Burkart v. Burkart
191 Ohio App. 3d 169
| Ohio Ct. App. | 2010Background
- Divorce decree of January 3, 2002 granted James and Gail spousal support of $5,300 per month and reserved court jurisdiction to modify.
- James moved for modification within ten months, claiming a substantial decline in his landscape architecture business after 9/11/2001.
- A 2004 magistrate hearing found James’s income declined and Gail hadn’t proven the decline wasn’t contemplated at divorce; magistrate recommended $2,239/month.
- Trial court in 2006 increased income calculation by including a $33,000 JBA withdrawal, totaling $131,565.64 for 2003, and later set support at $3,530/month after considering 2001–2003 data.
- This court remanded after Burkart v. Burkart (2007) for improper inclusion of the $33,000 withdrawal as income, noting potential conjecture.
- Gail filed a contempt motion (March 9, 2009) seeking arrearage, interest, and costs; September 2009 hearing occurred; March 9, 2010 judgment reconsidered and set new support at $3,120.38/month using 2006–2008 incomes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to modify spousal support | Gail argues trial court lacked jurisdiction absent unforeseen change not contemplated at decree. | Burkart contends modification permissible since decree reserved modification and change occurred. | Trial court lacked jurisdiction; mandate to modify requires explicit reservation and unforeseen, substantial change not contemplated. |
| Evidence of change in circumstances | Gail asserts James’s income decline was substantial and unforeseen. | Burkart contends decline was not unforeseen or substantial under the record. | Court abused in finding unforeseen, substantial change given evidence James anticipated some decline and 2001–2003 data. |
| Arrearage calculation and contempt ruling | Gail sought arrearage amount, interest, and costs for underpayment since decree. | Burkart disputes arrearage calculation and argues no contempt finding. | Arrearage must be calculated; court’s failure to determine arrearage and related costs/interest constitutes error. |
Key Cases Cited
- Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433 (2009-Ohio-1222) (modification requires change not contemplated at decree)
- Leighner v. Leighner, 33 Ohio App.3d 214 (1986) (modification requires substantial change not anticipated)
- Churchia v. Churchia, 2009-Ohio-1486 (11th Dist.) (two-step burden on moving party; jurisdictional prerequisites)