[Cite as Perkins v. Perkins, 2011-Ohio-2141.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


MARYANN KAY PERKINS                             :      JUDGES:
                                                :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :      Hon. Sheila G. Farmer, J.
                                                :      Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :
ANTHONY JOSEPH PERKINS                          :      Case No. 10 CAF 11 0090
                                                :
        Defendant-Appellant                     :      OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court of
                                                    Common Pleas, Domestic Relations
                                                    Division, Case No. 04DR-A-07-328



JUDGMENT:                                           Affirmed in part; Reversed in part
                                                    and Remanded




DATE OF JUDGMENT ENTRY:                             April 27, 2011



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ANTHONY M. HEALD                                    JENNIFER A. CARNEY
125 N. Sandusky Street                              155 West Main Street
Delaware, OH 43015                                  Waterford Tower Suite 101
                                                    Columbus, OH 43215
Delaware County, Case No. 10 CAF 11 0090                                              2

Hoffman, P.J.

        {¶1}   Defendant-Appellant Anthony Perkins appeals the October 21, 2010 post

divorce decree entry of the Delaware County Court of Common Pleas, Domestic

Relations Division, relating to the modification of spousal support and transfer of

insurance policies.

        {¶2}   This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides in pertinent part:

        {¶3}   “(E) Determination and judgment on appeal.

        {¶4}   “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

        {¶5}   “The decision may be by judgment entry in which case it will not be

published in any form.”

        {¶6}   This appeal shall be considered in accordance with the aforementioned

rule.

                       STATEMENT OF THE FACTS AND CASE

        {¶7}   Appellant and Plaintiff-Appellee Maryann Perkins were divorced on

February 8, 2006 after a 24-year marriage. At the time of the divorce and at the time of

the current matter, Appellant was employed as a truck driver with YRC and Appellee

was a bus driver for a local school district.    The trial court determined Appellant’s

income was $82,000 and Appellee’s income was $22,000. At the time of the divorce,

the parties had one dependent child. Appellant was ordered to pay $256.16 per month

in child support. Appellant was also ordered to pay $1,391.66 per month in spousal
Delaware County, Case No. 10 CAF 11 0090                                               3


support commencing March 1, 2005. Spousal support terminated upon the Appellee’s

remarriage, death, or 120 months.      The trial court reserved jurisdiction to modify

spousal support.

      {¶8}   The Divorce Decree made the following property divisions:

      {¶9}   “13. Husband be awarded the following items of intangible personal

property:

      {¶10} “* * *

      {¶11} “Reassure, ins., on life of Husband, face amount $200,000, cash value

$8,177.37

      {¶12} “Reassure, ins., on life of children, $10,000 each

      {¶13} “Employer, ins., on life of Wife, face amount $ [left blank in Decree]

      {¶14} “* * *

      {¶15} “14. The Wife be awarded the following items of intangible personal

property:

      {¶16} “* * *

      {¶17} “Reassure, ins., on life of Wife, face amount $100,000.”

      {¶18} The parties did not appeal the Divorce Decree.

      {¶19} On October 14, 2008, Appellant filed a show cause motion as to why the

trial court should not hold Appellee in contempt for her failure to transfer the Reassure

Life Insurance and her employer-provided life insurance to Appellant. Appellant also

requested attorney’s fees.
Delaware County, Case No. 10 CAF 11 0090                                             4


        {¶20} Appellant filed a motion to compel discovery on January 9, 2009.

Appellant had served discovery requests upon Appellee and Appellant alleged that

Appellee had failed to respond.

        {¶21} On January 22, 2009, Appellant filed a Motion for Modification of Spousal

Support based on the change in circumstances in the parties’ incomes.

        {¶22} The trial court held a hearing on the show cause motion and issued a

judgment entry on February 26, 2009 stating that Appellee had to respond by February

28, 2009. Appellant filed a second motion to compel discovery on April 1, 2009.

        {¶23} On July 20, 2009, the Magistrate held a hearing on the motion for

modification of spousal support. The Magistrate’s Decision was issued on October 19,

2009.    The Magistrate concluded that Appellee should transfer the Reassure life

insurance policy to Appellant. As to Appellee’s employer-provided life insurance, the

Magistrate found the provision in the original Divorce Decree was a mistake and the

property division should be corrected to reflect that it is awarded to Appellee. The

Magistrate finally determined Appellant’s income in 2009 to be $65,000 and Appellee’s

income to be $27,046.     The Magistrate concluded that Appellant’s spousal support

obligation should be reduced to $1,000 per month effective February 1, 2009.

        {¶24} The parties filed objections to the Magistrate’s Decision. On October 21,

2010, the trial court ruled on the objections.    The trial court sustained Appellee’s

objection to find that Appellant’s income was in 2009 was $77,152. The trial court also

took into consideration child support terminating on May 31, 2009.         It held that

Appellant’s child support obligation was $581.32 per month and spousal support

obligation was $916.66 per month, effective January 22, 2009.       On June 1, 2009,
Delaware County, Case No. 10 CAF 11 0090                                             5


Appellant’s spousal support obligation would be $1333.33, which ultimately is a

decrease of $58.33 per month from the original divorce decree.

        {¶25} The trial court further found that Appellee was not in contempt for her

failure to transfer the Reassure life insurance policy and her employer-provided life

insurance policy to Appellant. The trial court did not rule on Appellant’s motion for

contempt for Appellant’s failure to respond to discovery and his request for attorney’s

fees.

        {¶26} It is from this decision Appellant now appeals.

                              ASSIGNMENT OF ERRORS

        {¶27} Appellant raises six Assignments of Error:

        {¶28} “I.   THE   TRIAL    COURT      ERRED     BY      IMPUTING   INCOME   TO

DEFENDANT-APPELLANT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

PRESENTED AT THE HEARING IN THIS MATTER.

        {¶29} “II. THE TRIAL COURT ERRED IN ITS CALCULATION OF DEFENDANT-

APPELLANT'S INCOME WHEN ORDERING TWO SEPARATE SPOUSAL SUPPORT

AWARDS, ONE WHILE DEFENDANT CONTINUED TO PAY CHILD SUPPORT AND

ONE AWARD FOR AFTER HIS CHILD SUPPORT OBLIGATION TERMINATED.

        {¶30} “III. THE LOWER COURT ERRED IN FAILING TO ORDER PLAINTIFF-

APPELLEE TO TRANSFER THE REASSURE LIFE INSURANCE POLICY, WHICH

WAS AWARDED TO THE DEFENDANT-APPELLANT IN THE DIVORCE DECREE OF

FEBRUARY 8, 2006.

        {¶31} “IV. THE LOWER COURT ERRED IN REALLOCATING OWNERSHIP OF

PLAINTIFF-APPELLEE'S EMPLOYER LIFE INSURANCE POLICY, WHICH WAS
Delaware County, Case No. 10 CAF 11 0090                                              6


AWARDED TO THE DEFENDANT-APPELLANT IN THE DIVORCE DECREE OF

FEBRUARY 9, 2006.

      {¶32} “V. THE LOWER COURT ERRED BY FINDING THAT PLAINTIFF-

APPELLEE WAS NOT IN CONTEMPT OF COURT FOR HER FAILURE TO

TRANSFER BOTH LIFE INSURANCE POLICIES TO DEFENDANT-APPELLANT,

PURSUANT TO THE DIVORCE DECREE OF FEBRUARY 8, 2006.

      {¶33} “VI. THE LOWER COURT ERRED BY FAILING TO RULE ON

DEFENDANT-APPELLANT'S CONTEMPT MOTION AND FAILING TO MAKE AN

AWARD OF ATTORNEY'S FEES AS REQUESTED AND PROVEN BY THE

EVIDENCE PRESENTED IN THE HEARING ON THIS MATTER.”

                                         I., II.

      {¶34} Appellant argues in his first and second Assignment of Errors that the trial

court’s decision as to Appellant’s spousal support obligation was in error. We consider

them together because both Assignments of Error state the trial court erred when it

calculated Appellant’s income.

      {¶35} The modification of spousal support lies in the trial court's sound

discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028; Cherry v.

Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983) 5 Ohio St.3d 217, 450 N.E.2d 1140.

      {¶36} Modification of spousal support is warranted only when a substantial

change in the circumstances of the parties exists. Leighner v. Leighner (1986), 33 Ohio
Delaware County, Case No. 10 CAF 11 0090                                                 7


App.3d 214, 515 N.E.2d 625. “[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.” R.C. 3105.18(F).

       {¶37} The issue before the trial court on July 20, 2009 was the amount of

Appellant’s salary in 2009 to determine if the modification of spousal support was

warranted. The evidence showed that Appellant earned $84,639 in 2006, $79,510 in

2007, and $84,271 in 2008. Appellant estimated from his paystubs through June 2009

that his salary for 2009 would be $67,646.28 based on projected restructuring occurring

within Appellant’s company and union negotiations on pensions and pay. Appellee

argued that Appellant’s gross salary for the first quarter of 2009, ending March 28,

2009, was $19,288.88, therefore making Appellant’s gross salary for 2009

approximately $77,152.00. The trial court utilized the $77,152.00 figure to calculate

Appellant’s 2009 income.

       {¶38} The parties filed objections to the Magistrate’s Decision issued October

19, 2009. The final response was filed by Appellant on May 10, 2010. The trial court

ruled on the parties’ objections on October 10, 2010. When the trial court ruled on the

objections, Appellant’s 2009 salary would no longer be a mere approximation, but a

fact. However, the only evidence before the trial court was the parties’ estimations as to

Appellant’s 2009 salary as the parties did not ask the trial to take additional evidence of

the actual salary pursuant to Civ. R. 53 (D)(4)(b). Based on the evidence presented, we

cannot say the trial court abused its discretion in computing Appellant’s salary and

determining the spousal support obligation.

       {¶39} Appellant’s first and second Assignments of Error are overruled.
Delaware County, Case No. 10 CAF 11 0090                                                8


                                       III., IV., V.

       {¶40} Appellant’s third, fourth, and fifth Assignments of Error regard the trial

court’s determination of the ownership of the Reassure life insurance policy and

Appellee’s employer-provided life insurance policy. The trial court found that Appellant

was not entitled to ownership of the Reassure life insurance policy or Appellee’s

employer-provided life insurance, so therefore it would not hold Appellee in contempt for

her failure to transfer ownership of those policies. We agree.

       {¶41} Our standard of review regarding a finding of contempt is limited to a

determination of whether the trial court abused its discretion. Hagan v. Hagan, Stark

App. No.2009CA00148, 2010-Ohio-540, ¶ 12 citing In re Mittas (Aug. 6, 1994), Stark

App. No.1994CA00053.

       {¶42} The Divorce Decree awarded Appellant ownership of the Reassure life

insurance policy that provided coverage for Appellant, Appellee, and the parties’

children. At the time of the divorce, the policy had a cash value of $8,177.37. Appellant

borrowed against the cash value of the policy. On June 20, 2007, Appellant signed

ownership of the policy to Appellee.      Appellant argued at the hearing that while

represented by counsel, he mistakenly signed papers that transferred ownership of the

policy to Appellee.

       {¶43} Issues relating to the credibility of witnesses and the weight to be given

the evidence are primarily for the trier of fact. As the court explained in Seasons Coal

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

       {¶44} “The underlying rationale of giving deference to the findings of the trial

court rests with the knowledge that the trial judge is best able to view the witnesses and
Delaware County, Case No. 10 CAF 11 0090                                                   9


observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.”

       {¶45} We find that the trial court weighed the parties’ credibility on that issue and

did not abuse its discretion when it declined to find Appellee in contempt for her failure

to transfer ownership of the Reassure life insurance policy back to Appellant. As noted

by the trial court “[o]nce Anthony transferred the policy to Maryann, Anthony no longer

had the right to demand the return of the policy under the Decree”. October 21, 2010

Judgment Entry, at p. 2.

       {¶46} The trial court also did not find Appellee in contempt for her failure to

transfer ownership of her employer-provided term life insurance policy to Appellant.

While the Divorce Decree awarded Appellant ownership of the policy, the magistrate

and trial court determined this was a typographical mistake.          The evidence at the

hearing showed that Appellee had no control as to the transfer of the employer policy in

question, but could only choose the beneficiary. While Appellant argued at the hearing

that he would settle for being named a beneficiary of that policy, his motion for contempt

was based on Appellee’s failure to transfer ownership of the policy.

       {¶47} Appellant also argues that the trial court lacked jurisdiction to modify the

division of martial property after the entry of the decree of divorce, citing R.C. 3105.17(I)

stating, “A division or disbursement of property or a distributive award made under this

section is not subject to future modification by the court.”

       {¶48} Appellant is correct that a trial court has no authority to reopen an earlier

property division order where no appeal was taken from the prior decree and the time to

appeal has run. However, this Court has recognized that a trial court has the power to
Delaware County, Case No. 10 CAF 11 0090                                                10


clarify and construe its original property division so as to effectuate its judgment. See

Wilkins v. Lorenz, 5th Dist. No. 2008 AP 03 0012, 2009-Ohio-107, ¶18, citing Gordon v.

Gordon (2001), 144 Ohio App.3d 21, 24, 759 N.E.2d 431, citing R.C. 3105.171(I). “If

there is good faith confusion over the interpretation to be given a particular clause of a

divorce decree, the trial court in enforcing that decree has to the power to hear the

matter, clarify the confusion, and resolve the dispute.” Quisenberry v. Quisenberry

(1993), 91 Ohio App.3d 341, 348, 632 N.E.2d 916 (citations omitted).

       {¶49} While we recognize the trial court has the power to clarify and construe its

original judgment, it may not change it without following the procedure set forth in Civ.R.

60. The power to clarify and interpret applies only when a good faith confusion over

interpretation exists. Such is not the case here. We find a motion for contempt does

not allow a trial court to effectuate a change in the property division order.

       {¶50} Appellant’s third and fifth assignments of error are overruled. Appellant’s

fourth assignment of error is sustained.

                                             VI.

       {¶51} Appellant argues in his sixth Assignment of Error that the trial court erred

when it failed to rule on his motion for contempt for Appellee’s failure to comply with his

discovery requests and the trial court’s orders to respond to discovery.

       {¶56} As a general rule, if a trial court fails to mention or rule on a pending

motion, the appellate court presumes that the motion was implicitly overruled.

Swinehart v. Swinehart, Ashland App. No. 06-COA-020, 2007-Ohio-6174, ¶ 26.

However, because Appellant’s discovery request and resulting motion to compel were

directly related to the Reassure life insurance policy and Appellee’s employer-provided
Delaware County, Case No. 10 CAF 11 0090                                                11


life insurance, it appears the trial court may have summarily disregarded the discovery

contempt as moot given its decision on the underlying contempt. We do not find our

affirmance of the trial court’s decision on the underlying contempt issue renders

consideration of the claim for contempt raised in this assignment of error moot. We find

the alleged contempt for violation of the trial court’s discovery order is a separate issue

from the alleged contempt for violation of the original divorce decree.        A finding of

contempt on the first would not necessarily be inconsistent with the latter.

       {¶52} Appellant’s sixth Assignment of Error is sustained.

       {¶53} The judgment of the Delaware County Court of Common Pleas, Domestic

Relations Division, is affirmed in part; reversed in part and remanded.

By: Hoffman, P.J.

Farmer, J. concurs

Delaney, J. concurs in part and dissents in part



                                         s/ William B. Hoffman

                                         HON. WILLIAM B. HOFFMAN

                                         s/ Sheila G. Farmer

                                         HON. SHEILA G. FARMER



                                         HON. PATRICIA A. DELANEY
Delaware County, Case No. 10 CAF 11 0090                                             12



Delaney, J., concurring in part and dissenting in part

       {¶54} I concur in the majority’s analysis and disposition of Appellant’s

Assignments of Error Nos. l, ll, lll, and V. However, I respectfully dissent from the

majority’s disposition of Appellant’s Assignment of Error IV and Vl and would affirm the

trial court’s judgment in its entirety.



                                          s/ Patricia A. Delaney _________________

                                          JUDGE PATRICIA A. DELANEY
Delaware County, Case No. 10 CAF 11 0090                                             13


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



MARYANN KAY PERKINS                        :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ANTHONY JOSEPH PERKINS                     :
                                           :
       Defendant-Appellant                 :         Case No. 10 CAF 11 0090


       For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas, Domestic Relations Division, is affirmed in

part; reversed in part and remanded for further proceedings in accordance with our

Opinion and the law. Costs to be divided equally.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY
