[Cite as Potter v. Potter, 2013-Ohio-3531.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99247



                                  ROSANNE S. POTTER
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 WILLIAM M. POTTER
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                   Domestic Relations Division
                                        Case No. D-296540


        BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: August 15, 2013
ATTORNEYS FOR APPELLANT

Anne C. Fantelli
Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza
5th Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Richard A. Rabb
Kaitlyn D. Arthurs
McCarthy, Lebit, Crystal & Liffman
101 West Prospect Avenue
Suite 1800
Cleveland, OH 44115
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant William M. Potter (“William”) appeals the denial of

post-decree motions to modify spousal support and for attorney fees. We find no merit

to the appeal and affirm.

       {¶2} William and plaintiff-appellee Rosanne S. Potter (“Rosanne”) were divorced

on September 4, 2007. The judgment entry of divorce ordered Rosanne to pay William

spousal support in the amount of $3,000 per month for a period of 42 months from May 1,

2007 through November 1, 2010. The trial court reserved jurisdiction to modify the

spousal support during the 42-month period pursuant to R.C. 3105.18, if a change in

circumstances warranted a modification. As part of the divorce, the court also equally

divided parties’ marital assets, and William received over half a million dollars. Neither

party was ordered to pay child support even though they had two minor children born as

issue during the marriage.

       {¶3} Prior to the divorce, Rosanne was employed by Lubrizol Corporation and

earned $208,300 annually as a base salary. However, her 2007 tax return indicates that

Rosanne earned a total of $471,879 that year as a result of Lubrizol’s one time payment of

deferred compensation at the end of her employment.         At the time of the divorce,

Rosanne was working part-time for RTI, International Metals, Inc. (“RTI”) as a

temporary employee under a contract with Resources Global Professionals and made

$125,000 per year. RTI hired Rosanne as a full time employee on April 1, 2008, at a

lower hourly rate. However, because she started working full time, her salaried income
increased to $145,000 per year plus bonuses. One month later, Rosanne accepted a

position at Eaton Corporation with an annual salary of $147,500, plus bonuses.

Rosanne’s tax returns indicate that she earned $186,579 in 2008, $151,933 in 2009, and

$132,952 in 2010.

      {¶4} William has had diabetes mellitus and heart disease for several years. He

had open heart surgery in 1995, bypass surgery in 1996, and suffered a heart attack in

2005. Although William attended a few years of college and graduated as a pastry chef

from Culinary Institute of America in 1995, he was unemployed at the time of the divorce

and had no income other than the spousal support he received from Rosanne.           He

admittedly has no commercial sales training, limited computer skills, and has not worked

since 1998.

      {¶5} Rosanne remarried after the divorce. At the time of the divorce Rosanne and

the parties’ minor children were living with Rosanne and present husband David

Beveridge (“Beveridge”).     Rosanne and Beveridge share equally in the household

expenses, but individually pay expenses for their respective children. Rosanne has paid

all of the children’s expenses including daycare, medical expenses, and Catholic school

tuition, without contribution from William.

      {¶6} On April 8, 2009, William filed a motion to modify support and a motion for

attorney fees. On September 14, 2009, Rosanne filed a motion to modify child support,

motion to modify spousal support, and for attorney fees. Rosanne argued that William

should pay child support since she has full-time custody of the children and pays all of
their expenses. She also argued that the amount of her spousal support obligation should

be reduced to reflect a decrease in her income.

       {¶7} William, on the other hand, argued that he was entitled to an increase in

spousal support because while Rosanne’s income has substantially increased and her

expenses have decreased since the divorce, his medical expenses have increased. He

asserted that he has no health insurance, no employment, minimal assets, and large

medical bills. Therefore, he argued, there has been a significant change in circumstances

justifying an upward modification of spousal support in both amount and term. He also

claimed that Rosanne should pay his attorney fees.

       {¶8} On March 21, 2012, a magistrate issued a decision denying all motions and

William filed timely objections to the magistrate’s decision. On January 7, 2013, the

court issued a judgment entry overruling all of William’s objections and adopting the

magistrate’s decision without modification.       William now appeals and raises four

assignments of error.



                            Modification of Spousal Support

       {¶9} In his first assignment of error, William argues the trial court abused its

discretion by denying his motion to modify spousal support. In his second assignment of

error, William argues the trial court abused its discretion by failing to comply with Civ.R.

53 when it adopted the magistrate’s decision without modification.           In the fourth

assignment of error, William argues the magistrate’s decision is against the manifest
weight of the evidence. We discuss these assigned errors together because they are

interrelated.

       {¶10} A magistrate’s decision on the issue of modification is subject to a de novo

review by the trial court.     Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 94456,

2011-Ohio-2255, ¶ 9, citing Inman v. Inman, 101 Ohio App.3d 115, 655 N.E.2d 199 (2d

Dist. 1995). Under Civ.R. 53(D)(4)(d), a trial court “shall undertake an independent

review as to the objected matters to ascertain that the magistrate has properly determined

the factual issues and appropriately applied the law.” Thus, the trial court must conduct

an independent analysis of the evidence to reach its own conclusions about the issues in

the case.

       {¶11} A trial court’s ruling on objections to a magistrate’s decision will not be

reversed absent an abuse of discretion. Gobel v. Rivers, 8th Dist. Cuyahoga No. 94148,

2010-Ohio-4493, ¶ 16, citing Remner v. Peshek, 7th Dist. Mahoning No. 97CA98, 1999

Ohio App. LEXIS 4802 (Sept. 30, 1999). Furthermore, when reviewing the propriety of

a trial court’s determination in a domestic relations case, an appellate court generally

applies an abuse of discretion standard. Gray v. Gray, 8th Dist. Cuyahoga No. 95532,

2011-Ohio-4091, ¶ 7, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028

(1989).

       {¶12} A trial court lacks jurisdiction to modify a prior order of spousal support

unless the decree of the court expressly reserved jurisdiction to make the modification and

unless the court finds (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, paragraph two of

the syllabus; R.C. 3105.18(F). If the court reserved jurisdiction for modification in the

divorce decree, the trial court must consider the factors set forth in R.C. 3105.18(C)(1) to

determine whether the existing support order should be modified in light of a significant

change in circumstances. Id. at ¶ 31.

       {¶13} Due to the strong interest in finality, the Ohio Supreme Court has cautioned

that courts should only modify spousal support orders when one or both of the parties’

circumstances have “drastically” changed. Id. at ¶ 16. The burden of establishing the

need for a modification of spousal support rests with the party seeking the modification.

Tremaine v. Tremaine, 111 Ohio App.3d 703, 676 N.E.2d 1249 (2d. Dist. 1996).

       {¶14} In determining whether there was a substantial change in circumstances that

would justify modification of child support, courts must consider the factors set forth in

R.C. 3105.18(C)(1), which include: (1) the parties’ income from all sources, including

income derived from the property division made by the court; (2) the relative earning

abilities of the parties; (3) their ages and physical, mental, and emotional conditions; (4)

their retirement benefits; (5) the duration of the marriage; (6) their standard of living

during the marriage; (7) the relative extent of education of the parties; (8) their relative

assets and liabilities; (9) the contribution of each party to the education, training, or

earning ability of the other party; (10) tax consequences of spousal support, and (11) the
lost income production capacity of either party that resulted from that party’s marital

responsibilities. R.C. 3105.18(C)(1).

       {¶15} It is undisputed that the trial court reserved jurisdiction pursuant to R.C.

3105.18 to modify spousal support.        In evaluating the factors set forth in R.C.

3105.18(C)(1), the trial court noted that William attended college for a few years but

never obtained a degree. In 1995, during the parties’ marriage, he attended the Culinary

Institute of America and graduated as a pastry chef. He testified that he has been unable

to work as a chef due to partial amputations of his feet secondary to his diabetes.

However, he admitted that he had not sought or obtained additional education since the

filing of the parties’ divorce even though he expressed a need for computer training.

       {¶16} There was no evidence that William sought any form of employment during

the three years in which the parties’ divorce was pending. William testified that he

searched the internet and newspapers for job opportunities since the divorce and that he

submitted approximately 20 job applications online or over the phone without success.

However, he was unable to supply the name of any prospective employers from whom he

sought employment, nor did he produce any documentation of his efforts to find

employment. The magistrate found William’s claim that he sought employment since the

parties’ divorce “was neither convincing nor credible.” In his report, the magistrate

further stated:
“What the Defendant claims to have done by way of a job search, if credible, would

amount to no more than a token nod to the idea that he might expend the time and effort

to find work.”

       {¶17} William’s diabetes and heart disease were known to both parties long before

their divorce in 2007. William admitted that his diabetes was “deemed significant” as

early as 1997 or 1998. In 2002, William had a diabetes related infection in one of his

toes that required him to receive intravenous antibiotics. In June of that year, he had a

diabetes related procedure to the foot known as “surgical debridement.” The infection

left William incapacitated for a period of time while he received treatment for the

infection and his diabetes.    Based on this history, the trial court found that it was

foreseeable at the time of the divorce that William would continue to have complications

from his diabetes including foot infections.

       {¶18} At the hearing on the post-decree motions, William introduced several

letters from physicians describing his current medical conditions. However, none of the

letters were authenticated or admissible under Evid.R. 702. Although inadmissible, the

magistrate noted that a physician in one of the letters stated: “ I advised him that he was

physically capable of obtaining gainful employment. * * * Work that involved moderate

activity for 8 hours a day would be perfectly permissible.” William also submitted

photographs of his feet that depict an ulcer and amputated toes. However, the magistrate

stated that at the hearing William’s feet “appeared less distressed than the feet

photographed.” Although William testified that he suffers from depression and that the
depression has prevented him from working, he presented no admissible expert evidence

to support this conclusion.

       {¶19} William testified that due to complications from his diabetes, he was often

confined to home, connected to a wound-vac to draw away infection, and remained in

need of daily nursing care. However, the magistrate found this testimony “in stark

contradiction to the evidence of the Defendant’s post-divorce spending and travels”

throughout the United States.

       {¶20} At the hearing, Rosanne produced evidence of William’s bank records,

which documented William’s spending from 2007 through 2009. In 2007, William took

several trips to: Puerto Rico; Chicago; Mammoth Cave, Kentucky; Harrisburg,

Pennsylvania; Texas; Orlando, Florida; and New Mexico. The evidence showed that

William spent thousands of dollars on transportation and lodgings. That same year, he

purchased a $3,375 Bulgari watch, nearly $700 in gun-related purchases, over $7,500

from Sedlack Interiors, $2,884 from Arhaus Furniture, over $4,000 at Ticknors Men’s

Clothiers, and over $4,000 for expenses related to his Harley-Davidson motorcycle.

       {¶21} In 2008, William traveled to Las Vegas, Nevada; New Hampshire; New

Jersey; twice to Nashville, Tennessee; and again to Orlando, Florida. He again spent

thousands of dollars on transportation and lodgings. In addition, William spent over

$7,500 on purchases at Sheiban Jewelers, hundreds of dollars at Tiffany and Company,

over a thousand dollars at Ticknors Men’s Clothier, and hundreds of dollars on his

Harley-Davidson motorcycle.
      {¶22} In 2009, William continued to travel to Nashville, Tennessee and Sedona,

Arizona. As in previous years, he spent thousands of dollars on men’s clothing at

Ticknors and Nordstrom, and nearly $4,000 at Best Buy. The records also reflect a

$20,000 transfer to his adult son as a wedding gift. In addition to his travels, there was

evidence that William participated in a bowling league in 2008 and 2009 despite his

testimony that he was confined to his home connected to a wound vac.

      {¶23} William’s bank records also listed regular and substantial cash withdrawals

that were unexplained. With the exception of William’s list of prescription drugs and

Rosanne’s exhibits, William’s expenses were undocumented.

      {¶24} It is undisputed that William received substantial assets at the conclusion of

the divorce proceedings.    As part of the property division, William received over

$500,000 in assets. Yet, William testified that those assets were nearly depleted by the

time of the hearing.    When questioned about what he did with certain assets, he

responded that he did not know what happened to those funds. The magistrate found no

evidence to show that William invested the assets he received from the divorce, or that he

made any effort to improve his ability to earn a living and/or become gainfully employed.

      {¶25} Despite her own health problems, including breast cancer, sciatica, and an

overactive thyroid, Rosanne sought and obtained employment to further her career. Her

base salary at the time of the hearing was little more than her salary at the time of the

divorce, but her potential to earn bonus income had increased dramatically. She also

received additional benefits, including health insurance, life insurance, disability
insurance, savings and pension plans, and paid vacation. She has remarried and shares

living expenses with her new husband, who also earns a substantial income.

      {¶26} The magistrate summarized the spousal support issue as follows:

      The contrast between the Plaintiff and the Defendant is dramatic at almost
      every turn. * * * Like “The Grasshopper and the Ant” in Aesop, the parties
      have made for themselves the lives in which they now find themselves.
      Starting out from the divorce, each with appreciable assets, both in cash and
      investments, the parties have gone very different paths. Nothing in the
      credible and convincing evidence presented, shows that the Defendant did
      anything to save or improve his lot. The record as it exists is rife with
      examples of the Defendant’s willingness and ability to spend away his
      income and assets, while doing nothing to plan for the proverbial “rainy
      day.” Defendant knew he needed training in order to find employment,
      and, even when he was having no acute health difficulties, did nothing to
      address that need. Defendant, immediately following the divorce, had the
      time and financial wherewithal, if not the will, to obtain training that would
      improve his prospects for employment. Imprudently, he elected to travel
      around the country, and spend, relative to his regular income, extravagantly.
       He played. Knowing that he had chronic medical problems, which
      sensibly would dictate his having health insurance, the Defendant, though
      the parties’ Divorce Decree contemplated him looking for employment that
      provided health insurance, failed to seek employment. While he spent
      money freely on clothes, jewelry, furniture and travel, he allowed his
      COBRA health insurance to lapse for non-payment. If the Defendant had
      genuine health related circumstances that prevented him from seeking work,
      the convincing and proper evidence to that effect should have been
      presented at trial. It was not. If the Defendant had so greatly depleted his
      post-divorce assets as to leave him with only $5,000.00 to meet his current
      expenses, the evidence of that depletion in paper or electronic records
      should have been available and presented at trial. It was not.

      Plaintiff on the other hand is nothing if not a worker. She is clearly driven
      in her efforts to better her circumstances, to work and to save, and has a
      demonstrated record of success. She has taken the opportunity afforded to
      her after the divorce to better her employment, income and personal life.
      At the close of the within hearing, the Plaintiff was in a far better
      circumstance relative to income and assets than she was at the time of the
      parties’ divorce. It is more than apparent that what she has achieved, she
      has worked for and earned.
       Where the Defendant has done nothing to help himself post-decree, he
       cannot in equity or in law now look to the Plaintiff and demand that she
       continue to fund his lifestyle.

       {¶27} Although there was some evidence that the parties’ circumstances have

changed, none of the changes were significant or surprising. Rosanne had demonstrated

during the parties’ marriage that she is a hard worker and would likely continue to have a

successful career. Although she has remarried and enjoys the luxury of sharing her

living expenses with another person, a spouse’s income cannot be considered in

determining an obligor’s ability to pay spousal support. Manzella v. Manzella, 2d Dist.

Montgomery No. 20618, 2005-Ohio-4519, ¶ 12.

       {¶28} Moreover, William’s heart disease and diabetes were known to him before

the divorce. William’s loss of assets is the most significant change that occurred since

the divorce and William is solely responsible for that. He chose to spend his money

instead of investing it in education and training that would enable him to acquire stable

employment and health insurance. “When considering the relative earning abilities of

the parties in connection with an award of spousal support, Ohio courts do not restrict

their inquiry to the amount of money actually earned, but may also hold a person

accountable for the amount of money a ‘person could have earned if he made the effort.’”

 Rothman v. Burns, 8th Dist. Cuyahoga No. 88756, 2007-Ohio-3914, ¶ 31, quoting

Beekman v. Beekman, 10th Dist. Franklin No. 90AP-780, 1991 Ohio App. LEXIS 3917

(Aug. 15, 1991). The magistrate and the trial court refused to allow William to profit

from his lack of effort to make his own living.
       {¶29} Finally, William argues the magistrate abused his discretion by excluding

evidence pertaining to his health conditions. He argues that he was competent to testify

as to the treatment he received, surgeries he has undergone, and any other issue regarding

his health. However, the magistrate did not exclude William’s testimony about his

conditions, he excluded unauthenticated letters from out-of-court medical experts

pursuant to Evid.R. 702. Moreover, as previously explained, the parties were aware of

William’s diabetes and heart disease for several years and any deterioration in William’s

health was contemplated at the time of the divorce. Therefore, the court heard evidence

regarding the complications from William’s diabetes, but found that it did not warrant a

modification of spousal support.

       {¶30} Having reviewed the record, we find the manifest weight of the evidence

supports the magistrate’s decision to deny William’s motion for modification of spousal

support. We also find that the trial court reviewed the magistrate’s decision and issued

its own decision in accordance with Civ.R. 53(D)(4)(d). Therefore, we find no abuse of

discretion and overrule William’s first, second, and fourth assignments of error.




                                      Attorney Fees

       {¶31} In his third assignment of error, William argues the trial court abused its

discretion by denying his motion for attorney fees.
       {¶32} R.C. 3105.73(B) allows the court to award “reasonable” attorney fees to

either party in any post-decree motion that arises from a divorce if the court finds that an

attorney fee award is “equitable.” When deciding whether to award attorney fees, the

court may consider “the parties’ income, the conduct of the parties, and any other relevant

factors the court deems appropriate, but it may not consider the parties’ assets.” Mlakar

v. Mlakar, 8th Dist. Cuyahoga No. 98194, 2013-Ohio-100, ¶ 32. We review the trial

court’s decision whether to award attorney fees for an abuse of discretion. Id., citing

Swanson v. Swanson, 48 Ohio App.2d 85, 90, 355 N.E.2d 894 (8th Dist.1976).

       {¶33} William asserts that the trial court should have awarded him reasonable

attorney fees. In support of his argument, William cites several cases all of which

affirmed an attorney fee award because the petitioning spouse incurred additional fees as

a result of the other spouse’s lack of cooperation during divorce or post-decree

proceedings. However, he does not argue that Rosanne failed to cooperate or that he

incurred additional attorney fees as a result of her conduct. Indeed, the evidence showed

that not only did Rosanne make all of her spousal support payments in a timely manner,

she assisted William in obtaining insurance through her employer after he allowed his

health insurance through COBRA to lapse. We find no basis upon which the trial court

could justify awarding William any attorney fees in this case.

       {¶34} Therefore, the third assignment of error is overruled.

       {¶35} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the domestic relations court division

to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
