[Cite as Cutter v. Cutter, 2012-Ohio-358.]




                      Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96375


                                   HEDWIG C. CUTTER

                                                    PLAINTIFF-APPELLANT/
                                                    CROSS-APPELLEE

                                              vs.

                                  ROBERT M. CUTTER
                                                    DEFENDANT-APPELLEE/
                                                    CROSS-APPELLANT



                                  JUDGMENT:
                          AFFIRMED IN PART, REVERSED
                            IN PART, AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                   Domestic Relations Division
                                        Case No. D-261799

        BEFORE: Stewart, J., Blackmon, A.J., and Cooney, J.
       RELEASED AND JOURNALIZED:                February 2, 2012

ATTORNEYS FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

Carl A. Murway
Brian E. Ambrosia
Taft, Stettinius & Hollister, L.L.P.
3500 BP Building
200 Public Square
Cleveland, OH 44114




MELODY J. STEWART, J.:

       {¶ 1} Plaintiff/cross-appellee, Hedwig Cutter, and defendant/cross-appellant,

Robert Cutter, were divorced in 1999 under the terms of a settlement agreement that the

domestic relations division reduced to judgment. The settlement agreement provided

that Robert would pay Hedwig spousal support for seven years based on a formula that

incorporated a base amount of support and incremental percentages of Robert’s earned

income in excess of certain predetermined amounts. The parties agreed that the court

would not have jurisdiction to modify the terms of spousal support unless Robert “retired”

during the term of spousal support.
      {¶ 2} Hedwig sought modification of support on grounds that Robert had retired.

A magistrate agreed that Robert had retired, but the court rejected that analysis, finding

that Robert had merely switched jobs and continued to work full time. Finding that it

lacked jurisdiction, the court refused to modify spousal support. It did determine that

Robert was in arrears on past spousal support obligations and, in addition to ordering him

to pay that amount, ordered him to pay Hedwig $5,000 in attorney fees.

      {¶ 3} Hedwig appeals, claiming that the court erred by finding that Robert had not

retired and further erred by awarding her an amount of attorney fees that were

considerably less than she requested; Robert cross-appeals, claiming that he should not

have been required to pay any attorney fees at all and that the court erred when

determining the support arrearage.

                                            I

      {¶ 4} The settlement agreement that the court incorporated into the divorce decree

provided that Robert would pay spousal support of $5,100 per month (inclusive of

poundage), in bimonthly installments, through a period ending August 31, 2007. The

divorce decree states: “This court shall not retain jurisdiction to modify the amount or

duration of the foregoing base spousal support order.”

      {¶ 5} In addition to the base amount of spousal support, the parties agreed that

Robert would pay as additional spousal support 30 percent of the first $100,000 of

“annual earned income” that Robert might earn above $225,000 per year; 25 percent of

the second $100,000 of Robert’s annual earned income in excess of $225,000 per year;
and 15 percent of Robert’s annual earned income in excess of $425,000 per year. These

payments were to be made within ten days of Robert receiving any additional earned

income, with Robert’s paychecks submitted to Hedwig as proof of his bonuses. The

separation agreement also stated: “The percentage spousal support provided hereinabove

shall not be modifiable by either party or by any court and/or support agency of competent

jurisdiction unless and until Husband shall have voluntarily retired during the time period

within which spousal support is otherwise agreed to be due and payable.” The parties

agreed that “any percentage spousal support shall also terminate on August 31, 2007, the

date on which all spousal support shall terminate.”

       {¶ 6} On July 6, 2007, Hedwig filed a motion to modify spousal support and

sought an accounting of sums owed to her. In response, Robert filed a motion asking the

court to enter an order terminating spousal support. The issues were ordered to trial

before a magistrate.

       {¶ 7} The magistrate found the evidence showed that on February 3, 2006, Robert

“retired” from his job at an accounting firm and immediately began working full time for

another firm. He explained that he had been looking to make a job change, but feared

that preexisting medical conditions (cancer) would be excluded from medical coverage

under a new employer’s health plan.         Having met certain longevity requirements

necessary to qualify for retiree medical coverage with his old employer, Robert chose to

characterize his cessation of employment as a retirement so that he could qualify for
retiree medical benefits. Robert commenced his new job immediately and at no point

was he not employed full time.

      {¶ 8} The magistrate concluded that Robert had retired, thus giving the court

jurisdiction to modify the percentage component of the spousal support award. She

found, however, that modification of support could in no way extend beyond August 31,

2007, so she would only consider modification of support from July 6, 2007 (the date of

the motion to modify spousal support) through August 31, 2007.             The magistrate

reviewed Hedwig’s financial condition and found that she had mismanaged her $600,000

share of the marital assets and over $700,000 in spousal support. Hedwig’s liabilities

exceeded her assets; she had no current income and was waiting to collect social security

benefits, leaving her functionally bankrupt. Robert, on the other hand, was earning a

salary with his new employer that exceeded the base amount of his salary with his prior

employer, although he was not receiving the substantial bonuses that he earlier enjoyed.

The magistrate thus found that Hedwig’s circumstances had changed and that she was

entitled to a modification of spousal support granting her an additional $5,000 per month,

but only for the period of July 6, 2007 through August 31, 2007, for a total of $9,150.

The magistrate combined this modification with support arrears owing from Robert, and

ordered a total payment of $12,579.01. Finally, the magistrate awarded Hedwig $20,000

in attorney fees for prosecuting her motion to modify.

      {¶ 9} Both parties filed objections to the magistrate’s decision. Hedwig argued

that the magistrate erred by finding it only had jurisdiction to modify spousal support for
the period, that it miscalculated Robert’s support arrears, and failed to award enough in

attorney fees. Robert objected to the magistrate’s finding that he “retired” for purposes

of granting the court jurisdiction to modify the percentage aspect of spousal support, the

calculation of his support arrears, and the award of attorney fees.

       {¶ 10} The court sustained in part and denied in part objections from both parties.

It found that the magistrate’s decision contained a typographical error in the computation

of support arrears and that the amount Robert owed was $13,092.98. As for modification

of support, it found that Robert’s “change of employment did not constitute retirement.”

It thus found it lacked jurisdiction to modify spousal support and overturned the

magistrate’s decision to do so. Finally, the court found that Hedwig was entitled to only

$5,000 for attorney fees.

                                             II

       {¶ 11} Hedwig’s first and second assignments of error collectively challenge the

court’s finding that Robert did not retire from his earlier employment in a manner that

would vest the court with jurisdiction to modify spousal support.

       {¶ 12} R.C. 3105.18(E) states that if there is an order for the periodic payment of

spousal support, the court that enters the decree of divorce or dissolution of marriage

“does not have jurisdiction to modify the amount or terms of the alimony or spousal

support” unless the “the decree or a separation agreement of the parties to the divorce that

is incorporated into the decree contains a provision specifically authorizing the court to

modify the amount or terms of alimony or spousal support.”
       {¶ 13} The parties were divorced under the terms of separation agreement that the

court adopted and incorporated into the decree. A separation agreement submitted in a

dissolution of a marriage is a binding contract between the parties and the court “cannot

unilaterally change the provisions of the agreement.” In re Adams, 45 Ohio St.3d 219,

220, 543 N.E.2d 797 (1989). We interpret settlement agreements according to standard

contract law,   Brown v. Brown, 90 Ohio App.3d 781, 784, 630 N.E.2d 763 (11th

Dist.1993), giving the terms of a contract their plain and ordinary meaning. Lager v.

Miller-Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 15.

       {¶ 14} The separation agreement provided that the base amount of spousal support

was not subject to modification under any circumstances. The parties agreed that the

percentage aspect of spousal support could be modified, but only in the event that

“Husband shall have voluntarily retired during the time period within which spousal

support is otherwise agreed to be due and payable.”

       {¶ 15} At dispute was the interpretation of the word “retire.” In the employment

context, a voluntary “retirement” means to conclude one’s working or professional career.

 Giving this word its plain meaning, we find that the court correctly found that Robert did

not retire in a manner that would grant the court jurisdiction to modify the percentage

aspect of spousal support. The evidence showed that Robert had simply switched jobs

— he did not conclude his working or professional career. While it was true that he

characterized his departure from his former employer as a retirement, he did so for the

sole purpose of qualifying for retiree health benefits. He offered substantial testimony to
show that he had various preexisting medical conditions that may not have been covered

under a different health insurance plan. By characterizing his departure from the former

employee as a “retirement,” Robert was able to qualify for retiree health benefits with no

cessation of insurance for those preexisting conditions. Robert’s new job was not only

full time employment, but he typically worked between 48 and 60 hours per week. This

work schedule conclusively showed that he had not “concluded” his working career in a

manner that could reasonably be said to have amounted to retirement as that word is

commonly understood. The court obviously, and correctly in our view, concluded that

Robert had retired in name only. Hedwig’s arguments to the contrary ignore the clear

meaning of the language used by the parties in their settlement agreement.

      {¶ 16} If Robert did not “retire” from employment, it follows that the condition

precedent stated in the separation agreement for vesting jurisdiction with the court to

modify the percentage aspect of spousal support did not occur. The court correctly found

that it lacked jurisdiction to modify spousal support in any manner. Our conclusion that

the court lacked jurisdiction to modify spousal support makes it unnecessary for us to

consider whether Hedwig’s loss of capital through poor or mismanaged investments

constituted a change of circumstances justifying a modification of spousal support.

                                           III

      {¶ 17} The third, fourth, and fifth assignments of error and the first

cross-assignment of error are based on the court’s determination of Robert’s support

arrears stemming from the percentage payments he was obligated to make on income in
excess of $225,000. Hedwig argues that the court’s calculation was too low and that

Robert owed more; Robert argues that it was too high and that he owed less.

      {¶ 18} Hedwig’s argument that the court failed to properly calculate Robert’s

income in excess of $225,000 is premised on her belief that the parties would use

Robert’s “gross” wages for the calculation. The parties did not, however, agree that they

would use Robert’s gross wages when determining the percentage of any income in

excess of $225,000. Instead, the separation agreement used the term “earned income.”

      {¶ 19} R.C. 3105.18(C)(1)(a) instructs a court contemplating a spousal support

order to consider “[t]he income of the parties, from all sources * * *.” This is commonly

known as “gross income.”       The parties mutually agreed through their settlement

agreement to define Robert’s income in a different way, choosing to calculate the

percentage share based on Robert’s “earned income.” The parties did not define the term

“earned income,” so we use its ordinary meaning. Alexander v. Buckeye Pipe Line Co.,

53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph two of the syllabus. As applicable

here, the Internal Revenue Service defines “earned income” as “wages, salaries, tips, and

other employee compensation, but only if such amounts are includible in gross income for

the taxable year[.]” 26 U.S.C. 32(c)(1)(F)(2)(a)(I). When deciding what constitutes

“earned income,” the courts have held that Box 5 of the Internal Revenue Service Form

W-2 be used as the benchmark for determining income. Marcus v. Marcus, 175 Conn.

138, 394 A.2d 727 (1978); Ott v. Ott, 266 A.D.2d 842, 698 N.Y.S.2d 137

(N.Y.A.D.1999). Box 5 of the W-2 includes all wages, tips, and other compensation in
addition to employee contributions to 401k plans, even though these contributions are

tax-deferred.

        {¶ 20} Hedwig referred to an “earnings summary” prepared in conjunction with

Robert’s W-2s that listed “gross pay” including Robert’s salary and certain non-taxable

earnings. The Internal Revenue Service does not consider non-taxable earnings as part

of Medicare wages for purposes of Box 5 of the Form W-2, so we presume the parties

knew that Robert’s additional payments would be based on percentages of his earned

income. Maher v. Cleveland Union Stockyards Co., 55 Ohio App. 412, 418, 9 N.E.2d

995 (8th Dist.1936). We therefore reject Hedwig’s claims that the court erred by not

using Robert’s gross income for percentage support calculation.

        {¶ 21} What remains for decision is whether the court erred in its calculations of

Robert’s support arrears. Our review of the evidence lists Robert’s earned income as

shown by the Medicare wages listed on his W-2 forms and the amount of percentage

payments he owed:

        Tax Year                   Earned                        Amount Over Percentage
                                   Income                        $225,000          Owed
        1999                       $415,242                      $190,242          $52,561
        2000                       $330,4781                     $105,478          $31,370
        2001                       $337,7562                     $112,756          $33,189
        2002                       $327,3663                     $102,366          $30,592

        1
         The magistrate incorrectly used a figure of $332,500.
        2
         The magistrate incorrectly used a figure of $340,000.
        3
           Robert argues that his earned income was $322,366. The $5,000 difference is due to an adoption subsidy
given to him by his employer. Although adoption subsidies may be excludable from income, they are nonetheless
benefits that are included as social security and Medicare wages in boxes 3 and 5 of the Form W-2. See Internal
Revenue Service Publication 525, http://www.irs.gov/publications/p525/ar02.html.
         2003                    $307,0964                  $82,096                    $24,629
         2004                    $273,6005                  $48,600                    $14,580
         2005                    $318,8516                  $93,851                    $28,155
         2006                    $303,0237                  $78,023                    $23,407
         20078             $293,584                   $68,584                    $13,717

         Total Percentage Owed:                                                  $252,200

         {¶ 22} Robert agreed to pay $5,000 per month in base spousal support.                                   The

amount of base spousal support that he owed over the 102-month duration of the

settlement agreement was $510,000.                     Documentation from the Cuyahoga Support

Enforcement Agency showed that he paid $520,562, for an overpayment of $10,562.

Neither party contests the amount of this overpayment.

         {¶ 23} Using the correct figures for earned income, we find that Robert owed

Hedwig a total of $252,200 in percentage payments for spousal support. The parties

disputed the total amount of money that Robert paid yearly in spousal support: Hedwig

used her tax returns for documentation; Robert provided his tax returns and other

documentation. The magistrate decided what figure to use based on the quality of each

party’s supporting documentation.                     Because the magistrate made a credibility


         4
         The magistrate incorrectly used a figure of $310,000.
         5
         The magistrate incorrectly used a figure of $275,000
         6
         The magistrate incorrectly used a figure of $303,189.97
         7
         In 2006, Robert reported income from two employers as a result of his job change. One W-2 form lists
Medicare wages of $57,116; the other W-2 list Medicare wages of $245,907. Added together, these total $303,023.
         8
          The magistrate found that as of August 31, 2007, Robert had made $199,248, an amount that did not
exceed $225,000 and would not entitle Hedwig to a bonus payment. In order to avoid depriving Hedwig of any
share of bonus income, the magistrate decided to prorate Robert’s total yearly salary of $293,584 for two-thirds of
the year. This resulted in the following equation: ($293,584 - $225,000) x 30% x 8/12 = $13,717.
determination based on the supporting documentation, we defer to those findings of fact.

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶ 24} The magistrate found that Robert paid a combined total of $750,773 in

spousal support. Of that amount, $4,600 was attributable to two spousal support checks

that were written before the effective start date of Robert’s spousal support obligation, so

the magistrate deducted that amount from the total amount paid, leaving a total amount

paid of $746,173.     Robert owed Hedwig the total sum of $762,200 ($510,000 +

$252,200). He was thus in arrears in the amount of $16,027. We sustain the third,

fourth, and fifth assignments of error and the first cross-assignment of error and remand

with instructions for the court to issue judgment to Hedwig in the amount of $16,027.

                                             IV

       {¶ 25} The sixth assignment of error and the second cross-assignment of error

complain that the court abused its discretion by ordering Robert to pay Hedwig attorney

fees in the amount of $5,000. Hedwig argues that the amount is too low; Robert argues

that the amount is too high.

       {¶ 26} R.C. 3105.73(B) empowers the court to award “reasonable” attorney fees

to either party in any post-decree motion that arises out of the dissolution of a marriage if

the court finds that attorney fees are “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.” Because an award of attorney fees invokes the court’s equitable powers, our
review is limited solely to determining whether the court abused its discretion. Swanson

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

       {¶ 27} The magistrate originally awarded Hedwig the amount of $20,000 for her

attorney fees. That award was premised on the successful nature of Hedwig’s motion for

an accounting of spousal support payments balanced against Hedwig’s unsuccessful

motion to extend spousal support beyond the deadline stated in the separation agreement.

       {¶ 28} When ruling on objections to the magistrate’s decision, the court overturned

the magistrate’s finding that Robert had “retired” in a manner that would vest the court

with jurisdiction to modify spousal support. It thus vacated the magistrate’s finding that

Hedwig was entitled to any additional spousal support. The court did, however, find that

the magistrate made a computational error in setting forth Robert’s support arrearage — a

finding that benefitted Hedwig.

       {¶ 29} Our discussion of the assignments of error make it clear that Robert was in

arrears with his support obligation, though not to the extent determined by the court. In

all other respects, we have affirmed the court’s judgment. On that basis, we have no

reason for finding that the court abused its discretion in ordering Robert to pay $5,000 for

Hedwig’s attorney fees.

       {¶ 30} We note that Hedwig’s argument in support of a higher award of attorney

fees is based on her claim that Robert “has substantial assets and income, which clearly

justifies the award of attorney fees requested by Hedwig.” See Appellant’s Brief at 19.

R.C. 3105.73(B) makes it clear that the court cannot consider the parties’ assets when
deciding whether to award fees. For his part, Robert does nothing more than argue that

his “modest” underpayment did not justify an award of fees to Hedwig. But proving that

underpayment was a complicated task, requiring the production of many financial records

and several days of trial testimony. The court acted reasonably by finding that Hedwig

was entitled to some fees in this respect, though not in the amount that she originally

sought.

      {¶ 31} This cause is affirmed in part, reversed in part, and remanded for

proceedings consistent with this opinion.

      It is ordered that the parties bear their own costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas — Domestic Relations 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.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR
