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Sturgeon v. Sturgeon

December 2, 2008

JAMES STURGEON, PLAINTIFF-APPELLEE,
v.
NADINE STURGEON, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 02DR472.

The opinion of the court was delivered by: Vukovich, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro.

{¶1} Defendant-appellant Nadine Sturgeon appeals the decision of the Columbiana County Common Pleas Court denying her motion to modify spousal support. The issue presented in this appeal is whether the trial court abused its discretion when it found that there was not a substantial change in circumstances to warrant modification of the spousal support order. For the reasons expressed below, the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

{¶2} On December 24, 2003, the parties were granted a divorce and Nadine was awarded spousal support in the amount of $1,000. Approximately two years later, Nadine filed a motion to modify spousal support; however, that motion was held in abeyance pending the outcome of an appeal from a probate court matter that might affect the ruling on the modification motion. 03/28/05 J.E. After the probate matter was concluded, Nadine refiled her motion to modify spousal support. 01/09/07 Motion. The matter was heard before the magistrate and a decision was rendered on April 25, 2007. The magistrate found that there was a change in circumstances that warranted a $500 increase in spousal support. The magistrate specifically held that Nadine's income decreased and left her with a negative budget of $900 per month, while James' income had increased and he had a surplus. 04/25/07 J.E. Part of Nadine's $900 deficiency was a $450 tithe. Attached to the magistrate's decision was a FinPlan worksheet showing the parties incomes, budgets, and deficiencies/surpluses.

{¶3} James filed objections to the magistrate's decision. 05/08/07 Motion. On July 19, 2007 the trial court ruled on the objections. It found that while the magistrate properly used the correct figures and information in calculating its decision, an increase in spousal support was not warranted. 07/19/07 J.E. It stated that it recalculated Nadine's budget without the $450 tithe and without it, the parties had a near equal amount of money to cover their respective budgets. "The parties share the income with the obligor/plaintiff having 58.9% and the defendant/obligee having 41.1%." 07/19/07 J.E. Attached to the judgment was a FinPlan worksheet. In this worksheet the trial court did not use the correct "Required Cash (Budget)," (hereafter referred to as budget) figures for Nadine, even though it stated in its entry that the magistrate used the correct figures and information in its calculation. The trial court used a budget that was $1,350 less than the budget used by the magistrate. Using this budget, the trial court found that Nadine had a surplus, rather than a deficiency.

{¶4} Following that decision, Nadine filed a "Motion for Reconsideration" claiming that the trial court made a mathematical error in its FinPlan calculation. It explained that the budget used by the trial court was incorrect. Thus, the FinPlan was inconsistent with the trial court's judgment. It then argued that if the correct budget was used the trial court would have sustained the magistrate's decision.

{¶5} Before that motion was ruled on, Nadine filed a notice of appeal with this court, and thus the trial court lost jurisdiction to rule on the motion for reconsideration. Therefore, on September 19, 2007, Nadine filed a motion for temporary remand with this court explaining that the trial court made a mathematical error and that possibly the appeal could be moot if the trial court reconsidered its decision. We granted a limited remand allowing the trial court to consider the reconsideration motion.

{¶6} The trial court ruled on the reconsideration motion on November 29, 2007. The trial court stated that the magistrate's finding that Nadine's budget was $3,981 was the correct figure, but $450 for the tithe was required to be removed from this budget. Thus, it found that the budget that was intended to be used in the FinPlan was $3,531. It then stated that this leaves her a shortfall in her monthly expenses of $555, "however her relative percentage of income is still approximately 41% of the combined income of the two parties." Thus, it concluded that this was still not a sufficient change of circumstances to justify modification of the spousal support award.

ASSIGNMENT OF ERROR

{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING THE MAGISTRATE'S DECISION TO INCREASE SPOUSAL SUPPORT BASED INITIALLY UPON AN ERRONEOUS CALCULATION OF APPELLANT'S MONTHLY BUDGET AMOUNT AND, ON REMAND, BASED UPON A CONCLUSION THAT APPELLANT'S INABILITY TO MEET HER MONTHLY NEEDS WAS SOMEHOW NOT A CHANGE WARRANTING AN INCREASE IN SPOUSAL SUPPORT WHEN APPELLEE'S MONTHLY CASH TO MEET HIS EXPENSES HAD INCREASED $1,200 PER MONTH FROM THE ORIGINAL ORDER AND HE HAD A MONTHLY CASH SURPLUS OF APPROXIMATELY $1,000 AFTER MEETING HIS EXPENSES."

{ΒΆ8} Prior to addressing the merits of this assignment of error, we must explain that in reviewing the merits, we are reviewing both the July 19, 2007 and November 29, 2007 judgments. The July 19, 2007 judgment was clearly a final appealable order. The November 29, 2007 judgment resulted from a ruling on a motion labeled a "Motion for Reconsideration." Typically, a motion for reconsideration filed after a final order is a legal nullity which has no legal effect. Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, 380. Thus, at first glance, it may appear that the November 29, 2007 judgment cannot be considered in reviewing this appeal. However, in looking at the substance of the motion rather than just its label, it is clear that not only was the motion a motion requesting reconsideration but it was also a motion requesting the correction of a mathematical/typographical error, which could ...


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