbroker for Merrill Lynch, while Wife quit working outside the home to raise the couple’s

four children. The parties enjoyed a high standard of living.

        {¶3}     Husband and Wife executed a separation agreement that was incorporated into

their divorce decree as the order of the court. The separation agreement fully addressed spousal

support as follows:
                                               2


       Effective the 15th day of August, 2002, the Husband shall pay, as and for spousal
       support, directly to Wife, the sum of $8,500.00 per month until the first of the
       following events occur:

       a. Wife’s death;

       b. Husband’s death;

       c. Wife’s remarriage;

       d. Subject to the continuing jurisdiction of the Summit County Domestic
       Relations Court which shall specifically retain jurisdiction to modify the amount
       of spousal support based upon a change of circumstances of either party. The
       parties agree that the spousal support payments shall be deductible by the
       Husband and includable in the Wife’s income pursuant to the Internal Revenue
       Code.

       The spousal support was based upon Husband’s anticipated 2002 income of
       $244,000 plus his F Cap distributions, and Wife’s imputed income of $24,000.00.

       {¶4}    In addition, the separation agreement contained a section addressing the parties’

“Relinquishment of All Rights in Estate.”      However, that section contained the following

provision: “Notwithstanding the generality of the foregoing, any spousal support shall survive

the death of the Husband and be a charge against the Husband’s estate.” This provision is not

relevant to the instant matter.

       {¶5}    There is no dispute that Husband consistently paid his spousal support obligation

to Wife as required by the parties’ agreement, until he ceased making payments after February

2017, on his own initiative. In December 2016, shortly before his 69th birthday, Husband filed a

post-decree motion to “Terminate [Husband’s] spousal support obligation due to a substantial

ch[a]nge of circumstances.” As grounds, Husband asserted, “I have retired and my income has

decreased significantly.” He also filed an affidavit of income and expenses, which indicated that

his annual income for 2013, 2014, 2015, and the then-current year of 2016 was just under

$400,000.00 each year. In addition, a deposition of Husband was subsequently filed as part of

the record.
                                                 3


       {¶6}    The matter was heard by the magistrate, who issued a decision denying

Husband’s motion to terminate spousal support. Referring to the grounds alleged by Husband in

his motion, the magistrate found that Husband had neither retired, nor had his income decreased.

The domestic relations court adopted the magistrate’s decision the same day.

       {¶7}    Husband filed timely objections, which he supplemented after the filing of the

transcript. He argued that the magistrate had made erroneous findings of fact, that she abused

her discretion, and that equity supported terminating his obligation. In that regard, Husband

asserted that he might have retired at the age of 62 or 65 and “likely” would not have had to pay

spousal support thereafter. Accordingly, he intimated that Wife had already received windfall

spousal support payments of more than $714,000.00. Wife responded in opposition, arguing that

the evidence supported the magistrate’s findings that Husband had not retired and that his

income had not decreased. In regard to equity, she noted the parties’ 28-year marriage, her role

as a stay-at-home parent, and the parties’ high standard of living.

       {¶8}    In ruling on the objections, the domestic relations court noted that the parties’

separation agreement expressly provided that the court retained jurisdiction to modify the award

of spousal support. Without identifying any specific statute, the trial court wrote that the

application of the “relevant factors” to the evidence supported sustaining Husband’s objections

and granting his motion to terminate spousal support. Although it purported to grant Husband’s

motion to terminate support, the domestic relations court did so “to the extent that his spousal

support obligation is set at zero dollars per month.” In addition, it ordered that the court “retains

jurisdiction over the issue of spousal support.” Finally, the trial court “awarded judgment against

Wife in the amount of $17,000 representing spousal support paid to her in January and February,

2017[,]” and taxed all costs to Wife. Wife timely appealed and raises three assignments of error
                                                 4


for review. This Court addresses the second assignment of error first, as it is dispositive of the

appeal.

                                                II.

                                   ASSIGNMENT OF ERROR II

          THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING
          HUSBAND’S MOTION TO TERMINATE SPOUSAL SUPPORT AS OF
          DECEMBER 31, 2016.

          {¶9}   Wife argues that the domestic relations court erred by granting Husband’s motion

to terminate spousal support. This Court agrees.

          {¶10} R.C. 3105.18 addresses the modification of spousal support. Subsection (E)

provides that the trial court lacks jurisdiction to modify an award of spousal support unless the

parties’ divorce decree specifically authorizes the court to modify the amount and/or terms of the

award. In applying and interpreting the statute, the Supreme Court of Ohio has held that

“[p]ursuant to R.C. 3105.18(E), a trial court has the authority to modify or terminate an order for

alimony or spousal support only if the divorce decree contains an express reservation of

jurisdiction.” Kimble v. Kimble, 97 Ohio St.3d 424, 2002-Ohio-6667, syllabus.

          {¶11} In Kimble, the husband moved to terminate his spousal support obligation upon

the wife’s remarriage. Id. at ¶ 2. Because the parties’ decree failed to reserve jurisdiction to the

trial court to modify spousal support, the high court concluded that the trial court had no

authority to terminate the award. Id. at ¶ 3. In addressing the husband’s argument that R.C.

3105.18(E) was not applicable because he moved to terminate, rather than modify, spousal

support, the Kimble court noted:

          [T]he difference between a modification and a termination of alimony [i]s a
          distinction without a difference. Modification and termination of an alimony
          award are simply different points of degrees on the same continuum. Thus, we
                                                  5


       conclude that a motion to terminate spousal support falls within the definition of a
       modification, since it seeks to alter, change, or reduce the support award.

(Internal quotations and citations omitted.) Id. at ¶ 7.

       {¶12} In 1996, before the Supreme Court released its opinion in Kimble, this Court had

distinguished between a motion to terminate and a motion to modify as to spousal support.

Synovetz v. Synovetz, 9th Dist. Lorain No. 95CA006197, 1996 WL 199443 (Apr. 24, 1996). We

did so, however, based on the terms of the parties’ divorce decree, which provided that the

husband would pay the wife a sum certain per month for a definite period of time “‘unless [she]

remarrie[d], cohabite[d] or either party die[d], whichever [should] first occur.’” (Alterations in

original.) Id. at *1. Accordingly, this Court concluded that the husband did not have to prove a

change in circumstances as required by R.C. 3105.18(E) to modify the award, because he sought

not to modify it, but rather to terminate it pursuant to the terms of the divorce decree. Id. at *1.

       {¶13} After Kimble, this Court considered “whether any of the Ohio Supreme Court’s

decisions since Synovetz have eliminated the distinction [Synovetz] drew between a termination

of spousal support based on a change in circumstances and a termination based on a condition

subsequent incorporated into the decree.” Guggenbiller v. Guggenbiller, 9th Dist. Lorain No.

10CA009871, 2011-Ohio-3622, ¶ 5. (examining Kimble and Mandelbaum v. Mandelbaum, 121

Ohio St.3d 433, 2009-Ohio-1222, where in both cases the parties’ decrees did not contain a

termination of spousal support provision). In Guggenbiller, we concluded that the Supreme

Court’s holdings did not eliminate the distinction “between terminations of support based on a

change in circumstances of the parties [to which an R.C. 3105.18(E) analysis would apply] and

those based on the occurrence of a specific condition subsequent.” Id. at ¶ 5.

       {¶14} Recently, one of our sister districts addressed a factual situation similar to the

instant matter. In Manley v. Manley, 7th Dist. Columbiana No. 17 CO 0036, 2018-Ohio-2773,
                                                  6


the parties’ divorce decree contained separate provisions addressing under what circumstances

spousal support would terminate, e.g., death, remarriage, and cohabitation; and retaining

jurisdiction to the trial court to modify the amount and duration of spousal support based on a

change in circumstances, including the husband’s retirement. Id. at ¶ 3. The husband filed a

motion to terminate spousal support based on his retirement, arguing a change in circumstances.

Id. at ¶ 7.     After the magistrate denied his motion to terminate, the husband objected,

emphasizing the difference between modifications and terminations of spousal support and

arguing that he had met the condition subsequent, here, retirement, to support termination. Id. at

¶ 11.

        {¶15} The Manley court discussed this Court’s Guggenbiller opinion in some detail,

emphasizing the distinction between modifications of spousal support, which require a showing

of a change in circumstances, and terminations based on a showing that a condition subsequent

set out in the parties’ decree has been satisfied. Manley at ¶ 22. It wrote:

        Modification is an increase or decrease in the amount of alimony payable, or a
        change in the terms and conditions of payment. A condition subsequent is a
        future occurrence such as remarriage, death, or cohabitation which upon
        happening, accelerates the termination of the alimony award

Id., quoting Guggenbiller at ¶ 4, quoting Hibbard v. Hibbard, 12th Dist. Butler No. CA88-06-

078, 1988 WL 139129, *2 (Dec. 27, 1988) (Hendrickson, P.J., concurring). Stressing the

significance of the language in the parties’ decree, the Manley court concluded:

        Therefore, although modification and termination may be on the same continuum,
        it does not necessarily mean that when a divorce decree lists circumstances which
        will result in the termination of spousal support and also separately retains
        jurisdiction for modification of spousal support listing circumstances which could
        result in modification, those circumstances can be used interchangeably for
        termination and modification.

Id. at ¶ 23; see also at ¶ 25 (“[T]he language of the decree is crucial.”).
                                                 7


         {¶16} The instant case is analogous.        The Fullers’ divorce decree sets out distinct

provisions regarding the modification and termination of spousal support. It expressly retains

jurisdiction to the domestic relations court to modify the amount, but not the terms, of the

spousal support award based on a change of circumstances. On the other hand, the decree sets

forth only three conditions subsequent as ground for termination of the award, specifically,

Husband’s death, Wife’s death, or Wife’s remarriage.          Accordingly, the trial court had no

authority to terminate Husband’s spousal support obligation on the basis of retirement, because

retirement is not listed as one of the conditions subsequent to support termination.1

         {¶17} In this case, however, the domestic relations court issued a hybrid order. While

purporting to grant Husband’s motion to terminate spousal support, the trial court did so “to the

extent that his spousal support obligation is set at zero dollars per month.” The trial court further

expressly “retain[ed] jurisdiction over the issue of spousal support.” Accordingly, the judgment

effectively ordered a modification, rather than a termination, of spousal support. Husband,

however, did not move for a modification. Instead, he sought a definitive termination of his

obligation. Because the domestic relations court ordered a modification of spousal support, it

exceeded the scope of the relief sought by Husband. Accordingly, the order of modification

cannot stand. See Hajjar Family Trust v. Flan Wa Allan LLC, 9th Dist. Summit No. 24547,

2009-Ohio-5156, ¶ 26. Based on the above reasoning, Wife’s second assignment of error is

sustained.

                                   ASSIGNMENT OF ERROR I

         THE TRIAL COURT’S FINDINGS THAT HUSBAND HAD RETIRED AND
         THAT HIS PRESENT EARNING ABILITY IS NOWHERE NEAR HIS PRIOR
         ABILITY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
         AND NOT SUPPORTED BY SUBSTANTIAL, CREDIBLE EVIDENCE.

1
    This Court makes no determination as to whether or not Husband actually retired.
                                                 8


                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
       JUDGMENT AGAINST WIFE IN THE AMOUNT OF $17,000.

       {¶18} In her first and third assignments of error, Wife argues that the domestic relations

court’s findings were against the manifest weight of the evidence and that the monetary

judgment rendered against her constituted an abuse of discretion.            Based on this Court’s

resolution of Wife’s second assignment of error, we decline to address the remaining

assignments of error, as they have been rendered moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶19} Wife’s second assignment of error is sustained. We decline to address the first

and third assignments of error. The judgment of the Summit County Court of Common Pleas,

Domestic Relations Divisions, is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                                Judgment reversed,
                                                                               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 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
                                                9


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.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT




TEODOSIO, J.
CONCURS.

HENSAL, J.
DISSENTING.

       {¶20} “[P]ro se litigants should be granted reasonable leeway such that their motions

and pleadings should be liberally construed so as to decide the issues on the merits, as opposed to

technicalities.” Sherlock v. Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶ 3. Husband

was pro se during the relevant time period. Furthermore, the Ohio Supreme Court has held that

“the difference between a modification and a termination of alimony [i]s a distinction without a

difference” and that “a motion to terminate spousal support falls within the definition of a

‘modification[.]’” Kimble v. Kimble, 97 Ohio St.3d 424, 2002-Ohio-6667, ¶ 7, quoting In re

Adams, 45 Ohio St.3d 219, 221 (1989).

       {¶21} Husband, acting pro se, completed a standard check-the-box post-decree-motion

form provided by the domestic relations court. Because none of the choices matched the type of

relief he wanted, he marked “[o]ther” and explained that he wanted the court to “[t]erminate [his]

spousal support obligation due to a substantial ch[a]nge in circumstances.” Next, in a section
                                                10


asking him to explain why he believed he was entitled to the relief he requested, he wrote that he

had retired and that his income had decreased significantly.

       {¶22} At the hearing on Husband’s motion, the magistrate began by explaining that they

were there for an evidentiary hearing on Husband’s “motion to modify his spousal support

obligation.” During the hearing, Wife’s counsel also consistently referred to Husband’s motion

as seeking a modification. Accordingly, even if we set aside the Ohio Supreme Court’s directive

that a motion to terminate spousal support is the same as a motion to modify spousal support, the

record demonstrates that Husband’s motion proceeded as a motion to modify support.

       {¶23} The majority acknowledges that, under the terms of the parties’ decree, the

domestic relations court retained jurisdiction to modify the amount of spousal support based on a

change of circumstances.     It also acknowledges that the domestic relations court did not

terminate Husband’s support obligation, but set it at “zero dollars per month” for now. The court

cannot have exceeded the scope of the relief that Husband requested when it gave him less than

he asked for.

       {¶24} The scope-of-relief case cited by the majority has no similarity to this case. In

Hajjar Family Revocable Trust v. Flan Wa Allan LLC, 9th Dist. Summit No. 24547, 2009-Ohio-

5156, a landlord sought to recover unpaid rent from a tenant. It also sought to recover the

damages and expenses it incurred in removing the tenant from the premises. When the trial court

awarded damages, it included the value of some personal property the tenant had removed from

the premises without authorization in its award. This Court held that the trial court could not

award the landlord damages for the converted property because they were not damages or

expenses incurred in the process of removing the tenant from the premises. Id. at ¶ 25. Hajjar
                                                   11


Family Revocable Trust did not involve the termination or modification of spousal support and,

therefore, is of limited value as to the issues in this case.

        {¶25} I would conclude that, because Husband filed his motion pro se, we should treat it

as a motion to modify spousal support and allow the domestic relations court’s order to stand. I

would conclude that, because the parties treated Husband’s motion as a motion to modify

spousal support, we should treat it as a motion to modify spousal support and allow the domestic

relations court’s order to stand. I would also conclude that, because the Ohio Supreme Court has

held that motions to terminate spousal support and motions to modify spousal support are

equivalent, we should treat Husband’s motion as a motion to modify spousal support and allow

the domestic relations court’s order to stand. Finally, because the trial court did not grant more

relief than Husband requested, we should allow the domestic relations court’s order to stand. I,

therefore, respectfully dissent.


APPEARANCES:

RANDAL A. LOWRY Attorney at Law, for Appellant.

KENNETH L. GIBSON, Attorney at Law, for Appellant.

JAMES R. RANFTL, Attorney at Law, for Appellee.
