[Cite as Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222.]




           MANDELBAUM, APPELLEE, v. MANDELBAUM, APPELLANT.
 [Cite as Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222.]
Divorce — Modification of spousal support — Continuing jurisdiction — R.C.
       3105.18 — Change in circumstances needed to modify support order must
       be a substantial change.
   (Nos. 2007-2422 and 2008-0375 — Submitted October 14, 2008 — Decided
                                  March 24, 2009.)
 APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County,
                            No. 21817, 2007-Ohio-6138.
                               __________________
                             SYLLABUS OF THE COURT
1. Although R.C. 3105.18(F) sets forth a partial listing of what can be considered
       as a change of circumstances to include “any increase or involuntary
       decrease in the party’s wages, salary, bonuses, living expenses, or medical
       expenses” for purposes of establishing trial court jurisdiction, it does not
       alter the requirement that a trial court must find a substantial change in
       circumstances before modifying a prior order for spousal support.
2. 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.
                               __________________
       O’DONNELL, J.
       {¶ 1} This case is presented on a certified conflict and on Stanley
Mandelbaum’s appeal from a decision of the Montgomery County Court of
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Appeals that reversed an order of the domestic relations court reducing his
spousal support payments to his ex-wife, Frances Mandelbaum. The certified
question presented in this case is whether a trial court may modify a prior order of
spousal support without finding that a substantial change in the circumstances of
the parties has occurred and that the parties had not contemplated such a change at
the time of the original divorce decree.
       {¶ 2} The Second District Court of Appeals held in this case that a trial
court errs in failing to consider whether a change in the circumstances of the
parties was substantial and not contemplated at the time of the prior order, while
the Ninth District Court of Appeals in Kingsolver v. Kingsolver, Summit App. No.
21773, 2004-Ohio-3844, relying on amendments to R.C. 3105.18, held that trial
courts have jurisdiction to modify an award of spousal support based on “any”
change in circumstances rather than a substantial change. Appellate courts across
the state are divided on this question.
       {¶ 3} After review, we recognize that the amendments to R.C. 3105.18
set forth what may constitute a “change in the circumstances of a party”; but
nothing in the history of the amended statute alters longstanding case authority
that to warrant modification, the change in circumstances must be a substantial
one, not contemplated at the time of the existing award.
       {¶ 4} Accordingly, we answer the certified question in the negative and
affirm the decision of the Second District Court of Appeals in this case.
                          Facts and Procedural History
       {¶ 5} Stanley and Frances Mandelbaum married in 1957.                In 1998,
Frances filed a complaint seeking a divorce, and Stanley counterclaimed for
divorce.   The parties negotiated a settlement agreement, and in 2000, the
Montgomery County Common Pleas Court, Domestic Relations Division,
incorporated the provisions of the settlement agreement on the issues of spousal




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support, division of property, and rights to retirement assets into its decree of
divorce.
       {¶ 6} The decree provided that Stanley would pay Frances spousal
support of $18,000 per year, in monthly installments of $1,500. The decree
further specified that spousal support would “be subject to the ongoing and
continuing jurisdiction of this Court” and that “[e]ither party shall have the right
to apply to this Court for the purposes of modifying the spousal support, due to a
change in the financial circumstances of either party.”        In this regard, the
settlement agreement provides: “It is the parties’ intent that, for the purpose of
spousal support, the parties’ combined incomes be equalized between the two of
them. The parties, in reaching an agreement as to the annual spousal support
payment of $18,000.00 per year by Husband to the Wife, have used $60,900.00 of
income for the Husband and $25,131.00 of income for the Wife.”
       {¶ 7} In 2005, Stanley moved to modify his support obligation, asserting
that his annual income had decreased from $60,900 to $17,675. A magistrate
conducted a hearing on the matter and found that Stanley’s gross income had
increased to $84,505 and that Frances’s gross income had increased to $40,239.
The magistrate recommended denying the motion because Stanley had not
demonstrated a sufficient change in circumstances to justify modifying the
support order pursuant to R.C. 3105.18.
       {¶ 8} Stanley filed objections to the magistrate’s recommendation, and
the trial court, after reviewing the record, determined that his income was
$61,876, not $84,505. Finding that the parties had intended to equalize their
incomes on an ongoing basis, the court sustained Stanley’s objections and reduced
his support obligation from $1,500 per month to $925 per month. The court,
however, made no finding with respect to whether a substantial change in the
parties’ circumstances had occurred or whether the parties had contemplated this
change at the time of the divorce decree.




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       {¶ 9} Frances appealed the trial court’s order, contending that it had
abused its discretion by underestimating Stanley’s income.             Stanley cross-
appealed, asserting that the court had entered an incorrect effective date for the
reduction in spousal support.
       {¶ 10} On review, the appellate court reversed the trial court’s
modification of spousal support, explaining that “the trial court erred in failing to
consider, as a threshold matter, whether the changes in the parties’ circumstances
were substantial and were not contemplated at the time of the prior order.
Although the parties reserved jurisdiction in the decree to modify spousal support,
R.C. 3105.18(E) also requires a substantial change of circumstances before a
spousal support order may be modified.”             Mandelbaum v. Mandelbaum,
Montgomery App. No. 21817, 2007-Ohio-6138, ¶ 4. Thus, the court of appeals
concluded that the trial court had abused its discretion, sustained two of Frances’s
assignments of error, and held that her third assignment of error and Stanley’s
cross-appeal were moot.
       {¶ 11} The appellate court certified that its ruling was in conflict with
decisions of the Fifth, Ninth, and Eleventh Districts in Tsai v. Tien, 162 Ohio
App.3d 89, 2005-Ohio-3520, 832 N.E.2d 809; Kingsolver v. Kingsolver, Summit
App. No. 21773, 2004-Ohio-3844; and Buchal v. Buchal, Lake App. No. 2005-L-
095, 2006-Ohio-3879, respectively. In the conflict cases, the appellate courts had
determined that R.C. 3105.18(E) does not require a trial court to find a substantial
change in circumstances before modifying an order for spousal support.
       {¶ 12} We allowed Stanley’s discretionary appeal to this court and
accepted the certified conflict, directing the parties to brief the following question:
“May a trial court modify spousal support under R.C. 3105.18 without finding
that: (1) a substantial change in circumstances has occurred; and (2) the change
was not contemplated at the time of the original decree?”            Mandelbaum v.
Mandelbaum, 117 Ohio St.3d 1455, 2008-Ohio-1635, 884 N.E.2d 65;




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Mandelbaum v. Mandelbaum, 117 Ohio St.3d 1457, 2008-Ohio-1635, 884 N.E.2d
66.
       {¶ 13} Stanley argues that R.C. 3105.18 does not require the court to find
that a substantial change in circumstances has occurred or that the parties did not
contemplate such a change at the time of the divorce decree before modifying
spousal support. Rather, he contends, R.C. 3105.18 allows any change in the
parties’ circumstances to justify granting a motion to modify spousal support.
Frances did not file a brief in our court and, consequently, did not participate in
oral argument.
       {¶ 14} This appeal, then, requires us to review R.C. 3105.18 and to clarify
the circumstances under which a trial court may modify an existing order of
spousal support.
             Modification of a Prior Order for Spousal Support:
                              Common-Law Origin
       {¶ 15} Our cases have long emphasized that an agreement for spousal
support that has been entered in a divorce decree by a trial court is entitled to
expectations of finality. For example, in Wolfe v. Wolfe (1976), 46 Ohio St.2d
399, 415-416, 75 O.O.2d 474, 350 N.E.2d 413, we traced nearly 100 years of our
decisions concerning alimony, including Olney v. Watts (1885), 43 Ohio St. 499,
3 N.E. 354, Law v. Law (1901), 64 Ohio St. 369, 60 N.E. 560, Newman v.
Newman (1954), 161 Ohio St. 247, 53 O.O. 135, 118 N.E.2d 649, and Hunt v.
Hunt (1959), 169 Ohio St. 276, 8 O.O.2d 286, 159 N.E.2d 430, and stated, “All
those cases allude to the inviolability of an alimony decree which is formulated by
the incorporation of an agreement of the parties.”
       {¶ 16} Nevertheless, we have also recognized that a prior order of spousal
support may be modified in some instances where the circumstances of the parties
have changed. Due to the strong interest in finality, however, our decisions have
indicated that the change in circumstances must be significant. In Olney, 43 Ohio




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St. at 508, 3 N.E. 354, for example, we quoted 2 Bishop on Marriage and Divorce
(5th Ed.), Section 429, quoting Dr. Stephen Lushington, an authority on English
ecclesiastical law, for the proposition that “ ‘ “where there is a material alteration
of circumstances, a change in the rate of alimony may be made.” ’ ” (Emphasis
added.) Similarly, in Wolfe, we indicated that modification may be justified
“where the economic situation of either or both of the parties drastically
changes.” (Emphasis added.) 46 Ohio St.2d at 419, 75 O.O.2d 474, 350 N.E.2d
413.
       {¶ 17} As a result of these and other decisions of this court, Ohio’s
appellate courts began to hold that a trial court may not modify a prior order for
spousal support without finding that a substantial change in circumstances had
occurred and that the parties had not contemplated the change at the time of the
divorce decree. As the Tenth District Court of Appeals stated in Leighner v.
Leighner (1986), 33 Ohio App.3d 214, 215, 515 N.E.2d 625, “Where
modification of an existing order for the payment of sustenance alimony is
requested, the threshold determination is whether the order can be modified,
which requires a finding of a change in circumstances since the order was entered.
The change in circumstances must be substantial and must be such as was not
contemplated at the time of the prior order.” (Emphasis sic.) See also Heltzel v.
Heltzel (June 21, 1985), Trumbull App. No. 3473, 1985 WL 10206; Fowler v.
Fowler (June 27, 1980), Fairfield App. No. 10-CA-80; 18 Ohio Jurisprudence
(1972) 594, Divorce and Separation, Section 272; 1 Anderson’s Ohio Family Law
(1975), Section 27.9.
       {¶ 18} Thus, the restriction that a court lacks jurisdiction to modify
spousal support without finding a substantial and unforeseen change in
circumstances of a party is settled law in Ohio. The legislature has, however,
twice amended R.C. 3105.18 on the subject of change in circumstances, once in
1986 and again in 1991.




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                       1986 Amendments to R.C. 3105.18
       {¶ 19} The Revised Code did not expressly provide for the modification
of prior orders for spousal support until May 2, 1986, when the legislature added
subsection (D) to R.C. 3105.18, providing:
       {¶ 20} “If a continuing order for periodic payments of money as alimony
is entered in a divorce or dissolution of marriage action that is determined on or
after the effective date of this amendment, 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 unless the court determines that the circumstances
of either party have changed and unless one of the following applies:
       {¶ 21} “(1) In the case of a divorce, the decree or a separation agreement
of the parties to the divorce that is incorporated into the decree contains a
provision specificially [sic] authorizing the court to modify the amount or terms
of alimony;
       {¶ 22} “(2) In the case of a dissolution of marriage, the separation
agreement that is approved by the court and incorporated into the decree contains
a provision specificially [sic] authorizing the court to modify the amount or terms
of alimony.” Am.Sub.H.B. No. 358, 141 Ohio Laws, Part II, 3388, 3389.
       {¶ 23} Former     R.C.    3105.18(D)    thus   codified   the    common-law
requirement of a change in circumstances, but it also specifically addressed an
issue that had been the subject of several decisions by this court. Significantly, in
Wolfe, we considered whether a trial court has continuing jurisdiction to modify a
prior order of spousal support in the absence of an express reservation of
jurisdiction by either the trial court or the parties in their settlement agreement.
We held that “[w]here, upon granting a divorce, a court awards alimony to a wife,
pursuant to an agreement of the parties, * * * reservation of jurisdiction to modify
the award will be implied in the decree.” (Emphasis added.) 46 Ohio St.2d 399,
75 O.O.2d 474, 350 N.E.2d 413, paragraph two of the syllabus. In a series of




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subsequent cases, however, we distinguished and limited Wolfe. See McClain v.
McClain (1984), 15 Ohio St.3d 289, 15 OBR 421, 473 N.E.2d 811; Colizoli v.
Colizoli (1984), 15 Ohio St.3d 333, 336, 15 OBR 458, 474 N.E.2d 280; Ressler v.
Ressler (1985), 17 Ohio St.3d 17, 17 OBR 14, 476 N.E.2d 1032.
         {¶ 24} As noted by the appellate court here, the legislative history of
Am.Sub.H.B. No. 358 reveals that the addition of former R.C. 3105.18(D) was a
response to Wolfe and subsequent cases. Mandelbaum, 2007-Ohio-6138, ¶ 58.
While the amendment codified the common-law requirement of a change in
circumstances, its foremost purpose was to declare that a trial court lacks
jurisdiction to modify the amount or terms of an order of spousal support unless a
provision in either the divorce decree or the separation agreement incorporated
into the decree of divorce or dissolution specifically authorizes modification.
         {¶ 25} With this addition to R.C. 3105.18, the legislature never suggested
an intent to alter longstanding case law requiring a substantial change in the
parties’ circumstances.    Moreover, courts uniformly continued to apply this
requirement after the 1986 amendments.         See, e.g., Shanley v. Shanley (8th
Dist.1989), 46 Ohio App.3d 100, 546 N.E.2d 477 (“Modification of alimony is
warranted only when a substantial change in the circumstances of the parties
exists”); Mahan v. Mahan (June 30, 1988), Franklin App. No. 87AP-834, 1988
WL 70488; Hurchanik v. Hurchanik (Dec. 31, 1987), Warren App. No. CA87-05-
037, 1987 WL 32775; Kahn v. Kahn (2d Dist.1987), 42 Ohio App.3d 61, 68, 536
N.E.2d 678; Levey v. Levey (Nov. 25, 1987), Summit App. No. 13166, 1987 WL
25773.
                        1991 Amendments to R.C. 3105.18
         {¶ 26} Effective January 1, 1991, the General Assembly again amended
R.C. 3105.18, redesignating division (D) as division (E) and adding division (F),
at issue here, stating, “For purposes of divisions (D) and (E) of this section, a
change in the circumstances of a party includes, but is not limited to, any increase




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or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or
medical expenses.” Am.Sub.H.B. No. 514, 143 Ohio Laws, Part III, 5426, 5457.
        {¶ 27} After the effective date of this amendment, many courts continued
to require a substantial and unforeseen change in circumstances before modifying
a prior order of spousal support. See, e.g., Tremaine v. Tremaine (2d Dist.1996),
111 Ohio App.3d 703, 706, 676 N.E.2d 1249; Trotter v. Trotter (Apr. 18, 2001),
Allen App. No. 1-2000-86, 2001 WL 390066; Patel v. Patel (Mar. 23, 1999),
Athens App. Nos. 98CA29 and 98CA30, 1999 WL 167608; Cesa v. Cesa (Nov.
29, 2001), Coshocton App. No. 01CA12, 2001 WL 1528911. But see Kucmanic
v. Kucmanic (8th Dist.1997), 119 Ohio App.3d 609, 613, 695 N.E.2d 1205, fn. 1
(stating in dicta that the common-law requirement “preceded the [1991]
amendments to R.C. 3105.18(E) and no longer appears valid in view of the
statute’s failure to mention the word ‘substantial’ ”).
        {¶ 28} In Kingsolver v. Kingsolver, Summit App. No. 21773, 2004-Ohio-
3844, the Ninth District Court of Appeals first held that the 1991 amendments to
R.C. 3105.18 eliminated the requirement of a substantial and unforeseen change
in circumstances, stating: “[I]f the Ohio legislature envisioned a more restrictive
standard for the phrase a ‘change of circumstances,’ it would have included such
terms as ‘substantial,’ ‘drastic,’ ‘material,’ or ‘significant’ in the 1991
amendments. Instead, however, the legislature chose to use the term ‘any,’ which
refers to changes that have an effect on the economic status of either party.” Id. at
¶ 21.   The appellate court also noted, “[T]he statutory amendments to R.C.
3105.18 do not require that economic changes be reasonably unforeseeable. We
find that such a limitation on the phrase ‘change of circumstances’ was also,
therefore, not contemplated by the Ohio Legislature.” Id. at fn. 3.
        {¶ 29} We recognize that the 1991 amendments to R.C. 3105.18 did not
codify the common-law requirement that a trial court is required to find that a
substantial and unforeseen change in circumstances has occurred before




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modifying a prior order of spousal support. But the absence of language to that
effect does not demonstrate that the General Assembly intended to abrogate what
had become well-established law. As we stated in State ex rel. Hunt v. Fronizer
(1907), 77 Ohio St. 7, 16, 82 N.E. 518, “the general assembly will not be
presumed to have intended to abrogate a settled rule of the common law unless
the language used in a statute clearly supports such intention.”
       {¶ 30} Furthermore, with the exception of three appellate districts since
2004, courts have consistently applied this common-law requirement for more
than 15 years since the 1991 amendments, and the legislature has not responded
by further amending R.C. 3105.18.
       {¶ 31} Based on the foregoing, we conclude that although R.C.
3105.18(F) sets forth a partial listing of what can be considered as a change of
circumstances to include “any increase or involuntary decrease in the party’s
wages, salary, bonuses, living expenses, or medical expenses” for purposes of
establishing trial court jurisdiction, it does not alter the requirement that a trial
court must find a substantial change in circumstances before modifying a prior
order for spousal support. In view of the history of this statute, the legislature’s
1991 amendment, adding the phrase “any increase or involuntary decrease in the
party’s wages, salary, bonuses, living expenses, or medical expenses,” does not
suggest its intent to alter the requirement of a substantial change in circumstances
in order to modify a prior order of spousal support. Unlike the 1986 amendment,
in which the legislature expressed its intent to alter the Wolfe decision, it did not
express a similar intent to change the holdings of appellate court decisions
adhering to the requirement of a substantial change in circumstances.
       {¶ 32} The word “substantial” has been given various meanings by Ohio
courts, such as “drastic[],” Wolfe, 46 Ohio St.2d at 419, 75 O.O.2d 474, 350
N.E.2d 413, “material,” Cooper v. Cooper, Clermont App. No. CA2003-05-038,
2004-Ohio-1368, ¶ 17, and “significant,” Palmieri v. Palmieri, Franklin App. No.




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04AP-1305, 2005-Ohio-4064, ¶ 27. Moreover, the change in circumstances must
be one that had not been contemplated and taken into account by the parties or the
court at the time of the prior order.
        {¶ 33} Accordingly, we answer the certified question in the negative and
hold that 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.
        {¶ 34} We therefore affirm the judgment of the appellate court and
remand the matter to the trial court for further proceedings consistent with our
decision.
                                                                 Judgment affirmed
                                                               and cause remanded.
        MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, LANZINGER, and
CUPP, JJ., concur.
        PFEIFER, J., concurs in judgment only.
                                 __________________
        Stone & McNamee Co., L.P.A., and Mark Edward Stone, for appellant.
                               ______________________




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