[Cite as Kuhn v. Kuhn, 2011-Ohio-307.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



GREGORY KUHN                             :       JUDGES:
                                         :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant              :       Hon. Sheila G. Farmer, J.
                                         :       Hon. Patricia A. Delaney, J.
-vs-                                     :
                                         :
DELOISE KUHN                             :       Case No. 10CA86
                                         :
        Defendant-Appellee               :       OPINION




CHARACTER OF PROCEEDING:                     Appeal from the Court of Common Pleas,
                                             Case No. 2008DIV0010



JUDGMENT:                                    Affirmed




DATE OF JUDGMENT ENTRY:                       January 26, 2011




APPEARANCES:

For Plaintiff-Appellant                      For Defendant-Appellee

PATRICK HEAGERTY                             THOMAS L. COLE
150 East Mound Street                        76 North Mulberry Street
Suite 301                                    Mansfield, OH 44902
Columbus, OH 43215
Richland County, Case No. 10CA86                                                      2

Farmer, J.

       {¶1}   On March 10, 2009, appellant, Gregory Kuhn, and appellee, Deloise

Kuhn, were granted a divorce, and appellant was ordered to pay appellee $1,300.00 a

month for spousal support. A final decree of divorce was filed on May 4, 2009.

       {¶2}   On December 10, 2009, appellant filed a motion to modify the spousal

support order. A hearing was held on May 28, 2010. By judgment entry filed June 4,

2010, the trial court denied the motion.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶4}   "THE TRIAL COURT ERRED WHEN UPHOLDING SPOUSAL SUPPORT

IN THE AMOUNT OF $1300.00 TO BE PAID TO THE APPELLEE PER MONTH FOR

THE NEXT TEN YEARS."

                                            I

       {¶5}   Appellant claims the trial court erred in denying his motion to modify

spousal support.    Specifically, appellant claims the trial court erred in finding no

substantial change of circumstances, in failing to adequately evaluate his income at the

original divorce hearing, and in finding he hid income in a retirement account. We

disagree.

       {¶6}   The modification of spousal support lies in the trial court's sound

discretion. Booth v. Booth (1989), 44 Ohio St.3d 142; Cherry v. Cherry (1981), 66 Ohio

St.2d 348. In order to find an abuse of discretion, we must determine the trial court's
Richland County, Case No. 10CA86                                                           3


decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

       {¶7}   Modification of spousal support is warranted only when a substantial

change in the circumstances of the parties exists. Leighner v. Leighner (1986), 33 Ohio

App.3d 214. "[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." R.C. 3105.18(F).

       {¶8}   R.C. 3105.18 governs spousal support.          Subsection (C)(1) states the

following:

       {¶9}   "In determining whether spousal support is appropriate and reasonable,

and in determining the nature, amount, and terms of payment, and duration of spousal

support, which is payable either in gross or in installments, the court shall consider all of

the following factors:

       {¶10} "(a) The income of the parties, from all sources, including, but not limited

to, income derived from property divided, disbursed, or distributed under section

3105.171 of the Revised Code;

       {¶11} "(b) The relative earning abilities of the parties;

       {¶12} "(c) The ages and the physical, mental, and emotional conditions of the

parties;

       {¶13} "(d) The retirement benefits of the parties;

       {¶14} "(e) The duration of the marriage;
Richland County, Case No. 10CA86                                                              4


        {¶15} "(f) The extent to which it would be inappropriate for a party, because that

party will be custodian of a minor child of the marriage, to seek employment outside the

home;

        {¶16} "(g) The standard of living of the parties established during the marriage;

        {¶17} "(h) The relative extent of education of the parties;

        {¶18} "(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

        {¶19} "(j) The contribution of each party to the education, training, or earning

ability of the other party, including, but not limited to, any party's contribution to the

acquisition of a professional degree of the other party;

        {¶20} "(k) The time and expense necessary for the spouse who is seeking

spousal support to acquire education, training, or job experience so that the spouse will

be qualified to obtain appropriate employment, provided the education, training, or job

experience, and employment is, in fact, sought;

        {¶21} "(l) The tax consequences, for each party, of an award of spousal support;

        {¶22} "(m) The lost income production capacity of either party that resulted from

that party's marital responsibilities;

        {¶23} "(n) Any other factor that the court expressly finds to be relevant and

equitable."

        {¶24} In its judgment entry filed June 4, 2010, the trial court concluded the

following:

        {¶25} "The Court is befuddled to fully understand the trucking business based

upon the lack of documentation provided.           It is clear that the hauling business is
Richland County, Case No. 10CA86                                                        5


rebounding somewhat. Most compelling is the $331,000 proceeds from the sale of real

property, admittedly separate property of the Plaintiff, which he chose to invest in a

retirement account instead of paying off the truck, the credit card, or other obligations.

Invested at 3%, a conservative return, would net $9,980 annually.          This is nearly

$10,000 more potential income available to him than on the date of the Decree of

Divorce. If he had paid off his debts, which the Court can only presume that he is

paying more than 3% to service, the income producing capability of those funds would

create an even greater yield. Income available to either Party is a proper factor for the

Court to consider in determining a proper spousal support award.         A Party cannot

choose to simply hide the income in a retirement account and then claim poverty to

avoid a spousal support obligation already imposed. Yet Plaintiff is attempting to do just

that.

        {¶26} "The Court, therefore, cannot find sufficient evidence of a substantial

change of circumstance not contemplated by the Parties that justifies the Court reducing

Plaintiff's obligation to pay Defendant $1,300 per month."

        {¶27} In the original award filed March 10, 2009, the trial court evaluated

appellant's income from 2006 to 2008 as follows:

        {¶28} "In 2006 he had net earnings of $37,414.00. In 2007 those net earnings

increased to $48,736.00. In 2008, he ceased operating under a corporate structure.

His income in 2008 was $42,517.00.        In 2008 Plaintiff paid to Candy Weisenauer

$9,321.15 as business expense. In 2009 through February 15 he has paid to Candy

Weisenauer $2,250, which annualizes on a monthly basis of about $1,500 per month.

In 2008, payments to Candy Weisenauer amounted to $51,658, dramatically increasing
Richland County, Case No. 10CA86                                                       6


in the later half of the year. All of this suggests to the Court that the Plaintiff has

funneled some portion of his trucking income through Candy Weisenauer and thus his

argument that his trucking income is declining is not credible."

       {¶29} In its June 4, 2010 judgment entry, the trial court re-evaluated appellant's

income as follows:

       {¶30} "Plaintiff continues to work as an owner/operator of a trucking business

that has one (1) truck, which he drives. He hauls primarily for Mar-Zane Materials.

Their business 2009 is off over 50%. Herb Harsar, plant manager, testified the Plaintiff

is sixth on the list of truckers to be called, on an as-needed basis. He testified that

Plaintiff, in 2009, was only called to work about fourteen (14) days. This year business

appears to be back up, but no testimony was offered as to what that means in terms of

loads available for Plaintiff to haul.   At the time of the Divorce, Mar-Zane moved

approximately 150,000 tons of aggregate annually. To date they have orders on the

books for 100,000 tons. The Court can only speculate to what extent additional orders

may be available for the Company.

       {¶31} "Plaintiff's 2009 tax return was admitted into evidence. It shows income of

$19,285. This includes depreciation of $3,433. Plaintiff's exhibit 2, the transaction

detail driving the tax filing, is unsupported by any documentation.      Plaintiff earned

minimal income as a temp employee, claiming he was unable to do repetitive factory

work, thus limiting his temporary work opportunities. Defendant has a budget of $3,162,

including $700 rent he has not paid in over a year, a truck payment of $1,500 and a

minimum credit card payment of $150 on a credit card indebtedness of $28,014.00,

mostly incurred since the Decree of Divorce."
Richland County, Case No. 10CA86                                                        7


      {¶32} Appellant argues the trial court's findings and decision ignore Mr. Harsar's

testimony relative to the sharp decline in the economy in 2009. We note the original

award was filed on March 10, 2009. Therefore, the time period to be examined is from

March 10, 2009 to May 28, 2010, the date of the hearing.

      {¶33} Mr. Harsar testified that during 2009, he contracted appellant as an owner-

operator for "10 to 15 days***[m]aybe $10,000.00." T. at 9. Mr. Harsar opined the

amount of work for the company in 2009 was "50 to 60%, 70% down." T. at 13. The

"plant averaged between 150,000 and 200,000 tons – last year I ran 66,000."            Id.

However, as of May 2010, the month of the hearing, the amount on the books was

already 100,000 tons. T. at 13. Mr. Harsar admitted he had no knowledge of what

appellant was paid for hauling in 2009 and 2010. T. at 15. He further admitted he had

no knowledge of whether appellant was hauling for other parties. T. at 15-16.

      {¶34} Appellant testified his net income for 2009 was $19,285.00 with gross

receipts of $39,302.00. T. at 24. Appellant worked some temporary jobs throughout the

winter. T. at 27-28.

      {¶35} As noted by the trial court, despite appellant's profit gained from the sale

of his real property ($331,000.00), he has chosen not to pay off his $28,000.00 credit

card bill which he claims he has used to pay his $1,300.00 monthly spousal support

obligation to appellee. T. at 29-30, 31, 42-44. Appellant testified the $331,000.00 is in

a retirement account through his accountant, but he does not know what account the

money is in and has not received any statements. T. at. 44-45. Appellant testified he

subsidized his living by paying bills through his company's petty cash. T. at 48-49.
Richland County, Case No. 10CA86                                                         8


      {¶36} We find the trial court's summation of the evidence to be consistent with

the testimony given. Appellant was essentially requesting a change in spousal support

awarded to appellee after a nineteen year marriage with appellee's gross income being

$1,073.75 per month. It is appellant's position that a less than nine months downturn in

the economy from the original spousal support award to the filing of the motion to

modify merits a reduction in spousal support, despite the clear evidence that during the

first five months of 2010, Mr. Harsar testified business was picking up. No evidence

was presented to establish that appellant's income from hauling could not again reach

the 2006-2008 figures. The substantial change in circumstances from March 10, 2009

to the date of the hearing was appellant realizing $331,000.00 from the sale of his

property. See, R.C. 3105.18(C)(1)(a) and (i).

      {¶37} We fail to find an abuse of discretion by the trial court. For a trial court to

modify spousal support on a nine month apparent temporary downturn in the economy

would encourage a revolving door to the courthouse.

      {¶38} Upon review, we find the trial court did not abuse its discretion in finding a

temporary downturn would negate the original spousal support award based upon the

factors in R.C. 3105.18(C).

      {¶39} The sole assignment of error is denied.
Richland County, Case No. 10CA86                                               9


      {¶40} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                        _s/ Sheila G. Farmer__________________




                                        _s/ W. Scott Gwin____________________




                                        _s/ Patricia A. Delaney________________


                                                       JUDGES

SGF/sg 107
Richland County, Case No. 10CA86                                                 10


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



GREGORY KUHN                             :
                                         :
       Plaintiff-Appellant               :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
DELOISE KUHN                             :
                                         :
       Defendant-Appellee                :         CASE NO. 10CA86




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________________




                                         _s/ W. Scott Gwin____________________




                                         _s/ Patricia A. Delaney________________


                                                          JUDGES
