Court of Appeals of Ohio, Second District, Montgomery
JOHN M. PRZYBYLA Plaintiff-Appellee/Cross-Appellant
MICHELLE C. PRZYBYLA Defendant-Appellant/Cross-Appellee
Court Case No. 2006-DR-665 (Appeal from Domestic Relations
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
M. DINEEN, ATTY. REG. NO. 0037727, 683 MIAMISBURG-CENTERVILLE
ROAD, DAYTON, OHIO 45459 ATTORNEY FOR
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.
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.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
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
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.
16} Michelle filed a notice of appeal on January 5,
2018, and John filed a cross-appeal on January 12, 2018.
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
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),
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
(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.
12, 2017 Decision and Judgment, p. 14.
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."
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
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
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
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.
Alleged Abuse of Discretion in Weighing Support Factors;
Manifest Weight Analysis
46} Michelle's Second Assignment of Error states
The Trial Court Erred and Abused Its Discretion in Failing to
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
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
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 ...