Kumpus v. KumbusKumpus v. Kumbus
For Plaintiff-Appellant: DAVID L. SMITH, 101 Central Plaza South, Suite 1003, Canton, OH 44702
For Defendant-Appellee: LORRIE E. FUCHS, P.O. Box 35787, Canton, OH 44735
Delaney, J.
{¶1} Plaintiff-Appellant Ronald Kumpus appeals the April 2, 2009 judgment of the Stark County Court of Common Pleas, Family Court Division, finding him in contempt of the Final Divorce Decree and modifying his spousal support obligation.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and Defendant-Appellee Carol Kumpus were married on June 3, 1972. Two children, now emancipated, were born as issue of the marriage. Appellant filed a complaint for divorce on February 11, 2005 and Appellee filed a counterclaim for divorce on March 3, 2005.
{¶3} At the time of the divorce, Appellant was 57 years old and in general good health. He was employed as a bus driver with Canton City Schools, working 4.0 to 4.5 hours each school day. Appellant also received a monthly distribution from a 401(k) account.
{¶4} Appellee was 54 years old at the time of the divorce. She was employed full-time as a manager with Finlay Fine Jewelry Corporation, who leased a site at then Kaufmann’s store located in Jackson Township. Appellee suffered from multiple sclerosis for which she took monthly medication.
{¶5} The matter came on for hearing and the trial court issued the Final Divorce Decree on May 4, 2006. In the Decree, the trial court ordered Appellee to vacate the marital residence by March 31, 2006. The trial court gave Appellant the option of retaining the marital residence, conditioned upon Appellant securing refinancing sufficient to remove Appellee from any mortgage or home equity obligation within six months. If Appellant did not refinance within six months, Appellant was to list the home
{¶6} The trial court also awarded spousal support to Appellee. The Final Decree states, “Commencing the first date of the first month following the filing of the Final Decree, the Husband shall pay spousal support to the Wife in the amount of $1.00 per year, for a period of ten (10) years. The Court shall retain continuing jurisdiction over the amount but not the duration of spousal support. This obligation shall terminate upon the conclusion of the ten-year period or upon the death or remarriage of the Wife.”
{¶7} Neither party appealed the Final Divorce Decree.
{¶8} After the issuance of the Final Divorce Decree, the parties conflicted on the implementation on the terms of the Decree. They filed multiple motions with the trial court, to wit: Appellee’s Motion to Vacate, filed October 23, 2006; Appellee’s Motion to Show Cause, filed December 27, 2006; Appellant’s Motion to Show Cause, filed on December 27, 2006; and Appellant’s Motion for Relief filed, July 9, 2007. The trial court held an evidentiary hearing on the motions on August 21, 2007.1
{¶10} The trial court found Appellant willfully violated the Final Decree with regard to his failure to hold Appellee harmless on the mortgages and his failure to cooperate with the sale of the residence. Because of Appellant’s contempt, the trial court ordered Appellant to hold “*** Defendant harmless on all outstanding indebtedness, including the first and second mortgages and any deficits/costs resulting from the foreclosure.” (Judgment Entry, August 28, 2007). The trial court went on to state, “This provision shall be construed as in the nature of satisfaction of a marital obligation and non-dischargeable in bankruptcy. In the event that the obligation is discharged, the Court reserves jurisdiction to modify spousal support orders.” Id.
{¶11} No appeal was taken from the August 28, 2007 judgment entry.
{¶12} On November 19, 2008, Appellee filed a Motion to Award Defendant Spousal Support and a Motion for Contempt. In her affidavit, Appellee alleged that while Appellant was ordered to hold Appellant harmless for all deficiencies from the sale
{¶13} A hearing on the motions was held before the magistrate on February 4, 2009. At the hearing, Appellee testified that the marital residence was sold by Sheriff’s Sale for $166,000 in February 2008. (T. 4). In May 2008, Appellee was contacted by Beneficial Mortgage to pay the $31,000 deficiency on the home. (T. 6). Because the amount is listed on her credit report, she stated that it was affecting her ability to purchase a home. (T. 7).
{¶14} Appellee also requested increased spousal support because of her health issues. In June 2008, Appellee suffered a stroke that temporarily caused her to lose her speech and the use of her right hand. (T. 8). Appellee recovered from the stroke, but she still had issues with her speech and it impacted her ability to work full time at her retail position. (T. 8-9). Appellee testified that she was notified by her manager that if she did not return to work, she would be terminated. (T. 9).
{¶15} Appellee stated that she never received the $1.00 per year in spousal support as ordered by the Final Decree. (T. 9).
{¶16} Appellant also testified at the hearing. Appellant attempted to bring in evidence that showed Appellant’s inability to refinance or to cooperate with the sale of the marital residence. The magistrate ruled that the evidence was inadmissible as it went to the issues heard at the August 21, 2007 evidentiary hearing and was disposed
{¶17} Appellant testified that he was aware of the $31,000 deficiency. (T. 31). On December 22, 2008, Beneficial Mortgage offered to accept $4,734.00 as full settlement of the deficiency but Appellant testified that he could not pay that amount because he did not have any credit. Id. While Appellant has a brokerage account in the amount of $87,000, he was unwilling to withdraw a lump sum from the account due to the tax penalties associated with such a withdrawal. (T. 33). In January 2007, the account was valued at $130,000 and Appellant had withdrawn $43,000 to pay bills and other expenditures. (T. 60-61).
{¶18} Appellant testified that he continued to work 21.25 hours per week as a school bus driver. (T. 51). He resided with his girlfriend and shared in the expenses. (T. 37). Appellant had health issues, including upcoming heart surgery and shoulder surgery. (T. 51).
{¶19} The magistrate issued a decision on February 10, 2009. The magistrate concluded that Appellant had the financial ability to pay the proposed settlement of the deficiency and failed to hold Appellee harmless on the financial obligations related to the marital home. The magistrate further concluded that Appellant had the ability to pay spousal support and Appellee had the need for spousal support.
{¶20} The magistrate decided that Appellant was in willful contempt and ordered Appellant to serve 90 days in jail. Appellant could purge his contempt by full satisfaction of the deficiency.
{¶22} Appellant filed objections to the Magistrate’s Decision. On March 31, 2009, Appellant filed the transcript of the evidentiary hearing before the magistrate.2 The trial court held a hearing on Appellant’s objections on March 31, 2009.
{¶23} On April 2, 2009, the trial court issued its judgment entry overruling Appellant’s objections and adopting the Magistrate’s Decision.
{¶24} It is from this decision Appellant now appeals.
{¶25} Appellant raises two Assignments of Error:
{¶26} “I. THE TRIAL COURT ERRED WHEN IT AWARDED APPELLEE SPOUSAL SUPPORT AS IT WAS CONTRARY TO LAW, CONSTITUTED AN ABUSE OF DISCRETION AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶27} “II. THE TRIAL COURT ERRED WHEN IT REFUSED TO CONSIDER PROFFERED EVIDENCE WHICH WAS ESSENTIAL TO THE SPOUSAL SUPPORT AND CONTEMPT EVIDENTIARY HEARINGS.”
I.
{¶28} Appellant argues in his first Assignment of Error that the trial court abused its discretion in modifying the amount of spousal support that Appellant must pay Appellee to $500.00 per month for 133 months. We agree, in part.
{¶30}
{¶31} “(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:
{¶32} “(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.”
{¶33} In this case, the original decree states, “The Court shall retain continuing jurisdiction over the amount but not the duration of spousal support.”
{¶35} Although
{¶36}
{¶37} “(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
3105.171 of the Revised Code ;{¶38} “(b) The relative earning abilities of the parties;
{¶39} “(c) The ages and the physical, mental, and emotional conditions of the parties;
{¶40} “(d) The retirement benefits of the parties;
{¶41} “(e) The duration of the marriage;
{¶42} “(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
{¶43} “(g) The standard of living of the parties established during the marriage;
{¶44} “(h) The relative extent of education of the parties;
{¶45} “(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
{¶46} “(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party‘s contribution to the acquisition of a professional degree of the other party;
{¶47} “(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
{¶48} “(l) The tax consequences, for each party, of an award of spousal support;
{¶49} “(m) The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
{¶50} “(n) Any other factor that the court expressly finds to be relevant and equitable.”
{¶51} In deciding whether to modify a support order, the court should take into consideration not only whether any of the factors, supra, have changed, but also the comparative weight to give each factor in light of all the facts and circumstances, because the court has discretion to determine the weight to be given each factor. Mizer v. Mizer, Coshocton App. No. 08CA004, 2009-Ohio-1390, ¶36 citing Collins v. Collins, Licking Co. No. 2008-CA-00028, 2008-Ohio-4993.
{¶53} We find the trial court did not abuse its discretion in finding that a substantial change occurred in Appellee’s health that was not contemplated at the time of the original decree. Appellee’s declining health status impacted her earning capacity.
{¶54} The magistrate’s decision also reviewed the
{¶55} Upon review of the record, we find no abuse of discretion in the trial court’s decision to modify the amount of spousal support to $500.00 per month. We find the trial court utilized
{¶57} In extending the duration of the spousal support to 133 months from February 10, 2009, the trial court went beyond the terms of the original decree that set the duration of the spousal support at ten years beginning in June 2006. We therefore reverse the decision of the trial court as to the duration of spousal support and remand the matter for further proceedings consistent with this opinion and the terms of the Final Decree.
{¶58} Accordingly, Appellant’s first Assignment of Error is overruled in part and sustained in part.
II.
{¶59} Appellant argues in his second Assignment of Error that the trial court abused its discretion when it refused to consider the proffered evidence at the February 4, 2009 magistrate’s hearing. We disagree.
{¶60} At the magistrate’s hearing, Appellant attempted to bring in evidence that showed Appellant’s inability to refinance or to cooperate with the sale of the marital residence. The magistrate ruled that the evidence was inadmissible as it went to the
{¶61} Appellant did not appeal the August 28, 2007 judgment entry finding him in contempt.
{¶62} The matters before the trial court on February 4, 2009 were Appellee’s motion for contempt based on Appellant’s failure to hold Appellee harmless for a $31,000 deficiency as a result of the foreclosure on the marital home and Appellee’s motion to modify spousal support based on Appellee’s health problems. The evidence proffered by Appellant went to issues heard by the trial court at the August 21, 2007 contempt hearing.
{¶63} The admission or exclusion of evidence lies in the trial court‘s sound discretion. State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343. We find the trial court did not abuse its discretion in excluding the proffered evidence as it was not relevent to the issues in dispute.
{¶64} Appellant’s second Assignment of Error is overruled.
By: Delaney, J.
Edwards, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. SHEILA G. FARMER
PAD:kgb
For the reasons stated in our accompanying Opinion on file, the judgment of the Stark County Court of Common Pleas, Family Court Division, is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion and judgment entry. Costs to be assessed equally to Appellant and Appellee.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. SHEILA G. FARMER