Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pepin-McCaffrey v. McCaffrey

Court of Appeals of Ohio, Seventh District

June 27, 2013


Civil Appeal from Common Pleas Court, Domestic Relations Division, Case No. 08 DR 529.

For Plaintiff-Appellee: Attorney James S. Gentile The Liberty Building.

For Defendant-Appellant: Attorney David L. Engler.

JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Cheryl L. Waite



{¶1} Defendant-Appellant, Stephen McCaffrey, appeals the December 8, 2011, judgment entry of the Mahoning County Court of Common Pleas, Domestic Relations Division denying his motion to modify spousal and child support. Stephen claims the trial court abused its discretion, first, by not requiring his ex-wife, Chantal Pepin-McCaffrey to prove that he voluntarily reduced his income, and second, by finding that he was voluntarily unemployed and imputing income to him at his pre-retirement level. Stephen also appealed the trial court's April 2, 2012 judgment entry, arguing that the trial court erred in adopting the magistrate's decision of March 13, 2012 finding him in contempt of court for failure to pay child and spousal support.

{¶2} Stephen's arguments are meritless. The trial court did not abuse its discretion in failing to modify or terminate his spousal support obligation, and Stephen bore the burden of proof relative to his motion. Further, it was appropriate for the trial court to impute income to Stephen at his pre-retirement rate based upon the trial court's findings that Stephen's income reduction was voluntary. Finally, the trial court properly denied Stephen's Motion for Reconsideration and concluding it was a nullity because Stephen directed it to a final order. Moreover, we reject Stephen's argument that the trial court should have treated his reconsideration motion as Objections to the Magistrate's Decision of March 13, 2012, as there is no basis in law for doing so. Accordingly, the judgments of the trial court are affirmed.

Facts and Procedural History

{¶3} Stephen and Chantal married in 1994 and two children were born during the marriage. The marriage was terminated by a Decree of Divorce entered November 27, 2009, which, pertinent to this appeal designated Chantal as the residential parent. Stephen was ordered to pay $1, 052.44 per month (including processing fee) in child support and $1000.00 per month in spousal support to Chantal for a term of 60 months or until Chantal cohabitates with an unrelated male or a change of circumstances sufficient to support modification or termination occurs. Stephen was awarded exclusive possession of the residence. Because the parties agreed by written stipulation that the residence would be listed for sale immediately, the decree also provided that upon closing of the sale of the marital residence, Stephen's spousal support order was to increase to $1, 250 per month. The court reserved jurisdiction to modify the amount, but not the term, of spousal support.

{¶4} On April 26, 2011, Stephen filed a 'Motion to Modify Child and Spousal Support Obligation' on the basis that he had retired from General Motors on February 2, 2011, and as such his income had significantly decreased thereby warranting modification. After a hearing, on August 19, 2011, the magistrate issued a decision denying Stephen's motion to modify. The magistrate found Stephen to be voluntarily unemployed pursuant to R.C. 3119.01 and imputed his income at $89, 000.00 per year, the amount he made prior to his retirement. Stephen timely filed objections which were heard by the trial court on October 13, 2011, and in a judgment entry dated December 8, 2011, Stephen's objections were overruled and the trial court adopted the magistrate's decision without exception. Stephen appealed to this court on January 6, 2012.

{¶5} Chantal filed an intervening Motion for Contempt on September 14, 2011; Amended Motion in Contempt on January 13, 2012; and Memorandum to Motion for Contempt on March 6, 2012; all alleging non payment of child and spousal support by Stephen. Those matters were heard on January 13, 2012 and March 7, 2012. The magistrate issued a decision on March 13, 2012, finding Stephen in contempt of court for failing to pay child and spousal support. This decision was adopted as a permanent order of the trial court in its April 2, 2012 judgment entry.

{¶6} On May 2, 2012, Stephen sought leave from this court to amend his original appeal to include the April 2, 2012 judgment entry. On May 29, 2012, in the interest of judicial economy this court permitted Stephen to incorporate all assignments of error in a new brief addressing all legal issues in this case.

{¶7} Stephen ultimately asserts that the trial court erred by: 1) imputing income to him in the amount he made prior to his retirement; 2) by abusing its discretion in not requiring Chantal to bear the burden of proving that he voluntarily reduced his income; and 3) by adopting the magistrate's decision of March 13, 2012. Stephen's arguments are made within each assignment of error which overlap and are often times misplaced causing confusion. Accordingly, our discussion and analysis will separate and reorder the arguments made by Stephen in support of his assignments of error to alleviate this confusion and facilitate clarity of analysis.

Modification of Spousal Support

{¶8} In his first of three assignments of error Stephen asserts:

{¶9} "The trial court erred in imputing income to Appellant, despite the only evidence being offered by Appellee was the allegation that Appellant was voluntarily unemployed."

{¶10} In his brief, Stephen frames this assignment of error as an abuse of discretion by the trial court in imputing income to him. Within this assignment, Stephen argues that the trial court erred by not terminating or modifying spousal support. The trial court imputed income for purposes of calculating child support, not spousal support. The trial court denied Stephen's motion to terminate or modify spousal support. These are separate propositions which will be discussed below noting the individual analysis that applies for each.

{¶11} In reviewing a trial court's decision in domestic relations matters, an appellate court must uphold the decision absent an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). The term 'abuse of discretion' means an error in judgment involving a decision that is unreasonable based upon the record; that the appellate court merely may have reached a different result is not enough. See Bergman v. Bergman, 2d Dist. No. 25378, 2013-Ohio-715, ¶9; Hall-Davis v. Honeywell, Inc., 2d Dist. Nos.2008 CA 1, 2008 CA 2, 2009-Ohio-531, ¶35. "A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result." AAAA Enterprises, Inc. v. River Place Cmty. Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). In other words, an appellate court may not substitute its judgment for that of the trial court unless, considering the totality of the circumstances, the trial court abused its discretion. Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989). The appellate court should not independently review the weight of the evidence in the majority of cases but rather should be guided by the presumption that the trial court's findings are correct. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).

{¶12} R.C. 3105.18(E) governs the modification of a spousal support award, and two criteria must be met. First, the trial court must have reserved jurisdiction in the divorce decree to do so. Flauto v. Flauto, 7th Dist. No. 05 MA 100, 2006-Ohio-4909, at ΒΆ11; R.C. 3105.18(E)(1). Here the trial court reserved jurisdiction to modify the amount, but not the term, of spousal support. Second, the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.