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Przybyla v. Przybyla

Court of Appeals of Ohio, Second District, Montgomery

August 3, 2018

JOHN M. PRZYBYLA Plaintiff-Appellee/Cross-Appellant
v.
MICHELLE C. PRZYBYLA Defendant-Appellant/Cross-Appellee

          Trial Court Case No. 2006-DR-665 (Appeal from Domestic Relations Court)

          BRIAN A. SOMMERS, ATTY. REG. NO, 0072821 AND CRAIG M. SAMS, ATTY. REG. NO. 0089716, 10532 SUCCESS LANE, DAYTON, OHIO 45458 ATTORNEYS FOR PLAINTIFF-APPELLEE/CROSS-APPELLANT

          THOMAS M. DINEEN, ATTY. REG. NO. 0037727, 683 MIAMISBURG-CENTERVILLE ROAD, DAYTON, OHIO 45459 ATTORNEY FOR DEFENDANT-APPELLANT/CROSS-APPELLEE

          OPINION

          WELBAUM, P.J.

         {¶ 1} Defendant-Appellant, Michelle Przybyla ("Michelle"), appeals from a judgment modifying her spousal support and denying her motion to show cause. Plaintiff-Appellee/Cross-Appellant, John Przybyla ("John"), has also filed a cross appeal.

         {¶ 2} Michelle presents ten assignments of error, which allege various errors, including: that the trial court lacked jurisdiction to modify support, that the court abused its discretion in modifying support; that the court's decision was against the manifest weight of the evidence; that the court erred in failing to consider income of John's current wife and erred in refusing to add the wife as a party; that the court erred in computing John's alleged support arrearage and in dismissing Michelle's motion to show cause; and that the court erred in finding that John's income for spousal support purposes did not include distributions from redemption of stock. John's sole assignment of error pertains to the trial court's decision to exclude the deposition of his doctor.

         {¶ 3} After considering the assignments of error and the cross-assignment of error, we conclude that they are without merit. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 4} On June 7, 2006, John filed a complaint seeking a divorce from Michelle. According to the complaint, they were married in July 1975 and had four children, two of whom were emancipated. Of the remaining children, one was nearly 17 years old and the other was 13 years old. Michelle filed an answer and counterclaim for divorce on June 16, 2006.

         {¶ 5} The case did not proceed to trial. Instead, the parties entered into a separation agreement; a divorce decree, incorporating the separation agreement, was then filed on March 9, 2007. When the decree was filed, John was employed by Woolpert, Inc., and Michelle had recently finished school to become a massage therapist. Michelle also had a degree as a registered nurse and was licensed in Ohio, but had not worked during most of the marriage.

         {¶ 6} The parties had substantial assets and few debts. Under the separation agreement, Michelle received $120, 891 in cash, and John received $44, 024. They each later received $52, 000 from the sale of the marital home.

         {¶ 7} John retained $386, 234 in Woolpert stock because company policy required stockholders to be full-time owners of the company and precluded division of this asset.[1]To equalize the assets, Michelle was given $320, 798 in retirement accounts, including $87, 423 in a T. Rowe Price account; $210, 000 from John's Woolpert 401(k) account; $16, 523 in a Fifth Third IRA account; and $6, 852 contained in another Fifth Third IRA account. John retained $5, 111 from the Woolpert 401(k) account. Thus, the respective distribution of assets was $441, 689 for Michelle and $435, 369 for John. After the money received from the sale of the house is added, Michelle received $493, 689 and John received $487, 369.

         {¶ 8} In addition, Michelle received one-half of the martial portion of John's defined benefit plan with Woolpert. QDROs were subsequently filed with respect to this asset and the other retirement accounts that Michelle received.

         {¶ 9} The separation agreement also provided for child support and spousal support. John retained custody of the older child, and Michelle was not ordered to pay any child support. John agreed to pay $1, 006 per month in child support for the other child, with support to cease in 2011, when the child turned 18 years old or graduated from high school.

         {¶ 10} Regarding spousal support, the separation agreement contained a provision for payment of spousal support of $3, 750 per month indefinitely, plus certain additional payments based on John's receipt of additional income over $135, 000 as well as bonuses. Additionally, the separation agreement reserved the court's continuing jurisdiction as to the amount and duration of spousal support. Docket #32, Separation Agreement, pp. 3-4.

         {¶ 11} Prior to cessation of child support payments, spousal support was to be paid through the Child Support Enforcement Agency ("CSEA"); after that time, the parties agreed that John would pay spousal support to Michelle by electronically transferring funds from his banking institution to Michelle's banking institution. Id. at p. 7.

         {¶ 12} Neither party appealed from the filing of the divorce decree, and no post-decree motions were filed until November 8, 2016, when John filed a motion to terminate his spousal support obligation. John stated in the motion that he anticipated retiring on March 1, 2017, due to recently discovered health issues.

         {¶ 13} On December 9, 2016, Michelle filed a motion to dismiss John's motion, based on alleged lack of jurisdiction. The same day, Michelle also filed a motion seeking to have John held in contempt. She claimed in the motion that John had failed to pay spousal support and had failed to provide her with verification of any change in his annual income and bonuses received.

         {¶ 14} Subsequently, on April 7, 2017, John filed an amended motion to terminate spousal support or, alternatively, to modify spousal support. A magistrate then held an evidentiary hearing on May 30, 2017, at which time the magistrate heard testimony from John's accountant, John, and Michelle. After the hearing, the magistrate found a substantial change in circumstances and reduced John's spousal support obligation to $2, 500 per month, indefinitely. The magistrate also overruled Michelle's motion to show cause, but did order John to pay $500 towards attorney fees in connection with a motion to compel discovery that Michelle had filed.

         {¶ 15} Both sides filed objections to the magistrate's decision, and on December 12, 2017, the trial court filed a decision and judgment, sustaining both parties' objections in part and overruling both parties' objections in part. The trial court agreed that John had shown a substantial change in circumstances, but concluded that the magistrate had erred in including the present-day value of John's Woolpert stock in his income. The court further concluded that the magistrate erred in failing to include several sources of income as part of Michelle's annual income. These sources included: Michelle's income from miscellaneous investments; Michelle's portion of the Woolpert 401(k); Michelle's Woolpert pension; and Michelle's election to take against John's Social Security income. The court also overruled both parties' objections to the attorney fee award. Based on the court's calculation of the parties' incomes, the court reduced John's spousal support obligation to $750 per month.[2]

         {¶ 16} Michelle filed a notice of appeal on January 5, 2018, and John filed a cross-appeal on January 12, 2018.

         II. Issues Pertaining to a Change of Circumstances

         {¶ 17} A number of Michelle's assignments of error are interrelated or overlapping, and will be considered together, where appropriate. Michelle's First Assignment of Error states that:

The Trial Court Erred and Abused Its Discretion by Improperly Applying the Controlling Statutory and Case Law in Its Determination that "A Substantial Change of Circumstances" Had Occurred Since the Time of the Divorce or the Previous Order as It Applies to Spousal Support.

         {¶ 18} Under this assignment of error, Michelle initially contends that a party must establish a substantial change of circumstances before a trial court can exercise jurisdiction over a motion to modify spousal support. According to Michelle, this means that trial courts are required to hold bifurcated hearings; in the first hearing, the court must decide if a substantial change exists. If that is the case, the court then holds a second hearing to consider whether support should be modified. Both the trial court and magistrate rejected this argument.

         {¶ 19} R.C. 3105.18(E) states, in pertinent part, that a court lacks jurisdiction to modify spousal support awards unless it "determines that the circumstances of either party have changed and unless * * * [i]n 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."

         {¶ 20} There is no dispute here that the parties' separation agreement, as incorporated into the decree, reserved jurisdiction to modify spousal support. Thus, the only "jurisdictional" issue was whether John demonstrated a change of circumstances. Notably, R.C. 3105.18 does not require bifurcated hearings in situations where a party asks to modify support; in fact the statute does not even mention hearings or the form of any hearings.

         {¶ 21} Michelle has also not submitted any relevant case law indicating that a bifurcated approach is mandated. Instead, Michelle relies on Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, in which the Supreme Court of Ohio observed that its own procedural rules cannot enlarge substantive rights conferred by R.C. 3105.18(E). Id. at ¶ 32.

         {¶ 22} Morris has nothing to do with the situation before us, as it only involved whether Civ.R. 60(B) could be used to allow relief from spousal support judgments based on fraud and mistake. In rejecting the application of the rule, the court noted that Civ.R. 60(B) and R.C. 3105.18(E) have different requirements for modifying judgments. Id. The court commented that the General Assembly's amendment of R.C. 3105.18 in 1986 had "swept away all the common law enunciated [in the court's prior decisions], * * * including * * * that a trial court had the authority to modify a spousal-support award if there was fraud or mistake even though the decree did not reserve jurisdiction, * * * and * * * that a trial court had the authority to modify a spousal-support award if there was 'mistake, misrepresentation or fraud' even though the decree did not reserve jurisdiction * * * ." Id. at ¶ 28, citing Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, ¶ 24 and Law v. Law, 64 Ohio St. 369, 60 N.E. 560 (1901), and quoting Newman v. Newman, 161 Ohio St. 247, 118 N.E.2d 649 (1954), syllabus.

         {¶ 23} Morris went on to note that "[t]he Modern Courts Amendment does not confer upon this court the authority to resurrect through a procedural rule a common-law remedy that was expressly superseded by the General Assembly in a statutory enactment." Morris at ¶ 32. While this statement is correct, it has no bearing on the situation before us.

         {¶ 24} As was indicated, nothing in R.C. 3105.18 requires bifurcated hearings. We also have found no authority advocating or even suggesting such an approach. The concept is well-settled that courts have "inherent authority to control" their dockets. Flynn v. Flynn, 10th Dist. Franklin No. 03AP-612, 2004-Ohio-3881, ¶ 10; Holbrook v. Holbrook, 12th Dist. Warren No. CA2017-05-055, 2018-Ohio-2360, ¶ 17; State v. Hayes, 2d Dist. Montgomery No. 4753, 1975 WL 181605, *4 (July 25, 1975). Our own opinion is that bifurcated hearings would be a waste of judicial resources.

         {¶ 25} Michelle further contends that in deciding whether a change of circumstances occurred, the trial court could only consider events occurring from the date of the divorce decree to the time the initial motion was filed in November 2016. According to Michelle, the trial court, therefore, erred in considering John's retirement as a substantial change in circumstances, since it actually occurred after his motion was filed.

         {¶ 26} With respect to a change in circumstances, R.C. 3105.18(F)(1) provides that:

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 award when it was established or last modified, whether or not the change in circumstances was forseeable. (Footnote omitted.)

         {¶ 27} The trial court rejected Michelle's argument, stating that:

Michelle next argued that John did not prove a change of circumstances. In part, she argued that, because John filed his motion to modify the spousal support prior to the date he retired, his retirement could not be considered a change in circumstances. The court disagrees. John was diagnosed with cancer in late 2014. His doctor then monitored his blood levels for a period of time. When it was determined that the cancer had spread to his lymph nodes in November 2016, the prognosis for a full recovery changed for John. When John started the treatment for stage four cancer, he realized he was not going to be able to continue working as he had, "at the level and at the performance that was expected of me, and what I expected of myself." It was at that time that John filed for modification/termination of spousal support. To his credit, John did not retire immediately, but continued to work during his cancer treatments until he was able to smoothly transition out of the company. The magistrate made the modification retroactive to his date of retirement, when the economic impact occurred to John, not to the date he filed his motion. The change in circumstances, the magistrate determined, was the substantial decrease in his income level upon his retirement, not just the potential increase in medical expenses as Michelle argued. Michelle's objection is not well taken.

         December 12, 2017 Decision and Judgment, p. 14.[3]

         {¶ 28} We agree with the trial court. We also rejected a similar argument in Buch v. Buch, 2d Dist. Montgomery No. 20878, 2005-Ohio-4491. In that case, the appellant claimed that the issue of spousal support was not ripe for consideration because a substantial change of circumstances had not yet occurred, and further contended the issue of ripeness was jurisdictional. Id. at ¶ 17. The appellee in Buch had been diagnosed with Alzheimer's disease and was unable to be employed any longer as a psychologist due to diminished mental capacity. Id. at ¶ 21.

         {¶ 29} We commented that "[t]he basic principle of ripeness may be derived from the conclusion that 'judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.'" Id. at ¶ 18, quoting State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 89, 694 N.E.2d 459 (1998). We went on to stress that "the spousal support issue before us is not abstract, hypothetical, or remote. [Appellee] moved for spousal support, arguing the existence of a substantial change of circumstances. The trial court found the motion to be persuasive and awarded spousal support. Regardless of whether the trial court properly sustained [Appellee's] motion, the spousal support issue is ripe for review." Id.

         {¶ 30} The same observations apply here. Like the disease in Buch, the progression of John's cancer to stage four in the fall of November 2016 and its effect on his employment was hardly a hypothetical, abstract, or remote situation. In addition, parties have filed motions to terminate or reduce support shortly before an anticipated retirement. See, e.g., Melhorn v. Melhorn, 2d Dist. Montgomery No. 11139, 1989 WL 8452, *1 (Jan. 30, 1989) (obligor filed motion to terminate support in mid-April 1988, based on planned retirement on May 31, 1988).

         {¶ 31} Furthermore, even if this were otherwise, Michelle's argument is also without merit because John filed a motion to amend his original motion on April 7, 2017. This was after John retired on March 31, 2017. The evidentiary hearing was not held until May 30, 2017, and the magistrate's decision indicated that the court was considering John's "November 8, 2016 Motion to Terminate Spousal Support as amended on April 7, 2017." July 17, 2017 Magistrate Decision, p. 1. Moreover, as the trial court noted, the spousal support modification was effective only as of the date that John retired (March 31, 2017), not retroactive to the date that the initial motion was filed.

         {¶ 32} Under this assignment of error, Michelle also argues that the trial court erred in modifying spousal support based on a finding of a substantial change in circumstances. In this regard, Michelle focuses on the contention that John's anticipated medical expenses did not increase between the time the decree was issued and when he filed his motion. Michelle also argues that there was no substantial "economic" change in circumstances because John was able to earn sizeable amounts in 2015 and 2016 even while he had cancer.

         {¶ 33} We review decisions modifying spousal support orders for abuse of discretion. Denmark v. Denmark, 2d Dist. Montgomery No. 26438, 2015-Ohio-4292, ¶ 37. An abuse of discretion occurs when a court's attitude is unreasonable, arbitrary, or unconscionable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). "It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary." Id. "A decision is unreasonable if there is no sound reasoning process that would support that decision." Id. The party seeking a reduction of spousal support also has the burden of proving that a reduction is warranted. Reveal v. Reveal, 154 Ohio App.3d 758, 2003-Ohio-5335, 798 N.E.2d 1132, ¶ 14 (2d Dist.). After reviewing the record, we find no abuse of discretion.

         {¶ 34} "R.C. 3105.18(F) sets forth a partial listing of what can be considered as a change of circumstances * * *" Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, at ¶ 31. Trial courts, therefore, are not confined only to the specific items listed in R.C. 3105.18(F) ("any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses"), but may consider "other changed circumstances" as well. Furthermore, R.C. 3105.18(F) does not use the words "substantial economic change of circumstances." It only requires that a change in circumstances be "substantial." As noted in Mandelbaum, courts have used words like "significant," "drastic," and "material" to describe the word substantial. Id. at ¶ 32.

         {¶ 35} In this case, there is no dispute that John's stage four cancer diagnosis was a substantial change in circumstances and was unforeseen at the time of the divorce. Michelle admitted this at the hearing, but characterized it as a change in "physical" circumstances. Transcript of May 30, 2017 Proceedings ("Tr."), p. 211. While this is true, R.C. 3105.18(F) does not limit changes in circumstances solely to economic changes. Furthermore, even if a change in economic circumstances were required, such circumstances were clearly present, due to the impact John's health had on his ability to continue to work, i.e., to earn income.

         {¶ 36} We have said that "[a] change in income due to retirement reasonably in advance of the expected date of retirement does provide a basis for modification of alimony if it was not done in an attempt to avoid a court ordered obligation to an ex-spouse." Melhorn, 2d Dist. Montgomery No. 11139, 1989 WL 8452, at *2. In the case before us, there is no indication that John retired early in order to deprive Michelle of spousal support. To the contrary, the evidence at the hearing revealed that John's retirement and decreased income was, in fact, involuntary, due to his stage four cancer and inability to continue in a very demanding job.

         {¶ 37} According to the evidence, John was first diagnosed with prostate cancer at the end of 2014. At that time, he had a higher than normal PSA and was referred to a urologist, Dr. Litscher, who decided to continue quarterly testing. After initially being diagnosed, John was able for some time to continue with his rigorous employment demands, which included a great deal of travel. PSA testing continued in 2015 and 2016.

         {¶ 38} In July 2016, John's PSA level rose to 37, and while Dr. Litscher was concerned, he thought it might be a false positive. The doctor, therefore, decided to test again in a month. Due to John's travel schedule, the test was done two months later, and the PSA level at that time had increased to 73. Two days later, a biopsy was done and showed a highly aggressive cancer. Tr. at pp. 101-102 and Plaintiff's Ex. 24. John then had a CT scan and bone scan to see if the cancer had spread beyond the prostate. These tests showed the cancer had spread to the lymph nodes in John's abdomen, and this was confirmed by another biopsy. The result was that John had stage four prostate cancer. Tr. at pp. 103-104. John was placed on antiandrogen treatment, and he experienced side effects from the medication.

         {¶ 39} John found out about the cancer in his lymph nodes in October 2016, and in November 2016, the effect of the medication and its impact on his health became clear. John realized that he could not continue working at the level and performance expected of him and that he expected of himself. Due to the medication, he had trouble sleeping, which affected his ability to concentrate and his ability to stay awake during the day. John was a professional registered engineer and worked on critical projects implementing software to support public agencies. He experienced a lower level of ability to concentrate and converse in meetings, and his energy level was significantly decreased. In addition, John also had problems with memory loss and dealing with every aspect of his job.

         {¶ 40} John testified that if he were in good health, he would still be employed. He stated that he had previously committed to continue working for quite some time, until a normal retirement age, which would be age 65. (At the time he retired, John was 62 years old.)

         {¶ 41} On November 8, 2016, John filed a motion to terminate spousal support, anticipating a retirement date of March 1, 2017. He eventually retired on March 31, 2017. John indicated that it took some time to transition because he had a critical role in projects he was supporting.

         {¶ 42} Michelle did not present any evidence disputing that John had stage four cancer, that he had experienced significant side effects, or that he needed to retire. In fact, Michelle agreed that it was not "unreasonable for John to retire based on 40 something years of work, stage 4 prostate cancer. And the fact that he is able to draw on his pension and social security * * *." Tr. at p. 211.

         {¶ 43} Accordingly, the trial court did not abuse its discretion by concluding that John had a substantial change of circumstances that made the existing award no longer reasonable and appropriate, and that the change was not taken into account when the spousal support order was established. R.C. 3105.18(F)(1)(a) and (b). Because John established the requirements for modifying spousal support, the trial court was entitled to recalculate spousal support.

         {¶ 44} Michelle also contends that John failed to show a substantial change of circumstances with respect to the amount of medical expenses he had at the time of the divorce compared to his medical expenses when he filed the motion to terminate or modify support. Michelle points out that John's estimated medical expenses in affidavits of income and expenses filed at both times were the same. Since John established a substantial change of circumstances with respect to his unanticipated cancer and retirement, which caused a significant decrease in his income, whether he had different out-of-pocket medical expenses is irrelevant.

         {¶ 45} Based on the preceding discussion, the First Assignment of Error is overruled.

         III. Alleged Abuse of Discretion in Weighing Support Factors; Manifest Weight Analysis

         {¶ 46} Michelle's Second Assignment of Error states that:

The Trial Court Erred and Abused Its Discretion in Failing to Consider
All Relevant Factors Under R.C. 3105.18. The Trial Court's Ruling Is
Against the Manifest Weight of the Evidence.

         {¶ 47} Under this assignment of error, Michelle makes four main arguments, which we will address. However, she focuses on certain alleged errors and the trial court's alleged abuse of discretion, rather than on manifest weight arguments, and we will do the same.

         {¶ 48} Again, we review decisions on spousal orders for abuse of discretion, as trial courts have broad discretion in such matters. Long v. Long, 176 Ohio App.3d 621, 2008-Ohio-3006, 893 N.E.2d 217, ¶ 11 (2d Dist.).

         {¶ 49} Michelle first argues that the trial court erred in reducing the support obligation because the court relied on the parties' income at retirement rather than when John's motion was filed. Based on our discussion above, this argument is without merit. The trial court properly considered the parties' current or potential current income.

         {¶ 50} According to Michelle, the trial court also erred because it did not consider the parties' income prior to the filing of the motion to terminate support. We fail to see the relevance of this point. Since John had been diagnosed with stage four cancer and retired as a result, the appropriate consideration was not what he made before retiring.

         {¶ 51} Michelle's third contention is that the trial court erred in imputing income to her in excess of her actual income. In calculating appropriate spousal support, the trial court imputed $3, 000 in income to Michelle. During her testimony, Michelle stated that her corporation, "Healing Hands," was formed in 2007 and had made a profit only one year since. The tax returns for the corporation indicate that Michelle has been spending more than $5, 000 per year for rent and about $2, 000 per year for a telephone. Her income has been minimal, and in most years, has not been sufficient to cover her expenses. Despite these facts, Michelle testified that her lack of profitability did not indicate that she ought to find a different line of work. Tr. at p. 210.

         {¶ 52} At the time of the divorce, Michelle was 51 years old, had a degree as a registered nurse, and had recently completed schooling to become a massage therapist. There is no indication that she had any health problems or could not work full-time. At the time of the support hearing in 2017, Michelle stated that she had no health problems and that there was no reason why she could not work full-time.

         {¶ 53} The tax returns of Michelle and her S-corporation, Healing Hands, indicate that Michelle was able to take advantage of business income loss on her tax returns. See Plaintiff's Exs. 2A-2C and 3B-3F. In addition, the 2014 tax returns reveal that Michelle made an income of $2, 952 that year. Plaintiff's Exs. 2-B and 3-C. Taking these matters into consideration, John's expert, Allen Duvall, included $3, 000 in yearly income for Michelle due to her ownership of Healing Hands.

         {¶ 54} Under the circumstances, the trial court did not err in crediting Michelle with $3, 000 in income from her business. Although the trial court did not choose to find Michelle voluntarily unemployed, it could have done so and could have imputed a minimum wage at 40 hours per week, for a total yearly ...


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