Chepp v. CheppChepp v. Chepp
Rendered on the 5th day of November, 2010.
JAMES W. SKOGSTROM, Atty. Reg. #0012000, 2 West Columbia Street, Suite 200, Post Office Box 1404, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
DAVID M. MARTIN, Atty. Reg. #0006623, 4 West Main Street, Suite 707, Springfield, Ohio 45502-1316
Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Mark Chepp appeals from a post-remand order of the Clark County Court of Common Pleas, Domestic Relations Division, denying his motion to modify his spousal support obligation. Mr. Chepp contends that the trial court abused its discretion in denying the requested modification.
{¶ 2} We conclude that the trial court did go beyond its discretion, and failed
{¶ 3} The order of the trial court from which this appeal is taken is Reversed, and this cause is Remanded for further proceedings consistent with this opinion.
I
{¶ 4} The Chepps were married in 1971. Following the filing of a petition for dissolution and a separation agreement, a decree was entered in 2000 dissolving their marriage. Included in the separation agreement, which was incorporated in the decree, was the requirement that Mr. Chepp pay $2,711 per month ($32, 532 per annum) to Ms. Chepp as spousal support. At that time, Mr. Chepp had an annual income of $95,400, while Ms. Chepp‘s annual income was $30,306. Pursuant to the language of the separation agreement, the spousal support was intended to “equalize” the parties’ income. Essentially, the spousal support left both рarties with an annual income of approximately $63,000. The separation agreement further stated:
{¶ 5} “* * * Husband‘s obligation shall terminate upon the death of either party, Wife‘s remarriage or Wife‘s cohabitation with an adult male unrelated to her, whichever occurs first. The Court shall retain jurisdiction over the issue of spousal support for the purpose of modification in the event of a substantial change in circumstanсes which now is not contemplated.”
{¶ 6} In 2006, Mr. Chepp filed a motion to modify his spousal support
{¶ 7} Mr. Chepp appealed. In our opinion, we stated that “[w]hile we may have come to a different conclusion [rеgarding the reason for retirement], our role is only to review for an abuse of discretion, and we cannot substitute our judgment for the trial court‘s factual finding in this regard. Therefore, we conclude that the trial court did not abuse its discretion in finding that Mr. Chepp‘s voluntary early retirement did not constitute a substantial change in circumstances.” Chepp v. Chepp, Clark App. No. 2008 CA 98, 2009-Ohio-6388, ¶ 16.
{¶ 8} But we also noted that the trial court was required to consider whether the increase in Ms. Chepp‘s income constituted a substantial change in circumstances meriting a modification of the support order. We reversed the order of the trial court and remanded the matter “for a determination of the narrow issue of whether the increase in Ms. Chepp‘s income is a substantial change of circumstances, within the meaning of
{¶ 9} Upon remand, the trial court held an “informal conference” with counsel for both parties. Thereafter, the trial court issued an entry in which it stated that the increase in Ms. Chepp‘s income did “appеar to be a substantial change in circumstances.” However, the trial court further stated that there was no evidence upon which it could determine whether the increase in income, which was due in part to thе onset of pension payments to Ms. Chepp, was contemplated by the parties at the time they executed the separation agreement. Therefore, the trial court again denied the motion fоr modification upon the authority of Mandelbaum v. Mandelbaum, 121 Ohio St.3d, 2009-Ohio-1222, wherein the Ohio Supreme Court stated that any substantial change must be one that “was not contemplated at the time of the original decree.” Id. at paragraph two of the syllabus.
{¶ 10} From this order, Mr. Chepp appeals.
II
{¶ 11} Mr. Chepp‘s sole assignment оf error states as follows:
{¶ 12} “THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO FOLLOW THE REMAND ORDER OF THE APPELLATE COURT.”
{¶ 13} Mr. Chepp contends that the trial court failed to follow our mandate. The trial court did follow our mandate to the extent that it concluded that the increase in Ms. Chepp‘s annual income, from $30,326 at the time of the dissolution, to $53,456 in 2007, which does not include her pension income, constituted a substantial change in circumstances. But the trial court went beyond this “narrow
{¶ 14} ”
{¶ 15} In its decision in the case before us, the trial court stаted:
{¶ 16} “This Court has not been provided with sufficient evidence to establish when Mrs. Chepp began receiving her monthly pension benefits and therefore, it would only be speculation by this Court as to when she began receiving them. She may have been receiving her monthly pension entitlements since shortly after the parties’ dissolution or she may have started receiving them much more recently, however, as of the time of the hearing before the Magistrate on June 11, 2008 and before this Court on September 2, 2008 the Court did not have sufficient evidence to establish this fact, which in this Court‘s opinion, goes a long way in determining whether Ms. Chepp‘s monthly pension entitlements were ‘contemplated’ when the original spousal support order was agreed to by the parties and approved by the Court.
{¶ 17} ” * * * *
{¶ 18} “It is logical to assume that at the time that the parties negotiated Mr. Chepр‘s spousal support obligation, they were also both well aware of Mrs. Chepp‘s pension entitlements and the time frame in which she would be entitled to begin receiving them. Irrespective of the foregoing, however, this Court has not been provided with sufficient evidence to establish whether or not Mrs. Chepp‘s subsequent substantial increase in income was contemplated by the parties at the time that they negotiated and this Court approved Mr. Chepp‘s original spousal support obligation. In this Court‘s opinion, that burden falls upon Mr. Chepp, as the moving party seeking to modify his spousal support obligation. Without such evidence, this Court lacks jurisdiction to modify its prior order pursuant to Mandelbaum.”
{¶ 19} The parties clearly entered into the separation agreement with the intent to “equalize” the income of the parties as it existed at the time of the dissolution. At thаt point, Ms. Chepp had an income that was approximately $60,000 less than Mr. Chepp. Thus, Mr. Chepp‘s support obligation was designed to ameliorate that disparity.
{¶ 20} At the time of the trial court‘s hearings on the motion tо modify, Ms. Chepp had a salary of $53,456. She was also receiving the sum of $25,200 per year in pension payments. Thus, her total yearly income was $78,656. When combined with the $32,532 in spousal support payments due under the separation agreement, Ms. Chepp‘s total annual income is $111,188, about $48,000 more than Mr. Chepp‘s pre-retirement income minus the spousal support payments.
{¶ 21} It is illogical to assume that the parties contemplatеd that the onset of
{¶ 22} The parties did not foresee that circumstances would result in the spousal support called for in the decree leading to, not the equalization specified as the intended result, but Ms. Chepp‘s receiving $48,000 more than Mr. Chepp (even after imputing income to him as a result of his voluntary underemployment). This is evidenced by the statement in their separation agreement “* * * in the event of a substantial change in circumstances which now is not contemplated.” (Emphasis added.)
{¶ 23} An ” ‘[a]buse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instances of abuse of discretion will result in decisions that arе simply unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.” Bogart v. Blakely, Miami App. No. 2010 CA 13, 2010-Ohio-4526, ¶ 25-26.
{¶ 25} Although the trial court may impute income to Mr. Chepp upon the ground that he is voluntarily underemployed, upon remand the trial court is directed to modify spousal support tо implement the clear intent of the parties’ agreement, which is the equalization of their incomes.
{¶ 26} Mr. Chepp‘s sole assignment of error is sustained.
III
{¶ 27} Mr. Chepp‘s sole assignment of error having been sustained, the order of the trial court from which this appeal is taken is Reversed, and this cause is Remanded for further proceedings consistent with this opinion.
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DONOVAN, P.J., and BROGAN, J., concur.
Copies mailed to:
James W. Skogstrom
David M. Martin
Hon. Thomas J. Capper