2013 Ohio 4951
Ohio Ct. App.2013Background
- Jeffrey Ulery was convicted in 2008 and imprisoned; he and Lisa Ulery divorced in January 2009 after 27 years of marriage.
- At divorce the trial court found Jeffrey voluntarily unemployed due to incarceration and imputed annual income of $98,819; it ordered spousal support of $1,500/month for nine years but delayed payments until August 2011 because Jeffrey received a 31‑month credit tied to asset division.
- The trial court retained jurisdiction over spousal support; this court previously affirmed the divorce decree on appeal.
- Jeffrey was released in early 2012 and moved to modify spousal support and the property division, arguing his actual post‑incarceration income (~$35,000) was far below the imputed income and that Senate Bill 337 (the “Second Chance Law”) should limit imputation.
- The trial court ruled S.B. 337’s child‑support provision did not apply to spousal support, found no unforeseen change of circumstances, credited Jeffrey’s testimony that he could make up to $50,000 and noted substantial assets available to him, and denied modification.
Issues
| Issue | Plaintiff's Argument (Lisa) | Defendant's Argument (Ulery) | Held |
|---|---|---|---|
| Whether Am.Sub.S.B. 337 (Second Chance Law) prevents imputing income for spousal support after lengthy incarceration | S.B. 337 applies only to child support; court should not broaden statute | S.B. 337’s proscription on imputing income to incarcerated parents should be applied analogously to spousal support to aid reentry | Court: S.B. 337 addresses child support (R.C. 3119.05); legislature did not extend it to spousal support—trial court correctly declined to graft the provision onto spousal support |
| Whether spousal support should be modified for a substantial, unanticipated change of circumstances (income, assets, living expenses) | Spousal support should be reduced because actual post‑incarceration earnings are much lower than imputed income and he now bears living expenses | No substantial, unanticipated change: imputation and voluntary reduction were contemplated at divorce; Ulery has income potential (~$50,000) and significant assets to meet obligation | Court: No abuse of discretion. No unforeseen change; evidence supported finding Ulery could earn ~$50,000 and had assets to pay support, so modification denied |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (standard for abuse of discretion)
- Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433 (standards for modification of spousal support requiring substantial change of circumstances)