LYN D. DiPASQUALE n.k.a. DOLL, Plaintiff-Appellee, v. PETER M. DiPASQUALE, Defendant-Appellant.
CASE NO. CA2016-04-024
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
12/28/2016
[Cite as DiPasquale v. DiPasquale, 2016-Ohio-8457.]
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 09DR33138
Mitchell W. Allen, P.O. Box 227, Mason, Ohio 45040, for defendant-appellant
O P I N I O N
PIPER, P.J.
{¶ 1} Defendant-appellant, Peter DiPasquale (“Husband“), appeals a decision of the Warren County Court of Common Pleas, Domestic Relations Division, denying his request to terminate or reduce the amount of spousal and child support he pays plaintiff-appellee, Lyn DiPasquale n.k.a. Lyn Doll (“Wife“).
{¶ 2} Husband and Wife were divorced in 2011, and had two minor children at the time. Husband was ordered to pay Wife $49,000 per year in spousal support, plus a
{¶ 3} Since that time, one of the parties’ children has become emancipated and Husband retired from his employment at Procter & Gamble (“P&G“). Husband received one year of severance pay at the time he retired. Once the one-year period passed during which Husband‘s severance pay was equal to his regular earnings, Husband filed a motion to reduce child support based on his child‘s emancipation, and to reduce or terminate his spousal support based on his retirement.
{¶ 4} During a hearing on the matter, Husband argued that his retirement from P&G was not voluntary, and that he retired in lieu of being fired for poor performance. Husband, who worked in human resources, asserted that he had received multiple poor reviews, and that P&G‘s common practice was to terminate the employment of employees after successive poor reviews. Husband testified that he accepted P&G‘s offer of a voluntary separation package as an alternative to termination without any benefits.
{¶ 5} The magistrate issued a decision, finding that no change of circumstances had occurred warranting a reduction of spousal support. The magistrate also determined a new amount for child support given that one child was emancipated. Husband filed objections to the magistrate‘s decision regarding both spousal and child support, but did not provide the trial court with a transcript of the hearing. The trial court adopted the magistrate‘s decision in full, thus making it an order of the court. Husband now appeals the trial court‘s decision, raising the following assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO CHANGE IN CIRCUMSTANCES WITH RESPECT TO SPOUSAL SUPPORT.
{¶ 8} Husband argues in his first assignment of error that the trial court erred in determining that his retirement from P&G did not constitute a change of circumstances to warrant reduction or termination of spousal support.
{¶ 9} A trial court has broad discretion in determining a spousal support award, including whether or not to modify an existing award. Burns v. Burns, 12th Dist. Warren No. CA2011-05-050, 2012-Ohio-2850, ¶ 17. Thus, a spousal support award will not be disturbed on appeal absent an abuse of discretion. Id. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 10} According to
{¶ 11} Before we address the trial court‘s decision, we first note that Husband failed to file a transcript with the trial court of the magistrate‘s hearing. As such, the trial court was, and this court is, limited in a review of the magistrate‘s decision.
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{¶ 14} In addition, although transcripts of the proceedings are included in the record on appeal, as an appellate court, we are precluded from considering evidence that was not before the trial court during its independent review. Finkelman v. Davis, 12th Dist. Butler No. CA2003-07-173, 2004-Ohio-3909, ¶ 6. An appellate court cannot add matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter. Stevens at ¶ 24. Consequently, because Husband failed to file transcripts of the proceedings below, he is precluded from challenging on appeal the trial
{¶ 15} The magistrate determined that Husband‘s circumstances based upon an involuntary decrease in salary did not occur because Husband‘s retirement was voluntary. The magistrate further determined that Husband‘s circumstances, even with retirement, had not otherwise changed to warrant a reduction or termination of his spousal support.
{¶ 16} Regarding the voluntary nature of Husband‘s retirement, the magistrate indicated that Father executed a voluntary separation package as an alternative to his being terminated for poor performance. The terms of the separation agreement provided Husband with one year of pay equal to his base salary of $155,500. While the magistrate considered that Husband received multiple poor performance reviews, the magistrate determined that Husband did not make any attempt to improve his performance or to otherwise negotiate continued employment with P&G despite the poor performance. While a voluntary retirement does not outright bar consideration of a party‘s decrease in income when determining if there was a substantial change of circumstances, the magistrate did not stop its analysis at whether Husband‘s retirement was voluntary. Robinson v. Robinson, 12th Dist. Brown Nos. CA93-02-027 and CA93-03-047, 1994 WL 110197, *1; Mlakar v. Mlakar, 8th Dist. Cuyahoga No. 98194, 2013-Ohio-100, ¶ 23.
{¶ 17} Instead, the magistrate determined that even if Husband‘s retirement was involuntary, Husband chose to remain voluntarily unemployed. The magistrate addressed Husband‘s retirement agreement, and that it provided Husband with “extensive free outplacement services, and reimbursement of up to $5,000 for any education or job-training [Husband] chose to pursue.” While the agreement also included a noncompete clause, the magistrate noted that Husband had a right to seek a release from P&G from the noncompete clause according to the terms of the separation agreement. However, and despite the agreement providing additional resources to assist Husband in becoming re-employed,
{¶ 18} The magistrate also found that Husband, who was 60 years old at the time of the hearing, did not have physical or mental disabilities that would prevent him from seeking employment. However, Husband neither sought employment after his retirement, nor did he “plan to look for a job” despite being in good mental and physical heath, and having “lengthy experience with a renowned global corporation.” Despite Husband‘s plans to stay unemployed, the magistrate found that Husband did not make any strides to lower his budget. Instead, Husband continues to live in his mortgaged home, valued at $1,300,000, and his expenses reach $10,000 per month.
{¶ 19} We agree with the trial court that the magistrate‘s findings support its decision that Husband‘s retirement was voluntary and that even if it were not, Husband remains voluntarily unemployed. Additionally, the magistrate further determined that regardless of, and aside from, Husband‘s voluntary retirement, Husband‘s financial circumstances had not changed to warrant a spousal support modification.
{¶ 20} The magistrate determined that Husband failed to show a change in circumstances given that Husband has access to income from his investments capable of producing an amount similar to his previous earnings from P&G. Specifically, the magistrate found that Husband‘s investment portfolio has a value of approximately $4,000,000 and that according to Husband‘s testimony, a “reasonable rate of return” on his investments would be approximately three to four percent. As such, the magistrate found that Husband has access to earnings equal to approximately $160,000 per year based on his portfolio without being employed in any capacity.
{¶ 21} Husband argues that the magistrate erred by considering investment income because he chooses to reinvest the interest income on a continual basis rather than
{¶ 22} Despite his choice to reinvest his interest income, Husband has undisputed income from his portfolio, and has an admitted earning ability of three to four percent on his $4,000,000 in assets.3 Given that Husband will earn as much, or more than, what he earned while employed with P&G, the magistrate determined that no change of circumstances occurred to warrant a change in Husband‘s spousal support obligation. We find no abuse of discretion in the trial court‘s adoption of this finding, nor in the overall decision to deny Husband‘s motion to modify his spousal support obligation. As such, Husband‘s first assignment of error is overruled.
{¶ 23} Assignment of Error No. 2:
{¶ 24} THE COURT ERRED IN FAILING TO CONSIDER MS. DOLL‘S INVESTMENT INCOME FOR CHILD SUPPORT PURPOSES.
{¶ 25} Husband argues in his second assignment of error that the trial court erred in not imputing income to Wife for purposes of the child support calculation.
{¶ 27} Regarding Wife‘s salary, the magistrate determined that Wife‘s salary had increased from $16,000 at the time of the divorce to $26,520 working in a business she and her sister own and operate. However, the trial court did not find that Wife was voluntarily under or unemployed, which is a predicate to income imputation. See
{¶ 28} Moreover, the income Husband wants imputed to Wife is not yet reachable by Wife. Wife has retirement benefits of approximately $1,633,000, but cannot access the principal or interest on these assets without incurring a ten percent penalty. This prohibition is in place until 2017 when Wife reaches a certain age. As such, the magistrate determined that Mother‘s income was limited to the $26,520 she earns from the family business, but did not include any interest income given Wife‘s ineligibility to withdraw such without penalty.
{¶ 29} The magistrate made these findings after considering the factors set forth in
- The parent‘s prior employment experience;
- The parent‘s education;
The parent‘s physical and mental disabilities, if any; - The availability of employment in the geographic area in which the parent resides;
- The prevailing wage and salary levels in the geographic area in which the parent resides;
- The parent‘s special skills and training;
- Whether there is evidence that the parent has the ability to earn the imputed income;
- The age and special needs of the child for whom child support is being calculated under this section;
- The parent‘s increased earning capacity because of experience;
- The parent‘s decreased earning capacity because of a felony conviction;
- Any other relevant factor.
{¶ 30} As previously stated, we find that the magistrate‘s determination that Husband was voluntarily unemployed was properly adopted by the trial court. Based on the testimony and evidence before the magistrate, Husband‘s imputed income for purposes of child support calculations was $155,500, or the amount he was able to earn while employed with P&G. The magistrate‘s decision makes clear that it had made a determination that Husband was “voluntarily unemployed and imputes to him his prior earned income of $155,500.” The trial court, however, never found Wife to be under or unemployed, and thus did not impute income to Wife based on possible income she could not yet access from her investments.
{¶ 31} Given our limited review of the record, and our adherence to the magistrate‘s factual findings, we find that the trial court did not abuse its discretion in adopting the magistrate‘s determination of Wife‘s income for the purposes of child support. The magistrate found that Wife could not access the principal of her retirement accounts, or the
{¶ 32} Without a transcript of the proceedings, we are bound to accept the magistrate‘s findings, and agree with the trial court that the magistrate‘s decision supports its findings that Mother could not access her interest income prior to 2017. Husband, conversely, had reached the required age, and was permitted to and had unfettered access to his principal and interest income. As such, we find no abuse of discretion in the incomes imputed, or not imputed, to the parties for purposes of child support calculations. Husband‘s second assignment of error is therefore, overruled.
{¶ 33} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.