Preseren v. Preseren
2011 Ohio 5181
Ohio Ct. App.2011Background
- Divorced after 22+ years of marriage; spousal support ordered at $1,224/month, continuing unless changed.
- Alan later married Carol; his financial condition deteriorated starting in 2008, with last full-time paycheck in Oct 2009 and no funds by 2010.
- In 2010 Alan was diagnosed with atrial fibrillation and congestive heart failure, with a prognosis of about five years and no health insurance, relying on VA treatment.
- Alan’s wife Carol receives a private pension (~$4,072/month) and used funds to pay living expenses, incurring a $35,000 equity loan against their home.
- Alan filed May 2010 to terminate/modify spousal support; magistrate denied modification in Nov. 2010; trial court adopted the magistrate’s decision in Jan. 2011.
- Trial court found a change in circumstances but declined to modify, considering Charlaine’s needs and Carol’s income aiding Alan; appellate reversal is granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by denying modification despite drastic income reduction | Preseren’s income drastically reduced; request to terminate/modify | Charlaine still needs support; spending and assets justify no modification | Abuse found; modification/termination remanded |
| Whether the court failed to consider totality of circumstances including inability to pay | Totality shows no ability to pay $1,224/mo | Charlaine’s needs and other factors justify maintaining support | Abuse found; must reassess under totality |
| Whether the court erred in considering the new spouse's income as a factor | Cannot rely on Carol's income to pay spousal support | Can consider sharing of living expenses with new spouse | Proper to acknowledge shared living costs; still, modification warranted |
Key Cases Cited
- Feldman v. Feldman, 2009-Ohio-4202 (Ohio) (new spouse’s income may inform ability to pay spousal support)
- Manzella v. Manzella, 2005-Ohio-4519 (Ohio) (sharing living expenses considered in support decisions)
- McNutt v. McNutt, 2005-Ohio-3752 (Ohio) (basis for considering concurrent expenses in modification)
- Kaechele v. Kaechele, 35 Ohio St.3d 93 (1988) (court must provide basis for award to be fair and equitable)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard in domestic relations matters)
- Reveal v. Reveal, 154 Ohio App.3d 1132 (2003) (appellate review of spousal support awards)