DiPasquale v. DiPasquale
2016 Ohio 8457
Ohio Ct. App.2016Background
- Parties divorced in 2011; Husband (Peter) ordered to pay spousal support $49,000/yr plus a percentage of bonuses for 102 months and child support $13,091.74/yr; at divorce Husband earned $155,500+bonuses and Wife (Lyn) earned $16,000.
- One child later emancipated; Husband retired from Procter & Gamble, receiving one year of severance equal to his base pay; after that year he moved to reduce/terminate spousal support and reduce child support due to emancipation.
- Husband contended his retirement was effectively involuntary (accepted separation package to avoid termination for poor performance); claimed changed circumstances warranted modification.
- Magistrate found retirement voluntary (or, alternatively, that Husband remained voluntarily unemployed), imputed income based on Husband’s $4,000,000 investment portfolio (3–4% return ≈ prior earnings), and recalculated child support for one remaining child without imputing additional income to Wife.
- Husband did not file a transcript of the magistrate hearing with his objections; trial court adopted magistrate’s decision; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Husband's retirement is a change of circumstances warranting reduction/termination of spousal support | Wife: No change; Husband still has sufficient income/earning ability | Husband: Retirement was involuntary (avoid termination); thus decreased income should justify modification | Trial court: No abuse of discretion — retirement deemed voluntary or Husband voluntarily unemployed; no substantial change warranting modification |
| Whether trial court properly considered Husband's investment income in spousal-support analysis | Wife: Investment income may be considered as part of ‘‘income from all sources’’ | Husband: Reinvests returns and therefore shouldn't be treated as accessible income | Held: Court properly considered portfolio earnings/earning ability as income under R.C. 3105.18 when assessing support |
| Whether court should have imputed income to Wife for child-support calculation | Wife: N/A (court did not seek to impute) | Husband: Wife has retirement assets; income should be imputed for child support (avoid double-dipping) | Held: No imputation — Wife could not access retirement principal/interest without penalty until 2017, and trial court found she was not voluntarily underemployed |
| Whether lack of transcript limits appellate review of factual findings | Wife: Trial court performed independent review; magistrate findings adopted | Husband: Arguments are legal; transcript unnecessary | Held: Appellant’s failure to file transcript limits review; appellate court presumes trial court performed independent review and must accept magistrate’s factual findings absent transcript |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion review)
- Rock v. Cabral, 67 Ohio St.3d 108 (Ohio 1993) (imputing income and determining potential income are factual inquiries for the trial court)