[Cite as Lineback v. Lineback, 2017-Ohio-8131.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          WARREN COUNTY




PAMELA DONLON f.k.a. LINEBACK,                       :

        Plaintiff-Appellant,                         :          CASE NO. CA2017-03-033

                                                     :                  OPINION
    - vs -                                                               10/9/2017
                                                     :

CHARLES S. LINEBACK,                                 :

        Defendant-Appellee.                          :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                            Case No. 12 DR 35381



Barbara J. Howard Co., L.P.A., Barbara J. Howard, Christin M.G. Fissinger, 120 East Fourth
Street, Suite 960, Cincinnati, Ohio 45202, for plaintiff-appellant

Charles S. Lineback, 4000 Alan Shepard Street, # 201, Sacramento, CA 95834, defendant-
appellee, pro se



        RINGLAND, P.J.

        {¶ 1} Plaintiff-appellant, Pamela Donlon ("Wife"), appeals a decision of the Warren

County Court of Common Pleas, Domestic Relations Division, denying her request to modify

spousal support. For the reasons detailed below, we affirm.1


1. Pursuant to Loc.R. 6(A). the court hereby sua sponte removes this case from the accelerated calendar for
purposes of issuing this opinion.
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       {¶ 2} This case has previously been before this court. Donlon v. Lineback, 12th Dist.

Warren Nos. CA2016-03-015 and CA2016-03-016, 2016-Ohio-7739 ("Lineback I"); Lineback

v. Lineback, 12th Dist. Warren No. CA2016-10-087, 2017-Ohio-5673 ("Lineback II").

       {¶ 3} Wife and Charles Lineback ("Husband") have litigated the issue of spousal

support extensively. Husband and Wife divorced in 2013. As part of the decree, the trial

court ordered Wife to pay Husband $1,230 per month in spousal support.

       {¶ 4} Wife maintained a large amount of investments. Wife's 2011 tax form reflects

that her investment income alone was $36,948 a year. The bulk of Wife's investment income

was earned through holdings of certificates of deposit, which accrued interest. However,

once the certificates of deposit had matured, Wife testified that she was no longer able to

receive the same return of investment that she had in past years.

       {¶ 5} As a result, Wife transferred the funds into a Vanguard account.             It is

undisputed that the Vanguard account accrued interest at a lesser rate than she had

previously been able to earn with the formerly high earning certificates of deposit. Thus, Wife

accrued substantially less investment income than she had in the past.

       {¶ 6} Wife moved to modify spousal support in 2014. The trial court held hearings on

June 2, August 6, and October 6, 2015. The trial court denied Wife's motion to reduce

spousal support. In so doing, the trial court found that Wife failed to present "any testimony"

regarding the decrease in her interest income. However, the court also expressly recognized

that it was "cognizant of the general effects that the economy's decline in 2008 had on

interest rates."   The trial court ultimately determined that Wife needed to present expert

testimony "by a financial planner regarding the changes in interest rates, and the type of

income that Wife could be generating at a risk level she is comfortable with." Lineback I at ¶

16.

       {¶ 7} This court reversed and remanded that decision in Lineback I after determining
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that pursuant to Evid.R. 701 and Evid.R. 702, expert testimony was not necessary to carry

Wife's burden of proof. Id. at ¶ 21.

       {¶ 8} While the Lineback I appeal was pending, Wife filed another motion to modify

spousal support. Lineback II, 2017-Ohio-5673 at ¶ 4. The trial court granted Wife's motion

and this court affirmed that decision in Lineback II. Id. at 21. The issue before the court is

again the 2014 motion to modify spousal support. Wife's argument is that the original 2014

motion to modify should have been granted. As a result, Wife asserts that she overpaid

Husband in the amount of $7,892.01.

       {¶ 9} The final order before this court is the trial court's entry on March 16, 2017,

which followed this court's remand instructions in Lineback I. The trial court reconsidered its

decision on remand, but ultimately determined that Wife failed to meet her burden of proof.

The trial court found that Wife's "singular assertion that her investment portfolio did not make

any income was not persuasive." Accordingly, the trial court denied Wife's June 2014 motion

to modify because there was insufficient evidence before the court to find a change in

circumstances. Wife now appeals the decision of the trial court, raising a single assignment

of error for review:

       {¶ 10} ON REMAND FROM THIS COURT, THE TRIAL COURT ABUSED ITS

DISCRETION IN FAILING TO FIND SUFFICIENT EVIDENCE OF A CHANGE IN

CIRCUMSTANCES TO WARRANT A MODIFICATION OF WIFE'S SPOUSAL SUPPORT

OBLIGATION.

       {¶ 11} Wife argues that the trial court erred in denying her motion to modify spousal

support. We find no merit to Wife's argument.

       {¶ 12} A trial court has broad discretion in determining a spousal support award,

including whether or not to modify an existing award. Burns v. Burns, 12th Dist. Warren No.

CA2011-05-050, 2012-Ohio-2850, ¶ 17. Thus, a spousal support award will not be disturbed
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on appeal absent an abuse of discretion. Id. An abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. DiPasquale v. DiPasquale, 12th Dist. Warren No. CA2016-04-024, 2016-

Ohio-8457, ¶ 9.

       {¶ 13} "In exercising its discretion to modify a spousal support award, the trial court

must determine: '(1) that the divorce decree contained a provision specifically authorizing the

court to modify the spousal support, and (2) that the circumstances of either party have

changed.'" Bixler v. Bixler, 12th Dist. Clermont No. CA2016-12-081, 2017-Ohio-7022, ¶ 16,

quoting Strain v. Strain, 12th Dist. Warren No. CA2005-01-008, 2005-Ohio-6035, ¶ 11.

Furthermore, the change in circumstances must be substantial enough to make the existing

award no longer reasonable and appropriate and the change in circumstances must not have

been taken into account by the parties or the court at the time when the existing award was

established or last modified. Id., citing R.C. 3105.18(F)(1)(a) and (b).

       {¶ 14} R.C. 3105.18(F)(1) states that "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 * *

*." Cox v. Cox, 12th Dist. Warren No. CA2016-05-040, 2017-Ohio-1010, ¶ 10.

       {¶ 15} Following a thorough review of the record, we find the trial court did not abuse

its discretion by denying Wife's motion for modification. Although Wife testified that she has

a reduced income because her investment income has decreased, the trial court was not

required to accept her assertion as true. As previously noted, the party seeking modification

of spousal support order bears the burden of showing that the modification is warranted.

Samblanet at ¶ 19. Here, Wife testified that she had decreased investment income and

described how that occurred, along with her investment strategy. Husband disputed Wife's

position. Though Wife explained that she had a conservative investment strategy, she
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offered very limited evidence as to how she formulated her investment decisions. One

consideration in finding a change in circumstances is that the change not be purposely

brought about by the moving party.

       {¶ 16} Though Wife argues otherwise, the trial court entered its decision in

accordance with this court's prior remand instructions. The trial court took the prior hearings

under advisement and found that there was insufficient evidence at the time to support Wife's

motion. As trier of fact, the trial court was in the best position to weigh the credibility of the

witnesses. As such, we find the trial court did not err by denying Wife's motion to modify

spousal support.

       {¶ 17} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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