Chepp v. CheppChepp v. Chepp
Rendered on the 4th day of December, 2009.
JAMES W. SKOGSTROM, Atty. Reg. No. 0012000, 2 W. Columbia Street, Suite 200, P.O. Box 1404, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
DAVID M. MARTIN, Atty. Reg. No. 0006623, 4 W. Main Street, Suite 707, Springfield, Ohio 45502
Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Appellant Mark Chepp appeals from a September 25, 2008, trial court decision overruling his motion to modify spousal support. Mr. Chepp and Appellee Jean Chepp, were married in August, 1971. Two children were born during the
{¶ 2} On December 21, 2006, Mr. Chepp filed a motion to modify spousal support because he was retiring at the end of the year. An evidentiary hearing was held on June 15, 2007, and the trial court overruled the motion the following month. Mr. Chepp filed objections, which he later voluntarily withdrew after filing another motion to modify spousal support. A hearing was held on the second motion in January, 2008, and the motion was again overruled. Mr. Chepp filed an objection to the magistrate’s decision. Finding that the trial court had not considered all of the necessary factors, the trial court ordered a supplemental evidentiary hearing, which was held in September, 2008; the trial court subsequently denied Mr. Chepp’s motion to modify his spousal support order. Mr. Chepp appeals.
I
{¶ 3} Mr. Chepp’s sole assignment of error:
{¶ 4} “THE TRIAL COURT ERRED IN NOT EQUALIZING THE INCOMES OF THE PARTIES IN ACCORDANCE WITH THE LANGUAGE OF THE PARTIES’ SEPARATION AGREEMENT.”
{¶ 5} In his sole assignment of error, Mr. Chepp contends that the trial court erred in denying his motion to modify his spousal support order. Because trial
{¶ 6} Mr. Chepp asked the trial court to modify the order of spousal support, in light of Mr. Chepp’s retirement and Mrs. Chepp’s increase in income. The trial court overruled the motion, concluding that Mr. Chepp’s retirement was voluntarily taken, at least in part, to avoid further payment of spousal support. While this determination is within the trial court’s discretion, and may warrant imputation of pre-retirement income to Mr. Chepp, the court failed to determine whether Mrs. Chepp’s increase in income was a substantial change in circumstances warranting modification of the spousal support order. Therefore, the trial court abused its discretion in denying the motion.
{¶ 7} “
{¶ 8} Rather than focusing on whether there was a substantial change of circumstances, the bulk of Mr. Chepp’s argument centers around the following language in the separation agreement and incorporated into the decree of dissolution:
“It is the intent of the parties to equalize their incomes. Husband’s annual income for the purposes hereof is $95,400. Wife’s annual income for the purposes hereof is $30,326. Consequently, to equalize their respective incomes, Husband must pay to Wife the sum of $32,537. Accordingly, Husband shall pay to Wife as and for spousal support the sum of $2,711 per month for an indefinite period; provided, however, 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 circumstances which now is not contemplated.”
This argument puts the proverbial cart before the horse. Until a substantial change in circumstances is found to have occurred, we need not address the question of how the spousal support should be re-calculated.
{¶ 10} We agree with Mr. Chepp that retirement, whether voluntary or involuntary, may amount to a substantial change in circumstances. However, we have previously held that when a voluntary early retirement is taken, any resulting decrease in income provides a basis for modification of spousal support only “if it was not done in an attempt to avoid a court ordered obligation to an ex-spouse.” Melhorn v. Melhorn (Jan. 30, 1989), Montgomery App. No. 11139. See, also, Lewis v. Lewis (May 26, 1987), Montgomery App. No. 2264. In other words, “if a party retires with the intent of defeating the spousal support obligation, the retirement is considered ‘voluntary underemployment,’ and the party’s
{¶ 11} “Before imputing income to a retired party, the trial court must make a finding that the retired person’s decision to retire was based on an intent to defeat an award of spousal support. Koch v. Koch, Medina App. No. 03CA0111-M, 2004-Ohio-7192. If there is no evidence of a purpose to escape an obligation of spousal support and the decision appears reasonable under the circumstances, then the trial court should not impute additional income to the retired party. Reed v. Reed (Feb. 16, 2001), Greene App. No. 2000CA81; Melhorn v. Melhorn (Jan. 30, 1998), Montgomery App. No. 11139.” Perry v. Perry, Clark App. No. 07-CA-11, 2008-Ohio-1315, ¶25.
{¶ 12} In Lewis v. Lewis (May 26, 1987), Montgomery App. No. 2264, the defendant retired from General Motors two years before his scheduled date of retirement, and the court found this was ‘voluntary’ for the purpose of having an alimony reduction; we could not say that the trial court abused its discretion by failing to terminate alimony on the evidence presented in the case.
{¶ 13} Some people retire earlier or later than their contemporaries for personal reasons that have absolutely nothing to do with their court-ordered spousal support. “The court should not create impediments for those who after
{¶ 14} The question is whether the motivating factor for the retirement was the intent to avoid the court order or if it were one of the factors, was it a sufficiently controlling purpose.
{¶ 15} When asked during a deposition why he had decided to retire, Mr. Chepp explained, “I didn’t find the job interesting anymore. There was no creative aspect to it. It was pretty much repeating what I had already done. I accomplished everything that I came here to do, and I spent 34 years in the museum profession, and decided that at this stage of life, it was time...to do something else.” He expanded on this explanation when he testified, “I had been in my profession for about 34 years and I was reaching an age when I wanted to do other things in my life. I always wanted to teach at the university level and I could not do that while I was the Director of the museum, time-wise and by contract I was not allowed to do that. *** I wanted to open my own studio and try to be, try to make it as a studio artist as well. So, I didn’t view it as retiring into doing nothing, I retired into doing another career, a different career.”
{¶ 17} Nevertheless, the trial court should also have considered whether Mrs. Chepp’s increase in income constituted a substantial change in circumstances. The decree indicates that at the time of the parties’ dissolution, Mrs. Chepp was earning $30,326/year. Mrs. Chepp submitted her 2006 income tax return into evidence, showing that she earned $66,754 for that year, which included her salary of $41,035, interest of $86, and $25,633 in pensions, but does not include spousal support. At the June 15, 2007, hearing, Mrs. Chepp testified that her salary for 2007 would be $52,000, though there was no testimony regarding her pension income. At the September 2, 2008, hearing, Mrs. Chepp
{¶ 18} On its face, this increase in income appears to be a substantial change of circumstances. The court concluded this, but stated: “the Court has not been presented with sufficient evidence establishing differences in the parties’ living expenses or medical expenses since the original dissolution hearing in the year 2000.” While changes in living and/or medical expenses are a “consideration” for spousal support modification decisions, such changes are not necessarily present in each case. Day v. Day, Greene App. No. 2004 CA 59, 2005-Ohio-2015. Therefore, without any evidence of such changes, the trial court must presume that there has been no substantial change in those expenses since the divorce. Accordingly, we must remand this case to the trial court for a determination of the narrow issue of whether the increase in Mrs. Chepp’s income is a substantial change of circumstances, within the meaning of
{¶ 19} For the foregoing reasons, we conclude that the trial court abused its discretion in denying Mr. Chepp’s motion to modify the spousal support order. Accordingly, Mr. Chepp’s sole assignment of error is sustained.
II
{¶ 20} Having sustained Mr. Chepp’s sole assignment of error, the judgment of the trial court will be Reversed. The case is remanded to the trial court for
BROGAN, J. and FAIN, J., concur.
Copies mailed to:
James W. Skogstrom
David M. Martin
Hon. Thomas J. Capper