[Cite as Skerness v. Skerness, 2015-Ohio-3467.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


VICKI ANN SKERNESS                                :   JUDGES:
                                                  :   Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                      :   Hon. Sheila G. Farmer, J.
                                                  :   Hon. Craig R. Baldwin, J.
-vs-                                              :
                                                  :
EDWARD G. SKERNESS                                :   Case No. 2015CA0002
                                                  :
        Defendant - Appellant                     :   OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Coshocton County
                                                      Court of Common Pleas, Case No.
                                                      2009DV0506


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT:                                     August 24, 2015



APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

ROBERT E. WEIR                                        BRIAN W. BENBOW
Frase, Weir, Baker                                    605 Market Street, Suite 1
and McCullough Co., L.P.A                             Zanesville, OH 43701
305 Main Street
Coshocton, OH 43812
Coshocton County, Case No. 2015CA0002                                                  2

Baldwin, J.

      {¶1}    Defendant-appellant Edward Skerness appeals from the January 15, 2015

Decision and Order of the Coshocton County Court of Common Pleas granting plaintiff-

appellee Vicki Ann Skerness’ Motion to Modify Spousal Support.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant Edward Skerness and appellee Vicki Ann Skerness were

married on November 19, 1988. No children were born as issue of such marriage.

      {¶3}    On June 12, 2009, appellee filed a complaint for divorce against appellant.

Pursuant to a Judgment Entry filed on October 19, 2009, the trial court ordered

appellant to pay appellee $1,045.00 per month in temporary spousal support plus

poundage. At the time, appellant was earning approximately $60,000.00 a year and

appellee $12,000.00 a year.

      {¶4}    Appellant, on December 18, 2009, was found guilty of various crimes and

was sentenced to four years in prison.

      {¶5}    A Judgment Entry Decree of Divorce was filed on November 16, 2010 that

incorporated the parties’ October 11, 2010 Separation Agreement. Article Two of the

Separation Agreement states as follows:

                    Husband shall pay spousal support to Wife as follows:

              temporary spousal support in the amount of One Thousand

              Forty Five and 00/100 Dollars ($1,045.00) per month,

              effective until March 31, 2010, and thereafter the order shall

              be modified and reduced to One Hundred ($100.00) per

              month as a temporary order until July 31, 2010. Upon the
Coshocton County, Case No. 2015CA0002                                        3


           payment of $3,535.00 provided for in ARTICLE THREE, part

           E., Husband will have paid all amounts ordered as

           temporary spousal support; and therefore, no amount shall

           be preserved as an arrearage accumulating under the

           temporary orders. Commencing August 1, 2010, Husband

           shall pay spousal support to Wife in the amount of One

           Hundred ($100.00) per month plus 2% processing charge for

           a period of one hundred seven (107) consecutive months.

           Said payment shall be made by Husband to Wife through the

           Child Support Enforcement Agency of Coshocton County

           (CSEA).    The Court shall retain jurisdiction to modify the

           amount of spousal support, but it shall not retain jurisdiction

           to modify the duration of spousal support.

                   The parties acknowledge that the amount of spousal

           support was determined in consideration of the following

           factors. Husband is currently incarcerated in a state penal

           institution with his only source of income being a reduced

           amount of Veterans Administration benefits, which may be

           restored to a greater amount upon Husband’s release. The

           Court     has   determined     that    Husband’s     Veterans

           Administration benefits shall not be considered an asset for

           property division purposes and shall not be subject to

           attachment for the payment of spousal support; either during
Coshocton County, Case No. 2015CA0002                                                4


             Husband’s incarceration or upon his release; however, said

             benefits may be considered as income for purpose of

             computing     Husband’s    gross   income    as   a   factor   in

             determining    modification   of   spousal    support.         In

             consideration of the reduced amount of spousal support to

             be paid as a result of Husband’s reduced income due to

             incarceration, Wife shall receive a disproportionately greater

             property division amount of two-thirds (2/3) of the marital

             property to Husband’s one-third (1/3) of the marital property.

             In the event a motion to modify and increase spousal

             support is filed by Wife, Husband may argue that the

             disproportionate property division should be a factor to be

             considered by the Court.

      {¶6}   On August 25, 2014, appellee filed a motion seeking an increase in

spousal support. Appellee, in her motion, alleged that appellant had been released from

prison and that his income had increased “above the amount he received while

incarcerated.” A hearing on such motion was held on December 11, 2014.

      {¶7}   At the hearing, appellant testified on cross-examination testified that he

was released from prison on December 18, 2013. He testified that before his prison

sentence, he earned approximately $60,000.00 a year in 2008 working for Stone

Container and had made over $50,000.00 at the time of his criminal trial in 2009.

Appellant testified that he was in contact with Central Pension about his Stone

Container pension and testified that he would receive approximately $1,500.00 a month
Coshocton County, Case No. 2015CA0002                                                     5


from that pension. Appellant testified that he received $1,912.00 a month in Social

Security benefits and $1,525.55 in benefits from the Veteran’s Administration (“VA”).

When asked, appellant stated that he did not have any other sources of income or

potential income. He was not working at the time of the hearing and had not sought any

employment since his release from prison. He offered no evidence of his monthly living

expenses. Appellant testified that he did not receive his VA benefits while in prison.

       {¶8}     Appellee testified that during the four years that her ex-husband was in

prison, she did not receive spousal support. She testified that she worked at a bank

earning $12.15 an hour and she received approximately $600.00 a month in pension

benefits.     Appellee testified that she worked 37 hours a week. According to appellee,

her monthly living expenses were $2,058.00 and she had to dip into some of the

retirement benefits that she received in the divorce to make ends meet.

       {¶9}     At the conclusion of the hearing, the trial court asked the parties to file

post-hearing closing arguments. Pursuant to a Decision and Order filed on January 15,

2015, the trial court found that there had been a substantial change in circumstances

and ordered that appellant pay spousal support to appellee in the amount of $600.00 a

month retroactive to August 25, 2014.

       {¶10} Appellant now raises the following assignments of error on appeal:

       {¶11} THE       TRIAL    COURT      COMMITTED       REVERSIBLE       ERROR        BY

ORDERING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WHEN THERE

WAS NO SUBSTANTIAL CHANGE IN CIRCUMSTANCES, WHICH MADE THE PRIOR

SPOUSAL SUPPORT ORDER NO LONGER REASONABLE UNDER R.C. 310518(F).
Coshocton County, Case No. 2015CA0002                                                    6


       {¶12} THE     TRIAL     COURT      COMMITTED        REVERSIBLE       ERROR      BY

ORDERING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WHEN

APPELLANT HAD NO INCOME BY WHICH THE TRIAL COURT COULD LAWFULLY

TAX SPOUSAL SUPPORT. THE TRIAL COURT’S JANUARY 15, 2015 JUDGMENT

ENTRY AWARDING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WAS

ACCORDINGLY AGAINST BOTH THE WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.

                                                I

       {¶13} Appellant, in his first assignment of error, argues that the trial court erred

in modifying spousal support when there was no substantial change in circumstances.

       {¶14} Modifications of spousal support are reviewable under an abuse of

discretion standard. Kunkle v. Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83 (1990). In order

to find an abuse of discretion, we must determine that the trial court's decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

       {¶15} R.C. 3105.18 provides guidelines for the modification of spousal support

as follows:

                     (E) 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 May 2, 1986,

              and before January 1, 1991, or if a continuing order for

              periodic payments of money as spousal support is entered in

              a divorce or dissolution of marriage action that is determined
Coshocton County, Case No. 2015CA0002                                        7


           on or after January 1, 1991, 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 court determines that the

           circumstances of either party have changed and unless one

           of the following applies:

                  (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 specifically

           authorizing the court to modify the amount or terms of

           alimony or spousal support ...

                  (F)(1) For purposes of divisions (D) and (E) of this

           section and subject to division (F)(2) of this section, 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, or other changed circumstances so long as both

           of the following apply:

                  (a) The change in circumstances is substantial and

           makes the existing award no longer reasonable and

           appropriate.

                  (b) The change in circumstances was not taken into

           account by the parties or the court as a basis for the existing
Coshocton County, Case No. 2015CA0002                                                 8


             award when it was established or last modified, whether or

             not the change in circumstances was forseeable.

                    (1) In determining whether to modify an existing order

             for spousal support, the court shall consider any purpose

             expressed in the initial order or award and enforce any

             voluntary agreement of the parties. Absent an agreement of

             the parties, the court shall not modify the continuing

             jurisdiction of the court as contained in the original decree.

      {¶16} There is no express requirement that the domestic relations court's order

granting or denying a motion to modify spousal support reexamine in toto the factors

listed in R.C. 3105.18(C)(1) that apply to an initial determination of spousal support.

Kucmanic v. Kucmanic, 119 Ohio App.3d 609, 613, 695 N .E.2d 1205, 1208 (8th Dist.

1997). The domestic relations court should set forth the basis for its decision with

enough detail to permit proper appellate review. Id., citing Graham v. Graham, 98 Ohio

App.3d 396, 399–400, 648 N.E.2d 850, 851–853 (1994).

      {¶17} In the case sub judice, the trial court, as stated in the Separation

Agreement, retained jurisdiction over the amount of spousal support. The trial court, in

its January 15, 2015 Decision and Order modifying spousal support, noted that

appellant, who was incarcerated at the time of the parties’ Separation Agreement, had

been released from prison, had failed to seek employment and was currently receiving

$5,000.00 a month from various sources of income. Appellant testified that during his

incarceration, he did not receive his VA benefits, which would have been his only
Coshocton County, Case No. 2015CA0002                                                    9


source of income at the time. At the hearing, appellee testified that during the four years

that appellant was incarcerated, she was not receiving spousal support.

       {¶18} We find, based on the foregoing, that the trial court did not err in finding

that there was a substantial change in circumstances justifying an upward modification

of spousal support.

       {¶19} Moreover, a modification of spousal support upon appellant’s release from

prison was clearly contemplated by the Separation Agreement. The Separation

Agreement stated that appellant would be receiving a reduced amount of VA benefits

while in prison and that the benefits were his only source of income. The Separation

Agreement further stated that appellant’s VA benefits “may be restored to a greater

amount upon [appellant’s] release” and that “said benefits may be considered as

income for purposes of computing [appellant’s] gross income as a factor in determining

a modification of spousal support.”

       {¶20} Appellant’s first assignment of error is, therefore, overruled.

                                                II

       {¶21} Appellant, in his second assignment of error, argues that the trial court

erred in finding that appellant had $5,000.00 in income “when all three potential sources

of income were barred from consideration as a matter of law.”

       {¶22} Appellant specifically argues that, under law, appellee could not be

awarded any amount of his VA pension or his social security benefits.

       {¶23} R.C. 3105.18(B) allows trial courts, upon a party's request and after

property distribution, to award reasonable spousal support. R.C. 3105.18(C) states, in

relevant part, as follows :
Coshocton County, Case No. 2015CA0002                                                     10


       {¶24} In determining whether spousal support is appropriate and reasonable,

and in determining the nature, amount, and terms of payment, and duration of spousal

support, which is payable either in gross or in installments, the court shall consider all of

the following factors:

       {¶25} (a) The income of the parties, from all sources, including, but not limited

to, income derived from property divided, disbursed, or distributed under section

3105.171 of the Revised Code;…

       {¶26} As noted by the court in Graves v. Graves, 4th Dist. Vinton No. 14CA694,

2014-Ohio-5812 at paragraph 42:

                     R.C. 3105.18(C)(1)(a) clearly and unambiguously

              states that a trial court must consider “the income of the

              parties, from all sources,” when determining whether spousal

              support is appropriate and reasonable. Thus, when trial

              courts determine whether to award spousal support, courts

              may consider a spouse's veteran's administration disability

              benefits, Social Security disability benefits, and Social

              Security retirement benefits, even if that income is a

              spouse's only source of income. Dilley v. Dilley, 11th Dist.

              Geauga No.2010–G–2957, 2011–Ohio–2093, ¶ 62 (disability

              benefits); Simpson v. Simpson, 12th Dist. Clermont No.

              CA2006–04–028, 2007–Ohio–224, ¶ 24 (Social Security

              retirement benefits); DiNunzio v. DiNunzio, 11th Dist. Lake

              No.2005–L–124, 2006–Ohio–3888, ¶ 59 (Social Security
Coshocton County, Case No. 2015CA0002                                                   11

               disability benefits); Crites v. Crites, 6th Dist. Wood No. WD–

               04–034,      2004–Ohio–6162,   ¶   22   (veteran's   disability

               benefits); Cardone v. Cardone, 9th Dist. Summit No. 18349,

               1998 WL 224934 (May 6, 1998) (veteran's disability

               benefits).

       {¶27} We note that appellant cites to        the   United States Supreme Court

decision in Mansell v. Mansell, 490 U.S. 581, 594–595, 109 S.Ct. 2023, 104 L.Ed.2d

675 (1989), in which the court held that state courts may not “treat as property divisible

upon divorce military retirement pay that has been waived to receive veterans' disability

benefits.” However, at issue in this case is whether or not such benefits can be

considered when calculating spousal support- not whether            they are divisible as

property. Appellant also cites to Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624,

791 N.E.2d 434, in arguing that the trial court could not divide or tax his social security

benefits.    However, “[a] court should consider social security benefits when determining

whether spousal support is correct.” Minear v. Palkovic, 7th Dist. Mahoning No. 09–MA–61,

2009–Ohio–6752, ¶ 17, citing Beyer v. Beyer, 64 Ohio App.2d 280, 284, 413 N.E.2d 844 (8th

Dist.1979). Thus, the trial court did not err in considering appellant’s social security

benefits.

       {¶28} Appellant finally argues that the trial court erred in taking account his

pension from Stone Container in determining spousal support. Appellant notes that the

Separation Agreement states, in relevant part, as follows under “C. Intangible Personal

Property”:

                      2. Wife shall retain free and clear of any claim of

               Husband the sum of $60,870.00 of Husband’s Central
Coshocton County, Case No. 2015CA0002                                                    12


              Pension Fund of the International Union of Operating

              Engineers and Participating Employers.            Each party

              represents and warrants that he or she has not made any

              withdrawal, transfer, or taken other action to reduce the

              balance of said account since the filing of the complaint for

              divorce.   Wife shall pay all taxes, penalties and interest

              assessed as a result of receiving said pension.        It is the

              understanding of the parties that an order to allocate these

              benefits may not be honored unless it is a Qualified

              Domestic Relations Order (QDRO) as defined under Section

              414 (p) of the “Internal Revenue Code of 1986”, 100 Stat.

              2085, 26 USC1, as amended. Wife or her attorney shall be

              responsible for drafting and filing of an appropriate QDRO or

              other instrument.    Both parties will fully cooperate in the

              drafting and signing of an appropriate QDRO or other

              instrument compatible with the division of said account as

              set forth herein. Husband shall retain the remainder of said

              account free and clear of any claim of Wife.

       {¶29} However, C above concerns the division of personal property-not the

consideration of the same in determining spousal support. Because appellant’s pension

is “income”, we find that the trial court did not err in considering the same in its spousal

support determination.

       {¶30} Appellant’s second assignment of error is, therefore, overruled.
Coshocton County, Case No. 2015CA0002                                      13


       {¶31} Accordingly, the judgment of the Coshocton County Court of Common

Pleas is affirmed.


By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.
