2013 Ohio 2952
Ohio Ct. App.2013Background
- Married in 1994; two children; divorce decree in 2009 designating Chantal as residential parent and ordering Stephen to pay child support and spousal support with a sunset/condition upon cohabitation.
- Judgment reserved jurisdiction to modify spousal support amount but not the term; sale of marital residence contemplated with spousal support increase upon closing.
- Stephen retired from GM in Feb 2011 claiming income decrease; sought modification of child and spousal support.
- Magistrate denied modification, imputing Stephen's income at $89,000; court adopted magistrate's decision December 8, 2011.
- Chantal filed contempt motions alleging nonpayment of child and spousal support; contempt findings issued March 13, 2012 and adopted April 2, 2012.
- This appeal raises whether the court properly denied modification, whether income imputation was proper, and whether the contempt order was properly adopted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imputation of pre-retirement income is proper | Pepin-McCaffrey contends voluntary retirement reduced income should be treated as substantial change. | McCaffrey argues retirement caused involuntary decrease or not a substantial change. | Imputation at pre-retirement level upheld; voluntary retirement found to be a change not warranting modification |
| Burden of proof for voluntary underemployment/modification | Pepin-McCaffrey argues burden shifts to underemployed party after claim raised. | McCaffrey asserts proper allocation requires movant to prove substantial change in circumstances. | Stephen bore burden to prove substantial change; claim waived due to lack of objections |
| Procedural propriety of reconsideration and magistrate's decision | Pepin-McCaffrey argues trial court should reconsider; not properly treated as objection to magistrate. | McCaffrey contends reconsideration was appropriate remedy. | Motion for Reconsideration nullity; court properly denied and did not treat as objections |
Key Cases Cited
- Flauto v. Flauto, 2006-Ohio-4909 (7th Dist. 2006) (change in circumstances must be substantial and not contemplated)
- Kaput v. Kaput, 2011-Ohio-10 (8th Dist. 2011) (voluntary income reduction considered in modification analyses)
- Cope v. Guehl, 2011-Ohio-4311 (7th Dist. 2011) (burden-shifting in modification proceedings)
- Rock v. Cabral, 67 Ohio St.3d 108 (1993) (allocation of burden in voluntary underemployment determinations)
- Mandelbaum v. Mandelbaum, 2009-Ohio-1222 (Ohio Supreme/Appeals 2009) (standards for substantial change in circumstances)