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Taylor v. Heary

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 1, 2019

DONNA M. TAYLOR, Plaintiff-Appellee,
v.
ANDREW D. HEARY, Defendant-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-96-248233

         JUDGMENT: AFFIRMED

          Wuliger & Wuliger, Megan Spagnolo Lai, and William T. Wuliger, for appellee.

          Andrew D. Heary, pro se.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE

         {¶ 1} Defendant-appellant, Andrew D. Heary, pro se, appeals an order of the domestic relations court reducing, but not eliminating, his spousal support obligation and finding him in contempt for failing to pay premiums for his ex-wife's long-term care insurance. He claims the following 11 assignments of error:

1. The magistrate incorrectly found that the defendant was to have paid plaintiffs long-term care insurance premiums from his 35% share of his social security disability.
2. The magistrate incorrectly found that Mr. Heary was expected to pay long-term care coverage at the time of [the former magistrate's decision in February 2004].
3. The magistrate falsely states, "Mr. Heary presented no evidence as a defense to failing to pay the claim after January 2003" (in paragraph 3 on page 6, of her June 18, 2018 decision).
4. The magistrate finding that plaintiff should receive a judgment for $216, 450 is an abuse of discretion and not supported by [the former magistrate's February 12, 2004 decision].
5. In sentence two of paragraph 3 on page 6 of her decision, the magistrate incorrectly states what happened on August 2, 2005, when [the former magistrate] filed his findings of fact and conclusions of law [in February 2004].
6. The magistrate, on page 7, paragraph 3, has incorrectly stated Ms. Taylor's age.
7. The magistrate refused to allow Mr. Heary to take Ms. Taylor's deposition.
8. On page 8, the magistrate incorrectly states that Mr. Heary pays $97 per month for health insurance.
9. The magistrate in her decision on page 7, last paragraph, sentence 2 mis[s]tates Mr. Heary's income.
10.The magistrate wrongfully characterizes the extent of Mr. Heary's medical conditions and what was filed on page 9, paragraph 6.
11. The magistrate erred by allowing the plaintiff to continue to garnish Mr. Heary's social security after defendant filed his motion to modify in October 2016.

         {¶ 2} We find no merit to the appeal and affirm the trial court's judgment.

         I. Facts and Procedural History

         {¶ 3} Heary was divorced from his wife, plaintiff-appellee Donna M. Taylor, pursuant to a judgment entry of divorce journalized on July 23, 1999. Taylor was diagnosed with chronic progressive multiple sclerosis in October 1985, and, at the time of the parties' divorce, Taylor was totally disabled. (Magistrate's decision dated Sept. 19, 1998 at p. 13, incorporated into judgment entry of divorce.) Due to the progressive nature of Taylor's disease, the judgment entry of divorce ordered that

[Heary] shall pay for and maintain [Taylor] as a beneficiary of the John Hancock Long Term Insurance Trust until [Taylor's] death or remarriage, and provide annual proof to [Taylor] of his compliance with this obligation.

(Judgment entry of divorce at p. 7.)

         {¶ 4} In February 2016, Taylor's condition had worsened to the point that she could no longer independently care for herself, and she was admitted into an assisted living facility operated by Americare Assisted Living, Inc. Taylor's daughter, Andrea Heary, who serves as Taylor's power of attorney, contacted John Hancock Financial Services to obtain benefits under the long-term care policy referenced in the judgment entry of divorce. A John Hancock representative informed her that the premiums had not been paid since January 2003, and that the coverage terminated when the account became overdue.

         {¶5} The J0hn Hancock insurance policy included a "paid-up" benefit provision that allowed Taylor to maintain coverage, but at a reduced level. The reduced "paid-up" coverage provided a daily maximum benefit of nursing home care of $54.00 and a lifetime maximum benefit of $98, 550. The benefit amount was determined by the amount of premiums paid as of February 1, 2003. (John Hancock letter dated June 23, 2016, attached to motion to show cause.) If the policy had not lapsed, full coverage would have provided $170 per day for nursing home care or $85 per day for home health care and a maximum lifetime limit of $315, 000. (Pre-reduction benefits summary authenticated by affidavit of the records custodian of John Hancock Financial Services submitted with trial exhibits.) The difference between full coverage and reduced coverage is $216, 450 in maximum lifetime benefits.

         {¶ 6} In October 2016, Taylor filed a motion to show cause against Heary, alleging that he failed to pay premiums for long-term care insurance as required by the judgment entry of divorce. One month later, in November 2016, Heary filed a motion to modify spousal support and a response to Taylor's motion to show cause, alleging, among other things, that his "multiple debilitating health conditions" and his debt relieved him of his spousal support obligation. In November 2016, Heary was still obliged to pay monthly ...


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