[Cite as Sterns v. Sterns, 2015-Ohio-3866.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

NICOLE STERNS                                       C.A. No.      27427

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ANTHONY STERNS                                      COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   2011-07-1955

                                  DECISION AND JOURNAL ENTRY

Dated: September 23, 2015



        CARR, Judge.

        {¶1}     Appellant Nicole Sterns appeals the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division. This Court reverses and remands.

                                               I.

        {¶2}     Nicole Sterns (“Wife”) and Anthony Sterns (“Husband”) were divorced on

September 25, 2012. Two children were born of the marriage. The parties executed both a

separation agreement and an agreed shared parenting plan which were incorporated and attached

to the divorce decree. Pursuant to the separation agreement, Husband agreed to pay Wife

spousal support in the amount of $900.00 per month for a period of 72 months. The parties

further agreed that spousal support could be modified “based upon an unanticipated change of

financial circumstances of the parties.” Pursuant to the parties’ shared parenting plan, Husband

would pay Wife $799.67 per month for child support for the two children, subject to

“modification depending on the parties’ circumstances.”
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          {¶3}   Just over a year later, Husband filed a post-decree motion to modify “his support

obligation due to a change of financial circumstances” without any memorandum in support.

The matter was scheduled for an oral hearing on January 28, 2014, but was rescheduled upon

Wife’s misunderstanding that the parties were merely scheduled to appear for a pretrial that day.

The magistrate held a hearing on Husband’s motion three days later and subsequently issued a

decision reducing both Husband’s spousal support obligation to $250.00 per month and his child

support obligation to $535.42 per month. Wife filed timely objections and supplemented her

objections after filing transcripts of the January 28 and 31, 2014 hearings. Husband responded in

opposition to Wife’s objections. The domestic relations court overruled Wife’s objections and

ordered that Husband’s spousal support and child support obligations be reduced to $250.00 per

month and $546.13 per month, respectively. Wife timely appealed and raises two assignments of

error for review. This Court consolidates the assignments of error, as they implicate the identical

issues.

                                                II.

                                  ASSIGNMENT OF ERROR I

          THERE WAS INSUFFICIENT COMPETENT CREDIBLE EVIDENCE
          SUBMITTED BY [HUSBAND] IN VERIFYING HIS INCOME TO JUSTIFY A
          REDUCTION OF HIS CHILD SUPPORT AT THE HEARING BEFORE THE
          MAGISTRATE.    THE TRIAL COURT THEREFORE ABUSED ITS
          DISCRETION WHEN IT OVERRULED [WIFE’S] OBJECTIONS TO THE
          REDUCTION.

                                 ASSIGNMENT OF ERROR II

          WITH THE TRIAL COURT RETAINING JURISDICTION TO MODIFY THE
          SPOUSAL SUPPORT OBLIGATION OF [HUSBAND], THERE WAS NO
          COMPETENT CREDIBLE EVIDENCE SUBMITTED BY [HUSBAND] TO
          MEET HIS BURDEN TO SHOW A SUBSTANTIAL CHANGE OF
          CIRCUMSTANCES NOT OTHERWISE PREVIOUSLY CONTEMPLATED
          BY THE PARTIES WHEN THE SPOUSAL SUPPORT WAS ORIGINALLY
          ESTABLISHED. THE TRIAL COURT ABUSED ITS DISCRETION BY
                                                 3


       FINDING THAT A CHANGE OF CIRCUMSTANCES OCCURRED
       WITHOUT A CLEAR DISCUSSION OF THE R.C. 3105.18(C) FACTORS
       THAT WOULD PROVIDE THE APPROPRIATE REASONS FOR REDUCING
       IT.

       {¶4}    Wife argues that Husband failed to present evidence warranting the domestic

relations court’s reduction of both Husband’s child support and spousal support obligations.

Moreover, while Wife raises multiple issues in support of her assignments of error, subsumed

within both assignments is her argument that the trial court improperly shifted the burden of

proof to her relative to Husband’s motion to modify support. This Court agrees.

       {¶5}    At the hearing on Husband’s motion, Husband’s attorney did not present the

testimony of any witnesses, including Husband. Instead, Husband’s attorney recited a lengthy

narrative of the purported basis for reducing Husband’s support obligations. Such statements

could not properly be considered as evidence in support of Husband’s motion. See State v.

Thomas, 9th Dist. Summit No. 22340, 2005-Ohio-4265, ¶ 26 (arguments of counsel do not

constitute evidence); State v. Overholt, 9th Dist. Medina No. 2905-M, 1999 WL 635717, *8

(Aug. 18, 1999) (“opening statements of counsel are not evidence.”). In addition, although

Husband’s attorney made reference to various exhibits by letter designation, it was often not

clear from the attorney’s statements what the exhibits purported to prove. And while Husband’s

attorney referred to many lettered exhibits, the magistrate indicated it would admit “two” of the

exhibits, although the specific two exhibits are not identified. This matter is murkier still as the

record contains no exhibits for this Court’s review.1




       1
          This Court followed the established protocol developed by the Summit County Clerk of
Courts’ office for requesting requisition of exhibits and was informed that no exhibits had been
filed in the underlying case before the Domestic Relations Court.
                                                 4


          {¶6}   After failing to present any testimony or other evidence in support of Husband’s

motion, his attorney then attempted to shift the burden to Wife to prove that Husband’s support

obligation should not be modified. Specifically, Husband’s attorney asked the court, “Where is

her documentation? Where [are] her exhibits with regard to her income? Where [are] her tax

returns? Where [are] her income statements?” Subsequently, the magistrate questioned Wife as

to any reason why she could not obtain employment.           Wife reminded the magistrate that

Husband had made the motion to modify support and that she believed that the procedures and

management of the matter during the hearing were improperly “spinning [] the situation onto me

* * *.”

          {¶7}   Husband filed the motion to modify his child and spousal support obligations, and

Wife correctly argues on appeal that Husband maintained the burden of proof in pursuit of a

modification. “The party seeking the modification or termination bears the burden of proving

that modification or termination is warranted.” Eckstein v. Eckstein, 9th Dist. Medina No.

03CA0048-M, 2004-Ohio-724, ¶ 22 (addressing a spousal support modification). Moreover,

even after proving the threshold issue of the requisite change of circumstances, “the moving

party still has the burden of showing that the current award is no longer ‘appropriate and

reasonable.’” Id., citing R.C. 3105.18(C); see also Mottice v. Mottice, 118 Ohio App.3d 731,

734 (9th Dist.1997) (“Moreover, the moving party bears the burden in establishing that the

change was not contemplated at the time of the divorce, or whenever the current support

payment was determined.”). The burden of proof lies with the party who moves to modify a

child support order, as well. Maguire v. Maguire, 9th Dist. Summit No. 23581, 2007-Ohio-4531,

¶ 14 (“As the party moving for the child support modification, Husband had the burden of proof
                                                 5


to establish how the relevant factors would support a modification of his child support

obligation.”).

       {¶8}      In this case, notwithstanding that Husband moved to modify his support

obligations, the domestic relations court and Husband’s attorney consistently attempted to shift

the burden of proof to Wife. On the date initially scheduled for hearing on Husband’s motion,

Husband’s attorney gave Wife copies of exhibits he planned to use at the hearing. When Wife

asserted that Husband had failed to give her a copy of his 2012 tax return as ordered in the

divorce decree, Husband’s attorney replied, “I’m not here to make your case.” After agreeing to

continue the hearing based on Wife’s misunderstanding that the parties were merely appearing

for a pretrial, the magistrate directed Wife to be prepared to “provid[e] evidence of [her] income

* * * [a]nd I guess anything else you want the Court to consider.”

       {¶9}      After the magistrate issued her decision reducing Husband’s support obligation by

approximately 75%, Wife objected, again noting that Husband as the moving party maintained

the burden of proof. In overruling Wife’s objections, the domestic relations court reiterated that

Husband had filed the motion to modify support and that the magistrate had instructed Wife to

“bring the necessary information” and “provide evidence of her income and anything else [she]

would want the Court to consider to the next hearing.” The domestic relations court recognized

that Husband did not testify at the hearing but, rather, that he “through statements of counsel,

represented to the Court that he had suffered an unanticipated decrease in income.” Despite the

lack of any evidentiary value of the mere argument of Husband’s attorney, presented over the

repeated objections of Wife, the domestic relations court emphasized that Wife “did not provide

the Court with any financial documentation and failed to provide the Court or [Husband] with a
                                                    6


copy of her most recent tax return, as previously instructed by the Court.” The trial court

continued:

       Indeed, the Court continued the hearing to allow [Wife] additional time to prepare
       for the hearing. [Wife] had ample opportunity to determine what documents she
       wished to offer as evidence. Instead, [Wife] chose to attend the hearing without
       any financial documents despite being previously ordered by the Court to bring
       those documents to the hearing.

       {¶10} In support of its judgment overruling Wife’s objections and ordering a significant

reduction in Husband’s support obligations, the domestic relations court wrote: “[Wife] failed to

introduce any evidence that would support maintaining child and spousal support at its current

amount.”

       {¶11} The record clearly demonstrates that Husband failed to present any admissible

evidence in support of his motion. He did not testify in his case-in-chief. Nor did he present the

testimony of any other witnesses. While Husband’s attorney presented a soliloquy to the court,

his statements were merely unsworn argument and contained no evidentiary value. In addition,

although Husband testified briefly on cross-examination in response to Wife’s questioning,

Wife’s line of questioning did not address any issues relevant to determining whether a

substantial change in circumstances had occurred that the parties had not previously

contemplated. Finally, while multiple exhibits were referenced by Husband’s attorney, and the

magistrate indicated that she was admitting some of them, the admitted exhibits are neither

delineated nor contained in the appellate record.

       {¶12} Moreover, based on a review of the record, it is apparent that, although Husband

filed the motion to modify his support obligation, both Husband’s attorney and the domestic

relations court operated from the perspective that Wife assumed the burden of proof. Wife

repeatedly objected at the hearing and in her written objections to the magistrate’s decision
                                                 7


regarding the impropriety of shifting the burden to her, noting that the moving party maintained

the burden of proof. Nevertheless, the domestic relations court erroneously shifted the burden of

proof onto Wife, requiring her as the nonmoving party to prove that the prior support order

should be maintained, rather than requiring Husband as the moving party to demonstrate the

legal basis for modifying the prior order.

       {¶13} The fact that the record is bereft of evidence relating to an unanticipated change in

circumstances, coupled with the trial court’s shifting of the burden of proof to Wife to defeat

Husband’s motion, warrants reversal of the domestic relations court’s order reducing Husband’s

child and spousal support obligations. Wife’s assignments of error are sustained.

                                                III.

       {¶14} Wife’s two assignments of error are sustained. The judgment of Summit County

Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded for

further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                8


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT



HENSAL, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

HANK F. MEYER, Attorney at Law, for Appellant.

JOSHUA A. LEMERMAN, Attorney at Law, for Appellee.
