[Cite as Patti v. Patti, 2014-Ohio-1156.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


JOHN A. PATTI,                                    :       OPINION

                 Plaintiff-Appellant,             :
                                                          CASE NO. 2013-P-0048
        - vs -                                    :

SANDY C. PATTI,                                   :

                 Defendant-Appellee.              :


Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
Division, Case No. 2012 DR 00483.

Judgment: Affirmed.


Jonathan P. Jennings, 223 West Main Street, Ravenna, OH 44266 (For Plaintiff-
Appellant).

Stephen Daray, North Point Tower, Suite 1720, 1001 Lakeside Avenue, Cleveland, OH
44114 (For Defendant-Appellee).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, John A. Patti, appeals the Judgment Entry Decree of

Divorce, issued by the Portage County Court of Common Pleas, Domestic Relations

Division, terminating his marriage to defendant-appellee, Sandy C. Patti, and awarding

her spousal support.           The issues before this court are whether a court may order

spousal support in favor of a spouse whose counterclaim for legal separation is denied;

whether a spousal support award of $1,150 per month is equitable where the obligor-
spouse’s projected gross income is $56,062.08; and whether an indefinite award of

spousal support is proper where the court retains jurisdiction to modify the award. For

the following reasons, we affirm the decision of the court below.

       {¶2}   On October 9, 2012, John filed a Complaint for Divorce (without Minor

Children) against Sandy, in the Portage County Court of Common Pleas, Domestic

Relations Division.

       {¶3}   On October 22, 2012, Sandy filed an Answer and Counterclaim for Legal

Separation, Spousal Support, Attorney Fees, and Other Equitable Relief.

       {¶4}   On February 27, 2013, the domestic relations court entered a Judgment

Entry, finding that “the parties reached a full agreement regarding the distribution of the

parties’ marital assets and debts.” The court further found that “the sole remaining

outstanding issue in this matter is the issue of spousal support.”

       {¶5}   On April 8 and 18, 2013, trial was held in the domestic relations court on

the issue of spousal support, and on the grounds for terminating the marriage.

       {¶6}   On April 19, 2013, the domestic relations court issued a Judgment Entry

Decree of Divorce. The court granted John a divorce based upon the grounds of gross

neglect of duty and denied Sandy’s counterclaim for legal separation.

       {¶7}   The domestic relations court ordered John to pay Sandy spousal support

in the amount of $1,150 per month, commencing May 1, 2013. The support obligation

would terminate “at Plaintiff’s death, Defendant’s remarriage, cohabitation or death,

whichever occurs first,” and the court “retain[ed] jurisdiction over the issue of spousal

support.”




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       {¶8}    Relative to the issue of spousal support, the domestic relations court

made the following findings, pursuant to R.C. 3105.18(C)(1)1:

       (a)    The income of the parties, from all sources, * * *: Plaintiff’s income

       through    March 31 from his            employment      at   Harbison-Walker is

       $19,846.50[.]     * * *   Plaintiff’s anticipated total 2013 gross income is

       $56,062.08. Plaintiff’s 2012 income was in the amount of approximately

       $53,000.00 to $55,000.00 * * *. Plaintiff’s 2011 income was $52,490.05 * *

       *. Plaintiff’s 2010 income was $41,644.70 * * *. Plaintiff’s 2009 income

       was $43,860.59 * * *.        Plaintiff’s 2008 income was $47,008.02 * * *.

       Plaintiff’s 2007 income was $40,394.00.            Defendant is not employed

       outside the home. Defendant has not been employed outside the home

       since approximately 2010. Since that time, she has been receiving Social

       Security and/or Social Security benefits in the annual amount of

       approximately $9,720.00.

       (b)    The relative earning abilities of the parties: Plaintiff is currently

       employed at his relative earning ability. Based upon Defendant’s current

       physical health, it is not anticipated that she will be able to become

       reemployed outside the home.

       (c)    The ages and physical, mental, and emotional conditions of the

       parties: Plaintiff is 60 years old and is in excellent health. Defendant is 65

       years old and has many physical issues. As a result of a 1996 industrial

       accident, Defendant sustained 2 herniated discs at L-4 and L-5. As a


1. Factors for which no findings were made were either not applicable or the parties did not submit
evidence at trial relative to those factors.


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result of her March 24, 2010 automobile accident, Defendant sustained a

compression fracture at T-6, an injury to her foot, a significant head injury,

exacerbation of her prior lower back injury and an injury to the L-3 area of

her back. Defendant currently suffers from significant pain in her back,

exacerbated claustrophobia, foot and leg pain.            She takes some

prescription medication.

(d)   The retirement benefits of the parties: [Plaintiff’s Harbison-Walker

pension, valued at $105,000, and 401(K)/Roth IRA, liquidated for

approximately $44,000, were divided evenly between the parties.]

(e) The duration of the marriage: The parties have been married for a

period of approximately 21 years.

***

(h) The relative extent of education of the parties: Plaintiff received his

associate’s degree in accounting in 1972. He has not taken any courses

to keep his associate’s degree up to date or active.         No evidence of

Defendant’s formal education was submitted to the Court; however, the

Court finds that Defendant previously worked in an office setting and

performed duties including, but not limited to, secretarial and office

management. Defendant also has experience in the photography and the

cake making/decorating fields.

(i) The relative assets and liabilities of the parties * * *: [Plaintiff was

awarded marital debt in the amount of $10,970. Plaintiff was awarded a

residence with an approximate value of $91,000 and an outstanding




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       mortgage of $33,000.       Defendant was awarded a residence with an

       approximate value of $41,000 and an outstanding mortgage of $21,000.

       Defendant was awarded the net proceeds of $84,000 from her personal

       injury settlement.]

       ***

       (n) Any other factor that the court expressly finds to be relevant and

       equitable: Plaintiff has paid Defendant’s cable bill plus direct cash support

       of Five Hundred Dollars ($500.00) each month since the parties separated

       in July 2012.     Defendant will incur the expense of Three Hundred

       Nineteen Dollars ($319.00) per month to obtain health and prescription

       coverage commensurate with the coverage she currently has through

       Plaintiff’s [insurance] coverage.

       {¶9}   On May 20, 2013, John filed his Notice of Appeal. On appeal, John raises

the following assignments of error:

       {¶10} “[1.] The trial court committed prejudicial error in awarding defendant,

SANDY C. PATTI, an order of spousal support from plaintiff, JOHN A. PATTI, pursuant

to R.C. 3105.18, when the matter of spousal support was no longer before the court

after denial of defendant’s counterclaim for legal separation.”

       {¶11} “[2.] The trial court committed prejudicial error in awarding defendant,

SANDY C. PATTI, an inequitable order of spousal support in the amount of $1,150.00

per month from plaintiff, JOHN A. PATTI.”

       {¶12} “[3.] The trial court committed prejudicial error in awarding defendant,

SANDY C. PATTI, an indefinite order of spousal support from plaintiff, JOHN A. PATTI.”




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         {¶13} In matters relating to spousal support, the “trial court is provided with

broad discretion in deciding what is equitable upon the facts and circumstances of each

case.”    Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990); Bechtol v.

Bechtol, 49 Ohio St.3d 21, 24, 550 N.E.2d 178 (1990) (“[a] trial court has considerable

but not unbridled discretion in fashioning sustenance alimony awards”). “A reviewing

court,” therefore, “cannot substitute its judgment for that of the trial court unless,

considering the totality of the circumstances, the trial court abused its discretion.”

Kunkle at 67.

         {¶14} In the first assignment of error, John argues it was error for the domestic

relations court to award spousal support since it had denied Sandy’s counterclaim for

legal separation.

         {¶15} “In divorce and legal separation proceedings, upon the request of either

party and after the court determines the division or disbursement of property under

section 3105.171 of the Revised Code, the court of common pleas may award

reasonable spousal support to either party.” R.C. 3105.18(B); Pomeroy v. Pomeroy,

11th Dist. Ashtabula No. 2005-A-0032, 2006-Ohio-5833, ¶ 9. Although the statute does

not state how a request for spousal support is to be raised, the courts have generally

held that such a request must be expressly made so that the party from whom support

is sought is aware of the request. Woodland v. Woodland, 7th Dist. Belmont No. 06-BE-

9, 2007-Ohio-3503, ¶ 6-21 (cases cited).

         {¶16} John’s position is that the “only written claim for relief in the pleadings”

was contained in Sandy’s counterclaim and, thus, “after denying defendant’s




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counterclaim there was no pending claim for spousal support before the court.” We

disagree.

       {¶17} John cites no authority for the proposition that a request or claim for

spousal support, raised in an answer/counterclaim, may not be awarded when the

counterclaim is denied. The statute provides that spousal support may be awarded

when requested by a party without any requirement that the party be the prevailing party

on the merits. In the present case, Sandy requested spousal support as part of her

answer and counterclaim and consistently “pray[ed]” that such relief be granted through

trial. The merits of her claim for support did not depend on the merits of her claim for

legal separation.

       {¶18} The first assignment of error is without merit.

       {¶19} In the second assignment of error, John argues the award of spousal

support is inequitable, in that it increases Sandy’s total annual income to $23,520, while

it reduces his annual income, after tax withholding, to “less than $30,769.35.” Although

John concedes that “this appears to be in plaintiff’s favor,” when each party’s monthly

expenses are taken into account, John’s “net disposa[b]l[e] income [is] $557.33 [per

month], barely half of defendant’s [net disposable income of] $1,042.37.” John further

argues that this basic inequality is exacerbated by the fact that his retirement is being

evenly divided, while Sandy retained the full benefit of her personal injury settlement.

       {¶20} We find no abuse of discretion. John’s pre-tax annual income, adjusted to

reflect the payment of spousal support, is approximately $42,262, still significantly more

than Sandy’s annual income. John’s argument that the result is inequitable relies on tax

liabilities and monthly expenses. John fails to account for the fact that spousal support




                                             7
is taxed as part of the recipient’s, rather than the payor’s, income. The disparity in

amounts owed for rent and utilities, $917.63 for Sandy and $1,491.00 for John, are not

so great as to render the spousal support award unreasonable or unconscionable.

       {¶21} John also relies on the purportedly inequitable division of property. Such

reliance, however, is unavailing. The property division in the present case was agreed

to by both parties with full knowledge that the issue of spousal support remained to be

litigated. John cannot properly claim that the division of property renders the support

award unreasonable. Moreover, the division of property is not particularly inequitable.

Sandy was awarded the full amount of her personal injury settlement, but these funds

were, by statutory definition, her separate property. R.C. 3105.171(A)(6)(a)(vi). While

John was awarded the parties’ consumer debt in the amount of $10,970, he was also

awarded a residence with $58,000 in equity, in contrast to Sandy’s residence which

had, at the time of divorce, only $20,000 in equity.

       {¶22} The second assignment of error is without merit.

       {¶23} In the third assignment of error, John argues that the indefinite award of

spousal support was unreasonable, despite the retention of jurisdiction, since the award

is essentially unmodifiable under the Mandelbaum standard. The Ohio Supreme Court

in Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172,

held that a trial court may only exercise its jurisdiction to modify an award of spousal

support where there was a substantial change of circumstances that “was not

contemplated at the time of the original decree.” Id. at paragraph two of the syllabus.

       {¶24} John’s contention regarding the inalterability of the spousal support award

in the present case is belied by the provision of the Revised Code which states that, for




                                             8
the purposes of modifying spousal support, “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, * * * so long as * * * [t]he

change in circumstances was not taken into account by the parties or the court as a

basis for the existing award when it was established or last modified, whether or not the

change in circumstances was foreseeable.” R.C. 3105.18(F)(1)(b). In the present case,

John’s retirement was not taken into account as a basis for the existing award. The

possibility of John working until age 66, the factory being closed, and alternative

employment opportunities were acknowledged as future contingencies justifying a

modification of the award. There was no testimony as to what John’s income might be

upon retirement. Accordingly, any substantial change in John’s income upon retirement

could serve as a legitimate basis for modifying the award, as the court did not, and

could not have, taken such a change into account as a basis for the award.

       {¶25} The third assignment of error is without merit.

       {¶26} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas, Domestic Relations Division, is affirmed. Costs to be taxed against the

appellant.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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